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HomeMy WebLinkAboutR-2006-139 Wal-Mart Findings of Fact, Conclusions of Law and Final Decision of Yakima City Council (AND DISMISSAL)RESOLUTION NO. R-2006-139 A RESOLUTION approving the attached and incorporated Findings of Fact, Conclusions of Law and Final Decision of the Yakima City Council following appeal to the Yakima City Council of the Hearing Examiner's recommendation in the Matter of Class (3) Review Of an Application Submitted by CLC Associates For Approval of a Proposed Wal-Mart Superstore Facility with Associated Commercial Uses in the CBDS Zone, and remand by City Council for the Hearing Examiner's further consideration of certain issues. WHEREAS, on April 9, 2004 CLC Associates, on behalf of Wal-Mart Stores, Inc., submitted an application to the City of Yakima for a land use permit to construct a Supercenter, including a fueling station and outlot pads for future commercial retail expansion; said application was reviewed by the City of Yakima Planning Division and a staff report recommending approval of the application subject to conditions was submitted to the Hearing Examiner for consideration; and WHEREAS, on December 14 and 15, 2005, the Hearing Examiner conducted a public hearing to accept evidence and testimony relating to the Wal-Mart application; an initial decision was issued by the Hearing Examiner on January 21, 2006, approving the application with conditions; and WHEREAS, on February 7, 2006 and February 8, 2006 respectively, Concerned Citizens of Yakima and CLC Associates/Wal-Mart Stores, Inc., filed appeals of the Hearing Examiner's decision to the Yakima City Council; the City Council conducted a closed record public hearing on April 17 and 19, 2006 to address the issues raised by the appellants, ultimately remanding the matter to the Hearing Examiner for further consideration of two specific conditions set forth in the Hearing Examiner's initial decision; and WHEREAS, the Hearing Examiner re -opened the public hearing regarding the Wal- Mart application for further consideration of the two specific conditions remanded by City Council, ultimately issuing the Hearing Examiner's Decision on Remand on July 10, 2006; and WHEREAS, on August 29, 2006 the City Council re -opened the closed record hearing to complete deliberations of the Hearing Examiner's Decision On Remand; and WHEREAS, following a full and complete consideration of all conditions recommended by the Hearing Examiner, together with consideration of all arguments offered by the Concerned Citizens of Yakima and CLC Associates/Wal-Mart Stores, Inc., the City Council reached a final decision as to the Superstore Application and each (jc)res/Wal-Mart-Findings, Conclusions and Final Decision 1 condition applicable thereto, which Findings of Fact, Conclusions of Law and Final Decision are attached hereto and incorporated herein by this reference, Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The attached and incorporated Findings of Fact, Conclusions of Law and Final Decision of the Yakima City Council in response to the appeal to the Yakima City Council of a recommendation of the Hearing Examiner in the Matter of Class (3) Review Of an Application Submitted by CLC Associates For Approval of a Proposed Wal-Mart Superstore Facility with Associated Commercial Uses in the CBDS Zone are hereby approved and adopted. ADOPTED BY THE CITY COUNCIL this 3`d day of October, 2006. ATTEST: David Edler, Mayor (jc)res/Wal-Mart-Findings, Conclusions and Final Decision 2 City of Yakima, Washington City Council's Final Decision with Findings of Fact and Conclusions of Law October 3, 2006 In the Matter of Class (3) Review Of an Application Submitted by: CLC Associates For Approval of a Proposed Wal-Mart Superstore Facility with Associated Commercial Uses in the CBDS Zone UAZO CL (2) #16-04 UAZO CAO #6-04 EC #6-04 I. SUMMARY OF DECISION. The Yakima City Council APPROVES the Hearing Examiner's Decision on Remand with modifications for the Superstore located at the southwest corner of West Nob Hill Boulevard and South 64th Avenue. This approval is subject to the validity of the current CBDS zoning designation for the site currently under appeal before the Washington State Court of Appeals, Division III. 11. PROCEDURAL HISTORY. On April 9, 2004, CLC Associates, on behalf of Wal-Mart Stores, Inc. submitted an application to the City of Yakima for a land use permit to construct, at the southwest corner of West Nob Hill Boulevard and South 64th Avenue, a Wal-Mart Supercenter, a six -island fueling station, and two outlot pads for future stand alone buildings with retail tenants. The City of Yakima, Planning Division reviewed the application and prepared a staff report recommending approval of the application subject to conditions. On December 14 and 15, 2005, the Hearing Examiner, Gary M. Cuillier, conducted a public hearing to accept evidence and testimony relating to the Wal-Mart Superstore application. The evidentiary record was kept open until January 6, 2006 for the limited purpose of allowing any interested persons to submit comments regarding a supplemental noise study and to submit responses to specific written questions provided at the hearing by the Examiner. Documentary evidence and witness testimony was provided by the applicant, the City Planning Department, and members of the public. The Hearing Examiner issued his initial decision on January 21, 2006 ("Initial Decision"). On February 7, 2006 and February 8, 2006, Concerned Citizen's of Yakima and CLC Associates/ Wal-Mart Stores, Inc., respectively, filed appeals of the Hearing Examiner's January 2006 decision to the Yakima City Council, pursuant to YMC 16.08.030.. The City Council held a closed record hearing on April 17 and 19, 2006 accepting oral argument and briefing from the appellants and/or their representatives. At the closed record hearing, the City Council voted to the remand the matter to the Hearing Examiner for the following purposes set CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2)1/16-05; CAO 6-05; EC 6-04 1 forth in Resolution R-2006-68: The Hearing Examiner's decision, dated January 21, 2006, is hereby remanded to the Hearing Examiner to re -open the open -record public hearing on the Wal- Mart application for a superstore at South 64th Avenue and West Nob Hill Boulevard solely for the purpose of taking public testimony on Condition Nos. 18 and 47 and revising his decision accordingly as those conditions relate to (1) what is the appropriate noise standard to be applied to the proposed Wal-Mart Superstore and whether the proposed mitigation or additional mitigation is required, and (2) is a Wal-Mart Superstore at this proposed location a "place of public assembly" and/or a threat to public safety, in violation of the City's ASO, including, but not limited to, fact-finding and inquiry into the decision-making process and position of the Airport Board concerning the ASO and the proposed Wal-Mart Superstore. It is further resolved that the Hearing Examiner will conduct said re -opened open -record public hearing on or about Monday, June 19, 2006, to be completed by Friday, June 23, 2006." (Exhibit R-1) In accordance with the City Council's directive, the Hearing Examiner re -opened the public hearing on the Wal-Mart application to consider the issues on remand on June 19- and June 20, 2006. Participating in this hearing were the applicant's attorney, Jack McCullough; the attorney for the Concerned Citizens of Yakima, James Carmody; and the attorney for the City, Terry Danysh. Substantial additional evidence was submitted at the hearing on remand. The record was kept open until June 28, 2006 for the limited purposes of allowing interested persons to submit responses to two specific questions posed at the hearing by the Examiner and to allow David Dietz to provide examples of ordinances defining the term "places of public assembly" to support his firm's position on the meaning of that term stated in the EIS. (Final EIS, page 147). On July 10, 2006, the Hearing Examiner issued the Hearing Examiner's Decision on Remand ("Remand Decision"). On August 29, 2006, the City Council re -opened the closed record hearing, to consider the Hearing Examiner's Decision on Remand. III. TESTIMONY AND EXHIBITS. The following 19 members of the public testified at the December 14, 2005, hearing- and some of them submitted letters, studies or other written materials contained in the exhibit(s) after their respective names: Anne Bringloe (Ex. 124); August Kroll; Doris Ayyoub (Ex. 125); Glen Weaver; Michael Noble (Exs. 64, 165, 190 and 191); Tyler Schultz; Wilma Koski (Exs. 41, 126 and 188); Freya Burgstaller; Char Caprile; Rudy Kezele; Christine Clark; Bill Carnahan; Gerry Russell; Scott Wilson; Ron Voris; Roy Bates; Daniel Stobie; Sandy Lloyd; and Alfred Carlson. Mr. Bates was the only one who spoke in favor of the proposal. The City Planning Division's staff report recommending approval of the proposal with conditions was then presented by Planning Supervisor Bruce Benson. Wal-Mart attorney Jack McCullough then called the following nine witnesses who were instrumental in the preparation of the EIS for the proposal: Dean Logsdon (Ex. 149); Peggy Williamson; Kathryn Jerkovich (Ex. 150); Kerrie Standlee (Ex. 151); William Shiels (Ex. 148); Mark Krigbaum (Ex. 152); David CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 2 Ketchum; Richard Steffel (Ex. 153) and Kevin Picanco (Ex. 154). All testified as to the insignificance of environmental impacts that would result from imposition of the proposed mitigating conditions on this proposal. The following 24 members of the public testified at the December 15, 2005 hearing on and some of them also submitted evidence contained in the exhibit(s) listed after their names: Joel Hubble (Exs. 100 and 156); Tony Weld (Ex. 157); Steve Kuper; Norma Howell; Scott Wilson, Michael Harves; Susan Martinez (Ex. 159); Robert Lounsbury; George Ferrari; Sharon Chard; Gary Willis; Ann Roy (Ex. 136); Debra Boyle; Manual Figueroa; Bob Whitney (Exs. 111 and 163 — same letter); Sandy Hyde; Sue Carlson; Lorene Thaxton-Burton; George McClaine; Barbara Smith -Gilbert (Ex. 138); Michael Noble (Exs. 64, 165, 190 and 191); Bob Brown (Ex. 167); Ron Martin; and Todd Lyons. All of these residents testified in opposition to the proposal. The City's attorney, Terry Danysh, called the following four witnesses who explained the City process and peer review findings: Doug Maples; Julia Kuhn-Butorac (Ex. 168); Kristy Hendrickson (Ex. 169); and Reid Shockey (Ex. 172). In all, 42 witnesses testified against the proposal and 17 witnesses, including the applicant's and City's representatives and consultants, testified in favor of the proposal. In all, 222 members of the public signed in prior to the hearing held the evening of December 14th and 43 members of the public signed in prior to the hearing held the evening of December 15tH There were a considerable number of people present both nights who did not sign in or testify. Prior to the conclusion of the hearing on December 15th, Mr. McCullough called witnesses to address questions submitted by members of the public, evidence was presented regarding traffic concurrency issues and the record was closed except for inclusion of an economic impact analysis referenced in the EIS requested by the Examiner (Ex. 189), comments regarding the supplemental noise study (Ex. 151) and responses to the Examiner's list of questions (Ex. 173) by January 6, 2006. The economic impact analysis was provided (Ex. 189). On or before January 6, 2006, three letters were received regarding the supplemental noise study. (Ex. 188, the last five pages of Ex. 191 and Ex. 193); and three letters were received responding to the Examiner's questions. (the first 11 pages of Ex. 191, Ex. 192 and Exs. 194 — 196). The record was closed on January 6, 2006. The exhibits in the remand portion of the open record public hearing were distinguished from those submitted at the original hearing by designating them as "Ex. R-1" and so on. The following representatives of the Yakima Air Terminal Board and staff testified on June 19, 2006: James Adams, 1st Vice Chairman; Greg Berndt, Treasurer; Buck Taylor, Airport Manager; and Jerry Kilpatrick, Assistant Manager. Wal-Mart attorney Jack McCullough called the following witnesses on June 19 and June 20, 2006, who submitted evidence contained in exhibit(s) listed after their names: Kerrie Standlee, expert re noise (Ex. 151 previously submitted at original hearing); Michael Shinn, Congdon Development Company, LLC's attorney (Ex. R-4); and David Ketchum, an aviation expert (Ex. R-6). CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64t'' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 3 The City of Yakima's attorney, Terry Danysh, called David Dietz as a witness on June 20, 2006. He is an airport planning consultant and senior aviation planner with the firm of Mead and Hunt who was instrumental in preparing the "Airport" section of the SEPA Environmental Impact Statement. (FEIS pgs. 145-150; Ex. R-18). Several members of the public, including members of Concerned Citizens of Yakima represented by attorney James Carmody, testified on June 19 and June 20, 2006: Tyler Schultz; Wilma Koski (Ex. R-7); Shane Smith (Ex. R-28); Cecile Shoot; and June Busch. In all, 13 witnesses testified and others asked questions of the expert witnesses. The expert witnesses answered the questions from members of the public. Attorneys Jack McCullough, James Carmody and Terry Danysh examined and cross-examined some of the expert witnesses, and otherwise presented their clients' respective positions. IV. BASIS FOR DECISION. The Yakima City Council's Final Decision is based on the Hearing Examiner's Decision on Remand, the record developed during the open record public hearing, and the legal briefing and argument provided by the appellants before the City Council. V. ISSUES RAISED ON APPEAL BEFORE THE YAKIMA CITY COUNCIL. The following issues were raised on appeal by CLC Associates and Wal-Mart Stores, Inc. and/or Concerned Citizens for Yakima. 1. Condition No. 7: "The lot coverage will not exceed 78% even though 100% is the maximum allowed in the CBDS zoning district." Hearing Examiner's Position: The Hearing Examiner did not address the specific reason for limiting the lot coverage to 78% other than it is consistent with Wal -Mart's application site plan. Hearing Examiner Condition No. 1 provides, in part, that "the site plan dated October 7, 2005 . . . shall be the official site plan, building perspective, building elevation and color scheme. A final official site plan will be filed showing any changes or conditions that might be required by the hearing examiner." See Remand Decision at 44. Hearing Examiner Condition No. 2 provides that, "[m]inor modifications can be made to the site plan ...." Remand Decision at 44. The Hearing Examiner defines "minor modifications" as those that "in the Director's opinion, pose no greater external impact on the road system, Wide Hollow Creek buffers, adjacent residential areas, lighting or other features for which conditions have been imposed, than those caused by the site plan as approved." Id. Wal -Mart's Position: Wal-Mart requested the City Council strike Condition No. 7. Wal-Mart argued: (1) the condition is unreasonable since the submitted site plan is not the final site plan and does not reflect changes that are required to make the final site plan consistent with the Hearing Examiner's conditions; (2) it would be impossible to comply with Hearing Examiner Condition No. 43, requiring a seven -foot path behind the store, and remain at 78% lot coverage; (3) the condition exceeds the zoning code requirements and the staff report's recommendations; and (4) the condition is contrary to Hearing Examiner Condition Nos. 1 and 2 which allow minor modifications to the site plan with the approval of the Director of Community and Economic Development. CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 4 CCY's Position: Wal-Mart submitted a site plan that proposed 78% site coverage. The submitted site plan formed the basis for environmental review, public and agency comment and ultimately the HE's decision. Lot coverage and open space have always been issues with respect to compatibility of proposed commercial uses and adjoining residential neighborhoods (lot coverage standard in R-1 zone is 45%). The addition of a pedestrian/bicycle path was designed to address access and connectivity concerns. The site is large and contains sufficient property to accommodate the development of the pathway. Wal-Mart provided no evidence that the construction of the path precludes compliance with lot coverage condition and a "simple review of the parcel map discloses ample property to accomplish all improvements." Staff Report Recommendations: Staff Report Recommendation Nos. 1 and 2 are the same as the Hearing Examiner's Condition Nos. 1 and 2. Thus, the Report provides that the October 7, 2005 site plan and perspective and elevation drawings dated November 29, 2005 "shall be the official site plan" and that minor modifications to the site plan may be approved by the Director of Community and Economic Development. The Report further recommends that "the exterior architecture will substantially conform to the perspective drawing ... set forth in the materials submitted on November 29, 2005." Yakima Code: Under Class (2) review, YMC 15.10.030 provides that the reviewing official has the authority to impose special conditions, including but not limited to: 1. limiting and controlling the dimensions, number, shape, and location of structures, including fences, signs and buildings; and 2. requiring and designating the location and size of open space. City Council's Position: The application site plan identifies that 78% of the lot will be covered by structures. It is appropriate to condition lot coverage based on the site plan submitted by the applicant. Therefore, the Yakima City Council adopts the Hearing Examiner's findings and conclusions without modification and requires that the lot coverage will not exceed 78%, with minor exceptions identified above, including the above -referenced pathway. 2. Condition No. 16: "Internal spaces will be structurally designed to allow conversion to smaller retail spaces meeting IBC requirements, in the event of supercenter closure, unless the Director of Community and Economic Development allows the applicant to instead post a bond or deposit funds sufficient to pay for the cost of removal of the building if it deteriorates or if it remains vacant for a specified period of time after closure." Hearing Examiner's Position: Condition No. 16 is listed under section (g) entitled "Blight Prevention." The Hearing Examiner acknowledged the analysis of economic impacts is not a required element of the review process under RCW 36.70B. The Hearing Examiner's condition, however, is based on the concern that significant public opposition to the Wal-Mart superstore may affect Wal -Mart's economic viability at the proposed location. Thus, the Hearing Examiner recommends the store be designed so that it could easily be partitioned into smaller spaces. The Hearing Examiner further explains "[i]nsofar as the applicant indicated that is expensive and not practical because a store CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 5 of this size is normally removed if it closes, the Examiner allows the Director of Community and Economic Development to instead accept a bond or other form of security to insure the City will have funds to remove the structure if it were to remain vacant for an unreasonable period of time after it closes." See Remand Decision at 33. Wal -Mart's Position: Wal-Mart asserted the condition is unreasonable and unwarranted as there is no evidence in the record that the Supercenter likely would close, if the store did close that significant impacts would result from the closure, or that smaller retail stores would likely relocate in a building the size of the Wal-Mart store. CCY's Position: Cites the FEIS for the proposition that closures can and do occur, and therefore the City should plan accordingly. Staff Report Recommendations: The Staff Report recommends that internal spaces be structurally designed to allow conversion to smaller retail spaces meeting IBC requirements, in the event of Supercenter closure. FEIS Recommended Mitigation: Wal-Mart states that, on occasion, an expansion or relocation cannot be accommodated by an existing Wal-Mart, and an existing store is left vacant. According to the company, these are typically smaller, older stores, which do not have adequate site area to accommodate an expansion to a Supercenter. As of July 15, 2005, nationwide there were approximately 32 former Wal-Mart store buildings listed as for sale on the Wal-Mart Realty web site. In Washington state there were no vacant stores listed. See FEIS at 95. The FEIS identifies a "Significant Unavoidable Adverse Impact" "[i]f the Supercenter were to close in the future [because] the building could remain vacant for an extended period as a purchaser for its 204,000 square feet was sought." The FEIS recommends "as a condition of permit approval, a maintenance bond be required of Wal-Mart. The bond will be executed in the event that, in the opinion of the City, lack of maintenance on any portion of the property poses a detriment to the appearance, health or safety of the site. The amount of the bond will be determined during permit review, but is typically 120% of the estimated maintenance cost over some period of time (e.g., one year, two years, etc.)