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HomeMy WebLinkAbout05/07/2013 07 Right-of-Way Vacation of N 2nd Ave; Hops Extract Corp. of AmericaITEM TITLE: Closed record public hearing to consider the Hearing Examiner's recommendation for the denial of a requested right -of -way Vacation of N 2nd Avenue requested by Hops Extract Corp. of America SUBMITTED BY: Steve Osguthorpe, AICP Community Development Director SUMMARY EXPLANATION: Hops Extract Corporation of America has submitted a petition on November 21, 2012 requesting the vacation of N 2nd Avenue lying north of Lincoln Avenue and south of West "D" Street. On February 14, 2013 the Hearing Examiner held an open record public hearing to consider this petition, which was opposed by several parties. The Hearing Examiner left the record open until March 8, 2013, accepting additional information from both sides. On March 22, 2013 the Hearing Examiner issued his recommendation that the requested petition be denied and that the subject right -of -way remain open to the public. The full record is on file with the City Clerk's Office and the Planning Division, as well as the City's website: http: / /www.yakimawa.gov /services /planning/ Resolution: Other (Specify): Contract: Start Date: Item Budgeted: Funding Source /Fiscal Impact: Strategic Priority: Insurance Required? No Mail to: Phone: Ordinance: Contract Term: End Date: Amount: APPROVED FOR SUBMITTAL: City Manager RECOMMENDATION: Staff recommends the acceptance of the Hearing Examiner's recommendation for denial. ATTACHMENTS: Name- Description- L-1 NTC HE RECOMMENDATION - Hops - RWV003-12.pdf Hearing Examiner's Recommendation COM11 UNITYDEVE LOPMENT DEPARTMENT Planning Division 129 North Second Street ` 2nd Floor Yakima, Washington 98901 Phone (509) 575 -6183 * Fax (509) 575-6105 ask.plariiiing@�vakititawej,.gov * http://i4,w)i,,,vakitnawa.goplserviceslplanningl NOTIFICATION OF HEARING EXAMINER'S RECOMMENDATION TO THE CITY COUNCIL March 25,2013 On March 22, 2013 the City of Yakima Hearing Examiner rendered his recommendation on RWV#003-12. The application submitted by Hops Extract Corporation of America is to vacate a portion of North 2" Avenue right of way located north of West Lincoln Avenue and South of West D Street. The application was reviewed at an open record public hearing held on February 14, 2013. EUMT,= , e Hearina Examiner's Uft =t The Hearing Examiner's Recommendation will be considered by the Yakima City Council in a public hearing to be scheduled. The City Clerk will notify you of the date, time and place of the public hearing. For her information or assistance you may contact Bruce Benson at (509) 575-6042 at the City of Yakima, Planning Division. 2ruce Benson Supervising Planner Date of Mailing: March 25, 2013 Enclosures: Hearing Examiners Recommendation and Site Plan I anam City of Yakima, Washington Hearing Examiner"s Mcgimica- itgu March 22, 2013 A. Introduction. Introductory findings relative to the hearing process for this maj Hops Extract Corporation of America I Vacation of North 2 nd Avenue between West D Street & West Lincoln Avenue RVN #003-12; Petition #12-05 Alops Extract Corporation of America Vacation of North 2d Avenue between West D Street ► West Lincoln Avenue RWV #003-12; Petition #12-05 1 Hops Extract Corporation of America Vacation of North 2" Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition #12-05 1 (7) This street right-of-way vacation recommendation has been submitted within ten business days of March 8, 2013, when the record of this hearing was closed following the submittal of all of the exhibits into the record. B. Summary of Recommendation. The Hearing Examiner recommends that the Yakima City Council deny this request to vacate the portion of North 2 d Avenue between West Lincoln Avenue and West "D" Street. 1. Petitioner/PropertV Owner. The Petitioner and property owner is Hops Extra] Corporation of America, 305 North 2 d Avenue, Yakima, Washington (Exhibit E-3 a z 11. Location/Legal Descrigtion., The location and legal description of the street right- Hops Extract Corporation of America 4 Vacation of North 2d Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition 111. Description of Area of Reg gested Street Vacation. The area included with the Petitioner's street vacation request may be described as follows: i V. Notices. The Yakima City Council referred this petition for vacation of street right- Hops Extract Corporation of America Vacation of North 2 d Avenue between West D Street & West Lincoln Avenue MWV #003-12; Petition V1. Environmental Review. Street vacations are categorically exempt from SPA review per WAC 197-11-800(2)(h) and Chapter 6.88 of the Yakima Municipal Code (Exh ib it A - 1, page 5). VII. Traffic Study. This request is exempt from Street Segment Capacity Analysis Hops Extract Corporation of America Vacation y., . North 2 "d Avenue between West D Street & West Lincoln Avenue RMrV #003-12; Petition #12-05 designation and the same Light Industrial (M-1) zoning classcation, and they are also used for Class (1) permitted industrial land uses. (Exhibit 4K. Development Services Team Comments. The City's Development Services Team comments submitted prior to the hearing were the source of all of Mr. Benson's recommended conditions in the staff report other than the additional recommended I nd "(1) An easement for public utilities shall be maintained for the vacated portion of N 2 Avenue. Hops Extract Corporation of America 7 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition (10) Compensation shall be paid to the City in the sum of $28,000. Payment must be received and all other conditions satisfied prior to the recording of the vacation *rdinance." (Exhibit A-], pages 2, 3, 7 and 8). MEM3y = (1) Public Benefit and Reasons Supporting the Proposed Vacation and t Limits of the Proposed Vacation. The limits of the proposed vacation consist of 40,000 square feet of North 2 d Avenue bounded by West Lincoln Avenue on the soul Hops Extract Corporation of America Vacation of Nort: »`v enue between West D Street &«.t Lincoln Avenue RWV #003-12; Petition #12-05 1 Hops Extract Corporation of America 9 Vacation of North 2'd Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition #12-05 Hops Extract Corporation of America Vacation of North 2 nd Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition Hops Extract Corporation of America Vacation of North 2"" Avenue between West D Street & West Lincoln Avenue RNW #003-12; Petition Hops Extract Corporation of America 12 Vacation of North 2d Avenue between West D Street & West Lincoln Avenue RY*rV #003-12; Petition 'Aops Extract Corporation of America 13 Vacation of North 2d Avenue between West D Street & West Lincoln Avenue RY;V #003-12; Petition #12-05 Hops Extract Corporation of America 14 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition and residential uses of the property in the area under consideration. After weighing all these factors, the council determined that the vacation of one block of 36Lh Avenue South would serve a public purpose." "The fact that some one private party may benefit directly or incidentally from a street vacation does not mean that the vacation will not also serve a public use or purpose." The Banchero case at page 523 also refers to public benefit as the requisite element for approval of street vacations: "'The legislature or, in this case, the city council is the proper body to weigh the benefit to the public. Only where there is no possible benefit to the public will this court review the legislative determination." Therefore, it would not appear to the Hearing Examiner that court decisions requiring a street vacation ordinance to be enacted for a public use or have within it some element of public use are requiring anything more than the indirect type of public purpose or public benefit described by the first quote in this subsection Hops Extract Corporation of America 15 Vacation of North 2" Avenue between West D Street & West Lincoln Avenue RV;V #003-12; Petition Hops Extract Corporation of America Ilf Vacation of North 24 Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition Hops Extract Corporation of America 17 Vacation of North 2 d Avenue between West D Street & West Lincoln Avenue r #003-12; Petition "Further, substantial interference with access on may constitute a 'taking or damaging' of property requiring compensati under our constitution."' Mops Extract Corporation of America 18 Vacation of North 2d Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition #12-05 Hops Extract Corporation of America 19 Vacation of North 24 Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition Hops Extract Corporation of America 20 Vacation of North 2" Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition Hops Extract Corporation of America 21 Vacation of North 2 nd Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition #12-05 14 feet of clearance for trucks and construction equipment. (Exhibit E-2, page 7� Exhib B-1 andExhibitA-1, page 5). 1 XI. Fair Market Appraisal and Compensation to the - City. The Heari Examiner's findings as to the fair market appraisal and compensation to the City if requested vacation is approved by the City Council are as follows: I Hops Extract Corporation of America 22 Vacation of North 2"' Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition Hops Extract Corporation of America 23 Vacation of North 2"d Avenue between West D Street & West Lincoln Avenue 1 I.IWV #003-12; Petition #12-05 Migral Based on the foregoing Findings, the Hearing Examiner reaches the following Hops Extract Corporation of America 24 Vacation of North 2d Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition #12-05 Hops Extract Corporation of America Vacation of North 2"d Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition (15) If the City Council decides to approve the requested street vacation, thio vacated right-of-way will belong to the adjacent parcels of property, one half to th4 adjacent parcels on each side thereof per RCW 35.79.040, and the vacated right-of-way will have the Light Industrial (M-1) zoning of the abutting property to which it will be added. Gary M. Cuillier, Hearing Examiner Hops Extract Corporation of America 26 Vacation ♦ North 2"d Avenue between West D Street & West Lincoln Avenue RWV #003-12; Petition V = 30' aw w West_._._ --------- Street - - HL&N West yo!j Avenue SURYMIM CK ITIFICYl- R-- --d THIS MAP COMMY REPRESENTS A SURVEY WDE By ME M UNDER MY 10111 11.0 fi. ll V MAT -11112-0 .1 , TOPOGRAPHY SURVEY mmamv% HOPS EXTPLACT CORP. JN THE NEV,,W/,,SEC'"0N24A!-19 Smk.d= 11, 2012 kh Me, 12116 HOPS Extract Corporation of America Right -of -Way Vacation Petition (Please bring this packet to the May 7, 2013 public hearing) OFFICE OF THE CITY CLERK 129 North Second Street Yakima, Washington 98901 Phone (509) 576 -6652 - Fax (509) 576 -6614 YAKIMA CITY COUNCIL NOTICE OF PUBLIC HEARING Petition of Street Vacation Located for a portion of North 2nd Avenue NOTICE IS HEREBY GIVEN that the Yakima City Council will conduct a closed record public hearing to consider the Hearing Examiner's recommendation on a right -of -way vacation petition requested by Hops Extract Corporation for a portion of North 2nd Avenue located to the north of W Lincoln Avenue and south of W "D" Street. Said public hearing will be held Tuesday, May 7, 2013 at 7:00 p.m. in the Council Chambers at City Hall located at 129 North 2nd Street, Yakima Washington Closed Record Hearing means the public is invited to testify on the existing Hearing Examiner's records, but will not be allowed to introduce any new information. For additional information, please contact Bruce Benson, Supervising Planner, 575- 6042, or e -mail to bruce.benson(a),yakimawa.gov. Any citizen wishing to comment on this issue is welcome to attend the public hearing or contact the City Council in the following manner 1) Send a letter via regular mail to "Yakima City Council, 129 N 2nd Street, Yakima, WA 98901," or, 2) E -mail your comments to ccouncilQyakimawa.gov. Include in the e -mail subject line, "North 2"d Avenue vacation." Please also include your name and mailing address. Dated this 9th day of April, 2013 Sonya Claar Tee City Clerk Mailed April 9, -2013 Yakima u�Mimkeah 1994 —a— West \° Street T —n - °,oumie ySSMr. I i I I .... _ ..... West LinnpgLi Avenue - -._ - - --O -- ._ -_ -. Proposed 2nd Avenue Vacation S RV -YOR'C CER T /F/ AT - THIS MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR UNDER MY DIRECTION M CONFORMANCE WITH THE REQUIREMENT'SOF THE SURVEYRECORDING ACT AT THE REQUEST OF HOPSTRACT W SEPTEMBER, 2011. JAMES C. BELL LS 18894 WAS 2, 2.Om �iw � NOV 2 1 2012 CITY OF YAKIMA PLANNING DIV. THATPORTION OF NORTH to AVENUE LYING NORTH OF THE NORTH RIGHT -OF -WAY OF WEST LINCOLN AVENUE AND SOUTH OF THE SOUTH RIGHT -OF -WAY OF WEST "D" STREET' BELL & UPTON LAND SURVEYING 715 NORTH 3RD STREET, YAKMIA,.WA 98901 Phone 457 -7656 TOPOGRAPHY SURVEY PREP,IRM FOR HOPS EXTRACT CORP. IN THE NE 1'., NE Y., SECTION 24 -13 -18 S.pt —b. 11, 2012 Job No. 12116 I i I� I I ji, I 11 d� I I I I I I I I I 2i � ° I I I I I I 1 I, r -• We.I I I I I I I i i II I I II F -rr 1" = 30' 3W ea SCALE IN I I la i 1 I� I I I i I I .... _ ..... West LinnpgLi Avenue - -._ - - --O -- ._ -_ -. Proposed 2nd Avenue Vacation S RV -YOR'C CER T /F/ AT - THIS MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR UNDER MY DIRECTION M CONFORMANCE WITH THE REQUIREMENT'SOF THE SURVEYRECORDING ACT AT THE REQUEST OF HOPSTRACT W SEPTEMBER, 2011. JAMES C. BELL LS 18894 WAS 2, 2.Om �iw � NOV 2 1 2012 CITY OF YAKIMA PLANNING DIV. THATPORTION OF NORTH to AVENUE LYING NORTH OF THE NORTH RIGHT -OF -WAY OF WEST LINCOLN AVENUE AND SOUTH OF THE SOUTH RIGHT -OF -WAY OF WEST "D" STREET' BELL & UPTON LAND SURVEYING 715 NORTH 3RD STREET, YAKMIA,.WA 98901 Phone 457 -7656 TOPOGRAPHY SURVEY PREP,IRM FOR HOPS EXTRACT CORP. IN THE NE 1'., NE Y., SECTION 24 -13 -18 S.pt —b. 11, 2012 Job No. 12116 u 5 - pop lei sl cherry kve A ...aY.i i �.a. yunluua w U -6v vi Y'Q311111a6L,11 J11111UV1aFJ1U1U ! V 11:111i t)—U L ' I �.: _ C N� iw? � r Scate -" 1:9000 r City of Yakima, Washington Subject Area Site Fite Number: RWV #003 -12 Appticant: Bill Hordan Planning Services Property Notification Area Owner: Hops Extract Corp of America Request: Vacate a portion of public right of way in the vicinity of North 2nd Ave between W Lincoln NOTIFICATION OF Ave & W D Street to expand and protect LAND USE APPLICATION industrial development in this area. Location: North 2nd Ave btwn W Lincoln Ave & W D Street Parcet Number(s): 18132411438 ,18132411439,18132411448 L L u 5 - pop lei sl cherry kve A ...aY.i i �.a. yunluua w U -6v vi Y'Q311111a6L,11 J11111UV1aFJ1U1U ! V 11:111i t)—U L ' I �.: _ C N� iw? � r Scate -" 1:9000 r City of Yakima, Washington Subject Area Site Fite Number: RWV #003 -12 Appticant: Bill Hordan Planning Services Property Notification Area Owner: Hops Extract Corp of America Request: Vacate a portion of public right of way in the vicinity of North 2nd Ave between W Lincoln NOTIFICATION OF Ave & W D Street to expand and protect LAND USE APPLICATION industrial development in this area. Location: North 2nd Ave btwn W Lincoln Ave & W D Street Parcet Number(s): 18132411438 ,18132411439,18132411448 HOPS EXTRACT CORPORATION OF AMERICA RWV #003 -12, PETITION #12 -05 City Council Closed Record Public Hearing May 7, 2013 EXHIBIT LIST Applicant: Hops Extract Corp of America File Number: RWV #003 -12, Petition #12 -05 Site Address: N 2"dAve between W Lincoln Ave & W D Street Staff Contact: Bruce Benson, Supervising Planner Table of Contents CHAPTER AA Hearing Examiner's Recommendation CHAPTER A Staff Report CHAPTER B Site Plan CHAPTER C Maps CHAPTER D DST Review & Agency Comments CHAPTER E Application CHAPTER F Public Notices CHAPTER G Public Comments CHAPTER H Exhibits Submitted at the Hearing CHAPTER I Supplemental Hearing Submittals HOPS EXTRACT CORPORATION OF AMERICA RWV #003 -129 PETITION #12 -05 EXHIBIT LIST CHAPTER AA Hearing Examiner's Recommendation ' n,�0 f °1 •vast .- F��'..4�i'S.'` x - ✓ - � r �. M' - Hearing Examiner's Recommendation Y& q Bell Wr�1 $, R 03/22/2013 RECEIVED MAR 2 2 2013 CITY OF YAKIMA PLANNING Div. City of Yakima, Washington Hearing Examiner's Recommendation March 22, 2013 In the Matter of a Petition for Vacation of ) Street Right-of-Way Submitted by: ) RWV #003 -12 Hops Extract Corporation of America ) Petition # 12-05 To Vacate North tad Avenue Right -of -Way ) Located North of West Lincoln Avenue ) And South of West "D" Street ) A. Introduction. Introductory findings relative to the hearing process for this matter may be summarized as follows: (1) The Hearing Examiner conducted an open record public hearing for this matter on February 14, 2013, and the record was closed on March 8, 2013 (Exhibit F -7). (2) Supervising Planner Bruce Benson presented his staff report detailing his reasons favoring the requested street right -of -way vacation which was prepared and presented prior to hearing the testimony and reviewing the exhibits that were presented in opposition to the requested street vacation at the hearing (Exhibit A -1). (3) The only written public comment received prior to the hearing was a letter from Lynn Buchanan with five photographs attached which stated in part that additional train traffic will limit the access to and from his businesses east on "D" Street to the extent of putting them out of business if access to Lincoln Avenue and Martin Luther King Boulevard by way of 2 "d Avenue is eliminated (Exhibit G -1). (4) Testifying in favor of the street right -of -way vacation request at the hearing were Mark Fickes, a partner in Halverson Northwest Law Group P.C. who is familiar Hops Extract Corporation of America 1 Vacation of North 2 °6 Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 DM- INDEX 1� with the reasons for this street vacation request and the City's policy criteria for street vacations; Dave Dunham, general manager of Hops Extract Corporation of America who is familiar with the objectives sought to be achieved by the requested street vacation; and Bill Hordan, owner of Hordan Planning Services who prepared the narrative submitted with the petition detailing reasons why the street vacation request satisfies the City's street vacation policy criteria. Bill Hordan also submitted an aerial photograph of the area. (Exhibit H -1). (5) Testifying in opposition to the street right -of -way vacation request at the hearing were Lynn Buchanan, manager of 115 Trust which owns the property at 115 West "D" Street directly north of the area of North 2 "d Avenue requested for vacation and general manager of Buchanan Warehouse, Ltd. which owns and leases warehouse and office spaces to businesses and individuals and operates a commercial truck scale business on the property; Grace Snodgrass, an employee of Lynn Buchanan's businesses who is familiar with their sources of revenue and operations; Steve Emhoff, owner of Emhoff Group Incorporated, Realtors; Tyler Hinckley, an attorney with Montoya Hinckley PLLC Law Firm representing Lynn Buchanan's businesses; and Kevin Jorgensen, operations manager for Michelsen Packaging Company which conducts its business on its property located on 2 "d Avenue south of the area requested for vacation. Lynn Buchanan submitted an aerial photograph of the area (Exhibit H -2) and 12 photographs showing a semi -truck using 2nd Avenue in order to back into his warehouse loading docks (H -3 to H -14). Grace Snodgrass submitted a letter from Lynn Buchanan's son David Buchanan (Exhibit H -15), a letter from Wayne Martin who is the owner of Harris Office Interiors and Budget Office Furniture which rents warehouse space from Buchanan Warehouse, Ltd. (Exhibit H -16), a letter from Terrance Altena who is familiar with the need for semi - trucks to use part of 2 "d Avenue to back into Buchanan warehouse property (Exhibit H -17) and another copy of the aerial photograph submitted by Lynn Buchanan (Exhibit H -18). Tyler Hinckley submitted a letter containing citations to Court cases wherein he sets forth arguments in opposition to the requested street vacation (Exhibit H -19). He also submitted a Declaration of Lynn Buchanan detailing the history and nature of his businesses with 10 exhibits attached which are described in the declaration and include letters from Hershel Corbin Jr. of Continuous Gutter and Roofing Company LLC and Terry Wilkes of Carpet Pros, Inc. who rent storage space from Buchanan Warehouse, a letter from the former owner of Continuous Gutter, Inc., Marvin Lindley, who previously leased space from Buchanan Warehouse, and 10 photographs taken in the area (Exhibit H -20). He also submitted an additional aerial photograph of the Hops Extract Corporation of America 2 Vacation of North 2°d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12-05 DCC. INDEX area (Exhibit H -21). Kevin Jorgensen of Michelsen Packaging Company submitted his letter summarizing his reasons for opposing the requested street vacation (Exhibit 22). (6) When the testimony at the hearing was concluded, the Hearing Examiner left the record open for Mr. Fickes to advise Mr. Benson in writing how far back the door on the east side of the area proposed for vacation is located from the "D" Street right -of- way. This measurement was not known by anyone in attendance at the hearing and was requested in order for the Hearing Examiner to learn whether future fencing across the east side of the area to be vacated adjacent to "D" Street could be located far enough south of the "D" Street right -of -way to allow semi - trucks to continue to pull forward onto the east side of 2"d Avenue before backing into the Buchanan Warehouse loading docks. A letter, a diagram and a legal Memorandum in Support of Petition to Vacate Street or Alley were submitted on February 21, 2013, which contained more information and argument than requested (Exhibit I -1). Instead of excluding the submittal, the Hearing Examiner issued an Interim Decision on February 25, 2013, allowing Mr. Hinckley to respond to the subjects addressed in the letter and in the Memorandum by a submittal of comparable length, spacing and font size by March 5, 2013 (Exhibit I -2 and Exhibit F -9). Mr. Hinckley responded to the letter and Memorandum by submitting a Memorandum of Buchanan Warehouse Ltd. in Response to Hops Extract Corp. of America's Memorandum in Support of Petition to Vacate Street (Exhibit 1 -3) and a Supplemental Declaration of Lynn Buchanan which has 10 exhibits of its own described in the declaration (Exhibit 1 -4). This responsive submittal also contained more information and argument than requested. After the record was scheduled to be closed on March 5, 2013, in accordance with the Hearing Examiner's Interim Decision, Mr. Fickes submitted a letter of objection to the Hearing Examiner and Planning Division on March 8, 2013, requesting that part of Mr. Hinckley's responsive submittal be stricken from the record as not addressing the information and argument submitted by Mr. Fickes (Exhibit 1 -5). The Hearing Examiner has decided to extend the date for closing the record of the hearing to March 8, 2013, to allow the letter from Mr. Fickes to be included in the record. However, since both submittals went beyond what was requested by the Hearing Examiner, both of them will be treated the same. Since both submittals will assist the Hearing Examiner in determining what to recommend and the City Council in determining what to decide, neither submittal will be excluded from the record and both submittals will instead be accepted into the record to be given whatever weight is deemed appropriate. Hops Extract Corporation of America 3 Vacation of North 2 "d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 D ®C. INDEX # AA-� (7) This street right -of -way vacation recommendation has been submitted within ten business days of March 8, 2013, when the record of this hearing was closed following the submittal of all of the exhibits into the record. B. Summary of Recommendation. The Hearing Examiner recommends that the Yakima City Council deny this request to vacate the portion of North 2od Avenue between West Lincoln Avenue and West "D" Street. C. Basis for Recommendation. Based upon a view of the site and the surrounding areas without anyone else present on February 11, 2013; the staff report, exhibits, testimony and evidence presented at an open record public hearing on February 14, 2013; the exhibits submitted while the hearing record was left open following the conclusion of the testimony at the hearing; and a review of the Yakima Urban Area Comprehensive Plan, the Yakima Urban Area Zoning Ordinance, Chapter 35.79 of the Revised Code of Washington and the City of Yakima's street vacation policies; the Hearing Examiner makes the following: FINDINGS I. Petitioner/Property Owner. The Petitioner and property owner is Hops Extract Corporation of America, 305 North 2nd Avenue, Yakima, Washington (Exhibit E -3 and Exhibit F -2). II. Location/Leeal Description. The location and legal description of the street right- Hops Extract Corporation of America 4 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 of -way involved in this petition for vacation is that portion of North 2 "d Avenue lying north of the north right -of -way of West Lincoln Avenue and south of the south right -of- way of West "D" Street (Exhibit E -2, page 8). The County Assessor's parcel numbers for the property abutting that portion of North 2 "d Avenue which is all owned by the Petitioner are 181324 - 11438, 11439 and 11448 (Exhibit E -2, pages 1 -2). III. Description of Area of Requested Street Vacation The area included within the Petitioner's street vacation request may be described as follows: (1) The public right -of -way for this section of North 2 "d Avenue was dedicated to the City of Yakima by the Plat of The Town of North Yakima, now Yakima, recorded on February 4, 1885, in Volume "A" of Plats, Page 10, records of Yakima County, Washington. It has been maintained by the City of Yakima during the 128 years since its original dedication and is improved with a concrete surface. (Exhibit A -1, page 1). (2) The size of the area described in the vacation petition is approximately 40,000 square feet, being 400 feet in length and 100 feet in width. The Petitioner is the record owner of 100% of the contiguous properties abutting that area on both the west and east sides. The intersections at both ends of that area are currently controlled by stop signs. North 2nd Avenue ends in a "T" at its intersection with West "D" Street and is open to through traffic to the south. (Exhibit A -1, page 1). IV. Hearing Examiner Jurisdiction. Subsection 1.43.080(H) of the Yakima Municipal Code provides