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
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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
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UAZO CL (2)1/16-05; CAO 6-05; EC 6-04
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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
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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
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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.
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SW Corner Nob Hill Boulevard & S. 64th Avenue
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
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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
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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.
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SW Corner Nob Hill Boulevard & S. 64t'' Avenue
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
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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
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UAZO CL (2) #16-05; CAO 6-05; EC 6-04
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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
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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
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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
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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
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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
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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
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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