." See FEIS at 96. Yakima Code: YMC 15.10.030 provides that the reviewing official has the authority to impose special conditions, including reclamation of any site after discontinuance of use or expiration or revocation of a permit. City Council's Position: The FEIS identifies the potential closure of the Wal-Mart Supercenter as a "Significant Unavoidable Adverse Impact." YMC 15.10.030 provides authority to impose reclamation requirements of the site after the discontinuance of use. The City Council finds that due to the size of the proposed project, the desire to avoid potential large vacant structures within the Central Business District Support area (such as seen with the vacated K -Mart and large grocery stores that have either closed or relocated), and the evidence in the record demonstrating that Wal-Mart has empty stores for sale as a result of changing business plans, reclamation of the site under YMC 15.10.030 is required. Therefore, the City Council adopts the Hearing Examiner's condition with the modification that Wal-Mart must either destroy the building or convert the building into smaller spaces within three years after closure. CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64t'' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 6 3. Condition No. 18: "Shielding of rooftop and ground level mechanical equipment will be provided with sound absorption panels to reduce the noise to levels consistent with City and State noise standards on the westerly and southerly property lines. The owner will provide documentation as to the ability of said panels to achieve levels consistent with City and State noise standards. If said documentation is unavailable, mechanical equipment will be located on the ground." Hearing Examiner's Initial Decision: Noise was a major concern of many of the residents who testified. Actual daytime ambient readings for the noise study were taken at a nearby site rather than along the western boundary of the proposed site. The Hearing Examiner acknowledged that Wal -Mart's noise expert's testimony was credible and supported by the opinion of the City's noise expert who conducted a peer review of the noise expert's supplemental report. The Hearing Examiner noted that he, "sees some value in having actual test results of the actual daytime ambient noise levels prior to commencement of construction of the facility to compare with comparable tests taken after the store is in operation to see if additional shielding or other steps will be required to actually accomplish the favorable results predicted in the study." See Initial Decision at 21-22. However, the Hearing Examiner does not address or provide any further explanation for Condition No. 18. Wal -Mart's Position: Wal-Mart contended the condition was unreasonable because the project noise level study showed that sound absorption panels, which are extremely costly, were not necessary and that noise levels resulting from any mechanical equipment would be consistent with City and State noise standards. Wal-Mart requested the condition be removed or modified to provide that if a noise study shows that noise levels emanating from the project exceed City or State standards, rooftop and ground level mechanical equipment will be shielded to reduce noise impacts. Wal-Mart contended there is not substantial evidence showing that the condition is necessary to mitigate proven impacts CCY's Position: The purpose of the FEIS is to identify matters in advance of decision making, and therefore the mitigation should not be deferred until after further testing and construction. Staff Report Recommendations: The Staff Report was consistent with Hearing Examiner's Condition No. 18 in the initial decision. FEIS Recommended Mitigation: No existing ambient noise measurements were taken for the proposed site. The Washington Administrative Code provides specific sound level limits that apply at the property receiving noise from a noise source. The FEIS recommends that "to offset any additional noise and help protect the residential uses, all rooftop mechanical units will be completely screened with sound reducing panels or the mechanical units will be required to only be located on the ground with screening and sound reducing panels." See FEIS at 61. Further, the FEIS provides for "shielding, sound absorption panels or relocation of mechanical equipment on the ground if the noise levels cannot be reduced to a level at or below the requirements in WAC 173-60-030." See FEIS at 94. Hearing Record: Alternative Site 2 Noise Study, Official Record E-151 examines noise levels at Alternative Site 3B. The noise impacts were predicted assuming an 8 -foot high CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 7 wall on top of a 6 -foot berm constructed along the western property line. The study provides that the Washington Administrative Code maximum noise level criteria will be met if the berm and wall are constructed along the west side of the property. However, a "significant" change in ambient noise levels (4-9 dBA) could occur at residences immediately west of the store parking lot due to noise generated by the parking lot sweeper. Due to the short length of time the ambient noise is changed (1.5 to 5 minutes out of a 24 hour period) no mitigation may be needed. Daytime noise levels could exceed the Washington Administrative Code hourly 1.5 minute/hour maximum along the south property line if residential dwellings are constructed south of the store [the property is zoned R-3]. No mitigation has been imposed for these future residences. Nighttime maximum noise levels may be exceeded near the east end of the store immediately south of the property line due to the proposed chiller equipment. Significant (4-9 dBA) ambient noise levels could occur at the residence on 64th Avenue southeast of the store during late night hours due to chiller equipment (up to 15 minutes or more every hour). The study results also indicate that a "significant" change in ambient noise levels could occur at residences immediately west of the store structure during nighttime hours from an increase (8 dbA) of more than 15 minutes per hour due to the HVAC units on the roof. Wal -Mart's noise study concluded there are nighttime impacts from the HVAC equipment on residential neighborhoods, even with the 8 -foot high wall and 6 -foot berm. Further the increase in noise of 8 dBA for up to 15 minutes an hour could be disruptive to sleep. Both Wal -Mart's study and the peer review report (E-193) acknowledged that barriers at the rooftop HVAC are needed to mitigate noise impacts. Washington State Regulations: "Maximum permissible noise limits" are regulated by the state pursuant to RCW 70.107 et al. and WAC 173-60 et al. Yakima Code: YMC 15.10.030 provides that the reviewing official has the authority to impose conditions to mitigate any identified specific or general negative impacts of the development, whether environmental or otherwise and has the broad authority to increase the minimum development standards. The YMC contains no specific noise standards. Hearing Examiner's Condition 18 on Remand: The July 10, 2006 Hearing Examiner's remand decision requires noise levels on the westerly and southerly property lines to be consistent with City and State noise standards. The Hearing Examiner amended his previous decision to clarify the compliance standards. Shielding of rooftop and ground level mechanical equipment will be provided with sound absorption panels to the extent necessary to reduce the noise created by the Wal-Mart superstore and fueling station on the westerly and southerly property lines to a level which complies with the strictest of the following standards: The Washington State noise standards presently specified in Chapter 173-60 of the Washington Administrative Code, together with such amendments thereto that may be adopted in the future; and CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64`11 Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 8 The favorable results predicted in the applicant's noise study of not more than a five -decibel increase on the westerly and southerly property lines in the L25 ambient noise level for noises that are emitted for at least 15 minutes of each hour during both daytime and nighttime hours to be confirmed promptly after commencement of full operations. Testing of the increase in ambient levels shall be in accordance with the requirements of condition 20. Subsequent testing will not be required unless the facilities are changed in some manner so as to create additional noise after the initial testing is completed; and The City of Yakima's public disturbance noise regulations set forth in Section 6.04.180 of the Yakima Municipal Code, except for the exemption for sounds created by lawfully established commercial uses in Subsection 6.04.180(F)(16) thereof which applicant has agreed to waive and to refrain from asserting as a defense to an enforcement action thereunder, and together with any future amendments thereto. The owner will provide documentation as to the ability of said panels to achieve levels consistent with the above three noise standards. If said documentation is unavailable, and the ability of the panels to achieve such levels cannot be otherwise verified, mechanical equipment will be located on the ground. 1. The Washington State noise standards presently specified in Chapter 173-60 of the Washington Administrative Code, together with such amendments thereto that may be adopted in the future; and 2. The favorable results predicted in the applicant's noise study of not more than a five -decibel increase on the westerly and southerly property lines in the L25 ambient noise level for noises that are emitted for at least 15 minutes of each hour during both daytime and nighttime hours to be confirmed promptly after commencement of full operations. Testing of the increase in ambient levels shall be in accordance with the requirements of condition 20. Subsequent testing will not be required unless the facilities are changed in some manner so as to create additional noise after the initial testing is completed; and 3. The City of Yakima's public disturbance noise regulations set forth in Section 6.04.180 of the Yakima Municipal Code, except for the exemption for sounds created CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 9 by lawfully established commercial uses in Subsection 6.04.180(F) (16) thereof which applicant has agreed to waive and to refrain from asserting as a defense to an enforcement action thereunder, and together with any future amendments thereto. Wal -Mart's Position on Remand Decision: Wal-Mart agreed to comply with this proposed regulatory framework at the remand hearing. CCY's Position on Remand Decision: The Hearing Examiner's "clarifications and applicable restrictions are satisfactory to CCY." City Council's Position: The condition is a SEPA condition, recommended as a mitigation measure in the FEIS. The FEIS found that "[t]hirty eight HVAC units consisting of heat pumps and desiccating units will be distributed over the roof of the store. The HVAC units may operate at anytime during a 24 hour period on any day of the week, depending on exterior weather conditions, grocery deliveries, customer traffic, etc." See FEIS at 55. The FEIS found that HVAC units, if not satisfactorily shielded, could have a 3-6 decibel impact on homes lying to the north. See FEIS at 58. [A change of 5 to 9 decibels is defined as "significant" and mitigation should be considered. See FEIS at 52]. The City Council adopts the Hearing Examiner's findings and condition on remand regarding this issue. 4. Condition No. 21: "The newest and quietest type of condensers in production like the type used in the Lebanon, Oregon WaI-Mart facility shall be used for the two chillers for this facility." Hearing Examiner's Position: The Hearing Examiner does not specifically address the issue relating to the "two chillers." Wal -Mart's Position: Wal-Mart did not appeal the requirement that it use the "newest and quietest types of condensers," but appealed the apparent limitation to two chillers. Wal-Mart asked for clarification of this condition, in that fewer or more than "two chillers" may be installed at the Project and that the condition be modified to require that chillers used in the project be capable of meeting applicable City and State noise standards. CCY's Position: CCY did not respond to this appeal issue. Staff Report Recommendations: The Staff Report did not make a similar recommendation or address the issue. Yakima Code: YMC 15.10.030 provides that the reviewing official has the authority to impose conditions to mitigate any identified specific or general negative impacts of the development, whether environmental or otherwise and has the broad authority to increase the minimum development standards. City Council's Position: There was no factual basis in the record to support the Hearing Examiner's Condition No. 21. Therefore, the Yakima City Council strikes Hearing Examiner Condition No. 21. CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 10 5. Condition No. 22(ii): "No luminaire within 80 feet of an adjoining residential property." Hearing Examiner's Position: Lighting was a common concern of residents to the west and north of the proposed site. The condition provides, in part, that the outdoor lighting plan will comply with the lighting conditions set forth in the conditions for Approval adopted by the City Council for the Congdon Rezone and the lighting plan must substantially match the plan for the original proposed Wal-Mart site on North 72nd Avenue. The condition is an element of the lighting plan submitted for the original proposed site on North 72nd Avenue. The Hearing Examiner provides no further explanation for this specific condition. Wal -Mart's Position: Wal-Mart contended the condition is unreasonable because the lighting plan demonstrates that lighting of the proposed project will spill no measurable or detectable foot candles onto any adjacent properties, even though some luminaries are proposed to be located within 80 feet of the west property line. Lighting is a safety and liability issue and store areas have minimum light requirements that must be met. Wal-Mart requested that the condition be removed or modified to read "Lighting of the store and parking areas must substantially conform, with the Director of Community and Economic Development's approval, to the lighting plan entered into the hearing record." CCY's Position: CCY noted that Wal-Mart accepted the 80 -foot setback condition in a memo to the City commenting on the Staff Report. The December 13, 2005 Wal-Mart memo (E-174) provides that lighting with 80 -foot setback from the property lines was acceptable. Staff Report Recommendations: The Staff Report recommended the same condition. FEIS Recommended Mitigation: The FEIS evaluated the lighting plan prepared at the direction of the project proponent. The purpose of the lighting plan was to illustrate the location of the outdoor lighting and the resulting foot-candles to assure adequate lighting for the Project. The FEIS evaluated the lighting plan evaluated for the Proposed Action site in which luminaires were placed 80 feet from residential property lines and found "the Lighting Plan is the primary mitigation measure for the Proposed Action. See FEIS at 98-100. However, the lighting plan for Alternative Site 3B provides that light poles will be placed 30-40 feet away from the western residential property line. See FEIS at 100. It remains unclear whether there was any specific analysis of lighting impacts at Alternative Site 3B where the lighting plan provides for lights located within 30 to 40 feet of the property boundary. Even with the mitigation measures of lights located 80 feet from the boundaries of the Proposed Action site, the FEIS finds generally that "a former residential and limited commercial area along Nob Hill Boulevard will experience nighttime illumination as a result of this and other development projects." More specifically, the FEIS finds that with respect to Alternative Site 3B, the current application site, residences are located to the side, rather than the rear of the store, as in the Proposed Action site. See FEIS at 20. Therefore, there may be greater impacts to the residences in terms of noise and lighting than those created under the Proposed Action analysis. The FEIS further explains: Alternative Site 3B presents the greatest potential for lighting to affect residential properties. Existing home sites are located west CLC Associates — Wal-Mart Superstore 11 SW Corner Nob Hill Boulevard & S. 64`'' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 and northwest of Site 3B. Unlike the Proposed Action Alternative and Site 3A, the rear yards of homes in the Zier Subdivision would lie directly adjacent to the parking lot of the Supercenter. A landscaped berm and wall will be constructed along the western boundary of the property; however, the buffer effect between the development and these adjacent properties will be of limited value. Light poles will be placed 30-40 feet away from the western property line and will be shielded to direct light to the parking lot area located to the east. By directing light downward the potential for light and glare impacting residential properties to the west could be reduced, however, residents will most likely be aware of the illumination. The design must eliminate light pollution and glare. See FEIS at 100 (emphasis added). Yakima Code: YMC 15.10.030 provides that the reviewing official has the authority to impose conditions to mitigate any identified specific or general negative impacts of the development, whether environmental or otherwise and has the broad authority to increase the minimum development standards. The Yakima Municipal Code does not include a outdoor lighting code. YMC § 15.06.100 provides only that "Lighting shall be provided to illuminate any off-street parking or loading space used at night. When provided, lighting shall be directed to reflect away from adjacent properties." City Council's Position. This condition is imposed pursuant to SEPA and the Yakima Municipal Code. With respect to Wal -Mart's appeal issue, the record only shows that, based on the lighting plan submitted by Wal-Mart for the Proposed Action Site, no foot-candles of light drifted onto adjoining residential properties. There is no evidence whether there would be lighting impacts if the luminaries were placed 30-40 feet from the western property line. It is also not clear if the lighting study results are based on the construction of a berm and fence. Wal -Mart's study is based on a minimum 80 foot distance. Without additional evidence, it is appropriate to condition the permit for the proposed site in the same manner. The Hearing Examiner's condition is adopted without modifications. 6. Condition No. 24: "The Director of Community and Economic Development, in consultation with the Yakima Police Department, may require the brightness of the lighting at the applicant's facility to be reduced to a level that is not less than the Meadowbrook Mall lighting if he determines from experience, citizen's complaints or other data that the lighting of the facility is inconsistent or incompatible with the rural character or residential nature of the property in the immediate vicinity." Hearing Examiner's Position: The Hearing Examiner imposed lighting conditions aimed at preserving as much as possible the character of the area by imposing a maximum limit on the brightness of the parking lot lighting to prohibit unnecessarily bright lighting from being utilized solely for advertising the fact that the facility is open all night long, while still allowing sufficient brightness for safety and security. CLC Associates — Wal-Mart Superstore 12 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Wal -Mart's Position: Wal-Mart argued the project site is a designated growth area of the City, therefore, preservation of rural character is not a legitimate objective of the site plan conditions. Further, Wal-Mart seeks affirmation within this condition that any City decision to reduce parking lot lighting levels would be based on a light study and would take public safety concerns into account. Wal-Mart requested the condition be modified to state that the brightness of the project lighting may only be reduced after review of a light study that shows light impacts from the Project are unacceptable and may require the brightness of the Project lighting be reduced to a level that is no less than Meadowbrook Mall. CCY's Position: FEIS identified light and glare to be a significant adverse impact. The Hearing Examine appropriately conditioned the proposal in order to address this adverse impact. As with other conditions and impacts, post -development monitoring is appropriate to confirm that operations comply with standards and conditions. Staff Report Recommendations: No similar recommendation was made in the Staff Report. Yakima Code: YMC 15.10.030 provides that the reviewing official has the authority to impose conditions to mitigate any identified specific or general negative impacts of the development, whether environmental or otherwise and has the broad authority to increase the minimum development standards. YMC 15.10.030 also provides that the reviewing official may regulate the hours of operation of any commercial or industrial use. YMC 15.06.100 requires that lighting must be provided to illuminate any off-street parking or loading space used at night. When provided, lighting shall be directed to reflect away from adjacent properties and the creek. FEIS: See Condition 22 discussion above regarding lighting impacts on adjacent neighborhoods. City Council's Position: There is substantial evidence in the record to show there may be lighting impacts upon completion of the Supercenter. Contrary to Wal -Mart's assertion, the record (see FEIS at 100) states the berm and wall constructed along the western boundary of the property will be of limited value in mitigating lighting impacts. Accordingly, it is appropriate to impose a condition that will mitigate those potential impacts. It is also reasonable for the condition to establish lighting standards consistent with other similar facilities located in Yakima, without sacrificing safety. The City Council adopts the Hearing Examiner's condition without modifications. 7. Condition No. 28: "The owner will submit to a New Source Review (NSR) under Section 4.02 of YRCAA Regulation 1. This project will be required to go through NSR to determine applicability and thresholds." Hearing Examiner's Position: Applicant will be required to obtain a Master Dust Control Plan and submit to a New Source Review administered by the Yakima Regional Clean Air Authority. CLC Associates — Wal-Mart Superstore 13 SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Wal -Mart's Position: Wal-Mart contended this condition was unreasonable and unwarranted because an air quality expert testified that the project would have no adverse impacts on air quality. The EIS shows that although the store would result in higher carbon -monoxide calculations, the worst-case one hour and eight hour concentrations are below local and state air quality standards. The Project would also conform to all particulate matter air quality standards and would have little effect on overall emissions in the Yakima non -attainment area. No evidence was presented at the hearing to indicate that new source review is required. Wal-Mart requested that the Council strike the condition from the Project approval. CCY's Position: CCY did not respond to this issue. FEIS: The Yakima Regional Clean Air Authority submitted a letter in response to the DEIS (L-22) stating that a "New Source Review" will be needed for any power generator(s), boiler(s) and the fuel dispensing facility (gas pumps)." The letter also provides that the Proponent is "encouraged to file a Master Construction Dust Control Plan." Staff Report Recommendations: The Staff Report made the same recommendation. Yakima Code: See Yakima Regional Control Air Authority Regulation 1. Further, YMC 15.10.030 provides that the reviewing official has the authority to impose conditions to mitigate any identified specific or general negative impacts of the development, whether environmental or otherwise and has the broad authority to increase the minimum development standards. City Council's Position. It is appropriate to require the proper regulatory agency to oversee air quality issues as required by the condition. The YRCAA has jurisdiction over air quality matters. The City Council adopts the Hearing Examiner's condition without modifications. 