that the Hearing Examiner shall conduct public hearings on petitions and resolutions to vacate streets and public rights -of -way pursuant to Chapter 35.79 of the Revised Code of Washington and that decisions of the Examiner on such matters shall constitute recommendations to the City Council (Exhibit A -1, page 1). V. Notices. The Yakima City Council referred this petition for vacation of street right- Hops Extract Corporation of America 5 Vacation of North 2 °d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 DOC. INDEX #-AL- �' of -way to the Hearing Examiner for a recommendation by Resolution No. R -2013 -001 which was adopted on January 8, 2013, in accordance with RCW 35.79.010. Notice of the February 14, 2013, hearing was given more than twenty days before the hearing in the manner required by RCW 35.79.020 and was given in additional ways as follows: Public hearing scheduled by City Council: January 8, 2013 Publishing of notice in the Yakima Herald - Republic: January 9, 2013 Mailing of notice to the property owners within 300 feet: January 9, 2013 Posting of notice on the property: January 11, 2013 Posting of notice in three public places: January 11, 2013 (Exhibit F -2, Exhibit F -3b, Exhibit F -3d, Exhibit F -4 and Exhibit F -S). VI. Environmental Review. Street vacations are categorically exempt from SEPA review per WAC 197- 11- 800(2)(h) and Chapter 6.88 of the Yakima Municipal Code (Exhibit A -1, page 5). VII. Traffic Study. This request is exempt from Street Segment Capacity Analysis (ExhibitA -1, page 5). VIII. Comprehensive Plan, Zoning and Land Uses. The Petitioner's parcels east and west of the North 2nd Avenue right -of -way between West Lincoln Avenue and West "D" Street have an Industrial Comprehensive Plan Land Use Map designation and a Light Industrial (M -1) zoning classification, and the parcels are used for the Petitioner's Class (1) permitted industrial land uses. Nearby parcels in all directions from this area of North 2nd Avenue have the same Industrial Comprehensive Plan Land Use Map Hops Extract Corporation of America 6 Vacation of North 2 "d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 DDC. INDEX - , designation and the same Light Industrial (M -1) zoning classification, and they are also used for Class (1) permitted industrial land uses. (Exhibit A -1, page 2). IX. Development Services Team Comments. The City's Development Services Team comments submitted prior to the hearing were the source of all of Mr. Benson's recommended conditions in the staff report other than the additional recommended condition that the Petitioner pay $28,000.00 compensation to the City per the appraisal and City Resolution R-2007-126. The conditions recommended in the staff report if the vacation request is approved which incorporate the City Engineering Division, City Traffic Engineering, City Building Codes, Code Inspection (Addressing) and City Water Division comments are: "(1) An easement for public utilities shall be maintained for the vacated portion of N 2nd Avenue. (2) The existing street approaches from West Lincoln and West "D" Street will need to be modified with new sidewalk/curb and gutter in conformance with the city's standards for a commercial access approach. These changes may cause drainage or ponding issues that must be addressed at the time of construction to the satisfaction of the city's stormwater engineer. (3) If N 2nd Avenue is to be maintained as a private street the applicant shall immediately replace the existing white on blue street name signs for N 2nd Avenue at Lincoln Avenue, and at "D" Street, with a black on white street name sign. If fencing or gates are to be installed across N 2nd Avenue, reflective signs must be placed on the fence at 12 foot on center and at approximately 60 inches above the road surface. Ideally, these would be 18 "x18" OM -4 object markers but the city's Traffic Engineer may approve other signage that would provide the same function. (4) If N 2nd Avenue is to be maintained as a private street then the addresses for the buildings will not need to be changed. If the street is to be eliminated the addresses for the buildings will need to be changed to reflect an address from the street that will be used for primary access. Hops Extract Corporation of America 7 Vacation of North 2 °a Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 � r (5) Fences or gates must align or set back from the face of the buildings on Lincoln Avenue and on "D" Street. Gates would be set back from the curb face along either Lincoln Avenue or "D" Street, (25' + / -) to allow for a delivery van or similar sized vehicle to pull completely off the road with the gate closed. (6) If a fence is installed and its height exceeds 6 feet, a building permit is required. A site plan will be required, as well as (2) sets of building plans. (7) As soon as fencing is installed key boxes shall be installed in accordance with the 2009 International Fire Code (IFC), and Yakima Fire Department standards. The key box or locking mechanism will need to accommodate all entities that will need utility access, and will be a separate locking mechanism from the fire department key box. (8) Gate opening widths shall meet the requirements of the 2009 IFC for fire apparatus access and City of Yakima Fire Department Standards. (9) All water facilities shall remain in place and in service within the vacated right -of -way area. A site plan shall be provided that accurately shows all of the existing utilities (mains and services) within the existing right -of -way being proposed to be vacated, including identifying all easements being created. Access shall be maintained to allow for reading of water meter and any operation and maintenance required for existing water facilities. (10) Compensation shall be paid to the City in the sum of $28,000. Payment must be received and all other conditions satisfied prior to the recording of the vacation ordinance." (Exhibit A -1, pages 2, 3, 7 and 8). X. Criteria for the Vacation of Street Right-of-Way., City policy provides that the following criteria are to be considered in determining the propriety and requisites of street right -of -way vacations. The Hearing Examiner finds that the following facts relative to these criteria are established by the weight of credible evidence in the record of this proceeding: (1) Public Benefit and Reasons Supporting the Proposed Vacation and the Limits of the Proposed Vacation. The limits of the proposed vacation consist of the 40,000 square feet of North 2nd Avenue bounded by West Lincoln Avenue on the south Hops Extract Corporation of America 8 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RMT 9003 -12; Petition #12 -05 and West "D" Street on the north (Exhibit E -2, page 8). Evidence and arguments submitted pro and con relative to the public benefit and reasons supporting the requested right -of -way vacation may be summarized and analyzed as follows: (a) Testimony at the public hearing explained in detail the Petitioner's reasons supporting the requested right -of -way vacation and its benefit to the public (Testimony of Mark Fickes, Dave Dunham and Bill Hordan). The testimony indicated that the Food and Drug Administration guidelines for the Food Safety Modernization Act are not yet mandatory or final, and will likely provide various alternative means of securing the safety of the food products for the Petitioner's customers in the brewing industry and the cattle business. But there is nevertheless a desire to make the Petitioner's facilities on both sides of 2 "d Avenue more secure in order to address customer pressures as well as possible FDA mandates in the future. As industrial uses expand to additional properties across a street or alley, the trend is to seek to tie the properties together to make a more safe, efficient and competitive business. Besides the testimony, the narrative for this petition explains the Petitioner's reasons supporting the requested right -of -way vacation in detail and why the requested street vacation would benefit the public (Exhibit E -2, pages 4 -5). The staff report summarizes the reasons and public benefit detailed by the Petitioner in that narrative (Exhibit A4, page 4). Also, Petitioner's attorney Mark Fickes summarizes the reasons for the requested street vacation and the public benefit to be derived from the requested street vacation in his Memorandum in Support of Petition to Vacate Street or Alley (Exhibit I -1, pages 3 -6). In that Memorandum, he states that the requested street vacation would (i) protect Hops Extract's food -grade products from contamination and tampering; (ii) ensure Hops Extract's compliance with Food and Drug Administration guidelines for the Food Safety Modernization Act; (iii) improve traffic safety for Hops Extract's employees as well as other pedestrian and vehicular traffic; (iv) promote Hops Extract's employment of around 45 local persons and taxpayers; and (v) result in additional property tax revenue for the City (Exhibit 14, page 6). (b) Other testimony at the public hearing was to the effect that there would be no public benefit from the requested vacation, only a private benefit to the Petitioner. (Testimony of Tyler Hinckley). Tyler Hinckley's testimony reiterated the points in his letter of February 14, 2013 (Exhibit H -19). His supplemental Memorandum of March 5, 2013, further expanded upon those points (Exhibit 1 -3). He pointed out that the Food Safety Modernization Act FDA guidelines are not a Hops Extract Corporation of America 9 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 DOC. INDEX # AA-I good reason to allow the Petitioner to build fences across North 2nd Avenue because those guidelines are mere nonbinding recommendations which may or may not become binding regulations and which in any event would allow alternatives such as hiring surveillance personnel, conducting daily security checks for signs of tampering and installing surveillance cameras, and which in any event may provide exemptions for storage of some raw agricultural commodities other than fruits and vegetables. He indicated that any increased security, safety and efficiency in the Petitioner's operation that would result from the requested vacation would be purely a private benefit because the purchase of the vacated property at a fraction of its market value to accomplish purposes it could accomplish in other ways benefits only the Petitioner and not the public. He noted that the Petitioner will employ personnel and pay taxes regardless of whether the requested vacation is granted. He also cited the cases of Hoskins v. City of Kirkland, 7 Wn. App. 957, 959 -960, 503 P.2d 1117 (1972) and Young v. Nichols, 152 Wash. 306, 308, 278 P. 159 (1929) for the proposition that street vacations must have within them some element of public use. (c) Besides the points relative to the lack of public benefit set forth in the testimony and exhibits in this record, the testimony and exhibits in this record affirmatively show potential, if not likely, detrimental effects to other businesses in the area. For example, the operations manager for Michelsen Packaging Company, Kevin Jorgensen, testified that the requested vacation will adversely affect Michelsen Packaging Company which owns the majority of the property on both sides of 2nd Avenue from Lincoln Avenue to Yakima Avenue. Employees of that business and its subsidiary across the street, Central Washington Recycling, make multiple trips daily between the main plant on 2 "d Avenue and the other plant at 1st Avenue and "I" Street. The preferred route to the other plant is north on 2 "d Avenue, right to go east on "D" Street and left to go north on 1st Avenue. The preferred route returning from the other plant is south on 1St Avenue, right to go west on "D" Street and left to go south on 2nd Avenue. The preferred route is greatly influenced by the new underpass because the lack of ability to see westbound traffic on Lincoln at 1St Avenue led the City to restrict southbound traffic on 1St Avenue to "no turn on red" at a signal which he indicates has at times required a long wait. In addition, Michelsen uses the Buchanan scale about 10 times daily, which constitutes two trips each with semi - trucks and larger. If 2nd Avenue were closed at Lincoln Avenue, semi - tractors pulling doubles consisting Hops Extract Corporation of America 10 Vacation of North 2 "d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 1A, ni of a 40 -foot lead trailer and a 24 -foot pup trailer would have to pull into the middle lane to turn left on Lincoln and would have to use both northbound lanes of Yd Avenue in order to get lined up to turn right onto "D" Street to get to the Buchanan scale. It can be done, but is two major inconveniences for traffic flaw. Trucks regularly seen using 2 "d Avenue come in all shapes and sizes from pickups to 24 -foot flat bed delivery trucks to 53 -foot semi - trailers to semi - tractors pulling a 40 -foot lead trailer and 24 -foot pup trailer: Michelsen employees probably direct 10 to 20 recycle customers each day to weigh their pickups at the Buchanan scale before and after unloading by merely pointing up the street, which is the easiest way for those customers to see and access the scale. Closing of this section of 2 "d Avenue when the MLK underpass construction is about to begin would further compound difficulties with construction related re- routing of traffic. Michelsen, like Hops Extract, chose to operate its business in its current location on both sides of the street and deals with the safety issues of using the street for its operations. Mr. Jorgensen does not see any public benefit whatsoever in the requested street vacation. (Testimony of Kevin Jorgensen; Exhibit H -22). (d) Besides the types of detrimental effects the requested vacation would have upon other businesses in the area that were detailed by Mr. Jorgensen, other testimony and exhibits in this record detailed other types of potential, if not likely, detrimental effects the requested vacation would have upon other businesses in the area that could result in special injury or damage to them of a kind different than what would be experienced by the general public and which would be a basis for nullifying the vacation and/or awarding damages (Testimony of Lynn Buchanan, Grace Snodgrass, Steve Emhoff and Tyler Hinckley, Exhibit G -1, Exhibit H -2 to H -21, Exhibit 1 -3 and Exhibit 1 -4). The types of potential special injury or damage to businesses owned by Lynn Buchanan on the north side of West "D" Street at its "T" intersection with North 2 "d Avenue that would result from the requested street vacation would include, most importantly, the loss of current and future revenue from the rental of warehouse storage space at that location. The amount of loss of that type of revenue was estimated to be $4,300.00 per month by an employee of Lynn Buchanan who has a college degree in Business Administration and who has been continuously employed by him from 1997 to the present time (Testimony of Grace Snodgrass). The $4,300.00 figure consists of the revenue from four spaces that rent for $1,500.00, $1,200.00, $1,000.00 and $600.00 per month respectively. That loss of revenue would result from the fact that semi - trucks which deliver Hops Extract Corporation of America 11 Vacation of North 2 "d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 �r A A products to the loading docks on the "D" Street side of the warehouse have to use the easterly portion of 2nd Avenue to pull in and straighten out in order to be able to back into the loading docks. Semi- trucks can only access those loading docks from the "D" Street side. The Declaration of the owner /operator of a semi -truck who has been driving truck for 23 years and who has been to the Buchanan warehouse, Terry Altena, indicates that a semi -truck delivering to that warehouse can pull ahead and straighten the semi and trailer so it is fully on 2nd Avenue in order to quickly back into the Buchanan warehouse and that it would be a driver's nightmare, which most truck drivers would not even attempt, to jack knife a truck backward through impatient "D" Street traffic in order to try to back it into the Buchanan warehouse without using 2nd Avenue (Exhibit H -17). The Declaration of the owner of Harris Office Interiors and Budget Office Furniture, Wayne Martin, states that he began renting Buchanan warehouse space in 1987; that he is intimately aware of the need for use of 2nd Avenue in order for their trucks to be able to deliver their products to the warehouse; that he is not interested in unloading products by hand or forklift on "D" Street; and that he will be looking for another warehouse if access to 2nd Avenue is lost (Exhibit H -16). The Declaration of the owner of Continuous Gutter and Roofing Company LLC, Hershel Corbin Jr., states that the only way to get a semi -truck close to his Buchanan warehouse space is to back it in via 2nd Avenue; that this is an unmanned warehouse facility where workers need to unload trucks quickly to return to their job sites; that it would be extremely difficult and time consuming to try to unload 2,000 -pound rolls of gutter metal and other product near the "D" Street traffic or with snow on the ground; and that he will most likely be looking for other rental space if 2nd Avenue is closed (Exhibit H -20, page S). The Declaration of the former owner of Continuous Gutter from 1991 to 2005, Marvin Lindley, states that access to the warehouse space has always been off of "D" Street and 2nd Avenue for deliveries several times a week; that the access off of "D" Street and 2nd Avenue to the warehouse space is critical for its shipments that are in excess of 100,000 pounds; and that it is imperative that 2nd Avenue remains open for the viability of any business that would rent warehouse space for the purpose of receiving freight (Exhibit H -20, page 7). The Declaration of the Central Washington and Oregon business center manager for Carpet Pros, Inc. which has served Home Depot for over 14 years, Terry Wilkes, states that Carpet Pros has rented Buchanan warehouse space since 2007 for almost weekly delivery of carpets and pads by semi - trucks for storage there; that their trucks would not be Hops Extract Corporation of America 12 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV 0003 -12; Petition #12 -05 :: able to get product close to their storage space without the use of 2nd Avenue; that the driver of a semi -truck who- once tried to jack knife backwards into the warehouse without using 2nd Avenue did substantial damage to the Buchanan warehouse fence; that unloading semi - trucks on "D" Street except on rare occasions would be completely out of the question; and that Carpet Pros will be looking at other warehouse facilities if 2nd Avenue is closed (Exhibit H -20, page 6). The general manager of Buchanan Warehouse, Ltd. which owns and leases warehouse space to local businesses and individuals, Lynn Buchanan, worked from a young age on the property on "D" Street that his family owned since the mid- 1920s, and he began working there as an adult in 1956 (Testimony of Lynn Buchanan; Exhibit H -20, page 1). His Declaration states that the loss of warehouse tenants who do not want to deal with the hassle of having to back semi - trucks around a corner to access the warehouses, as opposed to backing down a portion of 2 "d Avenue, would have a significant detrimental economic impact on his business, on the rental value of the warehouse space and on the market value of the property and the business (Exhibit H -20, pages 2 -4 and 16 -18; Exhibits H -3 to H -14). (e) Besides the claim of potential special injury or damage from loss of revenue from rental of warehouse space, the testimony and exhibits included evidence of potential loss of revenue from the rental of the Buchanan commercial office space in the estimated amount of $700.00 per month which would result in part from the loss of renters of warehouse space who quite often also rent commercial office space (Testimony of Grace Snodgrass). The Declaration of Lynn Buchanan states that the loss of revenue from the rental of Buchanan commercial office space would also result in part from obstruction of the view of the office building and its signage by fencing of the vacated right -of -way (Exhibit H -20, page 3). That office building has been visible for nearly 90 years from major downtown Yakima streets including Lincoln Avenue, Martin Luther King Boulevard (formerly `B" Street), Yakima Avenue and Walnut Avenue and has always had convenient access by simply driving north on 2nd Avenue (Exhibit H- 20, pages I and pages 8 -15). Marvin Lindley, formerly of Continuous Gutter, Inc., who rented commercial office space from Buchanan Warehouse, Ltd. from 2002 until 2010, considered the visibility of the office signage, front door and window from distant locations down 2 "d Avenue to be as valuable as any other type of advertising he did (Exhibit H -20, page 7). Hops Extract Corporation of America. 13 Vacation of North 2"d Avenue between West D Street & West Lincoln Avenue RAW #003 -12; Petition #12 -05 i ', n w (f) Besides the claim of potential special injury or damage from loss of revenue from rental of warehouse space and commercial office space, the testimony and exhibits included evidence of potential loss of revenue from the operation of the Buchanan commercial truck scale in the estimated amount of $500.00 to $1,000.00 per month. Loss of that amount of revenue from the Buchanan truck scale operation is expected to result from the requested street vacation in part because of the loss of its visibility due to fencing across 2nd Avenue and in part because of the more circuitous route required to be described by those giving directions and to be followed by those attempting to find the truck scale and attempting to maneuver semi - tractors pulling doubles through the turns that would be required. It is the only commercial truck scale in Yakima and weighs about 67 trucks per day five days a week (Testimony of Grace Snodgrass, Lynn Buchanan and Kevin Jorgensen; Exhibit G -1, page 2). (g) The claims of special injury or damage to the Buchanan businesses as a result of the requested street vacation presented at the hearing total $5,500.00 to $6,000.00 per month which would be the death knell and put them out of business (Testimony of Grace Snodgrass). This result would also adversely affect Lynn Buchanan's sons who have made plans to continue on with the business when their father retires and would also possibly adversely affect some of Lynn Buchanan's grandchildren who may wish to participate in the businesses at some time in the future (Exhibit H-15). (h) Relative to the issue as to public benefit, this is a situation that illustrates the need for anyone who claims that a requested street vacation fails to benefit the public to submit written comments or testimony to support that claim. Without evidence of lack of public benefit in the record of a street vacation proceeding, the Hearing Examiner, City Council and reviewing courts will consider an indirect and remote type of public benefit that arises from directly benefiting a private business as sufficient public benefit for approval of a street vacation. The clearest description of the type of public benefit that will not be questioned by a court on review is perhaps set forth in the case of Banchero V. City Council of Seattle, 2 Wn. App. 519, 468 P.2d 724 (1970) at page 524: "The record here reveals that the city council, in acting on this matter, considered such diverse public interests as Seattle's need of dairy products, Consolidated's payroll contribution to the city's economy, and the property taxes it pays to Seattle. The council also assessed the developing industrial Hops Extract Corporation of America 14 Vacation of North 2"d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 oOC. INDEX # AA"I and residential uses of the property in the area under consideration. After weighing all these factors, the council determined that the vacation of one block of 36`h Avenue South would serve a public purpose." This description of the types of public benefit which will be sufficient for approval of a street vacation applies equally to the need for some "public use" which Mr. Hinckley argues must be associated with the approval of a street vacation (Exhibit 19, page 1; Exhibit I -3, pages 1 and 7). Since the result of street vacations - described in RCW 35.79.040 is to return public ownership and use of the vacated right -of -way to the abutting owners who are usually private property owners, a street vacation usually does not in a literal sense result in a new "public use" beyond the reservation of easements for public utilities that already exist. The cases cited by Mr. Hinckley which state that a street vacation ordinance "must be enacted for a public use" (Hoskins v. City of Kirkland, 7 Wn. App. 957, 959 -60, 503 P.2d 1117 (1972)) and "must have within it some element of public use" (Young v. Nichols, 152 Wash. 306, 308, 278 P. 159 (1929)) do not explain what they mean by the term "public use." But the Hoskins case itself appears to equate the term "public use" with the terms "public purpose" and "public benefit" at page 964 where it refers to serving a "public use or purpose" and to finding "public use or benefit." The Hoskins case at page 964 quotes from the case of Banchero v. City Council of Seattle, supra, which equates the term "public use" with the term "public purpose" in the context of street vacations as follows at page 524: "The fact that some one private party may benefit directly or incidentally from a street vacation does not mean that the vacation will not also serve a public use or purpose." The Banchero case at page 523 also refers to public benefit as the requisite element for approval of street vacations: "The legislature or, in this case, the city council is the proper body to weigh the benefit to the public. Only where there is no possible benefit to the public will this court review the legislative determination." Therefore, it would not appear to the Hearing Examiner that court decisions requiring a street vacation ordinance to be enacted for a public use or have within it some element of public use are requiring anything more than the indirect type of public purpose or public benefit described by the first quote in this subsection Hops Extract Corporation of America 15 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWd #003 -12; Petition #12 -05 fTjT from the Banchero case which would in effect require that something resulting from the street vacation would at least indirectly be of use to the public. (i) Further in regard to the need for written