8. Condition 34: "The 100 -foot setback buffer between Wide Hollow Creek and the development will be recorded as `Native Growth Protection Easement,' with provisions that no development activity or active public access will occur within the area." Hearing Examiner's Position: Wide Hollow Creek, a Type II stream, crosses the southeasterly portion of the site, therefore a permit is required. The Hearing Examiner acknowledges the proposed development is in compliance with the applicable critical area requirements and states that proposed construction must comply with the City's Critical Area Ordinance. However, it appears that it is possible -- if not probable -- the applicant will be performing some form of development activities within 100 feet of the creek either in the form of upgradinc the County DID #38 pipe and/or associated with mitigation measures to improve 641 Avenue from Nob Hill Boulevard south to the bridge. Regardless, the land abutting the creek may be disturbed despite the fact that there are assurances the applicant will comply with the buffer requirements. The permit is the device by which the promised compliance is monitored and enforced. Wal -Mart's Position: Wal-Mart asserted the condition was unreasonable as development in a creek buffer is allowed in the City of Yakima with approval of a Critical Areas Development Permit. Wal-Mart is required to obtain a Critical Areas CLC Associates — Wal-Mart Superstore 14 SW Corner Nob Hill Boulevard & S. 64(h Avenue UAZO CL (2) #16-05, CAO 6-05; EC 6-04 Development Permit. Further, Condition No. 43 requires construction of a seven -foot -wide path adjacent to the creek, which conflicts with the condition. Wal-Mart requested the condition be modified to read, "No development in the 100 -foot setback buffer between Wide Hollow Creek and the development will occur without the issuance of a Critical Areas Development Permit." CCY's Position: The subject site is located immediately adjacent to and north of the Wide Hollow Creek riparian corridor. According to YMC 15.27, Class II streams are afforded 100 -foot protective buffers on either side of the ordinary high water marks of the stream. FEIS 3.3.1. Wide Hollow Creek has also been placed on the state's list of water quality impaired waters. The 100 -foot buffer is recognized as an appropriate mitigation measure in the FEIS. Staff Report Recommendations: The Staff Report provides that "Wide Hollow Creek, a Type II stream, crosses the southeasterly portion of this site and consequently a Critical Area Development Permit is required. This proposed development is in compliance with the applicable critical area requirements. All proposed construction will comply with the City's Critical Area Ordinance and will be outside of the 100 -foot natural buffer and 20 -foot building setback, which are established from the ordinary high water mark of the creek. Prior to construction the Critical Area Development Permit is required." Yakima Code: YMC 15.27.300 provides that the [Critical Areas] chapter shall apply to all lots or parcels on which critical areas are located within the city. YMC 15.27.500 further provides that "[a] critical area development permit shall be obtained before construction or development begins within any critical areas ...." City Council's Position: The Wal-Mart parcel lies within a "critical area," and is therefore subject to a permit regardless of whether construction will occur within the 100 -foot buffer zone. Accordingly, the Hearing Examiner's condition that the project comply with the City's Critical Area Ordinance, and that a permit is necessary, is reasonable. Essentially, the condition assures no modifications or waivers of the applicable ordinance will be incorporated into the permit. With respect to the seven -foot path and compliance with the Critical Area Ordinance, that determination can be conducted as part of the Critical Areas Permit review. The City Council adopts the Hearing Examiner's condition without modifications. 9. Condition 39(a): "The applicant at its expense shall construct the following street improvements, including the cost of necessary rights-of-way on properties not owned by the applicant which the City will assist in procuring at the applicant's expense: with the cost of acquisition paid by the proponent ... (a) Nob Hill Boulevard: (i) Construct an additional westbound lane from South 48th to South 72n� Avenues; (ii) Construct a center turn lane from South 64th to South 72nd Avenue; (iii) Grade the entire width of the Nob Hill Boulevard improvement in compliance with City of Yakima design standards for a full -width, 5 -lane arterial improvement (YMC 12.06.030) ...". Hearing Examiner's Decision. Construct additional westbound lane from South 48th Avenue to South 72nd Avenue; construct a center turn lane from South 64th to South 72nd Avenues; grade the entire width of the Nob Hill Boulevard improvement in compliance with City of Yakima design standards for a full -width, 5 -lane arterial improvement (YMC CLC Associates — Wal-Mart Superstore 15 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 12.06.030). The upgrade of an additional westbound lane raised the road segment function from 48th Avenue to 64th Avenue of LOS F to LOS A and the road segment function from 64th Avenue to 72nd Avenue of LOS E to LOS A. The upgrade of an additional eastbound lane improves the road segment function from 48th Avenue to 64th Avenue of LOS C to LOS A and the road segment function from 64th Avenue to 72nd Avenue of LOS B to LOS A Wal -Mart's Position: There is no nexus for some of these requirements. To the extent Wal-Mart accedes to these requirements, it should be allowed to open its store on schedule and bond around them. CCY's Position: Nob Hill Boulevard and 64th Avenue fail to meet urban arterial standards and require improvement prior to use of the property. Improvements should include all improvement from 48th Avenue to 72nd Avenue and from Tieton Drive to West Washington Avenue. Wal-Mart development results in road segment function of LOS E (64th —72nd) and F (48th -64th). Hearing Examiner only required partial improvements to Nob Hill Boulevard instead of full compliance with the City's design standards for a full width, five lane arterial improvement. No provision is made for curb, gutter, sidewalk, bike lane or streetlights. Either the roadway will exist in substandard (and unauthorized) form or the City of Yakima will need to fund and construct improvements. Wal-Mart has the responsibility for the cost of all system improvements necessary to bring road segments and intersections into compliance with adopted level of service and development standards. The Hearing Examiner improperly placed a portion of this responsibility on citizens. Title 12 provides that public works improvements "shall comply with the provisions of this chapter. . ." Right-of-way and pavement width standards are specified in YMC chapt. 12. There is no ordinance authority to vary the standards for public work improvements. FEIS: Consistent with Hearing Examiner's decision. J. Kuhn (Kittelson & Associates, the City's traffic consultant): Most cities' codes specifically provide as part of the concurrency requirements that the developer must pay for ancillary street improvements, sidewalks, curbs, gutters, etc, along the portion of the road being upgraded. Although the Yakima Municipal Code does not expressly require the construction of ancillary street improvements, the City generally requires the developer to construct the additional improvements. With respect to improving the street segment, there is not sufficient nexus to require the developer to improve the entire street to a primary arterial, minor arterial, etc. or to construct ancillary street improvements on the other side of the street. With the Hearing Examiner's proposed condition (as appropriately modified), YMC 12.08 is met by Wal-Mart. City Council's Position: The City Council finds the potential increased traffic on Nob Hill resulting from the construction of the Wal-Mart store requires the Boulevard be upgraded to Title 12 standards. Wal-Mart elected to build in an undeveloped area and therefore should bear its fair share of the cost of developing the impacted streets. If CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64t'' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 16 only partial improvements are made to Nob Hill Boulevard, the City may end up bearing the expense of upgrading the street to Title 12 standards as traffic increases. The City Council modifies the Hearing Examiner's condition to require Wal-Mart to improve Nob Hill Boulevard to YMC Title 12 standards, subject to the United States Supreme Court's rulings in Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141 (1987) and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309 (1994) (the Court concluded that a "rough proportionality" is required between the conditions imposed and the impacts caused by a development). The City shall also establish an assessment reimbursement contract or latecomers agreement pursuant to RCW 35/2 to allow Wal-Mart to recover a portion of the improvement costs from other property owners within the vicinity who develop their property at a later date and use the improvements constructed by Wal-Mart. Such latecomers agreement should be addressed in the Development Agreement required per the Remand Decision 10. Condition 39(b)(i): "The applicant at its expense shall construct the following street improvements, including the cost of necessary rights-of-way on properties not owned by the applicant which the City will assist in procuring at the applicant's expense: with the cost of acquisition paid by the proponent... (b) South 64th Avenue (i) Construct improvements on South 64th Avenue from Nob Hill Boulevard and south to the Wide Hollow Creek bridge according to City of Yakima design standards." Hearing Examiner Decision: Construct improvements on South 64th Avenue from Nob Hill Blvd and south to Wide Hollow Creek bridge; construct a left turn lane to service the South 64th Avenue entrance site. Wal -Mart's Position: A condition requiring frontage improvements along the proposed 64th Avenue frontage would be illegal as substantive evidence in the record does not show impacts warranting such improvements. CCY's Position: Wal -Mart's property extends south of Wide Hollow Creek Bridge. City has historically required frontage improvements for all roadway sections abutting the subject property. Therefore, improvements should extend to edge of southern boundary. City Council's Position: In this condition, the Hearing Examiner requires construction of "sidewalk, curb, gutter, streetlights and drainage along all property frontages." Wal-Mart does not own any frontage south of the Wide Hollow Creek Bridge. The City Council adopts this portion of the Hearing Examiner's condition without modifications. 11. Condition 39(e)(vi): "The applicant at its expense shall construct the following street improvements, including the cost of necessary rights-of-way on properties not owned by the applicant which the City will assist in procuring at the applicant's expense: with the cost of acquisition paid by the proponent ... (vi): Construct an eastbound right -turn lane at the west driveway." CLC Associates — Wal-Mart Superstore 17 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Hearing Examiner's Position: The condition is based on the Transportation Impact Analysis (TIA) study, the Staff Report and the FEIS. Wal -Mart's Position: Wal-Mart contended the condition was unreasonable as neither the EIS traffic impact analysis nor any evidence at the hearing suggested such an improvement would be necessary to mitigate traffic impacts of the proposed project. Such an improvement would require Wal-Mart to pay fees in excess of the proven direct impacts of the project, which is illegal. Appellant requests that language be added to the condition providing "any delays in obtaining right's -of -way shall not delay construction or occupancy of the store." Appellants further request that the Council strike the portion of the condition requiring the eastbound right-hand turn lane at the west driveway from the decision as there is no evidence in the record that warrants such a condition. CCY's Position: CCY opposed Wal -Mart's request to amend the condition allowing store operations to not be affected by delays in obtaining rights-of-way. The City of Yakima opposed Wal -Mart's request at the hearing (J. Kuhn testimony Disk 2 1:58- 2:02). As the city staff, HE, and peer consultant agree, "improvements for public safety must be in place prior to the opening of the facility." The construction and completion of road improvements is a safety matter. YMC 12.08.030 further provides that transportation improvements be funded in order to comply with concurrency requirements. Contrary to assertions by Wal-Mart, this condition was not addressed in the hearing by either Wal-Mart or the City's experts. Nob Hill and the "west driveway" function at LOS F in the absence of the "eastbound right tum lane." The FEIS provides: Further, an eastbound right turn lane should be provided at the west access. Consideration should be given to restricting the east driveway on Nob Hill Blvd to right in and right out movements only. This would insure there are no queue storage problems between the westbound left turn at the site access and the eastbound left turn queue at 64th /Nob Hill Boulevard signal. With the east driveway restricted to right in right out movements, the west driveway likely warrants the installation of a traffic signal. (FEIS —129). Staff Report Recommendations: The condition is consistent with Staff Report Recommendations. The Report recommendation is based on the Transportation Impact Analysis (TIA) prepared as part of the final EIS. The review is designed to measure the impact of new development on the capacity of city arterial street segments by calculating the approximate increase in traffic generated by the new use. The recommendation is related to the impacts identified in the Section 6.2 of the FEIS and mitigation measures identified in Section 6.3 of the FEIS. FEIS Recommended Mitigation: FEIS shows the unmitigated LOS at Nob Hill Boulevard at the West Driveway is "F." An eastbound right -turn lane will improve the LOS to a level "D." HE's condition is consistent with recommended FEIS mitigation measure. See FEIS at 129. CLC Associates — Wal-Mart Superstore 18 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Yakima Code: Wal-Mart is required to comply with YMC 12.08, the Transportation Concurrency Ordinance. Further, a reviewing official may deny or condition approval of any permit on the basis of the State Environmental Policy Act (SEPA) or traffic engineering standards and policies established by Yakima County and the City of Yakima to protect the function and satisfactory level of service of arterial and collector streets. J. Kuhn (Kittelson).: YMC 12.08 will be met by Wal -Mart's signalization of the driveway. An eastbound right -turn lane is ideal but not necessary from a safety standpoint. City Council's Position: City Council adopts this portion of the Hearing Examiner's condition without modifications. 12. Condition 40(b): "South 64th Avenue and Tieton Drive Intersection and South 64th Avenue and West Washington Avenue Intersection: (b) Prior to occupancy of Phase 1, applicant shall bond for the full cost of a traffic signal installation at each of these two intersections (construction cost estimated at $200,000 for the intersection at South 64th Avenue and Tieton Drive and $265,000 for the intersection at South 64th Avenue and West Washington Avenue). Applicant shall also pay the City of Yakima for the cost of administering engineering studies to be conducted once a year for three years at the intersections. The engineering studies shall assess whether traffic signal warrants are met at the subject intersections. If the engineering studies deem that a signal is warranted, the bond shall be used by the City of Yakima to install a signal at the intersection(s). If, at the end of the three-year monitoring period, the engineering studies deem that a traffic signal is not warranted, the bond shall be released to the applicant." Hearing Examiner's Position: Without improvements, the LOS for 64th & Tieton Drive is E and 64th & Washington is F, or with northbound and southbound left -turn lanes added, E. Construction costs are estimated at $200,000 for the intersection at South 64th Avenue and Tieton Drive, and $265,000 for the intersection at South 64th Avenue and West Washington Avenue. The Applicant shall also pay the City for the cost of administering engineering studies to be conducted once a year for three years at the intersections. If the studies deem the signal is warranted, the bond shall be used by the City to install a signal, otherwise, the bond shall be released to the Applicant. Wal -Mart's Position: Wal-Mart withdrew its objection to Condition 40(b). CCY's Position: Environmental analysis and study indicate the intersections are functioning at a level below established municipal standards. Wal -Mart's development causes the identified intersections to drop below an acceptable level of service. A project developer is required to have concurrent transportation system improvements in place as a requirement for development. The condition should be modified to require immediate installation of the signals Wal-Mart should be responsible to fund improvements. There should be no public contribution for the improvements. With respect to the latecomers' agreements, City of Yakima has not utilized latecomer agreements for purposes of road improvements and has not required a contribution CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 19 from Wal-Mart for system improvements provided by either other developers or the community. There is no legal authority for latecomer agreements. FEIS identifies that the proposed project will cause deterioration of intersection functions at South 64th/Tieton Drive and South 64th/West Washington Avenue. Current function of intersection at LOS B. Level deteriorates to LOS E and F based upon unsignalized intersection. (FEIS — Table 29) Staff Report Recommendations: Condition is consistent with City Staff report. FEIS Recommended Mitigation: Condition is consistent with recommended FEIS mitigation measure. See FEIS at 133-134. Mitigation measures for Alternative Site 3B apply to the proposed application. The FEIS states that the mitigation measures for Alternative Site 3B with respect to 64th Avenue/Tieton Drive and 64th/Washington Avenues are the same as for the site referred to as the Proposed Action Site. See FEIS at 129. J. Kuhn (Kitteison, the City's traffic consultant): The City of Yakima does not have concurrency requirements for intersections, only street segments. One of the reason for not having intersection requirements is that many left turn lanes would never meet level -of -service requirements. Accordingly, the Hearing Examiner's decision is a compromise in which Wal-Mart may still be required to improve the intersections. Yakima Code: Wal-Mart is required to comply with the YMC 12.08, Transportation Concurrency Ordinance. Further, a reviewing official may deny or condition approval of any permit on the basis of the State Environmental Policy Act (SEPA) or traffic engineering standards and policies established by the City of Yakima to protect the function and satisfactory level of service of arterial and collector streets. YMC 12.08 does not have an "established municipal standard" for intersection levels of service. Similarly, YMC 12.08 does not define what is an "acceptable level of service"." Finally, concurrency requires that improvements be in place or funded within six (6) years, not immediately. City Council's Position: The FEIS identifies the current level of service for the subject intersections as LOS B at Tieton Drive and LOS C at West Washington. After the construction of Wal-Mart, the LOS levels fall to E and F, below the LOS level allowed for street segments. Although the Yakima Municipal Code does not address LOS for intersections, the proposed signalization may be required per SEPA. The Hearing Examiner's condition is a more conservative approach to make sure Wal-Mart finances the signals if they are needed. A "latecomers" provision added to this condition is reasonable but does not relieve Wal-Mart of the burden of paying for the signals upfront if warranted. The City Council adopts the Hearing Examiner's condition without modifications. 13. Condition No. 42: "Provide sidewalks, curb, gutter, streetlights and drainage along the westbound lane improvements. The proponent's contribution would be on a pro rata basis according to traffic volumes generated as a percentage of road capacity. The improvement must be completed prior to occupancy of Phase 1 unless right-of-way acquisition problems delay completion through no fault of applicant, in which case the applicant must provide a bond to insure completion." CLC Associates — Wal-Mart Superstore 20 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Hearing Examiner's Position: The condition is based on the TIA study, the Staff Report and the FEIS. CCY's Position: Sidewalks, curb, gutter, streetlights and drainage are normal components of Title 12 street improvements. Wal-Mart must bear at least a proportionate cost of the entire improvement and not just a small portion (westbound lane, grading and share of half street improvement). Julia Kuhn did not testify that such improvement was not necessary or proportional. She testified that such improvements are required and should be installed prior to occupancy as a "good steward of public safety." City staff concurred with the requirement. (Staff Report Exh. A-1, page 11). Such improvements are prudent because piecemeal construction would not result in a good stewardship of public safety. Further, Wal-Mart provided no evidence of pedestrian impacts along Nob Hill Boulevard Wal -Mart's Position: Wal-Mart maintained there is no evidence the Nob Hill Boulevard improvements are necessary to achieve transportation concurrency or mitigate project impacts. Wal-Mart requested the condition be revised to clarify the timing and cost of frontage improvements on Nob Hill Boulevard east of 64th Avenue. Wal-Mart requested the condition read, "Provide a contribution for the cost of sidewalks, curb, gutter, streetlights and drainage along the westbound lane improvements. The proponent's contribution would be on a pro rata basis according to traffic volumes generated as a percentage of road capacity." Staff Report Recommendations: The Staff Report Recommendation is substantially similar to HE's condition except Staff Report does not provide for pro rata contribution. See comment relating to Condition 39(e)(vi). FEIS Recommended Mitigation: Condition is consistent with recommended FEIS mitigation measure. See FEIS at 135-136. Nob Hill Boulevard is identified in the FEIS as a principal arterial. West of 52nd Avenue the road is a two-lane road. The HE is requiring Wal-Mart to grade the entire width to five lanes but only construct a new westbound lane from 48th to 72nd and a center turn lane from 64th to 72nd. Thus between 64th and 72nd the road will be a four -lane road and 52nd to 64th a three -lane road. Yakima Code: YMC 12.06.030 provides the design standards for each class of street and provides for ancillary improvements. YMC 12.06.040 also provides that bicycle lanes and pedestrian sidewalks "shall be provided along all new or reconstructed arterial and collector arterial streets, where feasible." Similar provisions are provided for street curbing and lighting. With respect to sidewalks, YMC 12.05.010 provides that "sidewalks shall be installed along both sides of all new, improved, and reconstructed streets. Projects which repair small portions of or maintain existing street shall not be considered "improvement" for the purpose of this section and shall not trigger the requirements of this section. Sidewalks shall also be installed across the frontage of all newly developed or redeveloped lots where feasible." Sidewalk design requirements are provided in YMC 12.05.020. City Council's Position: The City Council modifies the Hearing Examiner's condition to require Wal-Mart to improve Nob Hill Boulevard to YMC Title 12 standards, subject to the United States Supreme Court's rulings in Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141 (1987) and Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. CLC Associates — Wal-Mart Superstore 21 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05, CAO 6-05; EC 6-04 2309 (1994) (the Court concluded that a "rough proportionality" is required between the conditions imposed and the impacts caused by the development). The City shall also establish an assessment reimbursement contract or latecomers agreement pursuant to RCW 35.72 to allow Wal-Mart to recover a portion of the improvement costs from other property owners within the vicinity who develop their property at a later date and use the improvements constructed by Wal-Mart. Such latecomers agreement should be addressed in the Development Agreement required per the Remand Decision. 14. Condition No. 43: "Construct and provide a pedestrian/bicycle access to the supercenter from the adjacent residential neighborhood to the west, the applicant shall construct a seven -foot wide sidewalk located parallel to and immediately adjacent to the south parcel boundary line. The sidewalk will stretch from the eastern property boundary of the Wal-Mart site to the western property boundary and will connect to the northerly portion Borley Lane. The Director of Community and Economic Development may accept a bond or cash deposit to insure completion if the preference is to make the improvements at a later time." Hearing Examiner's Position: It is in the best interest of applicant and the City to promote foot and bicycle access to project. The trail would address air quality and traffic concerns and may help complement future residential development. An improved trail or patrolled trail may alleviate safety fears of residents. Wal -Mart's Position: Wal-Mart asserted this condition is unreasonable as it is not related to any impacts of the proposed development and is not required by the Yakima Municipal Code. Hearing testimony indicates that pedestrian access to the Project will occur through sidewalks adjacent to 64th Avenue and Nob Hill Boulevard The condition exceeds Wal -Mart's "fair share" of mitigation. Condition also requires crossing Wide Hollow Creek, which is inconsistent with condition requiring that the 100 -foot creek buffer be recorded as a "Native Growth Protection Easement" and remain undisturbed. Further, "an overwhelming majority of residents of the neighboring properties" testified that they were opposed to this condition due to safety concerns." Wal-Mart requested that the Council strike the condition from the decision. CCY's Position: CCY restated FEIS and Staff report recommendation. FEIS: FEIS provides, with respect to Site 3B, "[ajdditionally, in order to facilitate pedestrian/bicycle access to the Supercenter from the adjacent residential neighborhood located to the west, the applicant shall construct a seven -foot -wide sidewalk parallel to and immediately adjacent to the south parcel boundary. The sidewalk will stretch from the easterly boundary to the western property boundary and will connect to the northerly portion of Borley Lane." FEIS — 132. The requirement is listed as a specific mitigation measure for Alternative Site 3B. FEIS —136. Staff Report Recommendations: The Staff Report recommendation is consistent with the Hearing Examiner's condition. Yakima Code: YMC 15.10.030 provides that the reviewing official has the authority to impose conditions to mitigate any identified specific or general negative impacts of the CLC Associates — Wal-Mart Superstore 22 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 development, whether environmental or otherwise and has the broad authority to increase the minimum development standards. City Council's Position:: The condition is supported by evidence in the record including the FEIS and the staff report. The City Council adopts the condition without modifications. 15. Condition No. 45: "The applicant shall complete such sewer line upgrades on Nob Hill Boulevard as may be specified by the City of Yakima Wastewater division and the applicant must provide the City with a 16 -foot -wide utility easement for the sewer line serving his property." Hearing Examiner's Position: No further explanation is provided by the Hearing Examiner. Wal -Mart's Position: Wal-Mart maintained the condition is unreasonable as there is no evidence in the record to indicate that Project impacts would require such "extraordinary sewer line improvements." Accordingly, the condition requires mitigation beyond that necessary to mitigate impacts resulting directly from the Project. Wal-Mart requested the Council strike the condition from the decision. CCY's Position: Supported the City Staff Report and requirements of Title 12. No legal basis for eliminating condition. Staff Report Recommendations: The Staff Report, Development Standards section, provides that "the proposed development will meet the utility and engineering requirements of Title 12 ... a 16' utility easement will be furnished for the sewer line to serve this development." Yakima Municipal Code: YMC 12.03.02 provides that "sewer lines shall be extended to the point where the adjoining property owner's responsibility for further extension begins." YMC 12.02.010 provides that "Public utility easements shall be established for the location of new and proposed public utility lines serving new land divisions and land development. Public utility easements shall also be established across the front of new lots and redeveloped lots to provide future utility access as determined necessary by the city engineer. Public utility easements shall be dedicated at the time that subdivision and/or land use approval is granted." City Council's Position. This condition requires Wal-Mart to comply with the provisions of the City's wastewater code as directed by the Wastewater Division. The provision for a utility easement for the sewer line serving the property is generally a standard condition of development. See YMC 12.02.010. Wal -Mart's application provides that "[a]II of the utility infrastructure necessary to serve the proposed development are in place or can be improved at the developer's expense to accommodate the proposed use." The City Council adopts this condition without modifications. 16. Condition No. 47: "The applicant shall submit a valid FAA No Hazard Determination to the City Director of Community and Economic Development that pertains to the proposed building height of 41 feet, 6 inches and shall otherwise CLC Associates — Wal-Mart Superstore 23 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 demonstrate to him full compliance with all applicable ASO requirements prior to issuance of any permits." Hearing Examiner's Initial Decision: FAA No Hazard Determination was made for a height of 35 feet above ground level and 1197 feet above mean sea level, and indicated that any changes in heights would void that determination. Existing information indicates the height of the building will reach 41 feet, six inches. Wal -Mart's expert also recommended conditions be imposed for air traffic safety since the proposed use is directly in line with the main airport runway. The Hearing Examiner determined that, for purposes of the ASO, Wal -Mart's proposal is a Class (1) Use, therefore conditions the permit on an updated FAA No Hazard Determination. The Hearing Examiner found the prior FAA No Hazard Determination to be void. The determination states that it was based on a height of 35 feet above ground level and 1197 above mean sea level and that any changes in height will void the determination. The proposed height is 41 feet, six inches. The applicant shall submit a valid FAA No Hazard Determination to the City that pertains to the proposed building height of 41.5 feet and shall otherwise demonstrate full compliance with all applicable ASO requirements prior to issuance of any permits. Further, the Examiner found Class (2) ASO application was required under YMC 15.30.040 unless the applicant submits a valid FAA No Hazard Determination and demonstrates full compliance with the ASO. The Hearing Examiner determined the use was a Class (1) use and did not constitute a potentially incompatible use as it was not a place of public assembly. Wal -Mart's Position: Wal-Mart contended the condition is unreasonable as Wal-Mart already submitted an FAA No Hazard Determination and all evidence in the record indicates the project will not penetrate the Yakima Airport Terminal approach slope. The Project complies with YMC 15.30.040 and requires no further review or approval. Wal- Mart requested the Council strike the condition from the decision. As a Class (1) use the project is not subject to the ASO application requirements. The FAA No Hazard Determination submitted in the record concluding that the project is not an airspace hazard is sufficient. Wal-Mart argued a Class (2) ASO application is not required where the project is not a potentially incompatible use. The project would only be potentially incompatible if it constitutes a "place of public assembly," which it does not. Place of public assembly is not defined under the Yakima Municipal Code, so Wal- Mart relies on construction and fire codes. Wal-Mart argued the use is defined as "mercantile," not a "place of assembly" and therefore does not constitute a potentially incompatible land use. Wal-Mart sought to strike CCY's argument that WSDOT's guidance, based on number of people per use area, is the appropriate standard to use to evaluate whether it is a place of public assembly. Wal-Mart also maintained that CCY waived any argument regarding compatibility of land uses within the ASO by failing to address the conclusions in the FEIS regarding Class (1) use and mercantile definition. CCY's Position: CCY appealed the Hearing Examiner's decision asserting that the "Hearing Examiner Erroneously Applied the Provisions of the Airport Safety Overlay (ASO) Requirements of Chapter 15.30 of the UAZO." CCY argued that a statement of compatibility from the airport manager is required under the statutory application provision, YMC 15.30.060. The appeal assumed the proposed use is a Class (2) use, CLC Associates — Wal-Mart Superstore 24 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 thereby invoking the necessity to submit an application under the Airport Safety Overlay provisions CCY also asserted that Wal-Mart Supercenter is by definition an "Incompatible Land Use" and prohibited within the Primary Airport Safety Area because it is a "place of public assembly" under YMC 15.30.020(G). CCY argued that Wal -Mart's use of the International Building Code and the International Fire Code to define place of public assembly is inappropriate. Instead, CCY maintained that the WSDOT Best Practices Manual should be used. Under the Best Practices Manual, CCY contended, population densities should be limited to less than 40 people/acre in buildings and 75 person/acre outside buildings. CCY argued that the Hearing Examiner noted that the FAA No Hazard Determination admitted as a part of the hearing record was invalid on its face. The approval authorized buildings limited to 35 feet in height and the proposed project is 41.5 feet in height. It is appropriate for the agency with jurisdiction (FAA) make the determination on this matter. Staff Report Recommendations: No reference to the Airport or related requirements is made in the Staff Report. FEIS Recommended Mitigation: The project site falls within the Primary Airport Safety Area for the Yakima Air Terminal subject to YMC 15.30, the Airport Safety Overlay Ordinance. See FEIS at 147. The FEIS finds that the proposed structure does not penetrate the statutory approach surface. The FEIS provides that "public assembly" is not defined in the ordinance but that it is not commonly applied to commercial uses. Therefore, the occupancy of the proposed building is more properly defined as "mercantile" by the International Building Code and not "assembly." The FEIS assumes the proposed building is 35 feet above grade as opposed to the actual 41.5 feet. Hearing Examiner's Condition 47 on Remand: "The applicant shall demonstrate to the Director of Community and Economic Development full compliance with all applicable ASO ordinance requirements prior to issuance of any permits." In his July 10, 2006 Remand Decision, the Hearing Examiner found that he could not conclusively determine that the proposed Wal-Mart supercenter is not a "place of public assembly" where the proposed used "would be of an intensity that would be a potential threat to public safety, particularly where the proposed use, according to the testimony, would be more intense than one of the uses specifically listed as a "potentially" incompatible land use." Where the Hearing Examiner could not conclusively determine that the proposed Wal-Mart would not be potentially incompatible with the airport, "the ASO ordinance requires the actual compatibility or incompatibility of the proposed use with airport operations and safety to be determined through the Class (2) review process In reaching his conclusions, the Hearing Examiner relied upon evidence submitted by both Wal-Mart and CCY. Citing the Washington Administrative Code and Building and Fire Codes, Wal-Mart submitted evidence in the both hearings indicating that a "place of public assembly" does include "mercantile" uses (such as for the proposed Wal-Mart store). In contrast, CCY submitted evidence in the second hearing relying on FAA and CLC Associates — Wal-Mart Superstore 25 SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Washington State Department of Transportation documents that include malls and shopping centers as "places of public assembly" in some contexts. The Hearing Examiner also noted that YMC 15.03.030(14)(a) (Yakima Municipal Code District Intent Statements) expressly contemplates commercial areas located adjacent to the airport: 14. Airport Safety Overlay (ASO). The airport safety overlay is intended to protect the airspace around state and federal system airports from airspace obstructions or hazards and incompatible land uses in proximity to the Yakima Air Terminal at McAllister Field. In addition to the regulations of the principal use district, the airport safety overlay includes provisions for: a. Preserving land adjacent to the Yakima Air Terminal at McAllister Field for future commercial and industrial development; and b. Assuring that land uses locating near the airport are compatible with noise and other impacts from the airport operation Based on the debate and conflicting evidence presented at the remand hearing, the Hearing Examiner found he was unable to conclusively determine the proposed Wal- Mart would not constitute a "potentially incompatible land use" as required under YMC 15.30 040(A)(1) and 15.30.020(G)(2). The Hearing Examiner emphasized: the result is not denial of the proposed use as incompatible, but rather the need for a Class (2) administrative review of the proposal to determine, with the aid of the Airport Manager's expertise and technical resources, whether the potentially incompatible land use is in fact incompatible with airport operations and safety. The Hearing Examiner did not adopt Wal -Mart's position that the May 25, 2006 vote of the Air Terminal Board complies with the requirements of the ASO regarding a statement of compatibility. The Hearing Examiner concluded that the Airport Manager must provide the statement of compatibility. However, the Hearing Examiner also rejected CCY's contention that it is too late for the applicant to comply with the ASO. The Hearing Examiner reasoned that many mitigation measures require compliance after the fact, and this is no different. In other words, adoption of the Hearing Examiner's revised condition as is requires Wal-Mart to obtain a statement of compatibility from the Airport Manager prior to issuance of any building permit. Wal -Mart's Position Regarding Hearing Examiner's Decision on Remand: Wal-Mart contested the Hearing Examiner's final decision: 1. The City Council can conclusively determine the proposed Wal-Mart store does not pose a threat to public safety. Expert witnesses concluded it would take approximately 2,700 years for a ground fatality to occur on or around the airport; a ground fatality would not occur at the Wal-Mart site for approximately 1,890,000 years. CLC Associates — Wal-Mart Superstore 26 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 2. Wal-Mart argued that there is sufficient evidence to "conclusively determine" that the proposed Wal-Mart is not a "place of public assembly" or otherwise a "potentially incompatible use" under WAC 15.30.040(1). a. The Airport Board's May 25, 2006 motion stating that "the Wal-Mart in its present location and its present design is not incompatible with airport operations" is sufficient to "conclusively determine" that the proposed Wal-Mart is not a "potentially incompatible land use" under YMC 15.30.040(1). b. The Hearing Examiner erred by not considering the codes adopted by both the City of Yakima and Yakima County to establish the meaning of a "place of public assembly." The original ASO was prepared by Yakima County, therefore the meaning of the term "place of public assembly" should be derived from the context of Yakima County's original ordinance. Yakima County Code 15.08.001 provides that if a term is not defined in the Yakima County Code, or other plan, code, ordinance, resolution, Washington Administrative Code, or statute, then words or terms should be given their commonly understood dictionary meaning. Thus, Wal-Mart argued the term "place of public assembly" as used in the Washington Administrative Code should be controlling, citing: WAC 296-104-010 (regulating the safety of boilers): 'Place of public assembly' or 'assembly hall' shall mean a building or portion of a building used for the gathering together of 50 or more persons for such purposes as deliberation, education, instruction, worship, entertainment, amusement, drinking, or dining or waiting transportation. This shall also include child care centers (those agencies which operate for the care of thirteen or more children), public and private hospitals, nursing and boarding homes WAC 246-374-010 (location of outdoor music festivals): any regularly established permanent place of worship, athletic stadium, athletic field, arena, auditorium [or] coliseum. Wal-Mart further cited without quoting: WAC 480-75-360 (regulating locations of underground pipelines) and 480-93-005 (regulating location of natural gas transmission lines): [An area ... of either a building or small, well-defined outside are (such as a playground, recreation area, outdoor theater, or other place of public assembly) that is occupied by twenty or more person on at least five days a week for ten weeks in any twelve- month period.] CLC Associates — Wal-Mart Superstore 27 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 c. Yakima County Code also adopts by reference the International Building Code and the International Fire Code. These codes distinguish "assembly" type uses from "mercantile" type uses. "The typical meaning of places of public 'assembly' in construction and fire codes include buildings used for gatherings of persons in an enclosed space, such as auditoriums, gymnasiums, multipurpose rooms, stadiums, theaters, arenas, and schools." "'Mercantile' uses (such as for the proposed Wal- Mart store) are an entirely different category separate and distinct from places of public "assembly." d. Defining "place of public assembly" based on the density of people gathering in one place is not supportable. The Yakima code does not adopt a density criterion, no party has been able to identify a threshold of density typically used by other ASOs, and CCY has not generated a reasonable or rational definition of "place of public assembly." Wal-Mart argues that where CCY has not offered an alternative reasonable interpretation of the "place of public assembly," the Hearing Examiner or the City Council's "only possible conclusion is that the City Council must conclusively determine that the Wal-Mart would not be a place of public assembly." 3. Wal-Mart maintained the Hearing Examiner made a mistake when he concluded the statement of compatibility must be from the Airport Manager, not the Airport Board. Pursuant to the Joint Air Terminal Operations Agreement, the Airport Manager is under the direction of the Airport Board and the Airport Board shall exercise all powers, rights, and authority relating to the operation of the airport. [Section 2- "Commencing on the 1st day of July, 1982, all powers, rights and authority held by the parties relating to the ownership and operation of airports and related facilities shall be exercised by the Board. Such Board shall exercise, on behalf of the parties hereto, all the powers of each of the parties granted by RCW 14.08, including but not limited to acquiring property for, establishing, constructing, enlarging, improving, maintaining, equipping, operating and regulating the airport and other air navigation facilities and airport protection privileges to be jointly acquired, controlled and operated, together with all powers incidental thereto or necessary for performance thereof and not inconsistent with RCW 14.08 and this Agreement as presently constituted or subsequently modified."] [Section 4: "The Airport Board shall have the power to employ and discharge an Airport manager and to prescribe the duties and from time to time fix the compensation of the Manager. The Manager shall be responsible for receiving and having charge of all funds of the Board and shall disburse such funds only as directed by the Board."] a. Hearing Examiner Condition No. 47 states that, "the applicant shall demonstrate to the Director of Community and CLC Associates — Wal-Mart Superstore 28 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Economic Development full compliance with all applicable ASO ordinance requirements prior to issuance of any permits." Wal-Mart maintains that the condition should not require a separate letter from the Airport Manager when the Airport Board's motion is sufficient to comply with the Airport Safety Ordinance. "Such an interpretation of YMC 15.30.060 would delegate to the Airport Manager unfettered discretion to issue a letter of compatibility without review standards or legislative oversight of any kind." b Wal-Mart offered an August 24, 2006 letter from the acting airport manager into the record as clarification of the Airport Board's position with respect to the proposed project. CCY did not object. The City Council admitted the letter into the hearing record as clarification of YAT's position. 