comments or testimony from anyone who claims that a requested street vacation fails to benefit the public so that the record of the proceeding contains at least some evidence of a lack of public benefit, or affirmatively of public detriment, one need only review prior recommendations of this Hearing Examiner which in the absence of evidence in the record otherwise have considered indirect and remote types of public benefit that arise from directly benefiting a private entity or individual as sufficient public benefit for approval of a street vacation. Examples of this Hearing Examiner's recommendations to approve requests to vacate street or alley right -of -way abutting private property based upon indirect public benefit where the public benefit criterion was not disputed and where no testimony or written comments were submitted in opposition to the street vacation request include R/W VAC #2- 03, R/W VAC #5 -04, R/W VAC #1 -05, R/W VAC 2 -06, R/W VAC #4 -06, R/W VAC #5 -06, R/W VAC #2 -07, R/W VAC #4 -07, R/W VAC #2 -08, R/W VAC #3 -08, R/W VAC #4 -08, R/W VAC #01 -10, RW #002 -10 and RWV #01 -11. Examples of this Hearing Examiner's recommendations to approve requests to vacate street or alley right -of -way abutting public property based upon direct public benefit where the public benefit criterion was not disputed and where no testimony or written comments were submitted in opposition to the street vacation request include R/W VAC #2 -04, R/W VAC 1 -07, R/W VAC 3 -07 and RWV #01 -12. Examples of this Hearing Examiner's recommendations to approve requests to vacate street or alley right -of -way abutting public property based upon direct public benefit where some concern was expressed about an increase in traffic on other streets include R/W VAC #1 -03 and RWV #02 -12. Finally, examples of this Hearing Examiner's initial or final recommendations to deny all or part of street or alley right -of -way vacation requests where evidence was presented at the hearing to the effect that one or more of the criteria for approval were not satisfied include R/W VAC #1 -06; R/W VAC #1 -08 and R/W VAC 4 -04. These previous recommendations regarding requests to vacate street or alley right -of -way illustrate the fact that they have been based upon the evidence that is submitted for the record. Since it is rare for testimony or written comments to be submitted in opposition to street vacation requests, recommendations for approval have greatly outnumbered recommendations for denial of such requests. Hops Extract Corporation of America 16 Vacation of North 2 °d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 {j} Even though a type of indirect public benefit that flows from direct benefit to a private entity or individual will be a sufficient basis for a court to uphold approval of a street vacation request, that type of indirect public benefit may not be sufficient to persuade a City Council to approve a street vacation request in the first instance. Where, as here, there is credible evidence that the requested street vacation could have detrimental effects on the owners, employees and customers of nearby businesses, the City Council need not allow indirect public benefit to suffice for its decision even though a court might uphold its decision to grant the vacation. In other words, a City Council is not obligated to approve a requested street vacation merely because it might have some indirect public benefit. The City Council has very broad legislative discretion in this regard. RCW 35.79.030 itself contains no limitations on the City Council's exercise of discretion. It contains only requirements as to the content of a Hearing Examiner's report which recommends that a street vacation petition be denied: "If the hearing is before a hearing examiner, the hearing examiner shall, following the hearing, report its recommendation on the petition to the legislative authority, which may adopt or reject the recommendation: PROVIDED, That the hearing examiner must include in its report to the legislative authority an explanation of the facts and reasoning underlying a recommendation to deny a petition." [Emphasis added]. The City Council's discretion is sufficiently broad that no court case has been cited in this proceeding or has otherwise come to this Hearing Examiner's attention which holds that a City Council erroneously denied a street vacation request. The court cases rather generally involve a claim of special injury or damage to an abutting or nonabutting property owner as a result of granting a requested street vacation, such as is presented here. The limitation upon the City Council relative to granting a requested street vacation is described in Capitol Hill Methodist Church v. Seattle, 52 Wn.2d 359, 324 P.2d 1113 (1958) at page 366: "It must be borne in mind that the appellants in this case are not abutting owners of property on the portion of the street vacated by the City of Seattle. To maintain this action, their right of access must be `destroyed or substantially affected,' or, to put it another way, their reasonable means of access must be obstructed, and they must suffer a special damage, different in kind and not merely degree, from that sustained by the general public." [Emphasis is in quoted text]. Hops Extract Corporation of America 17 Vacation of North 2"d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 'r I This Hearing Examiner has never recommended approval of a street vacation request where the indirect type of public benefit which supports many such requests has been disputed by the submission of credible evidence of public detriment of the type claimed in this record. The evidence of special economic injury or damage to the Buchanan businesses includes testimony and exhibits regarding loss of access to four Buchanan warehouse spaces by semi - trucks which make reasonable use of the northern part of 2 "d Avenue for delivering product, which in turn would be expected to cause a loss of revenue derived from renting those warehouse storage spaces and other commercial office spaces. (k) Mr. Hinckley also asserts an unconstitutional taking claim which has been described in the case of London v. Seattle, 93 Wn.2d 657, 611 P.2d 781 (1980) at page 663 as follows: "Further, substantial interference with access may constitute a `taking or damaging' of property requiring compensation under our constitution." That type of claim also relates to interference with access. No cases were cited that recognize the validity of a claim relating to loss of visibility of a building or its signage as a result of discretionary legislative approval of a street vacation request. But even if courts only recognize claims relating to loss or interference with access, there is evidence in this record that such claims would be pursued here if the requested street vacation is granted. Mr. Hinckley stated that "[I]f the requested vacation ordinance is enacted, Buchanan will likely file suit to challenge the validity of the ordinance" (Exhibit H -19) and one of Mr. Buchanan's written comments asked "How much is the City proposing to pay Buchanan Warehouse, Ltd. for this loss of access? With the loss of business, we will expect remuneration" (Exhibit G -1, page 2). [Emphasis in original text]. How courts would decide such claims remains to be seen. But even if the courts would not decide such claims favorably to Mr. Buchanan, the City Council could still consider adverse economic effects to his businesses caused by interference with access and/or by interference with visibility of his building and signage as factors in reaching its decision whether to grant or deny the requested street vacation. (1) The evidence in the record does not contain solutions to effectively mitigate the adverse effects of the requested street vacation on the Buchanan businesses. During the hearing the Hearing Examiner inquired as to the possibility of jogging the fence southward on the east side of the 2nd Avenue right -of -way Hops Extract Corporation of America 18 Vacation of North 2 "d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12-05 �. i adjacent to "D" Street enough to allow trucks to pull in and straighten out before backing. That effort was unsuccessful for several reasons. The Petitioner's response was to the effect that 42 feet south of the "D" Street right -of -way would be the maximum distance any part of the fencing on 2nd Avenue could be set back for that purpose, and that the Petitioner believed the recommended 25 -foot setback would be adequate (Exhibit I -1). Even though the record does not contain definitive evidence as to what distance would be adequate, the evidence in the record indicates that more room would be probably be required for that purpose (Exhibits H -3 to H -14; Exhibit H -17; Exhibit H -20, pages 16 -18). Mr. Hinckley further indicated that a condition of approval as to the location of the fencing still would not constitute legal authorization for others to use the Petitioner's property following the street vacation, suggesting perhaps that the only way to effectively preserve semi -truck access to the Buchanan warehouse loading docks in perpetuity would be to limit the amount of property vacated adjacent to "D" Street (Exhibit I- 3, page S). The Hearing Examiner also attempted during the hearing to find a solution to mitigate a secondary cause of the claimed special economic injury or damage by suggesting a possible condition of requiring any fencing across 2nd Avenue to be cyclone fencing without slats to preserve the visibility of the Buchanan buildings and signage as much as possible. This attempt too was unsuccessful because the Petitioner's preference would be to remain flexible to include slats in any cyclone fencing for security or to extend across 2nd Avenue the type of white vinyl fencing installed by Petitioner along Lincoln Avenue west of 2nd Avenue that is solid and taller than most of the other fencing in the area (Testimony of Mark Fickes). (m) Attempting to detail and address all of the evidence and arguments submitted for this record would make this recommendation much longer than it already is. This summary and analysis of the main points relevant to the public benefit issue in the Hearing Examiner's view should suffice since anyone desiring additional detail has been directed to specific exhibits and testimony in the record. At the public hearing, after those who testified had been heard and had presented their exhibits, the Hearing Examiner asked Mr. Benson if he had anything he would like to add. He summed up "the essence of this matter succinctly and accurately when he responded that "all I can tell you is it is not going to be an easy decision, there is probably validity on both sides, I wish I could give you more guidance than that." Since the evidence in this record indicates that the granting Hops Extract Corporation of America 19 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 OTT A / of the requested street vacation would be an irreversible commitment that would have the potential to adversely affect the owners, employees and customers of nearby businesses and since this record does not contain solutions to the potential adverse effects, the Hearing Examiner recommends maintaining the status quo at least for the time being. If this vacation request is granted despite the evidence in this record of potential adverse effects on the owners, employees and customers of nearby businesses, arguments as to the precedent it would set for similar requests with similar opposition could be expected in the future. (2) Necessity for the Right -of -Way as Access to Property and Whether the Vacation Denies Sole Access to a Public Street for any Property? The right -of -way involved in this request is not needed for access to any property. All abutting parcels would have access to a public street because the Petitioner owns both sides of North 2 "d Avenue within the defined parameters of this petition. The vacated right -of -way would be merged with the adjoining properties. Each property would still have direct frontage on either West Lincoln Avenue or West "D" Street or on both streets. Since the properties accessed by this segment of North 2nd Avenue are owned by the same company, access easements could be granted to individual parcels if necessary for legal access purposes. Approval of this vacation request would therefore not deny sole access to any property. (Exhibit E -2, page 6 and Exhibit A -1, page 4). (3) Consistency with the Six Year Transportation Improvement Plan, the Urban Area Comprehensive Plan and other Official City Plans and Policies. This requested right -of -way vacation would be consistent with the Six Year Transportation Improvement Plan since there are no plans for improvement of that portion of North 2nd Avenue in the City's Six Year Transportation Improvement Plan. It also would be consistent with the Urban Area Comprehensive Plan, specifically Policy 3.13.3, since it would encourage infill and promote the efficient utilization of vacant land in an area designated for industrial uses as set forth by the Future Land Use Map of the Comprehensive Plan (Exhibit E -2, page 6 and Exhibit A -1, page 4). However, the requested street vacation would not in the Hearing Examiner's view be consistent with the City's policy governing the approval of street right -of -way vacations since it fails to satisfy some of the criteria in the policy. (4) Consistency with Existing and Anticipated Development in the Area Based on Zoning, Current Use and bong -Range Plans. The requested right -of -way vacation would not be consistent with existing development and current uses in the area that it would adversely affect for the same reasons detailed above relative to the public Hops Extract Corporation of America 20 Vacation of North 2 "d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 0` benefit criteria in Section X(1) of this recommendation. A previous recommendation of the Hearing Examiner which is most similar to this recommendation is R/W VAC 44 -04 where testimony and written comments were submitted for and against a petition to vacate an unopened portion of North 9`h Street right -of -way 100 feet in width north of East "D" Street in order to allow for development of multi - family housing. There language was quoted from several of the court cases which Mr. Fickes and Mr. Hinckley have cited in their submittals here, and a recommendation to deny the street right -of -way vacation petition was issued. The evidence there established an inconsistency between the requested street right -of -way vacation and anticipated development in the area to the north which could possibly benefit in the future from use of that right -of -way for one of its access points. The evidence here establishes an inconsistency between the requested street right -of -way vacation and existing development and current uses to the north and south of that right -of -way which could be adversely injured, damaged or otherwise affected in ways different from the inconvenience to the general public that would result. The previous recommendation of the Hearing Examiner in RWV #0141 to approve the vacation request for Poplar Street right -of -way between North ls` Avenue and North 3'd Avenue in order to allow for an industrial use on both sides of the street to integrate its operations differs from this recommendation because no one submitted testimony or written comments in opposition to that requested street vacation, and all of the evidence in that record was to the effect that all of the criteria for approval of the requested street vacation were satisfied. (5) Provisions for Relocation of Existing Utilities or Easements for Existing Utilities. The evidence submitted at the hearing indicated that the following utilities are located within this right -of -way: (i) Cascade Natural Gas, (ii) industrial waste sewer, (iii) water, (iv) underground phone, (v) sanitary sewer and (vi) underground power. If the City Council decides to grant this vacation petition, these existing utilities would remain in place and the City would retain an easement over the entire vacated right -of -way, together with the right to exercise and grant easements with respect to any land within the vacated area for the construction, repair and maintenance of public utilities and services. The retention of these easements would essentially render the vacated right -of -way unbuildable and would also require that the Petitioner obtain prior approval from the City, as well as from franchised utility providers, to locate any permanent structures on, over or under the vacated right -of -way. This would include additional elevated pipelines similar to the one currently in use which, if constructed, would have to maintain at least Hops Extract Corporation of America 21 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue It RWV #003 -12; Petition #12 -05 '- i i 14 feet of clearance for trucks and construction equipment. (Exhibit E -2, page 7; Exhibit B -1 and Exhibit A4, page S). XI. Fair Market Appraisal and Compensation to the City. The Hearing Examiner's findings as to the fair market appraisal and compensation to the City if the requested vacation is approved by the City Council are as follows: (1) City Resolution R- 2007 -126 specifies the requirements for compensating the City for rights -of -way when vacated. Compensation in the amount of one -half of the appraised value is required to be paid to the City upon the vacation of any public street, alley or any portion thereof in the City of Yakima unless the City has neither purchased, maintained nor improved the right -of -way, or the ownership of the vacated right -of -way will revert to either the State of Washington, Yakima County or a School District. The Hearing Examiner may take official notice of planning documents such as City Resolution R- 2007 -126 pursuant to Rule 4.5(D) of the Rules of Procedure for the Office of Hearing Examiner for the City and County of Yakima adopted on August 1, 2000, even though the Resolution was not submitted for the record. Any member of the public may also access the exact language of City Resolution R- 2007 -126 adopted on September 4, 2007, together with its two -page Agenda Statement detailing the legislative intent, on the City's website (www.ci.yakima.wa.us) by clicking several prompts to that document (City Council, City Document Center, Browse City Council Resolutions and Contracts, 2000 -2009, 2007, page 5 for R- 2007 -126). (2) Since the area of North 2 "d Avenue described in this petition has been maintained by the City up to this point, compensation is required. An appraisal of the subject right -of -way by Davis Appraisal Service dated September 27, 2012, indicates that there are no improvements on the property and arrived at a current market value for the land of $56,000.00 ($1.40 per square foot) by applying a 50% downward adjustment from comparable sales because of the extensive easements on the site that restrict the use of the site (Exhibit E -1, page 4). The effect of Resolution R- 2007 -126 is to require one - half of that amount, or $28,000.00, to be paid to the City in compensation prior to the recording of the ordinance of vacation (Exhibit A -1, page 5 and 8). The Agenda Statement which accompanied that Resolution recommended that the City Council require only one -half of the appraised value of vacated areas to be paid in order to serve as an incentive to attract new development to our community (Agenda Statement, page 2, Hops Extract Corporation of America 22 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 t� f paragraph 2). The Agenda Statement advised the City Council that State law would allow a City to require payment of the full appraised value for vacating an area such as this that has been a dedicated public right -of -way for at least 25 years if the City should desire to do so (Agenda Statement, page 2, paragraph 2). The Agenda Statement further advised the City Council that as a protection against an unfair result, the City Council would be able to reject a request to vacate a street or alley if the value of the improvements is substantial or if a need for the public right -of -way is anticipated, and that it is totally the City Council's decision whether to accept or reject such a request (Agenda Statement, page 2, paragraph 1). (3) Evidence was submitted regarding the adequacy of a $28,000.00 payment to the City as compensation for the vacated area. The letter from Kevin Jorgensen on behalf of Michelsen Packaging Company suggests that the sale of the right -of -way for the amount of $28,000.00 would not be for the common good of the citizens of Yakima (Exhibit H -22). The supplemental submittal of Tyler Hinckley argued that the appraisal should have taken into account the City's concrete improvements to the area included in the street vacation petition that now would cost more than $200,000.00 and should have taken into account a 2005 purchase of about one -half acre of nearby bare -dirt property by the Petitioner for $70,000.00 (Exhibit 1 -3, pages 6 -7, and Exhibit 1 -4, pages 2 -3). (4) The Hearing Examiner would conclude from the intent expressed in R -2007- 126 itself and in its accompanying Agenda Statement that the City Council could pursue one of several alternatives relative to this compensation issue if it should wish to do so in the exercise of its legislative discretion. For example, it is the Hearing Examiner's view that if the City Council decides to approve this vacation request, it may or may not choose in its legislative discretion to request a new appraisal or to reconsider its policy set forth in R- 2007 -126. Or if the City Council views the value of the concrete improvements to the area described in this vacation request to be substantial enough to deny this petition for that reason, it may or may not choose in its legislative discretion to deny this petition in whole or in part on that basis. However, any of these alternative courses of action would constitute a change in the City's policy and practice solely due to the objections raised in opposition to the amount of compensation required for this street vacation which have not been raised in previous street vacation proceedings. Any decision to change that policy and practice should properly be left solely to the City Council's exercise of its legislative discretion after considering the advice of. its City Attorney. Hops Extract Corporation of America 23 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12 -05 A AN Ma CONCLUSIONS Based on the foregoing Findings, the Hearing Examiner reaches the following Conclusions: (1) The Hearing Examiner has jurisdiction and authority by virtue of Subsection 1.43.080(H) of the Yakima Municipal Code to conduct an open record public hearing regarding a petition and resolution to vacate a public street right -of -way area and to make a recommendation to the City Council relative thereto. (2) All public notice requirements for vacation of a street right -of -way have been completed in accordance with applicable statutes and ordinances. (3) SEPA review was not required because street right -of -way vacations are categorically exempt from SEPA review. (4) The requested street right -of -way vacation is exempt from Street Segment Capacity Analysis. (5) Since Hops Extract Corporation of America owns all of the property abutting the area to be vacated, petition signatures were obtained from 100% of the owners abutting the area to be vacated. (6) The right -of -way described in the vacation petition was dedicated to the City of Yakima by the Plat of The Town of North Yakima, now Yakima, recorded on February 4, 1885, in Volume "A" of Plats, Page 10, records of Yakima County, Washington. (7) The reasons supporting the proposed vacation of North 2 "d Avenue between West Lincoln Avenue and West "D" Street would not in the Hearing Examiner's view establish the type of public benefit that would justify granting this petition by the City Council, in view of the public detriment to the owners, employees and customers of nearby businesses detailed in the record of this matter, even though the type of public benefit that would result might be sufficient to prevent a court from overturning the City Council's decision if it should nevertheless choose to grant this petition. (8) The requested right -of -way vacation would not deny sole access to a public street for any property because the Petitioner owns both sides of North 2 "d Avenue within Hops Extract Corporation of America 24 Vacation of North 2nd Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12-05 1 DWO C the defined parameters of this petition and can either merge parcels or grant access easements if necessary for legal access purposes. (9) This requested right -of -way vacation would be consistent with the Six Year Transportation Improvement Plan since there are no plans for improvement of that portion of North 2nd Avenue in the City's Six Year Transportation Improvement Plan and also would be consistent with the Urban Area Comprehensive Plan, specifically Policy 3.13.3, since it would encourage infill and promote the efficient utilization of vacant land in an area designated for industrial uses as set forth by the Future Land Use Map of the Comprehensive Plan, but it is not consistent with the City's policy which governs the approval of street right -of -way vacations since it satisfies less than all of the five criteria in the policy. (10) This vacation request would not in the Hearing Examiner's view be appropriate with existing and anticipated development' in the area, based on zoning, current use and long -range plans because it would not be appropriate with some nearby existing development and current uses in the area as detailed in the testimony and exhibits in the record submitted relative to Lynn Buchanan's businesses and Michelsen Packaging Company operations. (11) Provisions for easements for existing utilities that would be required if the City Council decides to grant this vacation petition could be accomplished by the City's reservation of an easement over the entire vacated right -of -way, together with the right to exercise and grant easements with respect to any land within the vacated area for the construction, repair and maintenance of public utilities and services. (12) If this vacation request were not required to satisfy all City policies including the City's street vacation policy itself, it would satisfy three of the City's five criteria governing the approval of public street right -of -way vacations. (13) If the City Council reaches different conclusions from the evidence in the record and decides to approve the requested street vacation, the Hearing Examiner recommends that the conditions quoted above in Section IX from Mr. Benson's staff report which are based on the Development Services Team comments be modified to limit the area of the vacation and any future fencing of the vacated area in a way that would allow semi - trucks to use enough of the east side of North 2nd Avenue adjacent to West "D" Street to be able to easily back into the Buchanan warehouse loading docks and be modified to preserve the visibility of the buildings and signage for the Buchanan Hops Extract Corporation of America 25 Vacation of North 2 °d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12-05 1 i- 1 1 businesses to the greatest extent possible in ways to be determined by the City Council by means it deems appropriate. (14) If the City Council decides to approve the requested street vacation, compensation of $28,000 must be paid to the City for the area to be vacated, prior to the recording of the ordinance of vacation, unless the City Council decides that a new appraisal should be ordered or that the street vacation compensation requirements of Resolution R -2007 -126 should be modified. (15) If the City Council decides to approve the requested street vacation, the vacated right -of -way will belong to the adjacent parcels of property, one half to the adjacent parcels on each side thereof per RCW 35.79.040, and the vacated right -of -way will have the Light Industrial (M -1) zoning of the abutting property to which it will be added. RECOMMENDATION The Hearing Examiner recommends to the Yakima City Council that the request to vacate North 2nd Avenue right -of -way between the West Lincoln Avenue right -of -way on the south and the West "D" Street right -of -way on the north as is described in RWV #003 -12 and Petition # 12 -05 SHOULD BE DENIED. DATED this 22"d day of March, 2013. Hops Extract Corporation of America 26 Vacation of North 2 "d Avenue between West D Street & West Lincoln Avenue RWV #003 -12; Petition #12-05 Gary M. Cuillier, Hearing Examiner HOPS EXTRACT CORPORATION OF AMERICA R'WV #003 -12 EXHIBIT LIST CHAPTER A Staff Report .yEi Jl3,�Yt i.e�?