4. Wal-Mart did not dispute the authority of the Hearing Examiner to impose conditions of approval. However, Wal-Mart argued that if Condition 47 is affirmed by the City Council, it has already satisfied both Condition No. 47 and YMC 15.30.060 as all necessary materials have been submitted for compliance. CCY's Position Regarding Hearing Examiner's Decision on Remand: CCY agreed with the Hearing Examiner's determination that the proposed Wal-Mart constitutes a "potentially incompatible land use" under the ASO and requires the submission of an ASO application and statement of compatibility from the Airport Manager under YMC Section 15.30.060. 1. CCY argued the proposed Wal-Mart was by definition a "place of public assembly" referencing: a. Federal Aviation Administration ("FAA") Discussion Paper on Runway Protection Zone stated: "Land uses prohibited from the RPZ are: residences and places of public assembly (churches, schools, hospitals, office buildings, shopping centers, and other uses with similar concentrations of persons typify places of public assembly." CCY also references other FAA exhibits in the record regarding the rezone of the Congdon property — Ex. 29, Vol. 1 Tabs 18 and 27) b. Washington State Department of Transportation — Aviation Division March 14, 2003 letter: "Incompatible land uses are defined by the zoning code section 15.30.020(G) "potentially incompatible land use." According to this section, public assembly is considered an incompatible land use. The proposed Wal-Mart and associated activities would support large concentrations of people and therefore may be deemed an incompatible development due to the public assembly of people." c. November 20, 2003 comment by Airport Manager Bob Clem: "Alternative Site #2 however, would not be considered compatible because the building would be located in close CLC Associates — Wal-Mart Superstore 29 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05, EC 6-04 proximity to the extended runway centerline. Historically, aircraft accidents happen on approach or departure and usually are clustered about the extended runway centerline. This could have grave consequences if an aircraft were to crash into a building occupied by hundreds of people [Alternative Site #2 is the current Wal-Mart site]. d. The City's expert, David P. Dietz, testified that the proposed Wal-Mart Superstore introduced a use intensity that was greater than a manufactured or mobile home park as listed in the ordinance. 2. CCY maintained the ASO application must be reviewed as a Class (2) application and is subject to applicable review procedures. CCY's position departs from that of the Hearing Examiner, however, maintaining that the Hearing Examiner "improperly deferred the Class (2) review to the permit stage in direct contravention of the ordinance directives." 3. CCY asserted that the ASO application must be consolidated with the underlying permit application and therefore, the Hearing Examiner improperly deferred the Class (2) review to the permit stage. CCY argued that Wal -Mart's failure to submit the required ASO application where the Hearing Examiner determined the proposed usage was a "potentially incompatible land use" requires denial of the Wal-Mart permit application. Wal-Mart was required to file the ASO application prior to the closing of the record. Because the ASO application is not included in the existing record, the application is deficient and the application should be denied. 4. With respect to the letter dated August 24, 2006 from the Acting Airport Manager admitted into the record, CCY maintained the letter does not meet the Yakima City Code requirements for a statement of compatibility. Yakima Code: At issue, among other things, is whether the proposed Wal-Mart store is a "potentially incompatible use" pursuant to the Yakima Municipal Code Airport Safety Overlay ("ASO") provisions. The issue determines whether the proposed use, a Wal- Mart Superstore, is subject to a Class (1) or Class (2) application and review procedure. It is undisputed that the proposed Wal-Mart store is within the airport safety overlay zone and subject to the ASO provisions. As a result the reviewing official must establish whether the project is subject to Class (1) or Class (2) review under the ASO. YMC 15.30.040 addresses the criteria for establishing whether a use is a Class (1) or Class (2) use providing: (A) The uses listed as Class (1) uses within the underlying zoning district shall be subject to the height restrictions listed in Section 15.30.070 or YMC Chapter 15.05, Table 5-1, whichever is the more restrictive. No separate application for a Class (1) use in the airport overlay is required, provided the reviewing official can conclusively determine that the proposed structure or use: (1) Does not constitute a potentially incompatible land use; CLC Associates — Wal-Mart Superstore 30 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 and (2) Will not exceed thirty-five feet in height; or, if greater than thirty-five feet in height, will not penetrate the approach, transitional, horizontal, or conical surface zones of the airport for any existing or planned approaches as defined by FAR, Part 77; and (3) Is not within a designated runway protection area or an identified future sixty-five DNL aircraft noise impacted area within the airport master plan or the FAA approved airport layout plan. Such structures and uses shall in any case be subject to the limitation of Section 15.30.070 and to the recording of an aviation easement. (B) Class (1) uses shall be subject to Class (2) application and review procedures pursuant to Section 15.30.060 where the use is a potentially incompatible land use, or where the reviewing official cannot make a conclusive determination as required in subsection (1). (Ord. 2001-04 § 4 (part), 2001). YMC 15.30.020(G) defines "potentially incompatible land use" as follows: "Potentially incompatible land use" means land uses deemed potentially incompatible within the airport safety overlay include: (1) Those land uses located in the primary airport safety overlay, being an area bounded by the limits of the approach surface and the transitional surface within the conical surface area, that are of such intensity as to potentially endanger public health, safety or welfare. Such uses include manufactured or mobile home parks, schools, places of public assembly, and multi -family residential uses; (2) Those land uses within the primary or secondary airport safety overlay constituting airspace hazards, as determined by the reviewing official .. . Thus, in order to establish whether the project is subject to a Class (1) or Class (2) review under the ASO, the reviewing official must determine whether the use is a "potentially incompatible land use." If the reviewing official conclusively determines the proposed use is not a "potentially incompatible land use," the use is a Class (1) use and no separate application under the ASO is required. [This was the conclusion reached by Staff after publication of the EIS.] Conversely, if the reviewing official cannot conclusively determine that the proposed use is not a "place of public assembly" or otherwise does not constitute a "potentially incompatible land use," then the use will be subject to Class (2) application and the review procedures required under Section 15.30.060. See YMC 15.30.040(2)(B). YMC Section 15.30.060 provides: (A) Applications for uses within the airport safety overlay established by this chapter shall include the following information: CLC Associates — Wal-Mart Superstore 31 SW Corner Nob Hill Boulevard & S. 64t Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 (1) Property boundary lines as they relate to the boundaries of the primary and secondary airport safety overlay; (2) Location, elevation, and height of all existing and proposed buildings, structures, utility lines, and trees taller than thirty-five feet in height; (3) A description of the proposed use. (4) A statement of compatibility from the airport manager when the use is to be located within the airport safety overlay relative to the impact of the use on airport operations and safety. (B) In consideration of an application for a building, structure, or other use which will exceed thirty-five feet in height, the reviewing official may require the applicant to submit either of the following: (1) A certificate from a registered professional engineer or a licensed land surveyor, which clearly states that no airspace obstruction will result from the proposed use, or (2) Either or both of the following: (a) The maximum elevations of proposed structures based on the established airport elevation and USGS datum. Elevations shall be determined by a registered professional engineer or a licensed land surveyor, accurate to plus or minus one foot shown as mean sea level elevation or other available survey data. The accuracy of all elevations shall be certified by the engineer or surveyor. (b) A map of topographic contours with not more than five foot intervals, showing all land within one hundred feet of the proposed structure(s) for which the permit is being sought. This map shall also bear the verification of a licensed land surveyor or registered professional engineer. (Ord. 2001-04 § 4 (part), 2001). City Council's Position: The City Council adopts the Hearing Examiner's findings and condition on remand, without modification, that "[t]he applicant must demonstrate to the Director of Community and Economic Development full compliance with all applicable ASO ordinance requirements prior to the issuance of any permits." 17. Condition No. 49: "No future users of any portion of the property included within this application shall at any time in the future use or allow the use of any kind of satellite dish(s) or other type of similar equipment for communication purposes without the prior approval of the City, the Airport Manager, and the FAA." Hearing Examiner's Position: The FEIS states that prior approval of the City, the Airport Manager and the FAA should be required for use of satellite dishes for communication on this site. Wal -Mart's Position: Wal-Mart asserted the condition is unreasonable because there is no evidence in the record that shows satellite dishes would interfere with functioning of Yakima Airport Terminal or would violate the airport approach slope boundary. Requiring approval of the Airport Manager and FAA before allowing the placement of CLC Associates — Wal-Mart Superstore 32 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05, CAO 6-05; EC 6-04 satellites is an illegal delegation of the City's police power. Wal-Mart requested the Council strike the condition from the decision. CCY's Position: Position supported by the FEIS. Staff Report Recommendations: No reference to the Airport or related requirements is made in the Staff Report. FEIS Recommended Mitigation: Condition is consistent with recommended FEIS mitigation measure. See FEIS at 149. Yakima Code: YMC 15.30.070(3)(C) provides that "No use or activity shall take place within the airport safety overlay in such a manner as to:... create electrical interference with navigational signals or radio communication between the airport and aircraft ..." YMC 15.10.030 provides that the reviewing official has the authority to impose conditions to mitigate any identified specific or general negative impacts of the development, whether environmental or otherwise and has the broad authority to increase the minimum development standards. Further, a reviewing official may deny or condition approval of any permit on the basis of the State Environmental Policy Act (SEPA). City Council's Position: The Hearing Examiner's condition is well supported by the FEIS and the Yakima Municipal Code, and is adopted as is. 18. "Hearing Examiner did not have jurisdiction to review the application in the absence of a final determination regarding rezone of the subject property. Ordinance 2002-45 Section 5 provides: Section 5. Subject to the foregoing provisions and conditions, this Ordinance shall be in full force and effect thirty (30) days after its passage, approval and publication as provided by law and by the city charter, and this action shall be final and conclusive unless within 21 days from the date this Ordinance is passed by the City Council and aggrieved party commences proceedings for review pursuant to the provisions of RCW Ch. 36.70C. An appeal of Ordinance 2002-45 was filed within the prescribed time period and has not reached final resolution. The appeal was filed pursuant to the provisions of RCW Ch. 36.70C (Land Use Petition Act). Hearing Examiner improperly denied an application for delay in the project permit review." Hearing Examiner's Decision: It is up to the applicant (Wal-Mart) to decide whether to proceed at its own peril. Wal -Mart's Position: Under the terms of the Ordinance, the Ordinance is effective 30 days after its passage. CLC Associates — Wal-Mart Superstore 33 SW Corner Nob Hill Boulevard & S. 64t" Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 CCY's Position: The Comprehensive Plan was invalidated and the rezone of property is based on the invalidated comprehensive plan. The intent of the rezone ordinance was clear. No action should be taken until all appeals are exhausted. City Council's Position: Section of Ordinance 2002-45 provides: Subject to the foregoing provisions and conditions, this Ordinance shall be in full force and effect thirty (30) days after its passage, approval and publication as provided by law and by the City charter, and this action shall be final and conclusive unless within 21 days from the date this Ordinance is passed by the City Council an aggrieved party commences proceedings for review pursuant to the provisions of RCW Chapter 36.70C. Neighbors for Responsible Development ("NFRD") filed an appeal of Ordinance 2002-45 within 21 days from the date the Ordinance was passed by the City Council. The Kittitas County Superior Court affirmed the decision of the City Council. NFRD appealed the Superior Court's decision to the Washington State Court of Appeals, where the matter is currently pending. An appeal affects whether the Ordinance is "final and conclusive," but not when it became effective. The only basis to stay the effectiveness of the Ordinance is to seek a judicial stay pursuant to RCW 36.70C.100. RCW 36.70C.100 provides that "[a] petitioner or other party may request the court to stay or suspend an action by the local jurisdiction or another party to implement the decision under review." The failure to seek a stay permits the applicant to act on the action of the City Council, or in this case Ordinance 2002-45. The Congdon Comprehensive Plan Amendment (Ordinance No. 2001-56) was invalidated after the adoption of Ordinance 2002-45. The effect of the invalidation of the amendment was prospective only and therefore did not affect Wal -Mart's ability to vest to Ordinance 2002-45. The subsequent repeal of Ordinance 2002-45 did not prevent Congdon and Wal-Mart from vesting to that ordinance per the Congdon Development Agreement, as affirmed by Kittitas County Superior Court Judge Michael Cooper. 19. "Hearing Examiner improperly interpreted and applied ordinance review standards as established by Ordinance 2002-45. Included in the analysis were the following errors:" "'One of the reasons why the Class (1) uses here became subject to Class (2) review is set forth in Section 15.13.020(1) which refers only to a change in the method of review, not in the class of use ...' this statement is incorrect. Council Person Mattson proposed the ordinance modification for the specific purpose of increasing the standard of review for all uses within the Congdon property." "The Examiner finds that Mr. Noble's argument overlooks the intended significance of the last sentence in the definition of a Class (1) use in Section 15.20.020 of the UAZO . . . All references to Class (1) uses are irrelevant and nonapplicable under Ordinance 2002-45." CLC Associates — Wal-Mart Superstore 34 SW Corner Nob Hill Boulevard & S. 64`'' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 "'The zoning ordinance therefore puts the burden upon the neighbors and others who oppose approval of this application to establish that uses are incompatible on the CBDS — zoned property included in this application.' This statement incorrectly applies the burden of proof and review standard." Traffic mitigation measures are ambiguous, unclear and fail to properly allocate improvement responsibility and costs. City of Yakima has improperly assumed responsibility for funding of improvements. Hearing Examiner's Position: The class of review is generally the same as the class of use, but the ordinance provides for a standard of review that is different from the class of the use in certain enumerated circumstances, e.g., ASO. The Hearing Examiner is not aware of any provision in the zoning ordinance that states that the class of a use changes when the way of reviewing it changes. One reason the Class (1) use became subject to a Class (2) review is because all or part of the development is in the floodplain or greenway overlay districts, as provided under YMC 15.13.020(1). The other reason is because a Class (2) review is required by the rezone ordinance. The proposed uses thereafter became subject to a Class (3) review because many of the neighbors' comments requested the review be elevated to Class (3) review. The Administrative Official honored that request and elevated the review of Wal -Mart's application from the administrative Class (2) review process to the Class (3) review process involving a public hearing before a Hearing Examiner. In doing so, the Administrative Official exercised the authority granted under YMC 15.14.040(3)(e), which similarly does not provide for a change in the class of use upon a change in the type of review. The Hearing Examiner reasoned that if the City Council intended to delegate to the Administrative Official the authority to change the class of uses from those generally permitted (Class (2)) to those generally incompatible (Class (3)), it would have expressly stated that. Accordingly, the Hearing Examiner concluded that the proposed use set forth in Wal - Mart's application is a Class (1) use subject to Class (2) review that has been referred for Class (3) review. Thus, it is the second type of Class (1) use referred to in the Class (1) use definition, where in some cases Class (1) uses may require review by the administrative official. See Remand Decision at 9-12. As a result, the use is generally permitted and the burden is on those who oppose approval of the application to establish that the uses are incompatible with the CBDS-zoned property Wal -Mart's Position: There is a difference between class use and review. Wal-Mart argues it is entitled to a presumption of compatibility as a Class (1) use subject to Class (2)/(3) review. Thus, the burden is on opponents to establish the uses are incompatible. CCY's Position: Asserted that Ordinance 2002-45 made Wal-Mart a Class (2) use. The burden of proof is on the applicant to satisfy ordinance requirements including the compatibility with adjacent residential neighborhoods. Class (2) uses are similar to conditional uses — compatibility cannot be determined in advance, and a hearing is required to assure that the proposed use is appropriate. CLC Associates — Wal-Mart Superstore 35 SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 City Council's Position: Ordinance 2002-45 provides under Section D: Increase of Level of Review for Currently Identified Class (1) Uses In CBDS Zones in Tracts D and E. (1) Findings: (a) The City Council recognizes the valuable nature of public input and participation in far-reaching projects of this type, where the timeline for development may stretch out to 40 years or more; (b) At the closed -record hearing on July 30, 2002, Congdon agreed that all uses currently identified for Class (1) review in the CBDS zones of Tracts D and E under the Yakima Municipal Code shall be subject to Class (2) review; (c) Currently, Class (1) uses in CBDS zones are permitted outright with little or no public review or process; (d) Class (2) review creates a rebuttable presumption of compatibility for those same uses, but would ensure substantial additional public participation and review of the permitting process with the possibility of appeal; Upon outlining Class (1) use and Class (2) review, the Ordinance concludes: To further ensure the compatibility of the proposed rezone to surrounding properties, the City Council requires that all uses currently identified as appropriate for Class (1) review in the CBDS zones for Tracts D and E be required to obtain approval through the Class (2) review process contained in the Yakima Municipal Code. The Ordinance further contemplates imposition of mitigation measures in Section IV(B)(2)(d), the Airport Overlay provision, by providing "Only upon a determination of compliance with project -specific review (e.g. SEPA, Class (2) review, etc.) and appropriate mitigation, will any land use proposal be allowed to proceed." Lastly, the Ordinance provides under II(A)(3) that "There is substantial evidence that the requested rezone is compatible with adjacent properties provided that the conditions recommended in the Revised Recommendation, subject to the modifications contained herein." A Class (2) review is required for any proposed use designated as a Class (2) use or for a Class (1) use requiring Class (2) review. YMC 15.14.020. Contrary to a Class (1) review, a Class (2) review provides that the administrator may establish conditions for approval pursuant to YMC chapter 15.10 which provides for special conditions of approval. YMC 15.14.040. Thus, it is the Class (2) review that allows special conditions to be considered regardless of the pre -determined class of use. To summarize a Class (2) review, both under Ordinance 2002-45 and the Yakima Municipal Code, contemplates the imposition of special conditions to promote compatibility with adjacent neighborhoods. With respect to the issue regarding the burden to prove compatibility, Ordinance 2002-45 expressly provides that there is a rebuttable presumption of compatibility under Class (2) review with respect to the CLC Associates — Wal-Mart Superstore 36 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 subject property. However, any conditions imposed by the City must be supported by substantial evidence in the record irrespective of the burden of proof. With regard to traffic mitigations (Condition Nos. 39-42 in the Remand Decision), the issues raised by CCY are analyzed in the discussion of those conditions supra. b. The Hearing Examiner incorrectly and improperly applied criteria of YMC 15.04.020(3) and 15.15.040(5) regarding compatibility and related issues. Hearing Examiner's Position: The City's comprehensive plan is, "no longer a relevant consideration for this application, unless and until a court were to rule otherwise." See Decision at 29. Wal -Mart's Position: Wal-Mart cited cases that stand for the proposition that to the extent the zoning code allows conditional uses inconsistent with the GMA comprehensive plan, the zoning code prevails. CCY's Position: There is evidence in the record of applicable comprehensive plan requirements. These goals and policies must be considered in the decision-making process. City Council's Position: The rezone ordinance, Ordinance 2002-45 II(B)(4) concludes that "the requested rezone satisfies the requirements of the Yakima Urban Area Comprehensive Plan." Accordingly, the Hearing Examiner only needed to examine whether the specific project was compatible with the comprehensive plan if there was evidence in the record demonstrating incompatibility. More importantly, however, under Washington law a project must be consistent with a zoning ordinance, but only general compliance with the underlying comprehensive plan is required. VI. FINDINGS OF FACT 1. Applicant. The applicant is CLC Associates, 12730 Mirabeau Parkway, Suite 100, Spokane Valley, Washington 99216 on behalf of Wal-Mart Stores, Inc. and landowner Congdon Development Co., LLC (Ex. H-1). References to the applicant herein shall mean the party represented by CLC Associates which is responsible for developing the property in accordance with the application and conditions. 2. Owner. The owner of the property is Congdon Development Co., LLC, P.O. Box 2725, Yakima, Washington 98907. 3. Location. The location is on the southwest corner of West Nob Hill Boulevard and South 64th Avenue, tax parcel numbers 181329-41401 and 41402. (Ex. F-1). 4. Application. The main aspects of the application may be summarized in the following manner: A. Uses of Site: The proposal consists of a 203,819 square -foot Wal-Mart supercenter with 1,042 parking spaces, a six -island fueling station and two outlot pads for future stand-alone buildings with retail tenants. (Exs. F-1 and H-1). By way of comparison, the testimony at the hearing was that the existing Wal-Mart supercenter facility on East Chestnut is 200,006 square feet with 965 parking stalls, the Fred Meyers facility on 40th Avenue is 184,000 CLC Associates — Wal-Mart Superstore 37 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 square feet with 805 parking stalls and the Home Depot facility on South 1st Street is 141,000 square feet with 674 parking spaces. The parcel proposed for the location of these uses is approximately 38.88 acres. About 27.31 acres of the site will be utilized for development. Approximately 7.16 acres will be set aside for a stream buffer for Wide Hollow Creek. Approximately 0.46 acres will be dedicated to the City for right-of-way for South 64th Avenue. The remaining 3.95 acres will be retained by the current owner for future commercial/retail development. (Ex. C-1). A short plat will be required to reconfigure the proposed site for the configuration of the two outlots. B. Design Features of Wal-Mart Facility: The new Wal-Mart supercenter will consist of a one-story, slab -on -grade structure. Although the original site development plans indicated that the new building would be approximately 30 feet in height, the latest information submitted indicates that the unique design for the building (Ex. C-2 attached hereto) has two gables which will reach 41.5 feet in height. (Ex. 192, at 11-12). The development will have a total impervious lot coverage of approximately 78%. Two access points to the facility are proposed from Nob Hill Boulevard and one access point is proposed from South 64th Avenue. The design perspective for the proposed building indicates a single -story structure with a facade designed to appear as several independent structures built with varying setbacks. The roofline similarly reflects separate structures with alternating flat and pitched roofs. The color scheme incorporates three shades of earth tone browns, a dark green and a metallic silver. The original proposed design pictured in the FEIS resembled the design of the existing store on East Chestnut Avenue. (FEIS at 103). The design submitted October 7, 2005 that is shown in Exhibit C-2 will be more aesthetically pleasing than the design pictured in the FEIS. C. Proposed Gas Station: A proposed gas station will be located on the north side of the property adjacent to Nob Hill Boulevard The gas station will have a minimum of three pump islands up to a maximum of six pump islands, with a total of no more than 12 individual fueling stations. (Ex. C-1). 5. Current Land Uses and Zoning. The subject property is vacant and is currently planted in alfalfa. The property was a fruit orchard for many years. The current zoning of the property is not as simple to describe as the current use due to a dispute on that point that appears in the record. The history of the zoning relevant to this dispute is as follows: A. RS Zoning Prior to Effective Date of Ordinance 2002-45: The site was zoned Rural Suburban (RS) prior to the effective date of City of Yakima Ordinance 2002-45. That zoning designation did not allow the applicant's proposed uses under any standard of review. B. CBDS Rezone Ordinance: The site was rezoned for commercial uses (Central Business District Support) along with adjoining property to the north and east by City of Yakima Ordinance No. 2002-45 (Ex. 196). A condition of the rezone was to review all future proposed used in the CBDS zone under Class (2) review. C. Validity of Rezone Ordinance Still Uncertain: After passage of Ordinance 2002-45 rezoning this property to CBDS, the neighbors contested its validity in Yakima County Superior Court. The Memorandum Decision of Superior Court Judge Michael Cooper dated October 26, 2005 held that the rezone ordinance is valid. (Ex. G-4). The Superior Court's decision is currently under appeal before the Washington State Court of Appeals Division III CLC Associates — Wal-Mart Superstore 38 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 6. Environmental Review. There was extensive environmental review of this proposal by numerous experts in their respective areas of expertise. Numerous mitigation measures were recommended to reduce the identified significant adverse environmental effects of the proposal to an acceptable, insignificant level. The main points of the environmental review process for this proposal are summarized as follows: A. The FEIS: In September, 2005, the City of Yakima issued the Final Environmental impact Statement for the West Nob Hill Boulevard Commercial Center. The FEIS was principally drafted for a former Wal-Mart site at South 72nd Avenue and Nob Hill Boulevard, directly northwest of the current site. The current site was analyzed as one of the alternative locations for the supercenter It was referred to in the FEIS as Alternative Site 3B. B. The DS: On November 22, 2005 a Determination- of Significance (DS) and "Notice of Adoption of an Existing Environmental Document" was issued by the City of Yakima in response to the current application. A SEPA Addendum was issued at the same time with minor modifications to the FEIS. C. The Resulting Mitigating Conditions: These FEIS documents are a part of the permit record for the current request. They serve as the basis for special mitigation requirements that are imposed as conditions of this decision where those conditions are more restrictive than City code requirements. D. Approval of the FEIS: The City Council approves the FEIS with its recommended mitigating measures as an adequate evaluation and mitigation of the identified adverse environmental impacts posed by this project. 7. Review Criteria. The Yakima City Council's findings and conclusions are required to set forth specific reasons and ordinance provisions demonstrating that the decision satisfies the following requirements set forth in Subsections 15 04 020(3) and 15.15 040(5) of the UAZO: A. Compliance and Compatibility with the Intent and Character of the Central Business District Support (CBDS) Zoning District ((Subsections 15.04.020(3) and 15.15.040(5)). This application proposes to establish uses subject to conditions that comply with the intent and character of the zoning district in which they would be located because they are all declared by Table 4-1 of the UAZO to be permitted uses in a CBDS zoning district and because they would be similar in character to the other types of uses that are permitted in that zoning district. Section 15.03.030 of the UAZO states that the purpose of the CBDS zoning district is: "...to accommodate wholesale and retail activities with some high- density residential development. This district is primarily located near the central business district and along the major arterials leading to the central business district. Like the CBD district, a variety of land uses are permitted. However, the intensity of development is intended to be less than in the CBD district." There was testimony suggesting that this site is not located near the Central Business District or along the major arterials leading to the Central Business District. Although not in an absolutely straight line, Nob Hill Boulevard is a major arterial leading to the Central Business District, which is one of the alternatives listed in that section. And the section does say CLC Associates — Wal-Mart Superstore 39 SW Corner Nob Hill Boulevard & S. 64th' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 "primarily." But more importantly, that testimony misses the point that compliance with that requirement was already determined at the rezone stage and is at this point no longer a relevant consideration for this application. The property is zoned CBDS regardless of that argument, unless and until a court were to rule otherwise. B. Compliance with the Standards Established in the Zoning Ordinance ((Subsection 15.15.040(5)). There are objective standards established in the zoning ordinance applicable to this application. Section 15.05.010 states that the site design standards in Chapter 15.05 of the UAZO were adopted specifically "to assure land use compatibility and promote the public health, safety and welfare." This application conforms with the requirements of the site design standards specified in Chapter 15.05 in the following ways: a) Height: Table 5-1 of the UAZO shows that the maximum height of structures in the CBDS zoning district is 50 feet. More restrictive height requirements were imposed on the property abutting the R-1 zone on the west which will be complied with as follows: starting at 35 feet from the property line adjacent to R-1 zoning, 20 feet above grade, graduating uniformly to 30 feet above grade at 75 feet from the property line, to 35 feet above grade at 90 feet from the property line, and beyond 90 feet from the property line, building height shall be that permitted in the CBDS zone or the Airport Safety Overlay, whichever is stricter. The proposed maximum height of 41 feet, 6 inches more than 90 feet from the property line is permitted by the zoning ordinance and the conditions of the rezone and an FAA No Hazard Determination for a height of 42 feet that was submitted into the record at the remand hearing. b) Setbacks: The proposal complies with the minimum respective setbacks required in the CBDS zoning district. c) Parking: The proposal complies with the minimum parking space requirements of the CBDS zoning district by providing nearly twice the required 554 spaces. d) Lot Coverage: 100% lot coverage is allowed in the CBDS zoning district. Wal -Mart's submitted site plan, the official site plan, shows 78% lot coverage The submitted site plan formed the basis for environmental review, public and agency comment and the Hearing Examiner's decision. YMC 15.10.030 gives the reviewing official authority to limit and control the dimension and shape of a structure and designate the location and size of open space. e) Signs: The sign dimensions will meet the zoning ordinance standards. They will be internally lit to prevent glare. Freestanding signs will be located as shown on the site plan. There will be no illuminated signage on the westerly portion of the building facing the existing residential area. f) Site screening: The Site screening requirements vary depending on the intensity of both the proposed use and its neighbors. The proposed uses will exceed the required standard in the following ways: 1. Standards: Three different standards have been established in Section 15.05.040 of the UAZO to accommodate a range of site screening needs: CLC Associates — Wal-Mart Superstore 40 SW Corner Nob Hill Boulevard & S. 64"' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Standard A -- A ten -foot -wide landscaped planting strip with trees on 20 -foot to 30 -foot centers, shrubs and groundcover. Standard B -- A three -foot -wide planting strip that will create a living evergreen screen at least six feet in height within three years. Standard C -- A six -foot -high, view -obscuring fence, made of wood, masonry block or slatted chain link. A three -foot -wide planting strip landscaped with a combination of trees, shrubs and groundcover along the outside of the fence is also required when the fence is adjacent to streets, alleys and pedestrian ways. 2. Compliance with Standard: Which standard applies is dependent on the adjoining land use(s). Based upon the nature of the existing adjacent land uses and the nature of the applicant's proposed uses in this situation, site screening standard "C" is required along the west and south property lines. Special screening requirements exceeding this standard, including an eight - foot -high sound wall atop a six -foot -high landscaped berm, will be constructed west of the Wal-Mart superstore and its parking lot to mitigate adverse environmental impacts and to promote compatibility with the existing single-family residential uses abutting the west side of the site. A sound wall will be constructed south of the store no later than when construction of residences on the remainder of the site south of the store commences. This decision requires sound walls to be constructed in a manner and of a type necessary to achieve strict compliance with all applicable State of Washington Administrative Code noise regulations and local City of Yakima noise regulations. 8. Compliance with the Provisions Established in the Zoning Ordinance ((Subsection 15.15.040(5)). Subsections 15.04.020(3), 15.15.040(5) and 15.10.030(A) are provisions that allow reasonable conditions to be imposed on projects to promote their compatibility when foreseeable impacts of the following types will result from the proposal: g) Blight Prevention: There was considerable testimony at the hearing and documentary evidence submitted into the record about residents' fear that Wal-Mart will harm local businesses and perhaps put some of them out of business. The evidence indicated that grocery businesses are the most vulnerable to that possibility. Many economic studies, articles, letters and testimony critical of the business practices of the company were presented, but the applicant did not engage the debate. The applicant rather took the position that the socio-economic claims of those opposed to Wal-Mart for reasons other than land use considerations were irrelevant. Under the provisions of RCW 36.70B the analysis of economic impacts is not a required element of the permit review process and economic evidence is only relevant if it establishes the probability that blight will occur as a result of the increased competition with local businesses. (West 514, Inc. v. Spokane County, 53 Wn. App. 838, 770 P.2d 1065 (1989)). The overwhelming majority of those who commented in writing and testified were very supportive of the local West Valley businesses because of the good service and friendly atmosphere they provide. Residents indicated that they would not patronize the new Wal-Mart store. They indicated they are willing to spend a little more to support local businesses. If the public testimony is consistent with the general consensus of others in the area, the closure of local businesses is not a foregone conclusion. CLC Associates — Wal-Mart Superstore 41 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Studies in the record illustrate how businesses can adjust to this type of competition. One letter in the record indicated that a grocery store in Bellingham could not stay open for long because of public opposition to its location. The record is not clear whether the public opposition to the proposed supercenter in West Valley is so great that it will coexist with local business or fail to survive. Even assuming the closure of one or more local businesses due to Wal -Mart's pricing structure were probable, it would be speculation to conclude that the building(s) would thereafter remain vacant and deteriorate over a long period of time. The rationale set forth in the economic analysis of this proposal by Huckell-Weinman Associates and Northern Economics, Inc. applies to this situation: "... [t]here is always a theoretical possibility that ... a chain of events (competition generated by the supercenter leading to business failures and closures of retail businesses leading to vacancies, causing blight, creating negative impacts on neighborhoods) could possibly occur; it is impossible to prove that it could not theoretically happen. But a theoretical possibility does not indicate a probable significant impact. Economic analysis indicates that there would be local competition, particularly in the supermarket sector. But competition alone, even if it indirectly results in closure of a business or abandonment of a nearby proposal, does not probably or directly cause blight. The link between competition and blight is uncertain in terms of causality, timing and extent. While blight is possible, its causal link to competition generated by a single development project is indirect, attenuated and theoretical. Blight is not a probable effect or impact of increased competition." (FEIS, App. K). On the other hand, uncertainty as to the effect that significant public opposition to this facility may have on its continued success warrants the recommended design of the store so as to allow it to easily be partitioned into smaller spaces or be demolished within three years after vacancy. h) Noise Mitigation: Potential noise pollution was a major concern of many of the residents who testified. No existing ambient noise measurements were taken for the proposed site. The Final Environmental Impact Statement Noise Study submitted for the proposed site, known as Alternative Site 2, examined noise levels at Alternative Site 3B. The noise impacts were predicted assuming an 8 -foot high wall on top of a 6 -foot berm constructed along the western property line. The study provides that the WAC maximum noise level criteria will be met if the berm and wall are constructed along the west side of the property. However, a "significant" change in ambient noise levels (4-9 dBA) could occur at residences immediately west of the store parking lot due to noise generated by the parking lot sweeper. Daytime noise levels could exceed the WAC hourly 1.5 minute/hour maximum along the south property line if residential dwellings are constructed south of the store [the property is zoned R-3]. Nighttime maximum noise levels may be exceeded near the east end of the store immediately south of the property line due to the proposed chiller equipment. Significant (4-9 dBA) ambient noise levels could occur at the residence on 64`h Avenue southeast of the store during late night hours due to chiller equipment (up to 15 minutes or more every hour). The study results also indicate that a "significant" change in ambient noise levels could occur at residences immediately west of the CLC Associates — Wal-Mart Superstore 42 SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 store structure during nighttime hours from an increase (8 dbA) of more than 15 minutes per hour due to the HVAC units on the roof. The applicant's noise study concludes there are nighttime impacts from the HVAC equipment on residential neighborhoods, even with the 8 -foot high wall and 6 -foot berm. Further the increase in noise of 8 dBA for up to 15 minutes an hour could be disruptive to sleep. Both Wal -Mart's study and the peer review report (E-193) acknowledge that barriers at the rooftop HVAC are needed to mitigate noise impacts. The noise tests conducted by the applicant's expert to prepare the supplemental noise report (Ex. 151) for this proposal are questioned by West Valley residents Wilma Koski and Michael Noble who were the only members of the public to comment on the study. (Exs. 188 and last 5 pages of 191). Mrs. Koski criticized the timing of the submittal and indicated that it should be mailed to people for comments as per the SEPA EIS procedure. Mr. Noble raised several concerns about the methodology used, including his claim that actual daytime ambient readings should have been taken along the west boundary of this site rather than assuming that the ambient readings for a nearby site would be the same during the day. The noise expert's testimony as to the validity of his findings was credible at the hearing and credible in the opinion of a second noise expert who did the City's peer review for the supplemental report. (Ex. 193). Nevertheless, the Examiner sees some value in having actual test results of the actual daytime ambient noise levels prior to commencement of construction of the facility to compare with comparable tests taken after the store is in operation to see if additional shielding or other steps will be required to actually accomplish the favorable results predicted in the study. This will be a condition of this decision unless the Director of Community and Economic Development finds such requirement to be unduly burdensome or unnecessary in view of other information that becomes available to him in the future Another condition of this decision is that the newest type of condensers in production be used for the two chiller units to be utilized for this facility that will be quieter than the older type and will be comparable to the equipment presently being used at the Wal-Mart facility in Lebanon, Oregon. Additional testimony and evidence was presented at the hearing on remand regarding the appropriate noise standard to be applied to the proposed Wal-Mart superstore and whether the proposed mitigation or additional mitigation is required. The applicant's expert, Kerrie Standlee, was very helpful in formulating a specific maximum increase in the daytime and nighttime ambient level of 5 decibels to be confirmed after the facility is fully operational. The applicant agreed to waive the exemption for sounds created by lawfully established commercial uses set forth in Subsection 6.04.180(F)(16) of the Yakima Municipal Code which would otherwise render ineffective any reference to City standards in the conditions. Except for the fact that neighbors prefer no increase in noise, the standards set forth in condition 18 as modified by this decision on remand are probably as definite, enforceable and protective of residents in the vicinity as any such noise mitigation measures can be. i) Lighting: Lighting concerns were a common concern of residents, particularly residents to the west and north of the proposed use. The type of lighting used for the parking lot and gas station will make a significant difference in the impact it will have upon residences, the traveling public and air traffic that will have a view of the facility during nighttime hours. According to Section 15.06.100 of the CLC Associates — Wal-Mart Superstore 43 SW Corner Nob Hill Boulevard & S. 64th' Avenue UAZO CL (2) #16-05, CAO 6-05; EC 6-04 Urban Area Zoning Ordinance, lighting must be provided to illuminate any off-street parking or loading space used at night. The lighting study submitted by the applicant was evaluated for an alternative site in which the luminaires were placed 80 feet from adjacent residential property lines. The lighting plan proposed by Wal-Mart for the proposed site provides for light poles to located within 30 to 40 feet from the western residential property line. The Final Environmental Impact Statement