# "Is, D®CUMENT� ������ fi ?M1�h °1�=.�' '�ia°a �,u,.''u' - -r' ,'",+''� ✓�^ti y t� vfk P5.'".�,^° �, 4a 'Y - j�`"nR✓ - i�'� 9i kei SekC' 3f�� -- # f 3i' F G1pl Staff Report -+ -ffill" A"fh ..�Fw�'.�. -t y'^,� is A -1 02/14/2013 City of Yakima, Washington Department of Community Development Planning Division Staff Report February 14, 2013 FILE: Right -of -Way Vacation #003 -12, Petition No. 12 -05 PETITIONERS: Hops Extract Corporation of America APPLICATION DATE: November 21, 2012 REQUEST: Vacate the public right -of -way for that portion of N 2nd Avenue lying northerly of W Lincoln Avenue and southerly of W "D" Street and located within the City of Yakima, Washington. PARCEL NOS: Not Applicable for Right -of -Way — Adjacent Parcels are 181324- 11438, 11439, and 11448 STAFF CONTACT: Bruce Benson, Supervising Planner (509) 575 -6042 SUMMARY OF RECOMMENDATION: The City of Yakima Planning Division recommends approval of this vacation request subject to conditions. I. Project and Site Description Hops Extract Corporation of America has submitted a petition requesting the vacation of the above referenced section of N 2 "d Avenue. This section of public right -of -way was dedicated to the City of Yakima by the Plat of The Town of North Yakima, now Yakima, recorded on February 4, 1885 in Volume "A" of Plats, Page 10 records of Yakima County Washington. The size of the area to be vacated is approximately 400 feet in length and 100 feet in width. The intersections at both ends of the subject right -of -way are currently controlled by stop signs. N 2nd Avenue ends in a "T" at its intersection with W "D" Street and is open to through traffic going to the south. The petitioner in this action is the record owner of 100% of the contiguous properties to the west and east. II. FACTS A. Hearing Examiner Authority. The Yakima Municipal Code states in Chapter 1.43.080 (H), that the hearing examiner shall conduct public hearings on petitions and resolutions to vacate streets and public rights -of -way pursuant to RCW Chapter 35.79. Decisions of the examiner on such matters shall constitute recommendations to the City Council. F, B. Yakima Urban Area Comprehensive Plan 2025. The Comprehensive Plan designates the area surrounding this vacation request as Industrial a designation which supports the underlying zoning. C. Yakima Urban Area Zoning Ordinance. Although street rights -of -way are technically not zoned for all practical purposes they may be considered as if they were zoned the same as their contiguous properties. Upon vacation rights -of -way become zoned the same as the properties to which they are contiguous. In this case the contiguous zoning, on both sides of the subject right -of- way, is M -1, Light Industrial, which is a zoning classification that permits the petitioner's current business to operate as a Class (1) land use. D. RCW 35.79. This chapter of state law stipulates the state's requirements for the process of vacating street rights -of -way. All requirements of this chapter that can be accomplished prior to the public hearing have been fulfilled. E. Zoning and Land Use. Location Current Zoning Existing Land Use North M -1 Industrial South M -1 Industrial East M -1 Industrial West M -1 Industrial F. DST Meeting Comments. City Engineering Division - Dana Kallevig, Randy: The existing street approaches from West Lincoln and West "D" Street will need to be modified with new sidewalk/curb and gutter in order to conform to the city standards for a commercial access approach. These changes could result in drainage or ponding issues which must be addressed to the satisfaction of the city's stormwater engineer. As noted in request, there will need to be a 1 00' wide public utilities easement from Lincoln to "D ". City Traffic Engineering - Joe Rosenlund: • There are no significant operational safety issues related to the vacation of N 2nd Avenue between Lincoln Avenue and W "D" Street. • The applicant shall replace the existing white on blue street name signs for N 2nd Avenue at Lincoln Avenue, and at "D" Street, with a black on white street name sign. If fencing or gates are to be installed across 2nd Avenue, reflective signs must be placed on the fence at 12 foot on center at approximately 60 inches above the road surface. Ideally, these would be 18 "x18" OM-4 object markers but I would consider other signage that would provide the same function. 2 r • Fences or gates must align or set back from the face of the buildings on Lincoln -> Avenue and on "D" Street. Preferably gates would be set back from the curb face along either Lincoln Avenue or "D" Street, (25' + / -) to allow for a delivery van or similar sized vehicle to pull completely off the road with the gate closed. City Building Codes- Glenn Denman • If fence height exceeds 6 feet, a building permit is required. A site plan will be required, as well as (2) sets of building plans. • Key boxes shall be installed in accordance with the 2009 International Fire Code (IFC), and Yakima Fire Department standards. The key box or locking mechanism will need to accommodate all entities that will need utility access, and will be a separate locking mechanism from the fire department key box. Gate opening widths shall meet the requirements of the 2009 IFC for fire apparatus access and City of Yakima Fire Department Standards. Code Inspection, Addressing — Royale Schneider • The addresses for the buildings adjoining the public street that is to be vacated f will need to be changed to reflect an address from the street that will be used for primary access. City Water Division - Mike Shane • There's an existing looped 12" waterline in N. 2nd Ave. between W. Lincoln Ave. and W. "D" St. There is a 6" domestic service /meter and an 8" fire sprinkler service in N. 2nd Avenue that serves the site. Site is located in the Mid -Level Pressure Zone. Static pressure is approximately 62 - 77 psi. • There's an existing fire hydrant at the southeast corner of N. 2nd Ave. and W. "D" St. and an existing fire hydrant at the northwest corner of N. 2nd Ave. and W. Lincoln Ave. All new fire hydrant or fire sprinkler requirements to be determined by the Fire Dept. and Codes Division. • A minimum 16' easement is required for all existing waterline facilities in the vacated portion of N. 2nd Ave. • All water facilities shall remain in place and in service within the vacated right -of- way area. A site plan should be provided that accurately shows all of the existing utilities (mains and services) within the existing right -of -way being proposed to be vacated, including identifying all easements being created. Access shall be maintained to allow for reading of water meter and any operation and maintenance required for existing water facilities. 3 DOC. INDEX # -I G. Public Use of the Right -of -Way. The subject property has been a dedicated public street for 128 years. Available records do not indicate when or under what circumstances the existing street improvements were completed; however, the City has been responsible for the maintenance of N 2nd Avenue. H. Criteria for Vacation of Rights -of -Way. City policy provides five criteria for consideration during the review of street right -of -way of vacation petitions, they are as follows: 1. The Petition must explain the public benefit of the project and the reasoning of the proposed vacation and the limits of the vacation. The petition explains that this vacation will benefit the public by allowing the petitioner to connect their properties, which are currently separated by this right -of -way and thereby creating a larger area for the expansion of industrial development in this area. Additionally, the petitioner indicates that the vacation is being requested so that their company might secure their property in compliance with the Food and Drug Administration's guidelines, set forth in the Food Modernization Act, which are designed to help protect the nation's food supply from intentional acts of contamination or tampering. This has the added benefit of eliminating traffic unrelated to their business, both vehicular and pedestrian, which can disrupt their firm's activities and perhaps endanger their employees and the general public. The limits of the requested vacation are clearly spelled out in the petition. 2. The vacation of right -of -way does not deny any sole access to any property. The petitioner owns both sides of N 2nd Avenue within the defined parameters of this petition. Consequently, this vacation request will not deny any sole access to any property. 3. Petitions should be consistent with the Six Year Transportation Improvement Plan (TIP), Urban Area Comprehensive Plan and other official City plans and policies. The current TIP does not reflect any planned improvements for the right -of -way to be vacated. The vacation is consistent with the Six -Year Road Plan and all relevant City plans and policies. 4. Vacation requests should be appropriate with existing and anticipated development in the area, based on zoning, current use and long -range plans. The petitioner's anticipated use for this vacated area is considered to be compatible with zoning, current use and long -range plans for the area. 4 INDEX .A... 3. Existing Utilities (public and franchised) should be relocated at the developer's expense or an adequate easement provided. Where appropriate, if existing utilities are deemed not necessary this requirement may be waived. According to the topographic survey provided by the petitioner the following utilities are located within this right -of -way: 1) Cascade Natural Gas, 2) industrial waste sewer, 3) water, 4) underground phone, 5) sanitary sewer, and 6) underground power. These existing utilities will remain in place and the City will retain an easement together with the right to exercise and grant easements with respect to any land herein vacated for the construction, repair, and maintenance of public utilities and services. Given their location and the number of utilities involved it is recommended that the entirety of the vacated right -of -way be retained for utility easement purposes. It should be noted that the retention of these easements will essentially render the vacated right -of -way as unbuildable and will also necessitate that the petitioner obtain prior approval from the city as well as franchised utility providers for any permanent structures on, over or under the vacated right -of -way. This would include additional elevated pipelines similar to the one currently in use which, if constructed must maintain 14feet of clearance for tracks and construction equipment. I. Fair Market Appraisal and Compensation to City. City Resolution R- 2007 -126 specifies the requirements for compensating the city for rights -of -way when vacated. Compensation in the amount of one -half of the appraised value is required to be paid to the City on the vacation of any public street, alley, or any portion thereof, in the City of Yakima unless the right -of -way is unimproved or not maintained, the city has purchased the right -of -way at public expense (100% compensation required) or the ownership of the vacated right -of -way will revert to the State, County, or School District. Because N 2 "d Avenue is maintained by the city compensation is required. An appraisal of the subject right -of -way, performed by Davis Appraisal Service on September 27, 2012, indicates that the current market value for the land is $56,000. In accordance with City policy one -half of this amount is $28,000 and this is to be paid to the city in compensation prior to the recording of the ordinance of vacation... J. Traffic Study This application is exempt from Street Segment Capacity Analysis. K. Environmental Review Street vacations are categorically exempt from SEPA review, as specified in WAC 197- 11- 800(2) h and YMC 6.88. L. Public Notice. On January 8, 2013 the Yakima City Council set the date of the public hearing for this right -of -way vacation on February 14, 2013, by Resolution No. R- 2013 -001 this has 5 INDEX been done acceding to the requirements set forth in RCW 35.79.010. Additional notices were completed on the following dates: Ik Posting in three public places January 11, 2013 Posting of property January 11, 2013 Legal ad published January 9, 2013 Adjoining property notices mailed January 9, 2013 Public hearing scheduled January 8, 2013 M. Public Comments A comment letter dated January 15, 2013 was hand submitted by Mr. Lynn Buchanan on Friday February 1, 2013. Mr. Buchanan is the owner /operator of Buchanan Warehouse, Ltd, a business which is located at 115 West "D" Street and lies immediately to the north of N 2nd Avenue. His letter refers to a stated plan by the railroad to run upwards of 26 trains daily and these trains will block access to his business from the east along West "D" Street. He concludes that this requested street vacation would further limit his customer's access "... "to the point of putting us out of business..." Mr. Buchanan obviously objects to this vacation requests approval. Procedurally RCW 35.79.020 provides, "That if fifty percent of the abutting property owners file written objection to the proposed vacation with the clerk, prior to the time of hearing, the city shall be prohibited from proceeding with the resolution." Technically, the Buchanan property is an abutter upon W "D" Street and does not abut N 32 "d Avenue. Even if he were to be considered as an abutter his percentage of holding would not constitute the fifty percent requirement of the RCW and therefore the hearing may proceed. Should this vacation not be approved the westerly approach to the Buchanan Warehouse along West "D" Street would still be impacted by the increased train traffic and any trucks wishing to avoid the trains would then be able to use the Lincoln Avenue underpass to cross under the tracks. Once west of the tracks trucks coming from the east could then go to the north to West "D" Street and the Buchanan Warehouse by utilizing either N 1St or N 3rd Avenues, both of which will remain open to through traffic. Likewise traffic coming from the west could utilize WD" Street, N 1St Street and North 3rd Street for both ingress and egress. Although this requested vacation might at first inconvenience some Buchanan Warehouse customers the available alternate routes do not preclude access to the business From the view of the site, the matters contained in the application, Development Services Team comments, and a review of the Yakima Urban Area Comprehensive Plan, the Yakima Urban Area Zoning Ordinance, and RCW 35.79 staff makes the following: 6 DM. IN® # A -1 Ill. FINDINGS. \_r 1. The petitioner owns the adjacent properties to the east and west of N 2 "d Street in the vicinity of the requested vacation. 2. The subject portion of N 2 "d Avenue right -of -way was dedicated to the City of Yakima by the Plat of The Town of North Yakima, now Yakima, recorded on February 4, 1885 in Volume "A" of Plats, Page 10 records of Yakima County Washington. 3. N 2nd Avenue is improved and the City of Yakima has been responsible for its maintenance. 4. Right -of -way vacations are categorically exempt from SEPA review and Transportation Capacity Analysis review. 5. The Yakima Urban Area Comprehensive Plan 2025 designates the area to the north, south, east, and west of the subject right -of -way as Industrial. 6. The Yakima Urban Area Zoning Ordinance designates the area to the north, south, east, and west as M -1, Light Industrial. 7. If this request is approved by the Yakima City Council the vacated street right-of- way will be zoned M -1,. Light Industrial to conform to adjacent zoning. 8. One -half the current market value of the subject right -of -way is $28,000. IV. CONCLUSIONS. 1. Provided that the area of the vacated right -of -way utility easements are established at the time of vacation there is no public purpose to be served by maintaining the subject portion of N 2 "d Avenue as public right -of -way. V. RECOMMENDATIONS. The Planning Division recommends that the petition for the right -of -way vacation of that portion of N 2nd Avenue lying northerly of W Lincoln Avenue and southerly of W "D" Street be approved, subject to the following conditions: 1. An easement for public utilities shall be maintained for the vacated portion of N 2nd Avenue. 2. The existing street approaches from West Lincoln and West "D" Street will need to be modified with new sidewalk/curb and gutter in conformance with the city's standards for a commercial access approach. These changes may cause 7 ' INDEX #,�..�® drainage or ponding issues that must be addressed at the time of construction to the satisfaction of the city's stormwate,� engineer. 3. If N 2 "d Avenue is to be maintained as a private street the applicant shall immediately replace the existing white on blue street name signs for N 2 "d Avenue at Lincoln Avenue, and at "D" Street, with a black on white street name sign. If fencing or gates are to be installed across N 2 "d Avenue, reflective signs must be placed on the fence at 12 foot on center and at approximately 60 inches above the road surface. Ideally, these would be 18 "x18" OM-4 object markers but the city's Traffic Engineer may approve other signage that would provide the same function. 4. If N 2 "d Avenue is to be maintained as a private street then the addresses for the buildings will not need to be changed. If the street is to be eliminated the addresses for the buildings will need to be changed to reflect an address from the street that will be used for primary access. 5. Fences or gates must align or set back from the face of the buildings on Lincoln Avenue and on "D" Street. Gates would be set back from the curb face along either Lincoln Avenue or "D" Street, (25' + / -) to allow for a delivery van or similar sized vehicle to pull completely off the road with the gate closed. 6. If a fence is installed and its height exceeds 6 feet, a building permit is required. A site plan will be required, as well as (2) sets of building plans. 7. As soon as fencing is installed key boxes shall be installed in accordance with the 2009 International Fire Code (IFC), and Yakima Fire Department standards. The key box or locking mechanism will need to accommodate all entities that will need utility access, and will be a separate locking mechanism from the fire department key box. 8. Gate opening widths shall meet the requirements of the 2009 IFC for fire apparatus access and City of Yakima Fire Department Standards. 9. All water facilities shall remain in place and in service within the vacated right -of- way area. A site plan shall be provided that accurately shows all of the existing utilities (mains and services) within the existing right -of -way being proposed to be vacated, including identifying all easements being created. Access shall be maintained to allow for reading of water meter and any operation and maintenance required for existing water facilities. 10. Compensation shall be paid to the City in the sum of $28,000. Payment must be received and all other conditions satisfied prior to the recording of the vacation ordinance i E�' - - 0 - - - HOPS EXTRACT CORPORATION OF AMERICA RVW#003-12 EXHIBIT LIST CHAPTER B Site Plan m SAM, Site Plan — Proposed 2" Avenue Vacation 11/21/2012 —�- West et I yu I 1 I I I i I I 11 1 i I I I I I i l l I I I I i I I I I I I i l l V I I I 1 1 1 I I I i l l I I I I i I I 1 I I I Qi 1 1 I I I I .d; I I 1 I � I Ni I I I �i I I I I 11 ZI I I I I I 1 11 I'- 1W�1 I i I I I �1 i II I I I I i I► I I I I i II I I I I ! II I I I 1 as awl* t - - rT -- I -� - -- I I 1 1 I I 1" = 30' 1 1 1 h 1 1 as w SCALE IN FP.bT i� !� la i I� I� 1 �1 11 i I I I I I I 1 1 ; ! I i I I _ _West LinT'�D1n Avenue _ _ _ ti. ` F Proposed 2nd Avenue Vacation SURVEYOR CERTIFICATE C.9F� THIS MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR UNDER MY C s DIRECTION IN CONFORMANCE WITH THE RHQUMEMEMrSOFTHESURVEYRECORDING ACT AT THE REQUEST OF HOPSTRACT IN SEPTEMBER 2011. > -=. Coµ JAMES C. BELL LS 18894 r RECEIVED NOV 2 1 2012 CITY OF YAKIMA PLANNING DIV. THATPORTIONOFNORTH21 °AVENUELYINGNORTHOFTHE NORTH RIGHT-OF-WAY OF WEST LINCOLN AVENUE AND SOUTH OF THE SOUTH RIGHT- OF-WAY OF WEST "D" STREET BELL & UPTON LAND SURVEYING 315 NORTI4 3RD STREET, YAKIMA, WA 98901 Phone 457 -7656 TOPOGRAPHY SURVEY PWAM FOR HOPS EXTRACT CORP. IN THE NE ANE v., SECTION 24 -13-18 ScpWnba IL 2012 Jab No. 12116 .tu Z HIPS EXTRACT CORPORATION OF AMERICA RVW #003 -12 EXHIBIT LIST CHAPTER C Maps �.'Y'V,' >fi �q�,¢y�3,Pa, k�� EL1 �" $y kR�. YY �^�� i fair �� I i �� 4 i�l�iTk Y'js''^�'i33^Y a�.�+��Y.�f 1�',�,i,Eu"ep ��+ ��77yyF3�� p kt � iyA,�l6�53 `i� � V• �F, 4 i _ •C f i « 9 S„ Ys'3+i` �'�' t� Maps — Vicinity, Zoning, Utility, Future Land Use, Aerial - �A��lq_ '� M�k "'� C -1 11/28/2012 I� I• 140 <o ••••t•• p•- ••�u•� -••... .. ...�... .auv,.w5, n. �, un,uaF,.uwu: Ytl llUlV —UU L v Scale - 1:4000 City of Yakima, Washington File Number: R)NAW03 -12 Bill Hordan Planning Services Applicant: Owner: Hops Extract Corp of America Request: Vacate a portion of public right of way in the Ocinity of North 2nd Ave between N1 Lincoln Ave & NN' ) Street to expand and protect industrial development in this area. Location: North 2nd Ave bmn W Lincoln Ave S W D Street Parcel Number(s); 18132411438 ,18132411439.18132411448 Subject Area Site Property Notification Area NOTIFICATION OF LAND USE APPLICATION DOC. INDEX r. -I 11/28/2012 10:30 AM ♦I • of _ vatui�lilLiJ!prinu.•}ap.ntn-d : /otiinViru City of Yakima, Washington Subject Area Site File Number: RMV #003 -12 Applicant: Bill Hordan Planning Services Zoning Boundary Owner: Hops Extract Corp of America Request: Vacate a portion of public right of way in the Acinit} of North 2nd Ave between W Lincoln Ave & W D Street to expand and protect industrial development in this area. Location: North 2nd .Ave btwn W Lincoln Ave & W D Street Parcel Numberysl: 18132411438 .18132411439,18132411448 DW. INDEX 11.'28/2012 10 :30 AM • i • ....r. a...� ....��.., ...... - E,...p. .uurtt) u City of Yakima, Washington I Subject Area Site File Number: RW7' #003 -12 Applicant: Bill Hordan Planning Ser%ices Water Pipe � ---- Owner: Hops Extract Corp of America Request: Vacate a portion ofpublic right ofway in the Vicinity of North 2nd Ave between W Lincoln -- _ Sewer Pipe Ave & W D Street to expand and protect industrial development in this area. Location: North 2nd Ave btwn W Lincoln Ave & W D Street Parcel Numberisi: 18132411438 ,18132411439.18132411448 DOC. INDEX # C - of 11!28/2012 10:29 AM • • I POPLAR ST City of Yakima, Washington File Number: RVIW1' #003 -12 Applicant: Bill Hordan Planning Services 011 ner: Hops Extract Corp of America Request: Vacate a portion of public right of %%-a- in the vicinity of North 2nd Ave between W Lincoln Ave cC W D Street to expand and protect industrial development in this area. Location: North 2nd Ave btwn W Lincoln Ave &'%'D Street Parcel Numberlsl: 181 32411438 ,18132411439,18132411448 •...t... , b... ......... u. &.,., yun.uraC.a• pn iuuaualr.uuiu . iwu —u w Subject Area Site LU. Lk-1,14N, Pe' x Lledurr.Denst, R►SCernal ■ H Jn per SRr RPSide M&I prulcSS ?'Ia 0e-cr rr Rc7 -gal ' - T ,p rcrbi ■ tic ffDorwcj Cc +,rmnu3 t i srce ConvYr ecce C enter Menau Cc•rurerr -31 ■ CBD Cole Conm•wN r J4013l DOC. INDEX # L -I of , 1 U28/2012 10:29 AN I i L r _ 1 '.lt1;iJll�Yd �rt f , �• S� I# i r—r ilk r,.. r � 1 i F r • r� ' r l r A -'' At e , � S V� City of Yakima, Washington File Number: RNAT 003 -12 Applicant: Bill Hordan Planning Services Owner: Hops Extract Corp of America Request: Vacate a portion of public right of way in the iicinih of North 2nd Ave between W Lincoln Ave & W D Street to expand and protect industrial development in this area. Forth 2nd Ave bhvn W Lincoln Ave & W D Location: Street Parcel Number(s): 18132 .111438,18132411439,18132411448 '; dft 1ivagwP1J1W%1dP.uulu:pnoto —iru ,� I e c '~ - 1 � _ 3 Subject Area Site Aerial Photo: June 2008 It ' I DM. INDEX 1 of ' 1 1/28/2012 10:30 Al` HOPS EXTRACT CORPORATION OF AMERICA R'NW#003-12 EXHIBIT LIST CHAPTER D DST Review & Agency Comments D-1 1, 101 1 D, DST Request for Comments & Distribution List Al 11, 4-W 12/27/2013 D-2 Comments received from Joe Rosenlund, Traffic Engineering 01/08/2013 D-3 Comments received from Randy Meloy, Stormwater Engineer 01/10/2013 D4 Additional comments received from Randy Meloy, Stormwater Engineer 01/15/2013 D-5 Comments received from Glenn Denman, Supervising Code Inspector 01/15/2013 D-6 Comments received from Mike Shane, Water/Irrigation —Division--- 01/16/2013 D-7 Comments received from Royale Schneider, Code Inspection Office Supervisor 01/-22/2013 e d COMMUNITY DEVELOPMENT DEPARTMENT Code Administration Division 129 North Second Street, 2nd Floor Yakima, 14'ashington 98901 Phone (509) 575 -6126 Fax (509) 576 -6576 code.<alyakinrarva.gov ►vww.huildin,�tprrkirrnt.corn MEMORANDUM DATE: January 22, 2013 TO: Bruce Benson, Supervising Planner FROM: Royale Schneider, Code Inspection Office Supervisor RE: RWV #0013 -12 for N. 2nd Ave Between W. Lincoln Ave. & W. D Street The addresses for the buildings adjoining the public street that is to be vacated will need to be changed to reflect an address from the street that will be used for primary access. I can be contacted directly at (509) 576 -6669 for further discussion on the addressing. s+Y„ Water /Irrigation DST Comments Applicant: HORDAN PLANNING SERVICES Comments Submitted By: Location: N 2ND AVE BETWEEN W LINCOLN AVE & W D ST/ Mike Shane, Water /Irrigation Engineer - 576 -6480 Parcel #: 18132411438 ,18132411439,18132411448 Division: Date: 1/1612013 Water /irrigation Division 1= primary review 2= secondary review Development Description: o RWV #003 -12 - Vacate a portion of public right of way in the vicinity of North 2nd Avenue between West Lincoln Avenue and West D Street to expand and protect industrial development in this " = area. m w WATER & IRRIGATION existing water location, size, etc. There's an existing looped 12" waterline in N. 2nd Ave. between W. Lincoln Ave. and W. D St. There is a 6" domestic service /meter and an 8" fire sprinkler service in N. 2nd Ave. that serves the site. Site is located in the Mid Level Pressure Zone. Static pressure approx. 62 - 77 psi. 1 2 1 2 water extension necessary, size No fire hydrant There's an existing fire hydrant at the southeast corner of N. 2nd Ave. and W. D St. and an existing fire hydrant at the northwest corner of N. 2nd Ave. and W. Lincoln Ave. All new fire hydrant or fire sprinkler requirements to be determined by the Fire Dept. and Codes Division. 1 2 2 new public easements Yes, a min. 16' easement is required for all existing waterline facilities in the vacated portion of N. 2 1 2nd Ave. 1 2 LID /connection charges NA 2 11 service installation charges NA 1 1 I pubric/private system Public 1 2 2 Fireflow calculations 6,000 gpm from existing looped 12" waterline in N. 2nd Ave. WellHead Protection Area No 2 Irrigation System Site is not within the City of Yakima's Irrigation service area. Misc. Comments All water facilities shall remain in place and in service within the vacated right -of -way area. A site plan should be provided that accurately shows all of the existing utilities (mains and services) within the existing right -of -way being proposed to be vacated, including identifying all easements being created. Access shall be maintained to allow for reading of water meter and any operation 2 and maintenance required for existing water facilities. H �1 Mike Sri-e. �td/2013 January 15, 2013 To: Bruce Benson, Planner From: Glenn Denman Supervising Code Inspector Re: RWV #003 -12, Hops Extract, 305 N 2 "d Ave If fence height exceeds 6 feet, a building permit'is required. A site plan will be required, as well as (2) sets of building plans. Key boxes shall be installed in accordance with the 2009 International Fire Code (IFC), and Yakima Fire Department standards. The key box or locking mechanism will need to accommodate all entities that will need utility access, and will be a separate locking mechanism from the fire department key box. Gate opening widths shall meet the requirements of the 2009 IFC for fire apparatus access and City of Yakima Fire Department Standards. DW. INDEX EDIT(DR. -.x NEW SIDEWALK /CURB AND GUTTER ALONG C OLN AND D COULD RESULT DST F ONDING D /OR DRAINAGE ISSUES. TBESE ISSUES MUST BE DRESSED. ST Comments - Randy Meloy - 01/10/2013 l January 8, 2013 To: Bruce Benson Supervising Planner From: Joe Rosenlund Streets & Traffic Operations Manager Re: RWV 003 -12, N 2nd Avenue Vacation, Hops Extract Corp There are no significant operational safety issues related to the vacation of N 2nd Avenue between Lincoln Avenue. and W D Street. The applicant shall replace the existing white on blue street name signs for N 2nd Avenue at Lincoln Avenue, and at D Street, with a black on white street name sign. If fencing or gates are to be installed across 2nd Avenue, reflective signs must be placed on the fence at 12 foot on center at approximately 60 inches above the road surface. Ideally, these would be 18 "x18" OM-4 object markers but I would consider other signage that would provide the same function. Fences or gates must align or set back from the face of the buildings on Lincoln Avenue and on D Street. Preferably gates would be set back from the curb face along either Lincoln Avenue or D Street, (25' + / -) to allow for a delivery van or similar sized vehicle to pull completely off the road with the gate closed. A. _ 1 DST Distribution Lisa. -7 Applicant: Hops Extract Corporation of America A File Number. RWV#003-12 , \ r1l y Date of DST Meeting: January 16, 2013 Assigned Planner. Bruce Benson Ci of Yakima Divisions and Yakima County Public Services • Codes Royale. Schneider • Codes Glenn Denman • Engineering Dana KalleWg • Storm water Randy Meloy • .Engineer Wdtef/liiigation M&e,.ShAne • Wastewater Scott Schafer • Fire Department Brandon Do'renbush • Streets/Traffic Engineering Joe Rosenlund Utility Services Pete` Hobbs Other Agencies DST Packets Distribution List —updated 11.26.2012 00C. INDEX Parks and Recreation Ken Wilkinson P.O. Box 102, Yakima, WA 98901 Transit Ken Mehin Jan-tie Lee Stickel Transit Kevin Futrell Committee for Downtown Yakima Police Department Shawn Boyle Refuse' NaktcV Fortier P.O. Box 881, Yakima 98901 Yakima County Public Svcs Vern. Redifer Rick,-Diikiiflohn Dickman Yakima County PI anning Steve Erickson on Nob Hill Water 911 Communications WayneWantland County Flood Control District 1 Jeff Legg DST Packets Distribution List —updated 11.26.2012 00C. INDEX Capitol Theatre Gay Parker P.O. Box 102, Yakima, WA 98901 Committee for Downtown Yakima Jan-tie Lee Stickel 115 North 3rd Street, Yakima 98901 Committee for Downtown Yakima Ja e s - S"01 P.O. Box 9668, Yakima 98909 Committee Manager - CDY Manager P.O. Box 881, Yakima 98901 Yakima Tieton Iftigation District Rick,-Diikiiflohn Dickman 470 Caiiip 4 Rd. Yakima, WA 98908 Nob Hill Water jenna Leaverton 6111 Tieton Drive, Yakima 98908 Yakima County Health District Art McKuin. 1210 Ah(anum Rid Dr, -Union Gap 98903 WA State Department of Ecology Gwen Clear 15 W Yakima Ave Ste #200, Yakima 98902 No. Yakima Soil Conservation District IL4 W6fidircheck St Ste F, Yakima 98902 • Pacific Power and Light Co. Mike Paulson 500 N. Kevs Rd, Yakima 98901 • Century Link Timi McAV6y .8 South 2 Ave Rm30L Yakima %902 • Cascade Natural Gas Co. Sheila Ross 701 South 1st Ave, Yakima 98902 Yakftna'Scho6l District #7 Di. ElaI:tnBiraza 10,4;iNdrth I 40i'Av'e, Yakima 98909 West Valley School District K08 Dr. Michael Brophy 8902 Zier Rd, Yakima 98908 • Charter Comi�i=cdtiorts KiiV`'`:,Ch&6te, 1W5 North 16th Ave, Y -1 902 C 98 County Clean Air Authority Gary Pruitt 329 North 1st Street Yakima 98901 Yakima Waste Systems Scott Robertson 2812'Terr'ace Aei&ts Dk;,Yakima 98901 Yakima Greenway Foundation Al Brown 111 South 18th Street Yakima 98901 US Post Office * Jeff McKee 205 W04 Washington Ave, Valdhia 98903 Yakima Valley Canal Co. Robert Smoot 1640 Garretson Lane, Yakima 98908 Departinerit of Wildlife 1701S6uth2,4th Av6,,Y 48902 Department of Natural Resources 713 Bowers Rd, Ellensburg 98926 WSDOT (Deo of Ti oirtation) Salah AlTAmfid 28W'kiid1d'n'Rd,VM"6n GiP'08903 Department of Fisheries Eric Bartrand P.O. Box 9155, Yakima 98909 YaLuna Indian Nation Thalia SAchtleFen P.0. Brix 151,'Topp_e'm`sh 98048 Yakima Airport Carl Lee Remmel 2400 West Washington Ave, Yakima 98903 Trolleys Paul tEdin. 'son .313'M'rth 3-" Street, Y City of Union Gap David Spurlock P.O. Box 3008, Union Gap 98903 WSDOT, Aviation Division John Shimbiukh 1820159th Drive NE, Ste B, Arlin ton WA 98223 Governor's Office of Indian Affairs PO Box 40909, Olympia, WA 98504 Ahtkmbjii lrid ati6ii Distrid - Beth' Alin Bidotte 10765-B Gilbert Rd, YakimaiWA 98903-9203 Yakima-Mickitat Fisheries Project John Marvin 760 Pence Road, Yakima, WA 98909 Department of Fish & Wildlife Mark Teske 201 North Pearl, Ellensburp, WA 98926 DST Packets Distribution List —updated 11.26.2012 00C. INDEX Ibarra, Rosalinda From: Ibarra, Rosalinda Sent: Thursday, December 27, 2012 11:58 AM To: Schneider, Royale; Denman, Glenn; Kallevig, Dana; Meloy, Randy; Shane, Mike; Schafer, Scott; Dorenbush, Brandon; Rosenlund, Joseph Subject: DST PACKET - Hops Extract Corp of America - RWV#003 -12 Attachments: DST PACKET - Hops Extract Corp America - RWV003- 12.pdf Please submit your comments in Paladin or e-mail them to the assigned planner before the meeting date. Thanks! RsaCsnda .Marra Planning Technician NEW VV AIL- rosaIinda.ibatra @ vakimawa QOv City of Yakima 129 North 2nd Street Yakima, WA 98901 p: (509) 575 -6183 f: (509) 575 -6105 City of Yakima Development Services Team Request For Comments January 16, 2013 To: City of Yakima Development Services Team From: Bruce Benson, Supervising Planner Subject: Request for comments Applicant Hops Extract Corporation of America File Numbers: RWV #003 -12 Location: 305 N 2nd Avenue, Yakima, WA 98902 Parcel Number(s): 181324 - 11439, 11439, 11448 DST MEETING DATE: 0 , It - p application concerns a petition request to vacate a portion of N 2nd Avenue lying between W Lincoln ue and W "D" Street Please review the attached application and site plan and prepare any written comments you might have regarding this proposal. This project will come up for discussion at the weekly DST meeting to be held Januan 16, 2013 at 9:30 a.m. As always, should you have comments, but find you are unable to attend, please submit your comments prior to the meeting. My email address is bbenson @ci.yakima.wa.us and the Planning Department's fax number is (509) 575 -6105. Should you have any questions, or require additional information, please call me at (509) 575 -6042. Contact Person Department/Agency L• HOPS EXTRACT CORPORATION OF AMERICA RNW#003-12 EXHIBIT LIST CHAPTER E Application # W! Mm C m FIR, law Report - Appraisal of Real Property E-1 11/21/2012 E-2 Land Use Application for Right of Way Vacation 11/21/2012 E-3 Petition No. 12-005 11/21/2012 PETITION NO. O V 2 12012 �_•� N ��'.�, O� CITY OF YAKIMA, WASHINGTION lry 01:HG K1MA PETITION TO VACATE STREET OR ALLEY DIV, To the City Council of the City of Yakima, Washington. Comes now the undersigned petitioners and, pursuant to RCW Chapter 35.79, now respectfully show: The undersigned petitioners request that the following described street, alley or portion thereof, located in the City of Yakima, be vacated pursuant to RCW 35.79 (provide legal description below, or attach to petition if lengthy). Each of the undersigned petitioners is the owner of an interest in real estate abutting on the above- described area. The undersigned petitioners constitute owners of more than two- thirds of said abutting property. Wherefore, petitioners pray that proceedings be heard hereon for the vacation of said area in the manner prescribed by RCW Ch. 35.79. 14 oPs ex -rZ& -T ca000AA.naJ _QX' AME$ie-A Owner Signature Owner Signature Owner Signature 306' A)ga -r i Z "o AUG.. U A 989o2— Address to/ SoJ 12. Date Address Date Address Date /00 C7.0 Ownership % Ownership % Ownership % (if there are more property owners than what is room for please attach a separate list of property owners abutting the right -of -way to be vacated as we# as their address, percentage of frontage on the right -of -way, and signature with date and the total ownership percentage of the property owners participating in this vacation) Ibarra, Rosalinda From: Sent: To: Subject: Bruce Benson Supervising Planner City of Yakima 129 N 2nd Street Yakima, WA 98901 P 509.575.6042 F 509.575.6105 bbenson(o)ci. vakima.wa. us Benson, Bruce Thursday, December 27, 2012 11:20 AM Ibarra, Rosalinda FW: R/W Vacation Petition No. From: Allyn, Kaarre - Sent: Thursday, December 27, 2012 10:36 AM To: Benson, Bruce Subject: RE: R/W Vacation Petition No. Your petition number will be 12 -05. Happy New Yearl X ,Xff ^ .W.S. City Clerks Division Department Assistant III City of Yakima 129 N. 2nd St. Yakima, WA 98901 509 - 576 -6653 phone 509 - 576 -6365 fax This e -mail is a public record of the City of Yakima and is subject to public disclosure unless exempt under the Washington Public Records Act. This e-mail is subject to the State Retention Schedule. From: Benson, Bruce Sent: Thursday, December 27, 2012 9:57 AM To: Allyn, Kaarre Subject: R/W Vacation Petition No. Good morning Karre, Would you please assign a right -of -way vacation petition number for the enclosed? Bruce Benson Supervising Planner City of Yakima 129 N 2nd Street Yakima, WA 98901 P 509.575.6042 F 509.575.6105 bbensonCa.ci.yakima.wa.us INDV 1 1 • INDEX #. E— 1, LAND USE APPLICATION a CITY OF YAKIMA, DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT 129 NORTH SECOND STREET, 2ND FLOOR, YAKIMA, WA 98902 -' VOICE: (509) 575 -6183 FAX: (509) 575 -6105 INSTRUCTIONS — PLEASE READ FIRST Please type or print your answers clearly. Answer all questions completely. If you have any questions about this form or the application process, please ask a Planner. Remember to bring all necessary attachments and the required filing fee when the application is submitted. The Planning Division cannot accept an application unless it is complete and the filing fee paid. Filing fees are not refundable. This application consists of four parts. PART 1- GENERAL. INFORMATION AND PART IV — CERTIFICATION are on this page. PART 11 and III contain additional information specific to your proposal and MUST be attached to this page to complete the application. PART I — GENERAL INFORMATION 1. Applicant's Name, Address, And Phone Number Name �,�() AJ � �� SE21I /CleS Street !1 10 Alp/LTyf Z'`=# Si' _ city tMa ST 1,,/4 'Zip 98gol Phone ) —19 9 2. Applicant's Property Interest Check One ❑ Owner ❑ Agent ❑ Purchaser Other pLAN�t/C2 3. Property Owner's Name, Name HdRS Ar,r, C09P Address, And Phone Number — (If Other Than Applicant) Street 3667 Alozziv Zoo Ave City AkIM+d I ST I I,14 Zip I 901gUJ Phone (0 S"�J,f - Z, j/41do 4. Subject Property's Assessor's Parcel Number(s): /S/ 32 �(_ 11x/38 I // oy8 5. Legal Description of Property. (if lengthy, it please attach on a separate docu ent) SE6 1"7)V_fft 6. Property's Existing Zoning: ❑ SR ❑ R -1 ❑ R -2 ❑ R -3 ❑ B -I El B-2 ❑ HB ❑ SCC ❑ LCC ❑ CBD ❑ GC ❑ AS ❑ RD J<M -I ❑ M -2 7. Property Address: 3oS /De1N 2i A. J-0 A/45 ^ 8. Type Of Application: (Check All That Apply) ❑ Administrative Adjustment ❑ Environmental Checklist (SEPA) ❑ Easement Release ❑ Type (2) Review Right -of -Way Vacation ❑ Rezone ❑ Type (3) Review Transportation Concurrency ❑ Shoreline ��oo�° �® E] Short Plat ❑ Non - Conforming StructurefUSeRECEI 1i ED ❑ Critical Areas ❑ Long Plat ❑ Type 3 Modification ❑ Variance ❑ Admin. Modification ❑ Interpretation by Hearing ExamN (@ v 2 1 2012 ❑ Amended Plat ❑ Appeal ❑ Temporary Use Permit ❑ Binding Site Plan ❑ Home Occupation ❑ Comp Plan Amendment CITY OF YAKIMA ❑ Planned Development ❑ Short Plat Exemption: ❑ Other: PLANNING DIV. PART 11— SUPPLEMENTAL APPLICATION, PART III r REQUIRED ATTACHMENTS, & PART IV — NARRATIVE 9. SEE ATTACHED SHEETS PART V — CERTIFICATION 10. I certify that tthhe information on this application and the required attachments are true and correct to the best of my knowledge. t Nom, - l O/30J 1Z PROPERTY OWNERS SIGNATURE DATE FOR ADMINISTRATIVE USE ONLY Revised 02 -I1 Notes: FILE 11 DATE FEE PAID RECEIVED BY Amount Receipt No. Hearing Date 420 1,0 12:) J�,5 I 1 • INDEX #. E— 1, LEGAL DESCRIPTIONS RECEIVED NOV 2 1 2012 CITY OF YAKIMA PLANNING bIV, 181324 -11438 — The easterly 227 feet of Lots 1 though 4 of Block 227, Town of North Yakima (now Yakima) recorded in Volume "E" of Plats, Page 1, records of Yakima County, Washington, EXCEPT the northerly 15 feet of said Lot 4. Situated in Yakima County, Washington. 181324 -11439 — Lots 5, 6, 7, 8 and the northerly 15 feet of Lot 4 of Block 227, Town of North Yakima (now Yakima) recorded in Volume "E" of Plats, Page 1, records of Yakima County, Washginton; EXCEPT beginning at the Northwest corner of said Lot 8; thence North 67 ^18' 10" East, along the North line of said Lot 8, 19.66 feet; thence South 22 ^47'40" East 80.44 feet; thence South 67 ^12'20" West 5.05 feet; thence South 22 138'20" East 35.10 feet; thence North 67 ^12'20" East 5.05 feet; thence South 22 ^47'40" East 99.41 feet to the Southerly line of the Northerly 15 feet of said Lot 4; thence South 67^ 18' West, along said Southerly line, 19.71 feet to the Westerly line of said Lot 4; thence North 22A45'1 8" West, along the Westerly line of said Lots 4, 5, 6, 7 and 8 to the Point of Beginning. Situated in Yakima County, Washington. 181324 -11448 -- Lots 9 through 16 of Block 207, Town of North Yakima (now Yakima) recorded in Volume "A" of Plats, Page 10, records of Yakima County, Washington; Together with the vacated alley in Block 207 and the west 19.5 feet of Lots 1 through 8 of said subdivision. Situated in Yakima County, Washington. In Supplemental Application For: RECEIVED RIGHT -OF -WAY VACATION F_ Fee: $420.00 (RCW 35.79) ( +50% appraised value) Nov 2 �= 2012 CITY OF YAKIMA PLANNING DIV. PART U - LOCATION 1- VICINITY - LOCATION OF RIGHT -OF -WAY TO BE VACATED: 4R4 2 !!DO r 13ewew %AA sr L-wcow Aoa w sbjb %des r "D" 2. LEGAL DESCRIPTION OF THE RIGHT -OF -WAY TO BE VACATED: (Attach if lengthy) 5a 041TAC,rfFb PART III - APPLICATION INFORMATION 3. A WRITTEN NARRATIVE: (Please submit a written response to the following questions) A. What is the public benefit, reason for, and limitations of the proposed right-of-way vacation? Sir 141?gC'tW 64- Tp 4tic- Qct'2Xn rJS, B. Does the vacation deny sole access to a public street for any property? C. Is the proposal consistent with existing plans of the City? (Petitions should be consistent with the Six -year Transportation Improvement Plan, the Urban Area Comprehensive Plan and other official City Plans and policies) D. Is the vacation appropriate with existing zoning and land use? (Vacation of Right -of -Ways should be appropriate with existing and anticipated development in the area, based upon zoning, current use and longrange plans) E. Are there any public or franchised utilities in the right-of- -way to be vacated and if so, will they be relocated? PART 1V - REQUIRED ATTACHMENTS 4. SITE PLAN REQUIRED: (Please use the City of Yakima Site Plan Checklist, attached) 5. PETITION TO VACATE STREET OR ALLEY REQUIRED (attached) 6. TITLE REPORT (may be waived) 7. SURVEY OF THE AREA TO BE VACATED (may be waived) 8. APPRAISAL OF THE PROPERTY (If the assessed value of the portion of right -of -way to be vacated exceeds $20,000) 9. ENGINEERING PLAN (may be required to indicate how the curb, gutter and other physical features will be treated after the vacation is enacted. 10. TRAFFIC ANALYSIS (A traffic analysis prepared by a Certified Engineer, which describes the impact to the City transportation network of the closure of the right-of-way, may be required depending on the right -of -way being vacated. As a result of that analysis, a Traffic Study may also be required) Note: if you have any questions about this process, please contact us City of Yakima, Planning Division, 129 N. 2nd St., Yakima, WA or 509 -575 -6163 Revised 02 -11 DOC. INDEX E�� RECEIVED PART III -- WRITTEN NARRATIVE Nov 2 1 2012 CITY OF YAKIMA PLANNING Dll% A. What is the public benefit, reason for, and limitations of the proposed right- of-way vacation? This vacation will benefit the public by allowing the adjoining property owners Hops Extract Corporation of America to connect disjointed properties to create a large contiguous property to expand and protect industrial development in this area. All adjoining properties to the west and east of North 2 "d Avenue, between West Lincoln Avenue and West "D" Street of this proposed right -of -way vacation, are owned by Hops Extract Corporation of America. North 2nd Street basically runs right through the middle of the Hops Extract Corporation of America property, its temporary storage areas, loading areas, storage warehouses and hops processing plant. This proposed right -of -way vacation is also being requested to comply with the Food and Drug Administration (FDA) guidelines for the Food Modernization Act (FMA). The FMA implements guidelines to help protect the nation's food supply from intentional acts of contamination or tampering. These guidelines are specific to companies that produce, process, store, package, distribute, or transport food and food ingredients. Guidelines applicable to General Facilities include, but are not limited to the some of the following Defense Mitigation Strategies: 1. Install a perimeter fence, wall or barrier with appropriate clear zone. 2. Minimize the number of entrances to non - public areas of the facility. 3. Establish a designated parking area for employees. Provide parking decals or other identification for employee vehicles. 4. Minimize, to the extent practical, places in public areas that an intruder could remain unseen after work hours. 5. Inspect incoming and outgoing vehicles and packages for suspicious, inappropriate or unusual items or activity. 6. Check visitors in and out at security or reception, requiring proof of identity, issuing visitor badges that are collected upon departure, and accompanying visitors. 7. Restrict visitor access to food handling and storage areas. 8. Prevent visitors from accessing food preparation, storage, loading docks, and any other non - public areas of your operation. ;i !1. INDEX # rr2- RECEIVED NOV 2 1 2012 CITY OF YAKIMA PLAN NN!+C !)IV. As North 2nd Avenue bisects this facility, it makes implementation of the FDA Guidelines nearly impossible in its current configuration. All loading areas and temporary storage of hops occur in, or near, the existing road right -of -way. By vacating the street right -of -way as proposed, Hops Extract Corporation of America can erect a fence at the north and south end of its facility, and have locking gates to protect the property from potential acts of contamination and/or tampering. The gates could then be monitored and controlled by Hops Extract which would limit the number of entrances to the facility, permit secure employee and guest parking, prevent intruders to the facility, permit vehicle inspections, restrict access to food handling and storage areas, prevent access to food preparation, storage, loading docks and other non - public areas incompliance with Defense Mitigation Strategies of the FDA Guidelines. It is proposed that a "knox -box" be placed on each gate to permit emergency access to the facility in cases of emergencies, as required by local fire codes. Additionally, an occasional amount of passenger vehicle traffic, unrelated to this facility, or other facilities in the area passes right through the middle of this storage and processing plant. This unrelated traffic causes congestion at the Hops Extract facility and other industrial uses in the immediate area. This "pass- through" traffic is incompatible with the industrial nature of the area and is not desirable because of the conflicts it creates by passing through an industrial area. The current situation also permits pedestrian traffic/bicycles to move through the facility. There are currently no sidewalks to accommodate this foot traffic or bike lanes for those on bicycles. This proposal will relieve congestion and help prevent accidents in the overall area between large industrial vehicles, passenger vehicles, bicyclists and pedestrians. The intersection of West D Street and North 2nd Avenue, at this location, is a "T" intersection. Thus, North 2" d Avenue dead -ends at the north end of the Hops Extract property. The proposed vacation of North 2nd Avenue, at this location, will cause the dead -end of North 2 "d Avenue to occur 1 block south of its current location. However, vehicles that need to use this route can easily travel around the proposed right -of -way vacation by way of North 1 st Avenue or North 3rd Avenue. Both of these streets are controlled by signals at their intersection with West Lincoln Avenue, which should make travel in this area safer, as the intersection of North 2nd Avenue and West Lincoln Avenue is not signalized. For the reasons stated above, a wide variety of public benefits are accomplished by this proposed right -of -way vacation. D ®C. INDEX # 1�--- o- B. Does the vacation denv sole access to a public street for any property? This vacation will not deny sole access to any property. As all affected properties are owned by Hops Extract Corporation of America, the vacated portion of the right -of -way will be merged with the adjoining properties. Each property still has direct frontage to either West Lincoln Avenue or West D Street or both streets. Because all the properties involved in this application are owned by the same company, access easements, if necessary, can be granted to individual parcels for legal access purposes. Thus, no property is denied sole access to a public street. NOV 2 I C17y U 12 Pt C. Is the Proposal consistent with existing plans of the City? (Petitions should ANN���A���A V. be consistent with the Six -vear Transportation Improvement Plan, the Urban Area Comprehensive Plan and other official City Plans and policies). The current Six -year Transportation Improvement Plan does not indicate any planned improvements slated for this portion of North 2 "d Avenue. The proposal is consistent with the Urban Area Comprehensive Plan because it promotes infill and the efficient utilization of vacant land (once vacated) within an area designated for industrial uses as determined by the Future Land Use Map of the Comprehensive Plan. D. Is the vacation appropriate with existing zoning and land use? (Vacation of rights -of -ways should be appropriate with existing and anticipated development in the area, based upon zoning, current use and long range plans) This proposal is appropriate with existing zoning because all properties abutting the proposed right -of -way vacation are zoned Light Industrial. The proposal is also consistent with existing land uses currently located in the Light Industrial zoning district. Those surrounding land uses consist of a truck scale, warehousing, storage and processing. The Hops Extract property on the east and west sides of North 2"d Avenue are so intricately tied together that there is a steel support bridge that crosses overhead of North 2 "d Avenue. The support tower is used to transfer CO2 gas from the west side of North 2 "d Avenue to the main plant on the east side of the street. In return, the main plant transfers water and steam from the east side of North'2nd Avenue to the west side of the street where it is used by the Downstream Products Plant. This is the type of development which is anticipated in the Light Industrial zoning district. The vacation will permit the existing facility to operate as a single entity, without interruption from "outside" vehicular and pedestrian traffic which pass through the middle of the existing facility. The vacation permits the facility to operate uninterrupted by permitting industry equipment to operate freely from structure to structure without having to worry about outside influences negatively affecting this operation. DOC. INDEX # i�-- 2, E. Are there any public or franchised utilities in the right -of -way to be vacated and if so, will they be relocated? The public right -of -way is currently encumbered with domestic water, sanitary sewer, industrial waste water, natural gas, telephone and electrical lines. No relocation of any utility is proposed at this time. Upon vacation of the right -of -way, it is proposed that the entire right -of -way be dedicated as a public utility easement to accommodate these utilities. If location or relocation of any utility is proposed in the future, the property owner will work with the City to ensure that the utility is appropriately located and/or moved. RECEIVE[ NOV 2 1 M2 CITY OF YAKIMA PLANNING DIV. WC. 114DEX # F -a LEGAL DESCRIPTION OF RIGHT -OF -WAY TO BE VACATED THAT PORTION OF NORTH 2ND AVENUE LYING NORTH OF THE NORTH RIGHT -OF- WAY OF WEST LINCOLN AVENUE AND SOUTH OF THE SOUTH RIGHT -OF -WAY OF WEST "D" STREET. RECEIVED NOV 2 1 2012 CITY OF YAKIIWA PLANNING Olv. .6. Department of Commu-' -id Economic Development Office of Code Admini Receipt Number: CR -12- 224317 129 North Second Street, 2nd Floor Yakima, Washington 98901 ;eipt Date; 11/21/2012 Cashier, JCRUZ Payer /Payee Name: HOPS EXTRACT CORP OF AMERICA Original Fee Amount Fee Application # Parcel Fee Description Amount Paid Balance RWV #003 -12 18132411438 Right of Way Vacation 305 N 2ND AVE $420.00 $420.00 $0.00 Total Paid: $420.00 Tendered Amt: $420.00 Change Due: $0.00 Payment Reference Tendered,' Method Number Amount CHECK 39122 $ 420.00 Total: $420.00 Previous Payment History , Y ry` (Receipt # Receipt Date Fee Description ` Amount Paid Application # Parcel DOC. INT Form W — WinTOTAL, appraisal software by a la mode, inc. — 1- MALAMOM I • DEX # C- I M _ 1T fY APPRAISAL OF REAL PROPERTY LOCATED AT: 2nd Av btw Lincoln Av & D St Yakima, WA 98902 RECEIVED FOR: NOV 2 1 2l i2 Hordan Planning Services 410 N. 2nd Street CITY OF YAKIMA Yakima, WA 98901 PLANNING DIV. AS OF: 0926112 BY: tarry D. Davis 103 S. I Oth Street Selah, WA 98942 Davis Appraisal Comoarn • Form W — WinTOTAL, appraisal software by a la mode, inc. — 1- MALAMOM I • DEX # C- I Davis Appraisal Company in Fit N . 