concluded the proposed site "presents the greatest potential for lighting to affect residential property... By directing light downward the potential for light and glare impacting residential properties could be reduces, however, residents will most likely be aware of the illumination." When provided, lighting shall be directed to reflect away from adjacent properties and the creek. In addition, any conditions imposed under Ordinance 2002-45 will be required. Finally, a condition is imposed aimed at preserving as much as possible the character of the area by imposing a maximum limit on the brightness of the parking lot lighting to prohibit unnecessarily bright lighting from being utilized solely for advertising the fact that the facility is open all night long, while still allowing sufficient brightness for safety and security. Rather than impose a specific brightness limit, a condition will be added to allow the Director of Community and Economic Development, in consultation with the Yakima Police Department, to require the brightness of the lighting at the facility to be reduced after it is in operation to a level that is roughly comparable to the Meadowbrook Mall lighting if because of complaints or other data he finds the lighting to be inconsistent with the rural character or residential nature of the property around the proposed uses. j) Hazardous Materials: Participation in the State Department of Ecology's Voluntary Clean -Up Program and submittal of an effective stormwater drainage plan will be required. k) Air Quality: Some residents were concerned about air quality issues that would result from the construction phase. Pursuant to the review of the site Environmental Impact Statement, the Yakima Regional Clean Air Authority submitted a letter stating that a "New Source Review" will be needed for any power generator(s), boiler(s) and the fuel dispensing facility (gas pumps)." The letter also provided that the applicant is "encouraged to file a Master Construction Dust Control Plan." The applicant will have to obtain a Master Dust Control Plan and submit to a New Source Review administered by the Yakima Regional Clean Air Authority. I) Water Quality/Stormwater Drainage: Considerable concern appears in the record about Wide Hollow Creek, a Type II stream. YMC 15.27.300 provides that the Critical Areas chapter shall apply to all lots or parcels on which critical areas are located. YMC 15.27.500 further provides that a "critical area development permit shall be obtained before construction or development begins within any critical area. . " The subject site is located immediately adjacent to and north of the Wide Hollow Creek riparian corridor. Under YMC 15 27, Class II streams are afforded a 100 -foot protective buffer on either side of the ordinary high water marks of the stream. Wide Hollow Creek has also been placed on Washington State's 303(d) list of water quality impaired waters. CLC Associates — Wal-Mart Superstore 44 SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Since the creek crosses the southeasterly portion of this site, a Critical Area Development Permit is required prior to commencement of construction. This proposed development is in compliance with the applicable critical area requirements. All proposed construction will comply with the City's Critical Area Ordinance and will be outside of the 100 -foot natural buffer and 20 -foot building setback, which are established from the ordinary high water mark of the creek. m) Habitat: The applicant will have to present proof to the City of application for any requisite permits, including the need for, or lack of need for, permits issued under the Endangered Species Act relative to fish habitat in Wide Hollow Creek. n) Construction Management: A construction management plan will be required of the applicant showing that precautions will be taken during construction to avoid erosion, dust and transport of hazardous substances as well as to provide flaggers for trucks entering Nob Hill Boulevard or South 64th Avenue. o) Street Improvements: The following City ordinance provisions specify what street improvements necessitated by the proposal are required to be paid for by the applicant rather than the public: i. General Basis for Imposing: The extent of the street segment and intersection improvements to be required of the applicant are determined by an objective analysis conducted by traffic engineers to determine how much impact the proposal will have. A legislative policy determination has been made by the City Council as to the acceptable and unacceptable Level of Service for arterial streets within the City. If a proposed development will cause the Level of Service to drop below acceptable levels because of traffic congestion during the busiest hour of the day, then the applicant is required to install off-site improvements. The costs will be borne completely by the applicant or will be shared proportionately between the applicant and the public depending upon the impact and LOS level involved. ii. Transportation Concurrency Study: A detailed traffic study was undertaken and peer reviewed by experts in this field who determined what improvements could be required of the applicant as a result of the increased traffic that would result. The Examiner finds the following facts and projections to be the best information in the record that is available to evaluate the traffic impacts resulting from this particular proposal and the recommended conditions in the staff report to mitigate those impacts at the applicant's expense rather than the public's expense to be warranted except for the segment of South 64th Avenue between Wide Hollow Creek and Washington Avenue. iii. Expected Additional Trips: Expected traffic generation from the proposed 203,819 square -foot superstore and gas station with 10 fueling positions on 27 acres was included in the "West Nob Hill Commercial Center Final EIS" for site "3B" which is on the southwest corner of South 64th Avenue and Nob Hill Boulevard. The Phase 1 and 2 uses for Site 3B are expected to generate 1,450 trips during the PM peak hour; 260 shared, 130 pass -by trips, and 1,060 new trips. Of these new trips, there will be 520 entering and 540 exiting. The expected average daily traffic (ADT) volume is 15,162, with half entering and half exiting the site for ingress and egress to the Wal-Mart site only CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 45 iv. Volume to Capacity (v/c) Ratio: This review for Transportation Concurrency is designed to measure the impact of new development on the capacity of city arterial street segments by calculating the approximate increase in traffic generated by the new use. The analysis is based on a calculation of volume -to -capacity (v/c) ratios for Arterial Street segments. The v/c ratio is determined by dividing the number of vehicles on a road segment per peak hour per lane by a capacity of 800 vehicles per hour per lane and is shown in the following table for the locations that would be most affected by the proposal' Concurrency Review Table 1: Existing and Projected Street Segment Capacity: Existing 2005 Conditions With Deve opment/Building Segment Direction Volume Lanes v/c LOS Volume Lanes v/c LOS 72" Ave Northbound 544 2 0.34 A 646 2 0.40 A (Summitview to Tieton) Southbound 673 2 0.42 A 783 2 0.49 A 72' Ave (Tieton to Nob Hill Blvd) Northbound 502 2 0.31 A 649 2 0.41 A Southbound 534 2 0.33 A 682 2 0.43 A 72"d Ave (Nob Hill Blvd to Zier) Northbound 299 2 0.19 A 377 2 0.24 A Southbound 410 2 0.26 A 498 2 0.31 A Nob Hill Blvd 72nd Ave to 80th) Eastbound 246 1 0.31 A 279 1 0.35 A Westbound 387 1 0.49 A 431 1 0.54 A Nob Hill Blvd (64th Ave to 72nd Ave) Eastbound 303 1 0.38 A 516 1 2* 0.64 0.32 B A Westbound 517 1 0 65 B 736 1 2* 0.92 0.46 E A Nob Hill Blvd Eastbound 349 1 0.44 A 570 1 2* 0.71 0.36 C A (48th Ave to 64th Ave) Westbound 622 1 0.78 C 852 1 1.07 F 2* 0.53 A 64m Ave (Tieton to Nob Hill Blvd) Northbound 182 1 0.23 A 255 1 0.32 A Southbound 207 1 0.26 A 279 1 0.35 A CLC Associates - Wal-Mart Superstore 46 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 Segment Direction Volume Lanes v/c LOS Volume Lanes v/c LOS 72nd Ave (Summitview to Tieton) Northbound 544 2 0.34 A 646 2 0.40 A Southbound 673 2 0.42 A 783 2 0.49 A 72" Ave (Tieton to Nob Hill Blvd) Northbound 502 2 0.31 A 649 2 0.41 A Southbound 534 2 0.33 A 682 2 0.43 A 72" Ave (Nob Hill Blvd to Zier) Northbound 299 2 0.19 A 377 2 0.24 A Southbound 410 2 0.26 A 498 2 0.31 A 64"' Ave (Nob Hill Blvd to Washington Northbound 205 1 0.26 A 259 1 0.32 A Southbound 212 1 0.26 A 266 1 0.33 A Mitigation proposed by the applicant will add additional travel lanes on Nob Hill Boulevar v. Level of Service Projections (LOS): Under the City of Yakima's concurrency ordinance (YMC 12.08), LOS D represents the minimum acceptable LOS for arterial roadways. The table above summarizes the data from the "West Nob Hill Commercial Center Final EIS" (Tables 17, page 115 and Table 27, page 130 of the EIS) regarding existing street capacity and expected impact of the proposed Wal- Mart superstore at site "3B", the SW corner of 64th Avenue and Nob Hill Boulevard. p) Pedestrian Improvements: There are no existing sidewalks along either 64th Avenue or Nob Hill Boulevard abutting the proposed superstore. Pedestrians presently use the unpaved gravel shoulder between the paved roadway and the exiting agricultural properties on either side of Nob Hill and 64th Avenue. A four-way crosswalk exists at the intersection of 64th Avenue and Nob Hill Boulevard It is in the best interest of both the applicant and the City to promote access to the facility on foot or by bicycle rather than by motor vehicle. The requirement to construct adequate pedestrian access will promote the proposal's compatibility with air requirements by addressing air quality, traffic concerns, and safety concerns. A seven foot pedestrian/bicycle access parallel to and immediately adjacent to the south parcel boundary extending from the eastern property boundary to the western property boundary and connecting with Borley Lane will provide adequate and safe pedestrian access from the residential development on the west side of the proposed site. Also, the construction of the Wal-Mart Superstore will increase vehicle traffic and pedestrian traffic along 64th Avenue. In particular, it is anticipated more children will walk or bicycle along the road to go to the store A ten -foot paved pedestrian/bicycle path constructed along the west side of 64th Avenue from Tieton Drive to Nob Hill will minimize the safety hazards to pedestrians and bicyclists as the traffic volumes increase in the area from the operation of the Wal-Mart store. Finally there is a lack of information regarding pedestrian/golf cart/vehicular conflict at the "golf cart" crossing on 64th Avenue next to the Westwood West Golf Course. The CLC Associates — Wal-Mart Superstore 47 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 construction of the Wal-Mart can only exacerbate any existing conflicts, warranting further analysis to determine if a pedestrian -activated signal at that location is necessary. Several residents in the Borley Lane area spoke in opposition to the condition that a trail be constructed from Borley Lane to South 64th Avenue. If the trail is improved or patrolled, that might alleviate fears of residents. The applicant's preference to build the trail from the southwest corner of the property along the west property line or in any location that is closer to existing residential uses than what the City is requesting would be problematic in view of the concerns expressed by the residents about having teenagers or others using the trail near their homes for drinking late at night. The same concerns lead the Examiner to impose the parking lot restriction against its overnight use by motor homes, campers, travel trailers or other recreational vehicles which the applicant enforces if the municipality so conditions its approval. q) Public Transportation Improvements: The bus pullout and shelters on both sides of the street will have to be on Nob Hill Boulevard or on South 64th Avenue depending upon bus routes to be determined by the City. r) Utilities: The applicant will have to complete such sewer line upgrades on Nob Hill Boulevard as may be specified by the City of Yakima Wastewater division and the applicant must provide the City with a 16 -foot -wide utility easement for the sewer line serving this property. s) Outlet Parcels: A short plat showing the configuration of the outlots of record is needed prior to issuance of building permits for the outlot structures. t) Enforcement: The City may require the applicant to modify lighting, abate litter problems, correct erosion control problems, extend noise walls adjacent to truck loading areas, add additional shielding to the HVAC roof units, test adjacent residential areas for compliance with the predictions of the noise study and require bonds to be posted in the event of repeated complaints that will allow the City to take corrective action if the applicant fails to timely do so. 8. Consistency of the Proposed Use With Development Regulations and the Comprehensive Plan under the Criteria Required by YMC 16.06.020B: Consistency in this context is determined by consideration of the following factors: A. The Type of Land Uses Permitted at the Site: As previously discussed, the applicant is applying for permission to place the type of uses on the site that would normally be permitted outright without discretionary review by the Administrative Official or the Hearing Examiner. Due to the circumstances, they have become types of uses generally permitted at the site and may be located pursuant to Class (2) or Class (3) review thereof. B. The Density of Residential Development or the Level of Development Such as Units per Acre or other Measures of Density Permitted: The proposed lot coverage of the uses shown on the site plan is 78% in a zone that allows 100% lot coverage. C. Availability and Adequacy of Infrastructure and Public Facilities: Infrastructure improvements such as frontage streets, curbs, gutters, sidewalks, streetlights, CLC Associates — Wal-Mart Superstore 48 SW Corner Nob Hill Boulevard & S. 64t'' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 traffic lights, pedestrian ways, transit shelters and off-site street and intersection improvements shown to be needed as a result of the City's Traffic Concurrency analysis will be constructed at the expense of the applicant where the City LOS requirements dictate that result and will otherwise be proportionally shared by the applicant to the extent of the project's impacts. Public water and sewer are available to the site. Nob Hill Water Company provides drinking water at this location. The Company has indicated that it has sufficient capacity to provide water for irrigation, drinking and fire flow. New service lines will need to be installed to do this. The applicant must arrange with Nob Hill Water Association the manner of providing the requisite amount of water for fire flow to the facility. D. Consistency of the Development with Development Regulations: The proposal is consistent with the applicable development regulations as discussed above. VII. CONCLUSIONS 1 The City Council has jurisdiction under YMC 16.08.030 to hear appeals of all decisions by the hearing examiner. 2. Public notice requirements have been completed as required. 3. The mitigating conditions of the Environmental Impact Statement prepared for this proposal are necessary to reduce adverse environmental impacts to an acceptable insignificant level and to promote the proposal's compatibility with the surrounding environment. 4. The applicant's construction of street improvements shown to be warranted by the Transportation Capacity review conducted for the proposal is also necessary to reduce the proposal's adverse environmental impacts and promote compatibility. 5. This application can be adequately conditioned by the conditions set forth below so as to accomplish compliance and consistency with the objectives and standards of the Comprehensive Plan and with the intent, the character, the provisions and the development standards of the zoning district and of the zoning ordinance. 6. This decision may be appealed to the Washington Superior Court within the time and in the manner as required under RCW 36.70C.040 VIII. DECISION This application for a Wal-Mart supercenter together with a fueling station and outlots within the CBDS zoning district is APPROVED subject to the mitigating conditions of the EIS except as specifically modified herein and the obligation of the applicant to enter into a development agreement with the City, as authorized by RCW 36.706.170-210, in order to implement the following conditions. 1. The site plan dated October 7, 2005 (Ex. C-1) and the perspective and elevation drawings dated November 29, 2005 (Ex. C-2) shall be the official site plan, building perspective, building elevation and color scheme. A final official site plan will be filed showing any changes or conditions that might be required by the hearing examiner. Building, grading, driveway and other permits submitted for construction on this site shall be in substantial conformance with the plan. CLC Associates — Wal-Mart Superstore 49 SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 2. Minor modifications to the site plan, building perspective, building elevation and color scheme may be approved by the Director of Community and Economic Development. Minor modifications are those that, in the Director's opinion, pose no greater external impact on the road system, Wide Hollow Creek buffers, adjacent residential areas, lighting or other features for which conditions have been imposed, than those caused by the site plan as approved. Major modifications will require additional analysis by the owner and will be heard by the Hearing Examiner who may approve, modify or deny such modifications. The following specific measures are conditions of development imposed upon the proposed Class (1) uses through the Class (3) review process. a) Height 3. The highest portion of the proposed improvements will be two gable roofs extending to a height of 41 feet, six inches. The parking lot lights will not be higher than 35 feet. The applicant will comply with the special height restrictions on the property imposed as a result of the rezone of the property to CBDS and required by the airport safety overlay zone. b) Setbacks 4. The minimum setbacks for the CBDS zoning district will be provided. c) Parking 5. The site plan shows 1,042 parking spaces, exclusive of the outlots, and 554 parking spaces are the minimum number required. None of these parking spaces or other areas on the site shall be made available for overnight or extended parking of motor homes, campers, travel trailers or other recreational vehicles unless they are involved in the business being conducted on the site. 6. Landscaping of parking areas will be substantially as shown on the approved site plan. Interior landscape islands provided within the parking areas will be a minimum of 200 square feet in size and will be planted with trees and shrubs. One tree will be required for every 14 parking spaces. d) Lot Coverage 7. The lot coverage will not exceed the 78% shown on the site plan even though 100% is the maximum allowed in the CBDS zoning district. e) Signs 8. Sign dimensions shall meet the size requirements of Chapter 15.08 of the UAZO. 9. Signs will be internally lit to eliminate Tight glare, and there will be no illuminated signage on the westerly portion of the building facing the existing residential area. 10. Freestanding signs shall be placed as shown on the site plan. CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 50 f) Site screening 11. Except as otherwise provided in these conditions, site buffering and screening will adhere to Standard C improvements as described in Section 15.05.040 of the UAZO. 12. On the westerly property line, the required standard for landscape and screening improvements will be an eight -foot high wall atop a six-foot high berm and "densely planted landscaping adjoining the wall and berm. Landscaping will be a mixture of fast growing deciduous and evergreen trees, shrubs and groundcover. The applicant will provide irrigation and maintenance for the landscaping on both sides of the masonry wall. 13. On the southerly property line, this same standard will be applied to those areas not abutting Wide Hollow Creek or its buffer area, and a sound wall will be constructed south of the store no later than when construction of residences on the remainder of the site south of the store commences. 14 All other perimeter landscape areas will be a minimum of 10 feet wide and will be planted with a mixture of deciduous and evergreen trees, shrubs and ground cover. 15. Outdoor displays and storage areas shall be screened from residents to the west and south and all fertilizers and other potential pollutants shall be displayed on racks off the ground and served by an effective drainage system to contain spills. g) Blight Prevention 16. Internal spaces will be structurally designed to allow conversion to smaller retail spaces meeting IBC requirements, in the event of supercenter closure, unless the Director of Community and Economic Development allows the applicant to instead post a bond or deposit funds sufficient to pay for the cost of removal of the building if it deteriorates or if it remains vacant for a three-year period after closure. 17. In the event of a closure of the Wal-Mart facility on the subject property, all signage will be removed from the store and property within six months of closure and Wal-Mart will continue routine upkeep and maintenance so that the property remains in an attractive and marketable condition. h) Noise Mitigation 18. Shielding of rooftop and ground level mechanical equipment will be provided with sound absorption panels to the extent necessary to reduce the noise created by the Wal-Mart superstore and fueling station on the westerly and southerly property lines to a level which complies with the strictest of the following standards. (1) The Washington State noise standards presently specified in Chapter 173-60 of the Washington Administrative Code, together with such amendments thereto that may be adopted in the future; and (2) The favorable results predicted in the applicant's noise study of not more than a five -decibel increase on the westerly and southerly property lines in the L25 ambient noise level for noises that are emitted for at least 15 minutes of each hour during both daytime and nighttime hours to be confirmed promptly after CLC Associates — Wal-Mart Superstore 51 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 commencement of full operations. Testing of the increase in ambient levels shall be in accordance with the requirements of condition 20. Subsequent testing will not be required unless the facilities are changed in some manner so as to create additional noise after the initial testing is completed; and (3) The City of Yakima's public disturbance noise regulations set forth in Section 6.04.180 of the Yakima Municipal Code, except for the exemption for sounds created by lawfully established commercial uses in Subsection 6.04.180(F)(16) thereof which applicant has agreed to waive and to refrain from asserting as a defense to an enforcement action thereunder, and together with any future amendments thereto. The owner will provide documentation as to the ability of said panels to achieve levels consistent with the above three noise standards. If said documentation is unavailable, and the ability of the panels to achieve such levels cannot be otherwise verified, mechanical equipment will be located on the ground. 