1 Client Hordan Planning Services File No. 12034 Property Address 2nd Av btw Lincoln Av & D St Qy Yakima County Yakima State WA Tip Code 98902 i iser Lam D. Davis APPRAISAL AND REPORT IDENTIFICATION This Appraisal Report is !]!IB of the following types: ❑ Self Contained (A written report prepared under Standards Rule 2 -2(a) , pursuant to the Scope of Work as disclosed elsewhere in this report) ® Summary (A written report prepared under Standards Rule 2 -2(b) , pursuant to the Scope of Work, as disclosed elsewhere in this report.) ❑ Restricted Use (A written report prepared under Standards Rule 2 -2(c) , pursuant to the Scope of Work, as disclosed elsewhere in this report, restricted to the stated intended use by the specified client or intended user.) Comments on Standards Rule 2 -3 1 certify that, to the best of my knowledge and belief: . The statements of fact cordained in this report are true and correct The reported analyses, opinions, and conclusions are limited only by the reported assumptions and limiting conditions and are my personal, impartial, and unbiased professional analyses, opinions, and conclusions. I have no (or the specified) present or prospective interest in the property that is the subject of this report and no (or the specified) personal interest with respect to the parties involved. I have no bias with respect to the property that is the subject of this report or the parties involved with this assignment. My engagement in this assignment was not contingent upon developing or reporting predetermined results. My compensation for completing this assignment is not contingent upon the development or reporting of a predetermined value or direction in value that favors the cause of the client, the amount of the value opinion, the attainment of a stipulated result, or the occurrence of a subsequent event directly related to the intended use of this appraisal. My analyses, opinions and conclusions were developed and this report has been prepared, in conformity with the Uniform Standards of Professional Appraisal Practice. I have (or have not) made a personal inspection of the property that is the subject of this report. No one provided signif icant real property appraisal assistance to the person signing this certification. (If there are exceptions, the name of each individual providing significant real property appraisal assistance is stated elsewhere in this report) RECEIVED Comments on Appraisal and Report Identification NOV 2 1 2012 Note any USPAP related issues requiring disclosure and any State mandated requirements: APPRAISER: Co- Appraiser: Signature: Signature: Name: Larry D. vis Name: Date Signed: 09/27/12 Date Signed: State Certification #: 1100212 State Certification #: or Stale License #: or State License #: State: WA State: Expiration Date of Certification or License: 01/03/2014 Expiration Date of Certification or License: ,pection of Subject: Inspection of Subject: `] None ❑ Interior ❑ Exterior ❑ None ❑ Interior ❑ Exterior Date of Inspection 09/26/12 Date of Inspection Form ID06 LT — "WinTOTAL" I MILMA appraisal software by a la mode, inc. — 1- BOD- ALAMODE -L- Davis Appraisal Company I N0.120341 LAND APPRAIS.&.— SUMMARY RFPnRT ' "IVSD 2 1 2c12 NIJD�A ncnu.. UU4 Property Address: 2nd Av btw Lincoln Av & D St city: Yakima State: WA 7jp Code: 98902 Coll* Yakima Legal Descri tore THAT PORTION OF NORTH 2ND AVENUE LYING NORTH OF THE NORTH RIGHT -0F -WAY OF WEST LINCOLN AVENUE AND SOUTH OF THE SOUTH RIGHT -OF -WAY OF WEST "D" STREET ►- Assessor's Parcel #: Not available Tax Year: NA R.E. Taxes: b NA SwJal Assessmerds: $ W Markel Area Name' Map Reference: Census Tract: 0016.00 Curent Owner of Record: CitvofYakima Borrower d appliCaft NA H Project Type Of applicable): 0 PUD De IAinimis PUD DOW describe Vacating Street HOA: $ per year [] month Are there any existing improvements to the property? N No ❑ Yes h Yes, indicate current occupancy: ❑ Owner ❑ Tenart ❑ Vacant ❑ Not habitable K Yes, give a Met description: The purpose of ttjis appraisal is to develop an opni of: _N Markel Value as deft , or other a of value describe z This report reliects the following value Of not Current, see commeras : R Current Inspection Date is the Effective Date Retros ve Pro %fW Property Rig his raised: M, Fee 5imple Lj Leasehold Leased Fee Other describe Mended Use: Parking and access Z re Intended User(s) (by name 01`11W): Hordan Pla ing Services & Ci of Yakima Clem: Hordan Planning Services Address: 410 N. 2nd Stree Yakima WA 98901 Nit' raiser Liuw D. Davis Address: 103 S. I Oth Street. Selah WA 98942 Characteristics Location: N urban ❑ Suburban ❑ Rural Predominant occWwcy One -Unit Housing PRICE Present Land Use Change in Land Use Bust up: ® Over 75% ❑ 25.75% ❑ Under 25% N Dwner 100 AGE S(ODO) jyrs) One -Unit to N Not Likely ❑ ukely " ❑ In Process' 2-4 Unit % Growth rate: ❑ Rapid ® Stable ❑ slow ❑ Tenartl 60 Low 60 ' To: Mule -1.111,111 % Property values: ❑ lixreasirg ® Stable ❑ Declining ❑ vacant (0.5 %) 150 High 100 Comn9 90% DemwNsupply: ❑ Shortage ® In Balance ❑ Over Supply ❑ Vacant ( >5 %) 100 Pred 70 % Marketing time: Under 3 Mos. 3.6 Mos. Over 6 MOS. % C Factors Affecting Marketability g 119110 Good Average Fair Poor WA )Iem El Average Fair or W Employment StaMlty ❑ N ❑ ❑ ❑ Adequacy of Utilities cwi Convenience to Employment N ❑ ❑ ❑ ❑ Property Compatibility ❑ N ❑ ❑ ❑ w Convenience to Shopping N ❑ ❑ ❑ ❑ Protection Irom Detrimental Conditions ❑ ® ❑ ❑ ❑ Convenience to Schools ❑ ® ❑ ❑ ❑ Police and Re Protection ❑ ® ❑ ❑ ❑ Adequacy of Public transportation ❑ N ❑ ❑ ❑ General Appearance of Properties ❑ ® ❑ ❑ ❑ Recreational! Facilities Q ru to Markel ❑ ❑ Markel Area Comments: The subject is located in a neighborhood which is primarily industrial uses which run along both sides of 2nd Y Avenue. The neighborhood boundaries are considered Chem Avenue to the north Walnut Street to the south Front Street to the east and 3rd Avenue to the west. The property woes along 2nd Avenue are mostly large metal clad steel frame warehouse buildings with a few concrete tilt -up warehouses. In addition to street traffic 2nd Avenue is used for loading and unloading trucks which supply the industrial complexes in the area. The properties in the neighborhood are compatible and there appear to be no detrimental conditions which would have an adverse effect upon marketability of properties within the immediate neighborhood Dimensions: 100 x 400 feet Site Area: 40,000 Sq.FL Zoning Classiftcatiore M -1 Description: Light Industrial (.92 Acre) Do present improvements tmrm* with existing zoning requiremerds? ❑ Yes ❑ No ®No Improvements Uses allowed under curtem zoning: Commercial &Industrial Are CC &Rs applicable? ❑ Yes N No ❑ Unknown Have ft document been reviewed? ❑ Yes ❑ No Ground Rent Of applicable) $ / Comments: Highest & Besl Use as improved: Present use, or 0kr use (uplain) 2nd Avenue has an extensive number of easements ninning north and south which would limit the usage to parking and outdoor storage. Actual Use as of Effective Date: Vehicle traffic Use as appraised in this report Parking and outdoor storage p Summary of Highest & Best Use: The subject has been used as a city street for many years and since there are extensive utilities buried in the improvements street, cannot be built on the subject As a result, the highest and best use of the subiect is considered as parking, outdoor storage and access to adjacent properties. h utilities Pubic Otter Provider/Description Off-she Improve Type Public Private Frontage NA o Electricity N ❑ Steel Paved ® ❑ Topography Level Gas N ❑ water N ❑ Width Cit Code Size Average for area ya Sanitary Sewer N ❑ Surface Concrete Curb/Guller None ❑ ❑ Shape Rectangular Drainage Ad storm Sewer N ❑ Sidewalk No ❑ ❑ scare Mew Average for area Telephone N ❑ Street Lights Public N ❑ Multimedia Alley None oaten siOe elements: Inside Let Garner Lot Cul de Sac FA Und round lltlities Other describe FEMA S c'I Flood Hazard Area Fj Yes N No FEMA Food Zone X FEMA Map 53077C I032D FEFAA M Date 11/18/2009 Site Comments: The _subject is a 100 foot wide street (2nd Avenue) extending north 400 feet from Lincoln Avenue to "D" Street.Thc subiect is Paved and has amenities comparable to those of the surrounding properties m LA iV D CgOghle 2007 by ala mode, k¢, rtes hmn pry be apowuced umadliee W jhdll rrttlen pea issior harper. a b mode, iic pal 0e adapwledeed aid farts GPINn— "WinTrlrAl • -i+— rN " M ...Mw ice, ' "IVSD 2 1 2c12 NIJD�A LAND APPRAI&,... SUMMARY REPORT r,AIA GP I W.101 r IVED 1 2 `7?2 (AKIMA IG DIV. f CopydOM® 2007 by a la moue, inc. % Imm may be reproduced umvNed wrttrout written pemmsim, howmr, a la in*. k. must be adunwiWiied ad �D6� Form GPLND— 'WinTOTAL' appraisal software by a la mode, inc. — 1.SWALAMODE My research LJ did X did not reveal any prior saws or transfers of the subject properly for the tine years prior to the effective date of this appraisal. Data Source(s): Public Records- Yakima Countv Assessors Office O 1st Prior Sub SalelTransler Araysis of salieltransfer history and/or any current agreement of satelisting: Date: = thrice: W Source(s): ;ii 2nd Prior Subject SaWTransfer z Date: Price: Source(s): FEATURE I SUBJECT PROPERTY COMPARABLE NO.1 COMPARABLE NO.2 COMPARABLE NO.3 Address 2nd Av btw Lincoln Av & D St Yakima WA 98902 Business Ln east of N. Keys Rd Yakima, WA Univ Pkwy W of Birchfield Rd Yakima, WA Neches Ave & Rainier Ave Yakim WA Prwmity to Subtecl 2.25 miles E 2.8 miles E 1.15 miles SE Sale Price $ $ 180,000 $ 85,000 S 50,000 Pricel S .FL S S 2.751 $ 3.611 $ 3.59 Data Source(s) Verification Source(s) County Records Rec #424966 County Records Rec #420187 County Records Rec #411816 VALUE ADJUSTMENT DESCRIPTION DESCRIPTION +(1 S DESCRIPTION +I -) i Adfust DESCRIPTION +( -► $ Adptsl x Sales or Financing Concessions None None None a Date of Salemne 03/01/12 03/08/11 11/09/09 aO' Rights Appraised Fee Simple Fee Simple Fee Simple Fee Simple CL Location Averse Averse Averse Average Z Site Area in S .FL 40,000 65.340 23.522 13.939 O Zotd M -1 M -1 M -1 M -1 w—d Easements Extensive None minus 50% -1.36 None minus 50%), -1.81 None minus 50% -1.80 d O V w Net Adustnatt otal, in S + - __-88,86 + - S 42,575 + - -25.090 a rn Net Adjustment (Total, in S / Sq.Ft) Adjusted Sale Price in S / S .R. (S - 1.3e/Sq.FL) 1.39 (S •tat /Sq.FL) S 1.80 (S.t 815q FL) is 1.79 Summary of Sales Comparison Approach Because of the extensive easements on the subject property a 50 percent downward adjustment is aonlied to the sales to compensate for the restricted use of the site. Sales No. 1 and No. 5 are the most recent sates found with Sale No I occurring approximately six months prior to the date of the appraisal. In arriving at the final estimate of value it is felt that the value of the subiect should fall between the indications provided by Sales No. 1 and No. 5. Additional weight is given to Sale No 1 because of the recency of the sale. Therefore, the value of the subject is estimated to be $ I AO per jsquare foot. $I AO x 40 000 square feet equals a total value of $56 000 PROJECT INFORMATION FOR PUDs appl iable The Sub) act Is pad of a Planned Unit Development NHV c Le ai Name of Pro' : NA a Describe common elements and recreational facilities: CITY OF P1 ANNII Indicated Value . Sales Comparison Approach $ 56,000 on 1.40 perSq.Ft. p Rral Reconciliation Since there are no improvements to the property, the Cost Approach is not applicable In addition since the subject is not an income roducin property the Income Approach is also not applicable. Therefore the Sales Comparison is the only approach used. Q This appraisal is made ❑ "as Is ", or ® subject to the following conditions: The appraisal is subject to the street being vacated by the City of Yakima v p w Ix 0 This report is also subject to often Hypothetical Conditions and/or Edraordi Assumptions as s "led in the attached addenda. Based upon an inspection of the subject property, defined Scope of Work, Statement of Assumptions and lJmrlfng Conditions, and Appraiser's Certifications, my (our) Opinion of the Markel Value (or other specified value type), as defined herein, of the real property that is the subject of this rephxt )S: $ 56,000 , as of: 09/26/12 , which is the effective date of this appraisal. 9 indicated alcove this Opinion of Value is subject to Hypothetical Conditions and/or Extraordinary Assumptions included in this report, See attached addenda. y 4 A true and complete copy of this repot contains 12 pages, including edtbits which are considered an integral part of the report This appraisal report may not be property understood without reference to the Indormation contained in the complete report, which contains the following attached shti ts: 0 Scope of Work ® Limiting condZertititxtlons ❑ Narrative Addendum ® Location Maps) El Rood Addendum ® Additional Sales ER Plato Addenda ® Parcel Map ❑ Hypahkal Conditions 0 Eidraordinary Assumptions ® Safes Map & Aerial Photo Client Contact Bill Hordan Client Name: Hordan Planning Services E -Mail: Address: 410 N. 2nd Street Yakima WA 98901 Lu Z S2 APPRAISER Appraiser Name: Ia D. rs Company: I AVISAPP ISALCOMPANY SUPERVISORY APPRAISER (f required) or CO- APPRAISER (if applicable) Supervisory or Co-Appraiser Name: Company. Phone. (509) 930 -0007 Fax (509) 697 -7712 E -Mall: larrydavispchartcr.net Phone: Fax E -Mail: Date of Repot (Signature): 09/27/12 License or Certification #: 1100212 State: WA Designation: Date of Report (Signature): License or Certification #: State: Designation: Expiration Date of License or Certification: 01/03/2014 Inspection of Subject: ❑ Did Inspect ❑ Did Not Inspect @esktop) Date of Inspectom 09/26/12 FVtration Date of License or Certification: Inspection of Subject ❑ Did Inspect ❑ Did Not Inspect Dale of lnspecton: GP I W.101 r IVED 1 2 `7?2 (AKIMA IG DIV. f CopydOM® 2007 by a la moue, inc. % Imm may be reproduced umvNed wrttrout written pemmsim, howmr, a la in*. k. must be adunwiWiied ad �D6� Form GPLND— 'WinTOTAL' appraisal software by a la mode, inc. — 1.SWALAMODE ADDITIONAL COM1-oq<ABLE SALES I .* FEATURE I SUBJECT PRDPERTY COMPARABLE NO.4 COMPARABLE NO.5 COMPARABLE NO.6 Address 2nd Av blw Lincoln Av & D St Yakima. WA 98902 1111 N. 22nd Ave Yakima WA 98902 FTuitvale & N. 26th Ave Yakima, WA 98902 2202 Oak Ave YakimaWA 98902 Prmom' 10 Sub 1.50 miles NW 1.7 miles NW 3.29 miles SW Sate Price Price) S .FL $ $ S 4.02 S 35.00 $ 3.00 S 139,846 E 2.75 127.5-10 S Data Source(s) Verification Source(s) County Rec #415711 Coumv Records Cowry Rec #E000135 Countv Records County Rec #406816 Coun Records VALUE ADJUSTMENT Sales or Financing Concessions DESCRIPTIDN DESCRIPTION None +( -) S A4ust DESCRIPTION None +(-) S A60 DESCRIPTION None +( -) $ Adiust Dale of SaWrime 06/24/10 05/12/11 01/31/09 Rights Appraised Fee Simple Fee Simple Fee Simple Fee Simple Location Avera a Average Avera a Avera e Site Area fin .R 40,000 8.712 46,609 46,174 Zoning M -I M -1 M -1 M -1 Easements Extensive None minus 50% -2.01 Nona minus 50% -1.50 None minus 50% -1.38 Net Ad uslment (Total, in S + rR - Is 47 11 + - S -69.9141 + -63,720 Nei Adjustment (Total, In S / Sq.FL) Ad usted Sale Price In S / S .R. (5 201 /2.01 2.01 (f -t.S lsp.R) S 1-501 (t -1.38 ISQ.fI) 1.37 Summary of Saks Comparison Approach x v Q 0 IL IL CL Q z 0 L4 n. 0 v m w NOV J Q Co WA LAND CW19ht0 Furth GPLND.(AC1-- 20M by a la mo0e, k c Ilk form ffm be repmwcw wraw wkhom vv ten pnmrsslm, hoverer. a la 1w. must be a&mwAagd am WmTOTA1' annokal cniwnro M n 12 nvAo im — t_mYLer aurulc 2 I .* 'n FI 1 mutLTI- PURPOSE SUPPLEMENTAL ADDENDb.- FOR FEDERALLY RELATED TRANSACTIONS Davis Aporeisal Comm Client Hordan Planninn Services Property Address 2nd Av btw Lincoln Av & D St CRY Yakima Co Yakima Slide WA Zip Code 98902 Appraiser Larry D. Davis This Multi-Purpose Supplemental Addendum for Federaly Related Transactions was designed to provide the appraiser with a comeoiem way to comply with the current appraisal standards and requuemems of the Federal Deposit insurance Corporation (FDIC), rite Office of the Comptroller of Currency (OCC), The Office of Thrift Supervision (OTS), the Resolution Trust Corporation (RTC), and the Federal Reserve. This Multi - Purpose Supplemental Addendum is for use with any appralsal. Only those statements which have been checked by the appraiser apply to the property being appraised. ❑ PURPOSE & FUNCTION OF APPRAISAL The purpose of the appraisal is to estimate the market value of the subject property as defined herein. The function of the appraisal Is to assist the above -named Lender in evaluating the subject property for lending purposes, This Is a Federally related transaction. EXTENT OF APPRAISAL PROCESS ® The appraisal is based on the information gathered by the appraiser from public records, other iderNfied sources, inspection of the subject property and neighborhood, and selection of comparable sales within the subject market area. The original source of the comparables is shown in the Data Source section Of the market grid along with the source of continnatlon, if available. The original source is presented first The sources and data are considered reliable. When conflicting information was provided, the source deemed most reliable has been used. Data believed to be tmeiable was not included in the report nor used as a basis for the value conclusion. ❑ The Reproduction Cast is based on supplemented by the appraiser's knowledge of the local market. ❑ Physical depreciation is based on the estimated effective age of the subject property. Functional and/or ehdemaf depreciation, f present is specif ically addressed in the appraisal report or other addenda. In estimating the she value, the appraiser has relied on personal knhoxfedge of the local market, ibis knowledge is based on prior and/or current analysis of she sales and/or abstraction of site values from saps of improved properties. ❑ The subject property is located in an area of primarily owner-occupied single family residences and the buconre Approach is riot considered to be meaningful. For this reason, the Income Approach was not used. ❑ The Estimated Market Rem and Gross Rent Multiplier utilized in the Income Approach are based on the appraiser's knowledge of the subject market area The rental knowledge is based on prior and/or current rental rate surveys of residential properties. The Gross Rend Multiplies is based on prior and/or current analysis of prices and market rates for residential properties. ❑ For income producing properties, actual rends, vacancies and arpenses have been reported and analyzed. They have been used to project future rents, vacancies and aWnses. L1 SUBJECT PROPERTY OFFERING INFORMATION According to Multiple Listing Service the subject property: M has not been offered for sate In the past 30 days. ❑ is currenfiv offered for sale for S ❑ has offered for sale wil4dn the past 30 days for $ ❑ Offering Information was considered in the final reconciliation of value. ❑ Offering nfonnalim 1BaS. not considered in the final reconciliation of value. ❑ Offering Warmatim was not available. The reasons for unavailability and the steps taken by the appraiser are explained later in this addendum. ® SALES HISTORY OF SUBJECT PROPERTY According to County Records the subject property: ❑ has not transferred in the past twelve months. ❑ has not transferred in the past ihnty -siz months. ❑ has transferred in the past twelve months. ® rips barlslened in the past thirty-six months. ❑ All prior sales which have occurred in the past twelve morhtrs are listed below and reconciled to the appraised value, either in the body of the report or in the addenda. Date Sales Price Document At Seller Buyer ® FEMA FLOOD HAZARD DATA Subject property is not in a FEMA Special Hood Hazard Area. ❑ Subject property Islam in a FEMA Special Flood Hazard Area tone FEMA MapMaael A< Map Date name of Commuelty X 53077C1032D 11/18/2009 Yakima ❑ The comnumty does not particii in the National Hood Insurance Program. ❑ The commmity does parfelpte in the National Flood Insurance Program. ❑ it is covered by a rEgldaf program ❑ it is covered by an emeraency program. 2012 rY OF YAKIMA PLANNING OIV, C. Page i of 2 INDEX Form MPA — VinTOTAV appraisal software by a la mode, Inc. — 14&ALAMOOE JA, E — ® CURRENT SALES CONTRACT ® The subject property is currently not tamer cmn ❑ The contract and/or escrow instructions were mt available for review. The unavailability of the contract is explained later in the addenda section. ❑ The contract ewer escrow instructions were reviewed. The lolbwing summarizes the contract: Contract Date Amendment Date Contract Price Sailer ❑ The contract indicated fiat personal property was mat hhckr W in the sale. ❑ The contract indicated that personal property fims.luGWW. it consisted of ® Personal property was not included In the lima/ value estimate. Estimated contributory value is $ ❑ Personal property wasJnrdudeai in the final value estimate. ❑ The contract indicated minancigg concessio ns or other Incentives. ❑ The contract indicated the fnlbvdna concesUjM or incentives: ❑ h concessions or incentives adst, the comparabtes were checked for similar concessions and appropriate adjustments were made, 8 applicable, so that the final value conclusion is in compliance with the Market Value defined herein. ® MARKET OVERVIEW Include an explanation of current market conditim and trends, 3 -6 months is considered a reasonable marketing period for the subject property based on County Records, Multiple Listing Service, Eastern Washington Real Estate Review, and Appraiser Files ADDITIONAL CERTIFICATION The Appraiser certifies and agrees that (1) The analyses, opinions and conclusions were developed, and this report was prepared, in conformity with the Uniform Standards of Professional Appraisal Practice CUSPAP ), except that the Departure Provision of the USPAP does not apply. (2) Their compensation is not contingent upon the reporting of predeternined value or direction In value that favors the Muse of the client, the amount of the value estimate, the attainment of a stipulated result, or the occurrence of a subsequent evert. (3) This appraisal assignment was not based on a requested minimum valuation, a specific valuation, or the approval of a ban. ® ADDITIONAL (ENVIRONMENTAL) LIMITING CONDITIONS The value estimated is based on the assumption that the property is not negatively affected by the Ustence of hazardous substances or detrimental environmental conditions unless otherwise stated in this report. The appraiser is not an expert in the identification of hazardous substances or detrimental environmental conditions. The appraiser's routine inspection of and inquiries about the subject property did not develop any information that indicated any apparent significant hazardous substances or detrimental environmental conditions which would affect fife property negatively unless otherwise slated in this report it is possible that tests and inspections made by a qualified hazardous substance and erhvironme tai expert would reveal the existence of hazardous substances or detrimental environmental conditions on or around tie property 00 would negatively affect its value. ® ADDITIONAL COMMENTS THE PURPOSE OF THIS APPRAISAL IS TO ESTIMATE THE MARKET VALUE OF THE SUBJECT AS DEFINED HEREIN. THE FUNCTION OF THE APPRAISAL 1S TO HELP THE CLIENT ESTABLISH A PURCHASE PRICE FOR THE PROPOSED VACATING OF A CITY STREET BY THE CITY OF YAKIMA. ® APPRAISER'S SIGNATURE A LICENSEICERTIFICATION Appraiser's Signatu Effective Date 09126/12 Date Prepared 09/27/12 Appraiser's Name (prfrd) LarrvLVDavis Phone # 609 1 930-0007 State WA ❑License ®Certification # 1100212 Tax m # 91- 1528563 ❑ CO- SIGNING APPRAISER'S CERTIFICATION ❑ The co- signing appraiser ca iscported tine subject property, both /side and out and has made an exterior inspection of all comparable sales listed in the report. The report was prepared by the appraiser under direct supervision of the co-signing appraiser. The co- siIinirg appraiser accepts responsibti y for the contents of the report including the value conclusions and the limiting conditions, and confirms that the certifications apply fully to the co-signing appraiser. ❑ The co- signing appraiser has not personally i S�necPEd the interior of the subject properly and: ❑ has not insWed the exterior of the subject property and all comparable sales listed in the repot. ❑ has insMed the exterior of the subject property and all comparable sales listed in the reparl. ❑ The report was prepared by the appraiser under direct supervision of the co -wmriq appraiser. The co- signing appraiser accepts responsbgy for the contents of the report, including the value conclusions and the initng conditions, and confirms that the certifications apply fully to the co- signing appraiser with the exception of rite certification regardng physical Inspections. The above describes the level of inspection performed by the co-signing appraiser. ❑ The co- signing appraiser's level of inspection, invoNirnert in the appraisal process and certification are covered elsewhere in the addenda section at Us appraisal. ❑ CO- SIGNING APPRAISER'S SIGNATURE S LICENSE/CERTIFICATION Co -Sfgr i Appraiser s Signature Effective Date late Prepared Co- Signing Appraiser's Name (pried) Phone # f 1 State ❑ Lkunse ® Certilication # Tax D # RECEIVED NOV 2 ! _12 CITY OF YAKIMA PLANNING DIV. Page 2 of 2 D% Co a Form MPA— 'WinTOTAL' appraisal software by a la node, Inc. — 1- 8WALAMODE INDEX DEFINITION OF MARKET VALUE: The most probable price which a property should bring In a competitive and open market under at conditions requisite to a fair sale, the buyer and sever, each acting pruderrty, knowledgeably and assuming the price is not affected by undue stimulus. Iropicit In this definition is the consuamiation of a sale as of a specked date and the passing of rte from seller to buyer under conditions whereby: (1) buyer and seller are typically motivated; (2) both parties are well Informed at well advised, and each acting in what he considers his own best interest; (3) a reasonable time is allowed for exposure in the open market; (4) paymerit is made in terms of cash in U.S. dollars or in terms of financial arrangements comparable thereto; and (5) the price represents the normal consideration for the property sole unaffected by special or creative financing or safes concessions* giamed by anyone associated with the sale. ' Adjustments to the comparables most be made for special or creative financing or sales concessions. No adjustments are necessary (or those costs which are normally paid by sellers as a result of tradhim or taw in a market area; these costs are readily Idemifiable .since the seller pays these costs in virtually at sales transactors. Special or creative financing adjustments an be made to the comparable property by comparisons to financing terms offered by a third parry Institutional fender that is not already involved In the property or transaction. Any adjustment should not be calculated on a rnechaNcal dollar for dollar cost of the financing or concession but the dollar amour of arty adjustment should approximate the markefs reaction to the financing or concessions based on the appraiser's judgement. STATEMENT OF LIMITING CONDITIONS AND APPRAISER'S CERTIFICATION CONTINGENT AND LIMITING CONDITIONS: The appraiser's certification that appears in the appraisal report Is subject to the blowing conditions: t. The appraiser will not be responsible for maters of a legal nature that affect either the properly being appraised or the title to fL The appraiser assumes that the He is good and marketable and, therefore, will not render any opinions about the title. The property is appraised on the basis of it being under responsible ownership. 