19. Truck docks will be partially enclosed with masonry screen walls. 20. The applicant shall procure test results of the actual daytime ambient noise levels at the locations previously tested on the west side of the site during nighttime hours prior to commencement of construction of the facility in order to be able to compare the test results with comparable tests taken after the store is in operation to see if additional shielding or other steps will be required to actually accomplish the favorable results predicted in the study. This will be a condition of this decision unless the Director of Community and Economic Development finds such requirement to be unduly burdensome or unnecessary in view of other information that becomes available to him in the future. i) Lighting 22. Outdoor lighting proposed within the project actions boundaries will comply with the lighting conditions set forth in the Conditions of Approval adopted by the City Council for the Congdon Rezone. A lighting plan will be submitted that substantially matches the plan for the original Wal-Mart site on North 72nd Avenue. Elements of that plan include: i) Luminaries on poles not exceeding 35 feet in height. ii) No luminaire within 80 feet of an adjoining residential property. iii) Each luminaire equipped with low-pressure sodium lights with cut off fixtures. iv) Down -shielding to minimize glare, night -sky illumination and to achieve zero light candle illumination on any adjoining residential property. v) Canopy lighting from the proposed gas/fueling station to be fully shielded so that no light rays are emitted by the installed fixture at angles above the horizontal plane. vi) Luminaries certified by a photometric test report to minimize up -light light pollution to adjoining property and night sky. CLC Associates — Wal-Mart Superstore 52 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 vii) No illuminated signage placed on the westerly portion of the building facing the residential area. 23. Wall signs shall be internally lit to eliminate light glare. 24. The Director of Community and Economic Development, in consultation with the Yakima Police Department, may require the brightness of the lighting at the applicant's facility to be reduced to a level that is roughly comparable to the Meadowbrook Mall lighting if he determines from experience, citizens' complaints or other data that the lighting of the facility is inconsistent or incompatible with the rural character or residential nature of the property in the immediate vicinity. j) Hazardous Materials 25. The owner will present evidence of its participation in the State Department of Ecology Voluntary Clean-up Program. Prior to issuance of a Certificate of Occupancy, a certification of program completion from WSDOE will be presented to the City. 26. The owner will incorporate measures into a stormwater drainage plan to protect the water quality of Wide Hollow Creek from surface or subsurface lead and arsenic contamination. k) Air Quality 27. The owner will file a Master Construction Dust Control Plan with the Yakima Regional Clean Air Authority. 28. The owner wiifl submit to a New Source Review (NSR) under Section 4.02 of YRCAA Regulation 1. This project will be required to go through NSR to determine applicability and thresholds. I) Water Quality/Stormwater Drainage 29. The project will comply with State regulations affecting underground fuel storage and delivery systems. 30. Underground vaults will encase fuel storage tanks. 31. A drainage plan meeting the requirements and standards of the Storm Water Management Manual for Eastern Washington produced by the Washington Department of Ecology will be approved by the City Engineer prior to commencement of construction. 32. The drainage plan will include a Storm Water Pollution Prevention Plan. 33. The storm drainage system will be designed to discharge all storm water within five days of storm events. 34. The 100 -foot setback buffer between Wide Hollow Creek and the development will be recorded as a "Native Growth Protection Easement", with provisions that no development activity or active public access will occur within the area. CLC Associates — Wal-Mart Superstore 53 SW Corner Nob Hill Boulevard & S. 64"' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 35. Engineered erosion control measures will be installed during construction to prevent storm water runoff from carrying sediments and potential contaminants into the creek. m) Habitat 36. Evidence of the owner's application for any required Corps of Engineers, State or other non -local permits will be presented to the City prior to issuance of building permits. Where said permits affect grading, erosion control or other elements of construction, evidence of those permits having been issued will be presented prior to commencement of site development activity. 37. Specifically, the owner will present evidence of the need for, or lack of need for, permits issued under the Endangered Species Act as it relates to fish habitat in Wide Hollow Creek. n) Construction Management 38. A construction management plan will be prepared by the owner to include the following elements: a) That erosion control measures will be monitored during construction; b) That during site development and construction, no un -drained low spots are created within parking area or storm water detention areas; c) That construction areas will be watered as necessary to minimize blown dust; d) That vehicles leaving the site are washed down to minimize the transport of potentially hazardous materials away from the site; and e) That truck traffic entering and leaving the site will be monitored by flaggers to ensure the safety of traffic on Nob Hill Boulevard and South 64th Avenue. o) Street Improvements 39. The applicant at its expense shall construct the following street improvements, including the cost of necessary rights-of-way on properties not owned by the applicant which the City will assist in procuring at the applicant's expense with the cost of acquisition paid by the proponent. a) Nob Hill Boulevard: i) Improve Nob Hill Boulevard from South 48th to South 72nd Avenue to YMC Title 12 standards, subject to the United States Supreme Court's rulings in Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141 (1987) and Dolan v. City of Tigard, 512 U S. 374, 114 S.Ct. 2309 (1994). ii) The City shall establish an assessment reimbursement contract or latecomers agreement pursuant to RCW 35.72 to allow Wal-Mart to recover a portion of the improvement costs from other property owners within the vicinity who develop their property at a later date and use the improvements constructed by Wal-Mart. CLC Associates — Wal-Mart Superstore 54 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 b) South 64th Avenue i) Construct improvements on South 64th Ave. from Nob Hill Boulevard and south to the Wide Hollow Creek bridge according to City of Yakima design standards. ii) Construct a left turn lane to service the South 64th Avenue entrance to the site. c) North 72nd Avenue and Summitview Avenue Intersection i) Restripe and modify detection on the westbound through lane of Summitview Avenue to accommodate a shared left and through lane. ii) Upgrade traffic signal to convert east -west phasing to split phasing. iii) Undertake and complete all such additional construction as may be necessary to accommodate the through -lane improvements. d) South 64th Avenue and Nob Hill Boulevard Intersection i) Upgrade traffic signal system to install protected/permissive left turns for all approaches. e) All driveways i) Restrict all driveway access to the outlots to the supercenter property with no direct connections to adjacent public streets. ii) Obtain the City Engineer's approval of all driveway locations. iii) Restrict the east driveway to right -in -right -out only. iv) Construct a traffic signal at the west driveway and provide interconnect between South 64th Avenue and South 72nd Avenue. v) To maximize the spacing between the new signal at the west driveway and the signal at South 64th Avenue and Nob Hill Boulevard, the driveway will be located as close to the west property line as possible, in accordance with City driveway width and curb return standards. vi) Construct an eastbound right -turn lane at the west driveway. 40. South 64th Avenue and Tieton Drive Intersection and South 64th Avenue and West Washington Avenue Intersection: a) The applicant shall participate with the City of Yakima in the purchase of right-of-way and intersection improvements The purpose of the improvements to the intersection at South 64th Avenue and Tieton Drive is to improve sight distance and add a left turn lane for westbound traffic on Tieton Drive to reduce conflict with the through movements The purpose of the improvements to the intersection at South 64th Avenue and West Washington Avenue is to widen the northbound and southbound approaches of South 64th Avenue to include a separate CLC Associates — Wal-Mart Superstore 55 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 left -turn and shared through/right lane. The proponent's contribution toward both of these improvements would be on a pro rata basis according to traffic volumes generated as a percentage of intersection capacity. b) Prior to occupancy of Phase I, applicant shall bond for the full cost of a traffic signal installation at each of these two intersections (construction cost estimated at $200,000 for the intersection at South 64th Avenue and Tieton Drive and $265,000 for the intersection at South 64th Avenue and West Washington Avenue). Applicant shall also pay the City of Yakima for the cost of administering engineering studies to be conducted once a year for three years at the intersections. The engineering studies shall assess whether traffic signal warrants are met at the subject intersections. If the engineering studies deem that a signal is warranted, the bond shall be used by the City of Yakima to install a signal at the intersection(s). If, at the end of the three-year monitoring period, the engineering studies deem that a traffic signal is not warranted, the bond shall be released to the applicant. p) Pedestrian Improvements 41. Provide sidewalks, curb, gutter, streetlights and drainage along all property frontages. 42. Improve Nob Hill Boulevard from South 48th to South 72nd Avenue to YMC Title 12 standards, subject to the United States Supreme Court's rulings in Nollan v. California Coastal Comm'n, 483 U.S. 825, 107 S.Ct. 3141 (1987) and Dolan v. City of Tigard, 512 U.S. 374, 114 S Ct. 2309 (1994). The City shall establish an assessment reimbursement contract or latecomers agreement pursuant to RCW 35 72 to allow Wal-Mart to recover a portion of the improvement costs from other property owners within the vicinity who develop their property at a later date and use the improvements constructed by Wal-Mart 43. (i) Construct and provide a pedestrian/bicycle access to the supercenter from the adjacent residential neighborhood located to the west. The applicant shall construct a seven - foot -wide sidewalk located parallel to and immediately adjacent to the south parcel boundary line. The sidewalk will stretch from the eastern property boundary of the Wal-Mart site to the western property boundary and will connect to the northerly portion of Borley Lane. The Director of Community and Economic Development may accept a bond or cash deposit to insure completion if the preference is to make the improvements at a later time. (ii) Construct a ten -foot -wide paved pedestrian/bicycle path located along the west side 64th Avenue between Tieton Drive and Nob Hill Boulevard (iii) Conduct an annual study for a period of three years, any or all of which may determine if a pedestrian activated traffic signal is warranted across 64th Avenue to access the Golf Course. q) Public Transportation Improvements 44. Provide a bus pullout and shelter on both sides of either Nob Hill Boulevard or South 64th Avenue to be determined by the City Director of Community and Economic Development by considering transit routes, ridership characteristics and other pertinent factors. CLC Associates — Wal-Mart Superstore 56 SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 r) Utilities 45. The applicant shall complete such sewer line upgrades on Nob Hill Boulevard as may be specified by the City of Yakima Wastewater division and the applicant must provide the City with a 16 -foot -wide utility easement for the sewer line serving this property. s) Outlet Parcels 46. A short plat will be required to reconfigure the proposed site for the proposed outlot configuration. The short plat must be concluded and recorded prior to issuance of building permits for outlot structures. t) Air Traffic Safety and Public Safety 47. The applicant shall demonstrate to the Director of Community and Economic Development full compliance with all applicable ASO ordinance requirements prior to issuance of any permits. 48. No future user of any portion of the property included within this application shall at any time in the future use or allow the use of any kind of search light, blinking light or flashing light for grand openings, special events or any other purpose whatsoever. 49. No future user of any portion of the property included within this application shall at any time in the future use or allow the use of any kind of satellite disk(s) or other type of similar equipment for communication purposes without the prior approval of the City, the Airport Manager and the FAA. 50 No use or activity shall take place within the airport safety overlay in such a manner as to make it difficult for pilots to distinguish between airport light and others, create electrical interference with navigational signals or radio communication between the airport and aircraft; result in glare in the eyes of pilots using the airport and aircraft; impair visibility in the vicinity of the airport; create birds -strike hazards; or otherwise create a hazard which may in any way endanger the landing, takeoff, or maneuvering of aircraft intending to use the airport. 51. The applicant shall insure that conditions 47 through 50 set forth above in this section are disclosed to and complied with by future owners, lessees and other users of any part of the property included in this application by the most effective means possible, including without limitation the inclusion of the conditions in covenants recorded against the property and in sale, lease or other conveyance documents. u) Enforcement 52. The Applicant acknowledges the authority of the City to require the following measures as necessary to ensure compliance with the conditions of the Class (3) approval: a) Modifications to lighting improvements where necessary to eliminate foot candle exposure on adjoining residential properties or as necessary to comply with other lighting conditions; b) Abatement of a litter problem at the owner's expense, where a litter nuisance is documented, after notification to the owner and a reasonable period — no longer than one week CLC Associates — Wal-Mart Superstore 57 SW Corner Nob Hill Boulevard & S. 64`x' Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 — for the owner to clear the problem. (Recurring incidents will cause the City to abate the nuisance immediately at the owner's expense. Litter covered under this provision includes materials around trash compactors, used tires, food materials attracting vermin, odor causing materials and blown paper); c) Correction of erosion control problems where siltation or other impacts to Wide Hollow Creek are suspected; d) Extension of noise walls adjacent to truck loading areas if the noise level is identified to be higher than appropriate; e) Addition of more shielding to the HVAC roof units and procure and provide to the City additional noise test results as to actual ambient noise levels in adjacent residential areas in order to determine and enforce compliance with the predictions of the noise study; and f) Require bond(s) to be posted in the event of repeated complaints that will allow the City to take corrective action if the applicant fails to timely do so. DATED this day of October, 2006. CLC Associates — Wal-Mart Superstore SW Corner Nob Hill Boulevard & S. 64th Avenue UAZO CL (2) #16-05; CAO 6-05; EC 6-04 58 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. g For Meeting Of October 3, 2006 ITEM TITLE: Wal-Mart: Findings of Fact, Conclusions of Law and Final Decision SUBMITTED BY: Terry Danysh Jeff Cutter, Sr. Assistant City Attorney CONTACT PERSON/TELEPHONE: Jeff Cutter — 575-6030 SUMMARY EXPLANATION: Following the appeal to the City Council of the Hearing Examiner's recommendation in the matter of Class (3) Review Of an Application Submitted by CLC Associates For Approval of a Proposed Wal-Mart Superstore Facility With Associated Commercial Uses in the CBDS Zone, City Council remand of specific issues to the Hearing Examiner for further consideration and City Council's final deliberation of the Hearing Examiner's Decision on Remand on August 29, 2006, the Yakima City Council considered each proposed condition identified by the Hearing Examiner as well as the arguments of the Concerned Citizens of Yakima and CLC Associates/Wal-Mart Stores, Inc., and reached the ultimate Findings of Fact, Conclusions of Law and Final Decision attached to and incorporated with the Resolution accompanying this Agenda Statement. The attached Findings, Conclusions and Final Decision are before the City Council for approval and adoption. Resolution X Ordinance _Contract _Other(Specify) Findings, Conclusions & Decision Contract Mail to (name and address): Phone: Funding Source APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: This is a Council policy decision BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution as amended was adopted. RESOLUTION NO. R-2006-139 KIM M. EATON, COUNTY CLERK C.) U << - i j Ki CEFVED �AKIMA, COUNTY CLERK OFFICE OF COUNTY'CLEFtIQ18c EX+OFFAg2 i4t&RK OF SUPERIOR COURT 'a s 128 NORTH SECOND STREET, ROOM 323 . i YAKIMA WA 98901 i 1' 4? 1 U f i (509) 574.1430 W W W.YAKIMACOU NTY. US/CLERK May 6, 2008 Deborah Moore, City Clerk CITY OF Yakima 129 North 2nd Street Yakima WA 98901 RE: Yakima County Cause Number 06-2-03586-0 Yakima City Council / Hearing Examiners case: UAZO Appeal #1-06 & #2-06 Resolution R-2006-139 Re: CONCERNED CITIZENS OF YAKIMA & WALL -MART STORES INC. / CLC & ASSOC. Enclosed please find a certified copy of the Stipulated Order Of Dismissal filed September 5, 2007 in the above matter. Sincerely, KIM M. EATON Yakima County Clerk Sheila A. Rank, Administrative Assistant Enclosure OFFICE OF THE CITY CLERK 129 North Second Street Yakima, Washington 98901 Phone (509) 575-6037 • Fax (509) 576-6614 &)-Q_C)3s '6-() I am the City Clerk of the City of Yaki r , the respondent in this action. I certify that the attached is the true and c• piete record for review in the appeals of the Hearing Examiner's decision of e Wal-Mart Class (2) land use application. Dated this 8th day of March F 007 Deborah Mo• e, City Clerk Yakima LEGAL DEPARTMENT 200 South Third Street Yakima, Washington 98901-2830 March 8, 2007 Clerk Yakima County Superior Court 128 North Second Street, Room 314 Yakima, WA 98901 MA' 8 2007 04: tits* tibvt441 04* g�- Re: Wal-Mart Stores, Inc. and CLC Associates v. of Yakima, et al. Yakima County Superior Court Cause No. I ;-2-03586-0 Enclosed for filing in the above -captioned ca-. pursuant to the Land Use Petition Act, is respondent City of Yakima's submi r:`'on of the certified Record before the lower court (Yakima City Council). If you have any questions, please I- e know. Thank you. Sincerely, e rey R. Cutter Senior Assistant City Attorney Enclosure „e,4 duf: 7 Civil Division (509) 575-6030 • Criminal Division (509) 575-6033 • Fax (509) 575-6160 Yakima 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 221 SEP -5 El 5: 20 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF YAKIMA WAL-MART STORES, INC. and CLC ASSOCIATES, v. CITY OF YAKIMA, Petitioners, Respondent, CONGDON DEVELOPMENT COMPANY, L.L.C. and CONCERNED CITIZENS OF YAKIMA, Additional Parties. No. 06-2-03586-0 STIPULATED ORDER OF DISMISSAL Clerk's Action Required I. STIPULATION The parties, by and through their attorneys of record, do hereby stipulate, pursuant to Civil Rule 41(a), to an order dismissing this action with prejudice and without an award of costs to any party. STIPULATED ORDER OF DISMISSAL- 1 SBA 2037530v1 0031150-000132 ScaWc ORIGINAL Davis Wright Tromaina iLP LAM ORICU aoo Century Squint • !!et Fourth Avows J Ii. Waalllagsou 96te1-tall (206) 622-3130 • Par 2O6) 6267699 t 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DATED this. V 4 day of August, 2007. By DAVIS WRIGHT TREMAINE LLP Attorneys for Petitioners Wal-Mart Stores, Inc.: , CLC iates Inc. es E. Maduell, WSBA #15491 Thomas A. Goeltz, WSBA #5157 CITY OF YAKIMA Respondent By d G ' 1. r/ .,• 1 ��29�4 y R. Cutter, 644 0 Senior Assistant City Attorney By By STIPULATED ORDER OF DISMISSAL- 2 SEA 2037530v1 0031150-000132 San110 VELIKANJE, MOORE & SHORE, P.S. Attorneys for Additional Party Concerned Citizens of Yakima Telitt flg+JJames C. Carmody, #5209,���" Y Qf 7 7 HALVERSON APPLEGATE P.S., Attorneys for Additional Party Congdon Development Company, L.L.C. fia.t."( 'Michael F. Shinn,WSBA #14679 y 4.1444 -41)41f. Davis WrightTremaincu LAW OFFICE. 3W6 Contaary Souris • I961 Pearih Aveeue loarilo, Weitytoe 91101-1661 (206) 621-3130 • Pea: (366) 63_7699 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 II. ORDER Based upon the foregoing stipulation the parties, the Court does hereby ORDER that this action is dismissed with prejudice and without an award of costs to any party. DONE IN OPEN COURT this 67day o 2007. Presented by: Davis Wright Tremain LLP Attorneys for (a1 -Mart Stores, Inc. and CLC Associates By es E. Maduell, WSBA #15491 Thomas A. Goeltz, WSBA #5157 Approved as to Form; Notice of Presentation Waived: CITY OF YAKIMA Respondent By etseeit,,M,‘„4,,b0t.rela J = ' er, WSBA #?1904 enior Assistant City Attorney VELIKANJE, MOORE & SHORE, P.S. Attorneys for Additional Party Concerned Citizens of Yakima By ,„./ ate/ J s C. Carmody, WS A 205 STIPULATED ORDER OF DISMISSAL- 3 SEA 2037530v1 0031150-000132 Seattle Davis Wright Tremain LLP LAW OR/C[i 2600 Gantry Square • 1301 Fourth Avails Sour, Waahlaiftaa 51101-1611 (206) 622-3150 • Fax (206) 611-7655 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 HALVERSON APPLEGATE P.S. Attorneys for Additional Party Congdon Development Company, L.L.C. By - , - f ‘i-,- A -,A", froa 4,.... Michael F. Shinn, WSBA #1 9 r STIPULATED ORDER OF DISMISSAL- 4 SEA 2031530v1 0031150-000132 Seattle STATE OF WASHINGTON } SS COUNTY OF YAKIMA I, Kim M. Eaton, Clerk of the above entitled court, do hereby certify that the foregoing instrument is a true, and correct copy of the original now or, file in my office. In witness whereof,(here to set my ha d the se. sPid courtlthis ' 1W day of _�� 21>_• Ki • atop, CLERK By Deputy Davis WrightTtemaineU.P LAM OFrlctt 2600 Cemury Squire • ISM roma Avenue Waddigataa 96101-1611 (206) 622-3130 • Fu: (206) 6211-7699