2. The appraiser has provided a sketch in the appraisal report to show approximate dimensions of the Improvements and the sketch is included only to assist the reader of the report in visualizing the property and understanding the appraiser's determination of is size. 3. The appraiser has examned the available flood maps that are provided by the Federal Emergency Management Agency (or other data sources) and has noted RECEIVED ED in the appraisal report whether the subject site is bated in an Identified Special flood Hazard Area. Because the appraiser is not a surveyor, he or she makes no guarantees, express or Implied, regarding this determination. NOV 2 1 2C12 4. The appraiser will not give testimony or appear in court because he or she made an appraisal of the property in question, unless specific arrangements to do so have been made beforehand, 5. The appraiser has estimated to value of to land in the cost approach at Its highest and best use and the improvements at their contributory value. These separate valuations of the land and improvements must not be used in conjunction with any other appraisal and are invalid if they are so used. 6. The appraiser has noted in the appraisal report any adverse conditions (such as, needed repairs, depreciation, the presence of hazardous wastes, toxic substances, etc.) observed during the inspection of the subject property or that he or she became aware of during the normal research involved In pedom8ng the appraisal. Unless otherwise stated in the appraisal report, the appraiser has no knowledge of any hidden or unapparent cone it irs of the property or adverse environmeMl conditions (including the presence of hazardous wastes, loxdc substances, etc.) that would make lime property more or less valuable, and has assumed that mere are no such conditions and makes no guarantees or warranties, express or implied, regarding the condition of the property. The appraiser will not be responsible for arty such conditions that do edst or for any engineering or testing that might be required to discover whether such conditions exist. Because the appraiser is rat an expert in the field of environmental hazards, the appraisal report must not be considered as an environmental assessment of the property. 7. The appraiser obtained the information, estimates, and opinions list were expressed in the appraisal report from sources that he at she considers to be reliable and believes them to be hue and correct. The appraiser does not assume responsibility for the accuracy of such Items that were furnished by other parties. 8. The appraiser will not disclose the conlems of the appraisal report except as provided for In the UnIfomn Standards of Professional Appraisal Practice, 9. The appraiser has based his or her appraisal report and valuation conclusion for an appraisal that is subject to satisfactory completion, repairs, or alterations an the assumption that completion of the improvements will be performed in a workmanlike mater. 10. The appraiser must provide his or her prior written consent before the lender /client specified in the appraisal report an distribute the appraisal report (including concksiors about the property value, the appraiser's identify and professional designations, and references to any professional appraisal organizations or the firm with which the appraiser is associated) to anyone other man the borrower, the mortgagee or its successors and assigns; the mortgage insurer; consultants; professional appraisal organizations; arty state or federaly approved financial Instlbdion; or arry department, agency, or Instrumentality of the United States or any state or the District of Columbia; except go the lender /client may distribute the prop" description section of the report only to data collection or reporting service(s) without having to obtain the appraisers prior written consent. The appraiser's written consent and approval must also be obtained before the appraisal can be conveyed by anyone to IN public through advertising, pubic reiations, news, sales, or other media. CITY OF YAKIMA PLANNING DIV. Freddie Mac Form 439 6.93 Page 1 of 2 Fannie Mae Porm 1004B 6- W%fo Davis Appraisal Company INDEX form ACR — 'WhnTOTAL' appraisal software by a eta mode, inc. — 1- MALAMODE ' 1 4 APPRAISER'S CERTIFICATION: The Appraiser certifies and agrees that I. I have researched the subject market area and have selected a minimum of three recent sales at properties most similar and proximate to the subject property for consideration in the sales comparison analysis and have made a dollar adjustment when appropriate to reflect to market reaction to those items of significant variation. If a significant item in a comparable property is superior to, or more favorable than, the subject properly, I have made a negative adjustment to reduce the adjusted sates price of tle compparable and, 9 a significant item in a comparable property Is Interior to, or less favorable than the subject property, I have made a positive adjustment to Increase the adjusted sales price of the comparable. 2. 1 have taken Into consideration the factors that have an Impact on value in my development of the estimate of market value in the appraisal report. I have not knowingly withheld any significant information from the appraisal report and I believe, to the best of my knowledge, that all statements and information in the appraisal report are true and correct. 3. 1 stated in the appraisal report only my own personal, unbiased, and professional analysis, opinions, and Mons, whch are subject only to the contingent and limiting conditions specified in this form 4. 1 have no present or prospective interest in the property that is the subject to this report, and I have no present or prospective personal interest or bias with respect to the participants in the transaction. I did not base, ether partiaEy or completely, my analysis and/or the estimate of market value in the appraisal report on the race, color, religion, sez, handicap, famiial status, or national origin of either the prospective owners or occupants of to subject property or of the present owners or occupants of the properties in the vicinity of the subject property. S. 1 have no present or contemplated future Interest in the subject property, and neither my current or future employment nor my compensation for performing this appraisal is contingent an the appraised value of the property. 6. 1 was not required to report a predetermined value or direction in value tat favors the cause of the diem or any related party, the amount of the value estimate, the a8ainrnerd of a specific resun, or the occurrence of a subsequent evem in order to receive my compensation and/or employment for pedonnlng the appraisal. I not base the appraisal report on a requested minimum valuation, a specific valuation, or the need to approve a specific mortgage ban. RECEIVE- 7. v 7. 1 performed this appraisal in conformity with the Uniform Standards of Proiessionaf Appraisal Practice that were adopted and promulgated by the Appraisal Standards Board of The Appraisal foundation and that were in place as of the effective date of this appraisal, with the exception of the departure provision of those NOV , u 2C12 Z Standards, which does not apply. I acknowledge that an estimate of a reasonable time for exposure in the open market is a condition in the definition of market value and the estimate I developed is consistent with the marketing time rated in the neighborhood section of nuts report, unless I have otherwise stated in the CITY OF YAKI�iA reconciliation section, PLANNING DIV. 8. 1 have personally inspected the inledor and exterior areas of the subject property and the exterior of al properties listed as canparables in the appraisal report I further certify that I have noted any apparent or known adverse conditions in the subject improvements, on the subject site, or on any site within the immediate vicinity of the subject property of which I am aware and have made adjustments for these adverse conditions In my analysis of the property value to the extent that I had market evidence to support them. I have also commented about the effect of the adverse conditions on the marketability of the subject property. 9. 1 personally prepared all conclusions and opinions about to real estate that were set forth in the appraisal report. n I relied on signlhcam professional assistance from any individual or Individuals in the performance of the appraisal or the preparation of the appraisal report I have named such individual(s) and disclosed the specific tasks performed by them in the reconciliation section of this appraisal report I certify that any Individual so named is qualified to perform the tasks. I have not authorized anyone to male a change to any item in the repot therefore, If an unauthorized change is made to the appraisal report, I will take no responsibility for n. SUPERVISORY APPRAISER'S CERTIFICATION: If a supervisory appraiser signed the appraisal report, he or she certifies and agrees bat: I directly supervise the appraiser who prepared the appraisal report, have reviewed the appraisal report, agree with the statements and conclusions of the appraiser, agree to be bound by the appraiser's certifications numbered 4 through 7 above, and am taking full responsibility for the appraisal and the appraisal report. ADDRESS OF PROPERTY APPRAISED: 2nd Av btw Lincoln Av & D St, Yakima, WA 98902 APPRAISER: SUPERVISORY APPRAISER (only If required): Signature: Narw. Larry D. Davis Date Signed: 0 -9127— /12 ° State Certification #: 1100212 Signature: Name: Date Signed: — State Certification #: or State License #: or State license #: State: WA State. Wration Date of Certification or License: 01 /03/2014 Expiration Dale of Certification or license: ❑ Did ❑ Did Not khsped Property Freddie Mac Form 439 6.93 Page 2 of 2 Fannie Mae Form 10048 6-93 D C Pone ACR — WinTOTAL• appraisal software by a la mode, inc. — 1- 80o- ALAMODE U NDEX # E- ain B N Subject Photo Page Clierd Hordan Planning Services Property Address 2nd Av btw Lincoln Av & D St Gfty Yakima County Yakima State WA Zip Code 98902 A raise D. Davis f ti View to the North 2nd Av btw Lincoln Av & D St View to the South Form PICPDLSR — 'WinMTAL' appraisal software by a la mode, inc. — 1.80(MAMODE RECEIVED NOV 2 1 21'i2 CITY OF YAKIMA PLANNING DIV. D ®C. ONDEX E-1 INDUSTRIAL LAND SALE #9 •V „YyI � ` T "mr i .UMMES&►A4A, • a �aao j »as �__. E av .aw Location: Business Lane, Terrace Heights Legal Descri tion: Parcel No. 191316-32444 Date: 03/01/12 Price: $180,000 Grantor: Gary Smoot Grantee: William Ash Recording: Excise TaxAffidavit #424966 Zone: M -1, Light Industrial Acres: 1.50 Square Feet: 165,340 Price Per S . Ft.: 1$2.75 RECEIVED NOV 2 1 ()r:° CITY OF YAI(IMA', PLANNING DIV. DOCe PNDEX # I DAVIS APPRAISAL COMPANY INDUSTRIAL LAND SALE !2Jf Location: University Parkway S of W. Birchfield Rd Legal Description: 1 LL {2012 �q� 40 dim �11-111 I I m nw+ am I ! tlm7 j James Roy Grantee: ..... POWER ..EASEM 2 Itlil 12112 t2.n N, 12.It t2m6.. 1 m� �p . . .. ........ . {1010 + I • + + ff CMW 11012 � FLI.h..ARM� Price Per S . Ft.: 1$3.61 �+ nes 11011 7101 003 W.,1 t1O1 1 • � ul.o ! ptu wr ItOI -t F 1= Location: University Parkway S of W. Birchfield Rd Legal Description: Parcel No. 191328 -41013 Date: 03/08/11 Price: $85,000 Grantor: James Roy Grantee: Lindend Property Holdings LLC Recording: ' Excise Tax Affidavit #420187 Zone: M -1, Light Industrial Acres: 0.54 Sq uare Feet: 123,522 Price Per S . Ft.: 1$3.61 RECEIVED NOV ?1� -- CITY OF YAKIMA PLANNIWG OIV. DOC. INDEX #i G —L. DAVIS APPRAISAL COMPANY INDUSTRIAL LAND SALE #3 !r 12406 f I n /, 1. w I_ f 5!24" _�. S, 12422 �_- } 4 12405 i, 111 rr - -... °, ! ,, 124n �,_ -._ 12413 --Jrv. •f 04 I u 12416 , —12412 a I n 4 , � 12424 bT403 )312417 i -12411 • 1112425 1 12402 1.12419 12410 412426 1202 O UT;H _ S I' r41I400 j... -12400 2 1412427 140E 12420 ?— ` 1249L_f I r0 r FI 1e -- {;RAINIER N 3�4�'�,�.1 } . 12444 12600 1 2004 1 T4YJ , � 412445 1 T499 r � � tO 1 T499 1112445 I244t a // 12152 1- -`- .L 12422 ,=12447 12440 s r2 12497 7 1�pv1 , 281 1,12446 12439 • 12498 1� � N 1205 M l 1? 0 2 1 412440 12426 , 124% „1 t _I!j r4 IT450 t2427 2 ^is i 12457 412461 12436 , 12469 d— — - - PARK _ 46i ai ii° 12401 ` ii 12400 e 1 12475 12014 12463 v 1 r° 12492 { 1246E 1 I. i o II 12494 Location: Naches Avenue & Rainier, Yakima, WA Legal Description: Parcel No. 191330 -12482 & 12483 Date: 07/08/11 Price: $50,000 Grantor: Kenneth Marble Grantee: The Noel Corporation Recording: Excise Tax Affidavit #421953 Zone: M -1, Light Industrial Acres: 0.32 Square Feet: 13,939 Price Per S . Ft.: $3.59 RECEIVED NOV 2 1 2112 CITY OF YAKIMA PLANNING D" De oN®EX * C -i DAVIS APPRAISAL COMPANY L. INDUSTRIAL LAND SALE #4 River. Rd River, Rd �$ 13026 t3024 (Hkf�rdwn SyDl,- .lUnRaDrtkd) 13027 _, 13023 ;.: f I , .13050 13028 ! 13022 4 � 17020 L13D21 13010 ,e _...y a1GH4RDSON,'S43030U 13030 7ECOADED) 1701 U011 "I 13002 1 . - - -- _ 13031 13020 .0i- 13015 j 13012 �f0� 13017 13010 ~ 13032 m 13047 13010 { 9 13033 :r i 1 s 13409 13408 of 45 d1 I 07 �ELL p40 3aLtt F • PO fiBD 13441 'Akdksava i,,3Wsu j i 17420 13430 as -- -._- —� - - -' -- Y 1 13126 37 17430 17431 1 p I 174 w w Location: 1 111 N. 22nd Avenue, Yakima, WA Legal Description: Parcel No. 181314 -13014 Date: 06/24/10 Price: $35,000 Grantor: Joseph Haralson Grantee: Super Cold Storage Recording: Excise TaxAffidavit #415711 Zone: M -1, Light Industrial Acres: 0.20 Square Feet: 8,712 Price Per S . Ft.: $4.02 RECEIVED CITY OF YAKIMA PLANNING DIV. DOC. WDEX DAVIS APPRAISAL COMPANY LINDUSTRIAL LAND SALE #5 I I I 24444 ! t 1 24405 I r 24406 rx p V~ 43 4s 41 i I , 2 «S7 24446 5 .._.._`W.J st 1 f I�24463 2 4461 24444 : i+►x � i u,v (tea ¢� 11001 i 40 ( 40 1 1 11 - -... �7 �y51 �t'i _ 3T 1i I ols .. ... J Grantor: Yakima Tennis Club F-- All Seasons Associates LLC �i! 20 i i Zone: - a "V 1 2C� —93—T 1 ?2 2 1 31014 r6 -G)) 1092 46,609 __ 26 ' _ i IS $' = Location: Fruitvale & N. 26th Avenue, Yakima, WA Legal Description: Parcel No. 181314-24463 Date: 05/12/11 Price: $139,846 Grantor: Yakima Tennis Club Grantee: All Seasons Associates LLC Recording: Excise Tax Affidavit #E000135 Zone: M -1, Light Industrial Acres: 1.07 Square Feet: 46,609 Price Per S . Ft.: $3.00 RECEIVED N 0 V 2 1 2r % CITY OF YAKIMA PLANNING DIV. DOC. WDEX # F- - DAVIS APPRAISAL COMPANY INDUSTRIAL LAND SALE #6 i I 4/dAORY- 23111 I 23412 Parcel No. 181202 -23417 Date: w F A ror I wu� rs•rr� 23,21 � 23422 Recording: r. urruau 73923 3332_ I I arrow rrr r, 2306 1 27119 .Rw��rip ury •.r V2, 13{26 ��2J tI0 ZJ/1E rr ruru rwr�•u __. _ 3333_,_ __ � i j ■u! � rwrxar„ •w•nrr Ahtanl wn Prl 1 ` i 2 I 1 � r F� 1 I 1 I � I a 1 � 1 I , f y �I,x f.E,ITE 27117 It 27110 23111 I 23412 Parcel No. 181202 -23417 Date: w F A ror I wu� rs•rr� r,•...r, � Recording: Excise TaxAffidavit #406816 Zone: M -1, Light Industrial Acres: 1.06 Square Feet: 46,174 Price Per S . Ft.: $2.75 u � Location: 2202 Oak Ave., Yakima, W A 98902 Legal Description: Parcel No. 181202 -23417 Date: 01/31/09 Price: $127,050 Grantor: McAllister Field Grantee: LH Butler Recording: Excise TaxAffidavit #406816 Zone: M -1, Light Industrial Acres: 1.06 Square Feet: 46,174 Price Per S . Ft.: $2.75 RECEIVED NOV 2 1 2r;2 CITY OF YAKIMA PLANNING DIV. D OC. PSI ®EX # C- I DAVIS APPRAISAL COMPANY �i...._.. ---1 •� 11004 _l Plat Map ^' � ti. fit_ �,t• ��,t'. ,, 0� � q�► ��..•'-'`t t5 t $t ORIGMAL''jOW1USlI RECEIVED NOV 2 12�12 CITY OF YAKIMA PLANNING DIV. D ®C. INDEX # E-1 DAVIS APPRAISAL COMPANY -1 Brown Ln SeIA 12 1 �ephfar-Rd S-6 Douglas Or W. ChestritA. Avo Tieton; pr. Willow St 4000 Harlan S-4 a, zl -Bell. - Teton Dr. M-acLaren, St: j . CWM I ---jjjtsXcnpa,QoonIAu,6f! �44� I W Nob Hill -Olvd, iH < I I- !- b Rljnclall--r f7c Park rn '-'at WE-rhil Kissel W 7 khtanuM Rd .ktm. Jp- WoCullouch Rd -7, -.94. L i j 'A+ v Isii* Ft n Ave r e'OS-6 144.1" Sage j_rdRd 00;&. Selah . ............. 29 IWOO—dwiNd Wok F1 J- Ln Karin S-1 Rd :2 co Te _9!� Heights Yakima T S-2 He rt 4— S-3 NaPke -A -park E, VOW . PL itQea r-or EFL 24 BirchWid TM.=W cp d -- . W Ahtan,�, 4L TjR 1, --T - , . Yakima County 1. MOM .d Youth Activitieso Park 0 Gdbert-Rd 11 I M 4dowb' rook Rd 3 Fulibr ght, Yahama Indian Rese SALES MAP RECEIVED NOV 2 1 2P",.2 CITY OF YAKIMA "NNING DIV. DOC. WDEX #. G-- -I DAVIS APPRAISAL COMPANY HOPS EXTRACT CORPORATION OF AMERICA RWV#003-12 EXHIBIT LIST CHAPTER F Public Notices . 111"Mr, w� DATEe "M F-1 Determination of Application Completeness 12/27/2012 F-2 Agenda Statement: Set Date for Hearing Examiner Public 01/08/2013 Hearing (Resolution No. R-2013-001) F-3 Notice of Petition and Public Hearing 01/09/2013 F-3a: Postcard Notice F-3b: Press Release and Legal Notice Publication F-3c: Parties and Agencies Notified F-3d: Affidavit of Mailing F-4 Land Use Action Installation Certificate 01/11/2013 Y-5- - - - - - - - - -- - - - -- Affidavit of Posting of Resolution----- - - -- 01/11-12013- F-6 Hearing Examiner Packet Distribution List 02/07/2013 F-7 Hearing Examiner Public Hearing Agenda 02/14/2013 F-8 Hearing Examiner Public Hearing Sign-In Sheet 02/14/2013 F-9 Hearing Examiner's Interim Decision 02/26/2013 F-9a: Parties and Agencies Notified F-9b: Affidavit of Mailing F-10 Notice of Hearing Examiner's Recommendation 03/25/2013 (See DOC INDEX#AA-1 for HE Recommendation) F-10a: Parties and Agencies Notified F-10b: Affidavit of Mailing F-11 Agenda Statement: Set Date of City Council Open Record 04/02/2013 Public Hearing F-12 Letter of Transmittal to City Clerk: City Council Hearing 04/04/2013 (Mailing Labels, Vicinity Map, Site Plan, Legal Notice E-mail) i CITY OF YAKIMA, PLANNING DIVISION LETTER OF TRANSMITTAL I, Rosalinda Ibarra, as an employee of the City of Yakima, Planning Division, have transmitted to: Sonya Claar -Tee, Yakima City Clerk, by hand delivery, the following documents: 1. Mailing labels for HOPS EXTRACT CORPORATION OF AMERICA (RWV #003 -12); including all labels for adjoining property owners of subject property, agencies and parties of record. 2. One vicinity map and site plan. 3. I have also transmitted to Sonya Claar -Tee, Yakima City Clerk, by e- mail, a Legal Notice which was published for the Hearing Examiner's Public Hearing. This will supply information to be included in the City Clerk's legal notice of the City Council Public Hearing. Signed this 4th day of April, 2013. Ibarra Community Development Administrative Assistant Received By: Date: r 10 1iz_- „..,v�t 115 TRUST i5ist4t%uu! 18132412001 115WDST 220 TRUST 115 WD 220 TRUST 115 YAKIMA, WA 989022144 YAKI* , WA 989022144 YAK A, WA 989022144 18132411432 18132411435 18132411402 ARGEN LLC HIGHLAND PROPERTIES LLC HOLLINGBERY & SON INC 80 SE MADISON ST PO BOX 6 PO BOX 966 PORTLAND, OR 97214 YAKIMA, WA 989070006 YAKIMA, WA 989070966 18132411401 3 -1� z u I8I3241)1448, to RN , 18132411438 HOLLINGBERY CA & STORAGE PO BOX 966�OSN {'!CP. =.SEKTRAG,T CURP OFAMER[CA,,.: �NDAVE�� HOPS EXT CORP OF AM 305 E YAKI 89070966'rAKIMA;�WA9$902.; ' M} YAKIMA, WA 98902 :".°. zaifa' a't'ay�b'Ny,i'api ?:��:T.4"�a� s S"°'�`•-�fE +p 4.t' 18132411439 18132411429 18132411434 HOPS EXTRAC .: ORATION OF AMERIC MICHELSEN PACKAGING CO PO BOX ICH M CKAGING CO 89 Pp 89 305 N AVE YAKIMA, WA 989070089 YAKIMA, WA 98907 YAKIMA, WA 98902 18132411404 MINAANNA LLC 18132411403 MINAANNA 18132412461 PEOPLE FOR,PEOPLE 301 N 1 STAVE 301 N 1 S PO BOX-166 YAKIMA, WA 98902 YAK , A 98902 YA YIv-A, WA 98907 18132412005 18132411005 18132411430 PRENTICE PACKING & STORAGE ROCHE FRUIT CO INC ROCHE FRUIT 202 N 1 STAVE PO BOX 27 PO BO YAKIMA, WA 98902 YAKIMA, WA 98907 Y , WA 989070027 18132411405 ROCHE FR 18132412029 ��- THE HOUSING AU3' 1151' ITY OF 18132411427 WASHINGTON FRUIT & PROD CO PO B ” CITY OF YA , WA 989070027 YAK n PO 3X2910 v , PO BOX 1588 Y)MIMA, WA 989072910 YAKIMA, WA 98907 18131344006 WASHINGTON F & PRODUCE CO 18131344015 18132411003 PO BOX 15 WASHINGTON & PRODUCE CO PO BOX WASHINGTON 4 PRODUCE CO PO BOX YAKI A 989071588 YA , WA 989071588 YA , WA 98907 18132411010 18132411406 18132411440 WASHIN FRUIT & PRODUCE'CO WASHINGT T &PRODUCE CO WAS UIT &PRODUCE CO PO BO 88 PO BOX 1 I PO BOX 1588 YAKIMA, WA 989071588 YAKIMA, WA 989071588 YAKIMA, WA 989071588 18132412404 18132411444 18132411446 YAKIMA VALLEY COUNCIL ON DAVID & RENTICE DAVID K PRENTICE ALCOHOLISM 202 N eWA9890222619 202 N 1 STAVE 102 S NACHES AVE YAKI , YAKIMA, WA 98902 YAKIMA, WA 98901 DW, 18132412415 1813 18132412530 EPIFANIO & MARIA ELENA HERMOSO J ROMO JR mmltJAN & T ARZAGA ROMO 308 N 3RD AVE 301 WEST D ST 301 WEST D ST YAKIMA, WA 98902 YAKIMA, WA 989022146 YAKIMA, WA 989022146 101j4Y14Y11+ 15tsG41144Z 18132411441 MARTHA RAMIREZ ORIN E III & PATSY W HOLLINGBERY ORIN E 11005 SY W HOLLINGBERY 305 W LINCOLN AV 4861 LATERAL ONE RD 48660MERAL ONE RD YAKIMA, WA 98902 WAPATO, WA 98951 WAPATO, WA 98951 18 411 RG, . t F SINCLAIR PO BOX 6 YAKIMA, WA 989070006 39 Total Parcels - Hops Extract Corp. of America - RWV #003 -12 18132412419 SALVADOR GILNAVARRO 404 N CAMAS AVE WAPATO, WA 98951 18132412417 SILVIA ZARATE 305 N 4TH AVE YAKIMA, WA 989022638 nee C��� Cotiutiu.Q P�Lv. c I- �a""'� I- M-1 Parties of Record - Hnnc Rxtraet _ RWV:fnn1_1 Hordan Planning Services Hops Extract Corp of America Buchanan Warehouse Ltd. c/o Bill Hordan c/o David C. Dunham c/o Lynn and Connie Buchanan 410 North 2nd Street 305 North 2 "d Avenue 115 West D Street Yakima, WA 98901 Yakima, WA 98902 Yakima, WA 98902 Halverson Northwest Law Group Michelsen Packaging Montoya Hinckley PLLC c/o Mark Fickes c/o Kevin Jorgesen c% Tyler Hinckley 405 East Lincoln Avenue P.O. Box 89 4702A Tieton Drive Yakima, WA 98901 202 North 2 "d Avenue Yakima, WA 98908 Code Administration Yakima, WA 98902 Royale Schneider Steve Emhoff David Buchanan Harris Office Interiors 1014 South 16`x' Avenue PO Box 39666 c/o Wayne Martin Yakima, WA 98902 Tacoma, WA 98496 605 North 10 Street Water/Irrigation dbrown@,ci.yakima.wa.us Yakima, WA 98901 Terry Altena Continuous Gutter & Roofing Co. Carpet Pros Inc. PO Box 106 c/o Hershel Corbin c/o Terry Wilkes Sioux Center, Iowa 51250 PO Box 10475 1071 N. Batavia Road Transit Division Yakima, WA 98909 Orange, CA 92867 Continuous Gutter Inc. sos tho ci. akima.wa.us For the Record/File c/o Marvin Lindley Binder Copy 4101 McLean Drive Revised 032013 Yakima, WA 98908 In -House Distribution E -mail List Name Division E -mail Address Dana Kallevig Engineering dkallevi ci. akima.wa.us Doug Mao Engineering dmayo@ci.yakima.wa.us Dan Riddle Engineering driddle ci. akima.wa.us Jeff Cutter Legal Dept cutter ci. akima.wa.us Archie Matthews ONDS amatthew ci. akima.wa.us Mark So tich Fire Dept ark so tich@yakirnawa.gov Jerry Robertson Code Administration 'roberts ci. akima.wa.us Royale Schneider Code Administration rsc1meid@ci,yakima.wa.us Glenn Denman Code Administration denman ci. akima.wa.us Nathan Thompson Code Administration nthoml?so@ci.yakima.wq.us Dave Brown Water/Irrigation dbrown@,ci.yakima.wa.us Mike Shane Water /Irrigation mshane@ci.yakirna.wa.us Carolyn Belles Wastewater cbelles(@,ci.vakima.wa.us Scott Schafer Wastewater sschafer ci. akima.wa.us Kevin Futrell Transit Division kfutrell ei. akima.wa.us Steve Osguthorpe Community Development sos tho ci. akima.wa.us For the Record/File Binder Copy Revised 032013 Type of Notice: File Number: W V4 OD-3 __/ J_ Date of Mailing: 41 41 15 D * IN --a—• W -- -•— _ ^•— est - - - \ "� Sheet Proposed 2nd Avenue Vacation Eli I I � t i I I RECEIVED I I NOV 2 1 2M2 CITY OF YAKIMA I ill I PLANNING DIV. I I I i I I I 1 I I ai I I I I I t c�i I I I L- 1 I I Zi i l l 1 I I I I I j— 41 � I I i �► I I I I i II I I I I i II I 1 " =30' 1 I I ! I as w la 11 ! I I I SCAMINFEET I I la I I I t i l l l I i I I . —.. _. West _. i M Avenue —. —p wm -- - - -. - -- SURVEYOR 'N CERTIFICATE THIS MAP CORRECTLY REPRESENTS A SURVEY MADE BY ME OR UNDER MY DIRECTION IN CONFORMANCE WITH THE REQUIRL%GmSOFTHESURVEYRECORDING ACT AT THE REQUEST OF HOPSTRACr IN SEPTEMBER 2011. JAMES C. BELL LS 18894 ESC.Sfe uw e{ w* A, smut Q�f z, 2012 THATPORTIONOFNORTN2'OAVENUE LYING NORTHOFTHE NORTH RIGHT-OF-WAY OF WEST LINCOLN AVENUE AND SOUTH OF THE SOUTHRIGHT -0RWAY OF WEST "D" STREET. BELL & UPTON LAND SURVEYING 3 I NORTH 3RD STREET, YAKIdA, WA 98901 Phone 457 -7656 TOPOGRAPHY SURVEY M&AFLm FM HOPS EXTRACT CORP. IN THE NE %NE K, SECTION 24.13 -11 ScImcmba 11, 2013 lob No. 12116 1 Z % P u to :.t Cherry L%* Scale = 1:9000 , rw e lCan. V x 51 r i A � R yp7 I t i yt, 3z n City of Yakima, Washington Fite Number: RWV #003 -12 Applicant: Bill Hordan Planning Services Owner: Hops Extract Corp of America Request: Vacate a portion of public right of way in the vicinity of North 2nd Ave between W Lincoln Ave & W D Street to expand and protect industrial development in this area. Location: North 2nd Ave btwn W Lincoln Ave & W D Street Parcel Number(s): 18132411438 ,18132411439,18132411448 1 of 2 'L I i LI }p'F v Subject Area Site Property Notification Area NOTIFICATION OF LAND USE APPLICATION I (VW. INDEX 11/28/2012 10:30 Al Ibarra, Rosalinda --om: Ibarra, Rosalinda it: Thursday, April 04, 2013 5:10 PM ,,: Claar Tee, Sonya; Stephens, Jodi Cc: Ibarra, Rosalinda Subject: Example Notice - Hops Extract Corp of America - RVW #003 -12 Attachments: Ntc of Petition and Hearing - Hops Extract - RWV003 =12 _legal ntc.doc Sonya/Jodi: Attached is the legal notice that was published for the Hearing Examiner Public Hearings on the: - Hops Extract Corp. of America - RWV #003 -12 This is an example for you to use for publishing the City Council closed record public hearing which was set on April 2, 2013 for City Council public hearing on May 7, 2013. The mailing labels will be delivered to you shortly. Thanks! Rosalinda Ibarra Community Development Administrative Assistant -osalinda. ibarrana,yakimawa. eov City of Yakima I Planning Division 129 North 2nd Street, Yakima WA 98901 p: (509) 575 -6183 * f. (509) 575 -6105 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: April 2. 2013 ITEM TITLE: Set date of May 7, 2013 for a closed record public hearing to consider Hearing Examiner's recommendation on a right -of -way vacation petition for a portion of North 2nd Avenue. SUBMITTED BY: Steve Osguthorpe, AICP Director of Community Development (509) 575 -3533 CONTACT PERSONITELEPHONE: Bruce Benson, Supervising Planner (509) 575 -6042 SUMMARY EXPLANATION: Hops Extract Corporation submitted a petition for the right -of -way vacation of N 2nd Avenue between Lincoln Avenue and W "D" Street. The Hearing Examiner held an open record public hearing on this vacation on February 14, 2013 and has subsequently submitted his recommendation for the Council's consideration. This matter will come before you on May 7, 2013 for a closed record public hearing. Resolution Contract: Contract Term: Insurance Required? No Funding Source: APPROVED FOR SUBMITTAL: STAFF RECOMMENDATION: Ordinance Mail to: Amount: Other Set Date (specify) Expiration Date: Phone: City Manager Set May 7, 2013 as the date for a closed record public hearing before the City Council. BOARD /COMMISSION RECOMMENDATION: The Hearing Examiner has recommended denial of this petition. ATTACHMENTS: Click to download 0 Hearino Examiner Recommendation Cs INDEX —. y AFFIDAVIT OF MAILING STATE OF WASHINGTON CITY OF YAKIMA RE: RWV #003 -12 Hops Extract Corporation of America N 2nd Ave btwn West Lincoln Ave & West D Street I, Rosalinda Ibarra, as an employee of the Yakima City Planning Division, have dispatched through the United States Mails, a Notice of Hearing Examiner's Recommendation. A true and correct copy of which is enclosed herewith; that said notice was addressed to the applicant, and parties of record, that said property owners are individually listed on the mailing list retained by the Planning Division, and that said notices were mailed by me on the 25th day of March, 2013. That I mailed said notices in the manner herein set forth and that all of the statements made herein are just and true. . - Rosalinda Ibarra Planning Technician Rvlowri;-g Parties of Record - Hops Extract - RWV #003 -12 Hordan Planning Services Hops Extract Corp of America Buchanan Warehouse Ltd. c/o Bill Hordan c% David C. Dunham c/o Lynn and Connie Buchanan 410 North 2 °d Street 305 North 2°d Avenue 115 West D Street Yakima, WA 98901 Yakima, WA 98902 Yakima, WA 98902 Halverson Northwest Law Group Michelsen Packaging Montoya Hinckley PLLC c/o Mark Fickes c/o Kevin Jorgesen c/o Tyler Hinckley 405 East Lincoln Avenue P.O. Box 89 4702A Tieton Drive Yakima, WA 98901 202 North 2' Avenue Yakima, WA 98908 Yakima, WA 98902 Steve Emhoff 1014 South 16'' Avenue Distribution E -mail List David Buchanan Division Harris Office Interiors Dana Kallevig Engineering . PO Box 39666 Dou Ma o c/o Wayne Martin Yakima, WA 98902 Dan Riddle Jeff Cutter Tacoma, WA 98496 driddle ci, akima.wa.us 605 North 1" Street Terry Altena ONDS Fire Dept Continuous Gutter & Roofing Co. mark.so tich akimawa. ov Yakima, WA 98901 Carpet Pros Inc. PO Box 106 iroberts@ci.yakirna.wa.us c/o Hershel Corbin Code Administration c/o Terry Wilkes Sioux Center, Iowa 51250 Code Administration Code Administration Water /Irrigation PO Box 10475 nthom so ci. akima.wa.us 1071 N. Batavia Road Mike Shane Water /Irrigation Yakima, WA 98909 Carolyn Belles Orange, CA 92867 Continuous Gutter Inc. Scott Schafer Kevin Futrell Wastewater Transit Division sschafer ci. akima.wa.us kfutrell@ci-vakima.wa.us c/o Marvin Lindley Conununity Development sos utho ci. akima.wa.us For the Record/File 4101 McLean Drive Binder Copy Revised 03/2013 Yakima, WA 98908 In -douse Distribution E -mail List Name Division E -mail Address Dana Kallevig Engineering . dkallevi ci. akima.wa.us Dou Ma o Engineering dingyo@ci.yakima.wa.us Dan Riddle Jeff Cutter Engineering Legal Dept driddle ci, akima.wa.us jggutter@ci.yakirna.wa.us Archie Matthews Mark So tich ONDS Fire Dept amatthew c%. ak%ma.wa.us mark.so tich akimawa. ov Jerry Robertson Code Administration iroberts@ci.yakirna.wa.us Royale Schneider Code Administration Glenn Denman Nathan Thom son Dave Brown Code Administration Code Administration Water /Irrigation -rschneid@ci.yakima.wa.us gd, enman ci. akima.wa.us nthom so ci. akima.wa.us dbrown ci. akima.wa.us Mike Shane Water /Irrigation mshane ci. akima.wa us Carolyn Belles Wastewater cbelles@ci.vakima.wa.us Scott Schafer Kevin Futrell Wastewater Transit Division sschafer ci. akima.wa.us kfutrell@ci-vakima.wa.us Steve Osguthorpe Conununity Development sos utho ci. akima.wa.us For the Record/File Binder Copy Revised 03/2013 Type of Notice: �N-(—` Fite Number: Date of Mailing: Ibarra, Rosalinda prom: Ibarra, Rosalinda yt: Monday, March 25, 2013 12:05 PM Belles, Carolyn; Brown, David; Cutter, Jeff; Denman, Glenn; Dorenbush, Brandon; Futrell, Kevin; Ibarra, Rosalinda; Kallevig, Dana; Matthews, Archie; Mayo, Doug; Osguthorpe, Steve; Riddle, Dan; Robertson, Jerry; Schafer, Scott; Schneider, Royale; Scott, James; Shane, Mike; Soptich, Mark; Thompson, Nathan Cc: Benson, Bruce Subject: NOTICE OF HEARING EXAMINER'S RECOMMENDATION - Hops Extract - RWV #003 -12 Attachments: NTC HE RECOMMENDATION - Hops - RWV003- 12.pdf Rosalinda Ibarra Planning Technician rosalinda.ibarra Wyakimawa.gov City of Yakima I Planning Division 129 North 2nd Street, Yakima WA 98901 p: (509) 575 -6183 * f: (509) 575 -6105 DMQ IN #- F- 1 NOTIFICATION OF HEARING EXAMINER'S RECOMMENIDATION TO THE CITY COUNCIL March 25, 2013 On March 22, 2013 the City of Yakima Hearing Examiner rendered his recommendation on RWV #003 -12. The application submitted by Hops Extract Corporation of America is to vacate a portion of North 2 "d Avenue right of way located north of West Lincoln Avenue and South of West D Street. The application was reviewed at an open record public hearing held on February 14, 2013. A copy of the Hearing Examiner's Findings and Recommendation is enclosed. The Hearing Examiner's Recommendation will be considered by the Yakima City Council in a public hearing to be scheduled. The City Clerk will notify you of the date, time and place of the public hearing. For further information or assistance you may contact Bruce Benson at (509) 575 -6042 at the City of Yakima, Planning Division. Bruce Benson Supervising Planner Date of Mailing: March 25, 2013 Enclosures: Hearing Examiners Recommendation and Site Plan D= INDEX L /0 Gary M. Cuillier ATTORNEY AT LAW 314 N. SECOND STREET YAKIMA, WASHINGTON 98901 HAND DELIVERED March 22, 2013 Rosalinda Ibarra Yakima City Planning Division 129 North Second Street Yakima, WA 98901 RECEIVED MAR 2 2 2013 CITY OF YAKIMA PLANNING DIV. (509) 575 -1800 FAX: (509) 452 -4601 Re: Hearing Examiner's Recommendation: RWV #003 -12, Petition #12 -05 (Hops Extract Corporation of America to Vacate 2 "d Avenue Right -of -Way Located North of West Lincoln Avenue And South of West "D" Street) Dear Rosalinda: Enclosed is the Hearing Examiner's recommendation regarding the above - entitled matter. If you have any questions, please give me a call. Thank you. Very truly yours, �4"40V�o KEVIN R. RICHARDSON Legal Secretary to GARY M. CUILLIER KRR: krr Enclosure cc: C.J. Catt, Yakima County Planning Division, w/ Enclosure Pat Spurgin, City of Yakima Pro Tem. Hearing Examiner, w/ Enclosure DIM INDEX AFFIDAVIT OF MAILING STATE OF WASHINGTON CITY OF YAKIMA RE: RWV #003 -12 Hops Extract Corporation of America North 2nd Ave btwn West Lincoln Ave & West D Street I, Rosalinda Ibarra, as an employee of the City of Yakima Planning Division, have dispatched through the United States Mails, a Notice of Hearing Examiner's Interim Decision. A true and correct copy of which is enclosed herewith; that said notice was addressed to the applicant, and parties of record, that said property owners are individually listed on the mailing list retained by the Planning Division, and that said notices were mailed by me on the 26th day of February, 2013. That I mailed said notices in the manner herein set forth and that all of the statements made herein are just and true. i Rosalinda Ibarra Planning Technician DOC• INDEX yb Panes of Record - Hons Extract - R VW #M' {_ 1 Hordan Planning Services Hops Extract Corp of America Buchanan Warehouse Ltd. c/o Bill Hordan c/o David C. Dunham c/o Lynn and Connie Buchanan ' () North 2od Street 305 North 2nd Avenue 115 West D Street Jma, WA 98901 Yakima, WA 98902 Yakima, WA 98902 rnalverson Northwest Law Group Michelsen Packaging Montoya Hinckley PLLC c/o Mark Fickes c/o Kevin Jorgesen c/o Tyler Hinckley 405 East Lincoln Avenue P.O. Box 89 4702A Tieton Drive Yakima, WA 98901 202 North 2°d Avenue Yakima, WA 98908 'roberts ci. akima.wa.us Yakima, WA 98902 Code Administration Steve Emhoff David Buchanan Harris Office Interiors 1014 South 16d' Avenue PO Box 39666 c/o Wayne Martin Yakima, WA 98902 Tacoma, WA 98496 605 North I" Street dbrown@ci.yakima.wa.us Mike Shane Yakima, WA 98901 Terry Altena Continuous Gutter & Roofing Co. Carpet Pros Inc. PO Box 106 c/o Hershel Corbin c/o Terry Wilkes Sioux Center, Iowa 51250 PO Box 10475 1071 N. Batavia Road kfutrell ci. akima.wa.us Yakima, WA 98909 Orange, CA 92867 Continuous Gutter Inc. For the Record/File Vo Marvin Lindley Binder Copy 4101 McLean Drive Yakima, WA 98908 In -House Distribution E -mail List Name Division E -mail Address Dana Kallevig En ineering dka11ev1@ci.yakirna.wa.us Doug Mao Engineering dma o ci. akima.wa.us Dan Riddle Engineering driddle@,cLy&Lma.wq.us Jeff Cutter Legal Dept 'cutter ci. akima.wa.us Archie Matthews ONDS amatthew ci. akima.wa.us Brandon Dorenbush Fire Dept bdorenbu@ci.yakimq.wa.us Jerry Robertson Code Administration 'roberts ci. akima.wa.us Royale Schneider Code Administration rschneid ci. akima.wa.us Glenn Demnan Code Administration denman ci. akima.wa.us Nathan Thompson Code Administration nthoLnpso@qi.ygkjrna.wa.us Dave Brown Water/Irrigation dbrown@ci.yakima.wa.us Mike Shane Water/Irrigation mshane@ci.yakima.wa.us Carolyn Belles Wastewater cbelles@ci.yakima.wa.us Scott Schafer Wastewater sschafer ci. akima.wa.us Kevin Futrell Transit Division kfutrell ci. akima.wa.us Steve Osgwhorpe Community Development sosgutho@ci.yakirna.wa.us For the Record/File Binder Copy Revised 12/2012 Type of Notice: - - -— I�/Y�L I b c �/ 1 File Number: �.�1% — I -)— ®W. Date of Mailing: c� IN= Ibarra, Rosalinda From: Ibarra, Rosalinda Sent: Tuesday, February 26, 2013 3:36 PM To: Belles, Carolyn; Brown, David; Cutter, Jeff; Denman, Glenn; Dorenbush, Brandon; Futrell, Kevin; Ibarra, Rosalinda; Kallevig, Dana; Matthews, Archie; Mayo, Doug; Osguthorpe, Steve; Riddle, Dan; Robertson, Jerry; Schafer, Scott; Schneider, Royale; Scott, James; Shane, Mike; Thompson, Nathan Cc: O'Rourke, Tony; Price, Cally; Benson, Bruce Subject: NOTICE OF HEARING EXAMINER'S INTERIM DECISION - Hops Extract Corp - RWV# 003 -12 Attachments: NTC OF HE INTERIM DECISION - Hops Extract - RWV003- 12.pdf FYI — attached is the Hearing Examiner's Interim Decision on the right of way vacation for Hops Extract Corp of America. It was mailed to parties of record today. Thanks! Rosalinda Ibarra Planning Technician rosalinda. ibarraa,ya kimawa.gov City of Yakima I Planning Division 129 North 2nd Street, Yakima WA 98901 p: (509) 575 -6183 * f: (509) 575 -6105 i NOTICE OF INTERIM DECISION City of Yakima Hearing Examiner February 26, 2013 On February 14, 2013 the Yakima Hearing Examiner conducted a public hearing to consider a Right -of -way Vacation Petition submitted by Hops Extract Corporation of America (File No: RWV #003 -12, Petition No. 03 -12) for that portion of N 2nd Avenue right -of -way located north of W. Lincoln Avenue and south of W. "D" Street. On February 22, 2013 the Hearing Examiner issued an interim decision that extends until March 5, 2013 the opportunity for Mr. Hinckley, attorney for the Buchanan Warehouse, to provide information and argument relative to the letter submitted by Mark Fickes, attorney for Hops Extract Corporation. Enclosed is a copy of the Hearing Examiner's interim decision. For further information or assistance you may contact Bruce Benson, Supervising Planner, at the City of Yakima Planning Division, located on the 2nd floor of Yakima City Hall, (129 North Second Street), or by calling 575 -6042. Bruce Benson Supervising Planner Encl: Hearing Examiner's Interim Decision Date of mailing: February 26, 2013 HAND DELIVERED Gary M. Cuillier ATTORNEY AT LAW 314 N. SECOND STREET YAKIMA, WASHINGTON 98901 (509) 575 -1800 FAX: (509) 452 -4601 February 25, 2013 IISCEIVso Rosalinda Ibarra FEB 2 5 2013 Yakima City Planning Division 129 North Second Street PL A Ni46 D�� iv Yakima, WA 98901 Re: Hearing Examiner's Interim Decision: RWV # 03 -13 (Hops Extract Corporation of America to Vacate 2nd Avenue Right -of -Way Between Lincoln Avenue & West D Street) Dear Rosalinda: Enclosed is the Hearing Examiner's interim decision regarding the above - entitled matter. If you have any questions, please give me a call. Thank you. Very truly yours, 47��2. zt,� KEVIN R. RICHARDSON Legal Secretary to GARY M. CUILLIER KRR: krr Enclosure cc: C.J. Catt, Yakima County Planning Division, w/ Enclosure Pat Spurgin, City of Yakima Pro Tem. Hearing Examiner, w/ Enclosure 1r �' City of Yakima, Washington Hearing Examiner's Interim Decision February 25, 2013 In the Matter of a Petition for Vacation of ) Street Right -of -Way Submitted by: ) Hops Extract Corporation of America ) To Vacate 2 "d Avenue Right -of -Way ) Between Lincoln Avenue & West D Street ) RECEIVED FEB 2 5 2013 CITY OF YAKIMA PLANNING OIV. RWV # 003 -12 A. Background. The background leading to this interim decision may be summarized as follows: (1) The Hearing Examiner conducted a public hearing relative to this matter on February 14, 2013. At the conclusion of the hearing, the Hearing Examiner held the record open for the petitioner to submit the measurement from the West D Street right -of- way to the door of the building on the east side of 2 "d Avenue in order to determine how much room could be provided to allow semi - trucks to straighten out before backing into opponent Lynn Buchanan's storage warehouses on the north side of West D Street. (2) On February 22, 2013, the Hearing Examiner received from the City Planning Division a copy of a letter (1' /4 pages) with a diagram attached (1 page) and a Memorandum in Support of Petition to Vacate Street or Alley ($'/2 pages). Both were signed by Mark Fickes, attorney for the petitioner, and were dated February 21, 2013. (3) Since the information and argument submitted for the record by the petitioner covered subjects beyond that for which the record was held open, the Hearing Examiner was faced with the decision whether to exclude the submittal or to allow the primary opponent's attorney, Tyler Hinckley, the opportunity to submit a comparable amount of information and argument on those subjects. Since the Hearing Examiner wishes to have Hops Extract Corporation of America Vacation of 2nd Avenue between West Lincoln Avenue & West D Street RVN #003 -12 t)OC. INM the benefit of the additional information and argument submitted before making a recommendation, same will not be excluded from the record and the second course of action will be taken. B. Interim Decision. Tyler Hinckley, the attorney for the primary opponent to this petition, shall have six business days from the date of this interim decision to provide information and argument relative to the subjects addressed in the letter and the Memorandum submitted by Mr. Fickes if he should wish to do so. Any letter and/or Memorandum submitted by Mr. Hinckley must be comparable in length, spacing and font size to the letter and Memorandum submitted by Mr. Fickes. If Mr. Hinckley has not been provided a copy of the letter and Memorandum of Mr. Fickes, he may obtain a copy from the City Planning Division. Mr. Hinckley shall submit his letter and/or Memorandum to the Yakima Planning Division by 4:30 p.m. on Tuesday, March 5, 2013. If he was provided a copy of the letter and Memorandum by Mr. Fickes, he shall also provide Mr. Fickes a copy of his letter and Memorandum when it is filed with the City Planning Division. Otherwise Mr. Fickes may obtain a copy of any information and argument submitted by Mr. Hinckley from the City Planning Division. The record of this matter will be closed without the opportunity for any more information or argument to be submitted into the record for the Hearing Examiner's consideration after 4:30 p.m. on Tuesday, March 5, 2013. DATED this 25th day of February, 2013. Hops Extract Corporation of America 2 Vacation of 2nd Avenue between West Lincoln Avenue & West D Street RWV #003 -12 ti, . . Gary M. Cuillier, Hearing Examiner rt' HEARING SIGN-IN SHEET CITY OF YAKIMA HEARING EXAMINER CITY HALL COUNCIL CHAMBERS HEARING DATE: February 14, 2013 t"E& CANT RUM, 202- t\1, (kue, Portion of N 2" Ave between A. RWV#003-12 Hops Extract Corp of America W Lincoln Ave & W D Street PLEASE WRITE LEGIBLY! Please htdicate which ,proposal you are interested in: A. Hearing Examiner Public Hearing Sign4n Sheet — 02/14/2013 DRESS;';,'--, 2 0DE -e-TY5, R, 202- t\1, (kue, 0 A�Kcm 141�- 10 a:-, i)f\vi . F "M tlj� 3,d ) v%mc,-'VJA 9M;? 4-70-a Z- - 5 7 C? b Cl 9- Hearing Examiner Public Hearing Sign4n Sheet — 02/14/2013 COMMUNITY 7ELOPMENT DEPARTMENT Planning Division 129 North 2 Street, 2' Floor Yakima, Washington 98901 (509) 575 -6183 - Fax (509) 575 -6105 www.buildingyakima.com - www.yakimawa.gov /services /planning CITY OF YAKIMA HEARING EXAMINER AGENDA Thursday February 14, 2013 Yakima City Hall Council Chambers Beginning at 9:00 a.m. I. CALL TO ORDER II. INTRODUCTION III. PUBLIC HEARINGS A. HOPS EXTRACT CORP OF AMERICA (1.1/21/2012) RWV#003 -12 Planner: Bruce Benson Address: North 2 "a Avenue between West Lincoln Avenue & West D Street Request: Vacate a portion of public right of way in the vicinity of N 2 "a Ave between W Lincoln Ave & W D Street to expand and protect industrial development in this area. IV. ADJOURNMENT If you are unable to attend the hearing, you may submit your comments in writing prior to the hearing. You may also submit written testimony at the hearing. DOC. INDEX #--.-E---7 Hearing Examiner Phil Lamb KIT -KATS Radio AGENDA ONLY 311 North 3rd Street 4010 Summitview, Suite 200 ribution List Yakima, WA 98901 Yakima, WA 98908 All YPAC Yakima Assoc. of Realtors rbeehler@ci.yakimama.us KARY Radio kcrocket@ci.yakima.wa.us Gov. Affairs Committee 1200 Chesterly Dr. #160 mbrown @ci.yakimama.us 2707 River Road Yakima, WA 98902 blozano@ci.yakima.wa.us Yakima, WA 98902 -1165 Greg Copeland KCYU -FOX 68 KIMA TV Actin Police Chief David Okowski Acting 1205 West Lin Ave. 2801 Terrace Heights Drive Lincoln gcopelan@ci.yakima.wa.us Yakima, WA coin Yakima, WA 98901 Dave Willson Pacific Power Fire Chief Mike Paulson KNDO TV Ck ' =iHson @ci.yakima.wa.us 500 N. Keys Rd. - -- "' ` 21 Q�k YY1 4, Yakima, WA 98901 Yakima, WA 98902 P. Sonya Claar -Tee Office of Rural FWH y Marty Miller Yakima Herald - Republic City Clerk P.O. Box 9668 sc'- ,Ar @ciyakima.wa.us 1400 Summitview #203 Yakima, WA 98909 Yakima, WA 98902 Michael Morales Yakima School Dist. #7 VIVA Actin City Manager Superintendent Acting � g 104 North 4th Street P.O. Box 511 m morales @ci.yakima.wa.us Yakima, WA 98902 Toppenish, WA 98948 Business Times KBBO -KRSE Radio ides Bulletin Board Bruce Smith 1200 Chesterl e Dr. St. 160 P.O. Box 2052 Yakima, WA 98902 Yakima, WA 98907 Yakima Valley C.O.G. Patrick D. Spurgin 311 N. 41h Street STE 202 411 N. 2nd St. Yakima, WA 98901 Yakima, WA 98901 KAPP TV Attu: Newsroom t I Gary Cu Mier '461 B`�X I 'r j 314 N. 2nd Street Yakima, WAe98989 =55Y Yakima, WA 98901 "D-? Radio KDNA P.O. Box 800 Granger, WA 98932 Maud Scott 307 Union Street DOC. Yakima, WA 98901 INDEX Hearing Examiner Packet Jeff Cutter AGENDA, STAFF REPORT, City Legal Department SITE PLAN AND MAPS......... jcutter @ci.yakima.wa.us Yakima County Planning Archie Matthews County Courthouse ONDS jefferson.spencer @co.yakima.wa. amatthew @ci.yakima.wa.us us Binder Copy For the Record /File Dan Ford Engineering Division dford @ci.yakima.wa.us Michael Morales CED Director mmorales @ci.yakima.wa.us DON'T FORGET TO SEND ONE TO THE APPLICANT & PROPERTY OWNER........... Hordan Planning Services c/o Bill Hordan 410 North 2nd Street Yakima, WA 98901 Hops Extract Corp of America 305 North 2 °d Avenue Yakima, WA 98902 Buchanan Warehouse Ltd. c/o Lynn Buchanan 115 West D Street Yakima, WA 98902 AFFIDAVIT OF POSTING STATE OF WASHINGTON RE: File# v J� © o 3 - 2 Applicant Name: fir,,. c 4- C0 ra v �4 ►,,,,ter, ��, Project Name: \i,,c 1-ti_ P'o , t AJ 2, J Site Location: /V As an employee of the City of Yakima Planning Division, I have posted a copy of the Resolution fixing time of public hearing before the Hearing Examiner. The Hearing Examiner Public Hearing is scheduled for the day of 20 1. 3 Notices were posted on the ±`. day of -. c, 20 13 at the following locations: Lobby of City Hall, County Courthouse and the County Auditor's Office. Job Title / 1l !3 Date roc. INDEX i . CITY OF YAKIMA LAND USE ACTION INSTALLATION CERTIFICATE Project Number: 9W Doi -l2- Date of Installation• / // -/3 LSite Address: 3oS t4• Z ,14ve yA,,,,,� Location of Installation (Check One) JAA1 y C/r o 12013 P�N�lN Land Use Action Sign is installed per standards described in YUAZO § 15.11.090(C). Land Use Action Sign is installed in an alternate location on the site. Note: this alternate location (if not pre- approved by the Code Administration and Planning Manager) may not be acceptable by the Code Administration and Planning Division and is subject to relocation (at the owner's expense) to a more visible site on the property. The alternative location is: RECEIVED JAN 1 1 ()E YAKIRIA LANNINd niv t 11GiCuy tesmy uiai ine sign installed fully complies with the Land Use Action sign layout specifications and installation standards, and that the sign will be maintained until a decision has been rendered. Applicants Name,Olease print) Date Applicants Signature Z -- Telephone Number of Applicant Zq9 - /y /9 The required comment period will begin when the Code Administration and Planning Division have received the Land Use Action Sign Installation Certification. The date of installation certificate receipt will begin the notice period. Failure to post a Land Use Action sign and return this form in a timely manner will cause a delay in the application review. Please remit the above certification and deliver; FAX at 509- 575.6105; or mail to: City of Yakima, Code Administration and Planning Division, 129 North Second Street, Yakima, WA 98901. AFFIDAVIT OF MAILING STATE OF WASHINGTON CITY OF YAKIMA RE: RWV #003 -12 Hops Extract Corporation of America N 2nd Ave btwn W Lincoln Ave & W D Street I, Rosalinda Ibarra, as an employee of the City of Yakima Planning Division, have dispatched through the United States Mails, a Notice of Petition and Public Hearing. A true and correct copy of which is enclosed herewith; that said notice was addressed to the applicant and all property owners of record within a radius of 300 feet of the subject property, that said property owners are individually listed on the mailing list retained by the Planning Division, and that said notices were mailed by me on the 9th day of TanuaKy, 2013. That I mailed said notices in the manner herein set forth and that all of the statements made herein are just and true. "- '- Q ,,, , , k - R salinda Ibarra Planning Technician DOC. INDEX #---F- -3 d �•���••��� i 101J4- tl4vua 1813Z41lUUI 115 TRUST 20 TRUST 220 TRUST 115WDST 115W 115 m- YAKIMA, WA 989022144 I Y A, WA 989022144 I WA 989022144 18132411432 ARGEN LLC 80 SE MADISON ST PORTLAND, OR 97214 18132411401 HOLLINGBER & COLD STORAGE PO BOX , YAK WA 989070966 18132411439 HOPS EXT CORPORATION OF AME 30 ND AVE YAKIMA, WA 98902 18132411404 MINAANNA LLC 301 N 1ST AVE YAKIMA, WA 98902 18132412005 PRENTICE PACKING & STORAGE 202 N l ST AVE YAKIMA, WA 98902 18132411405 ROCHE FRUIT L PO BOX 2 YAKI A 989070027 18131344006 WASHINGTON F &PRODUCE CO PO BOX 15 YAKI A 989071588 18132411010 WASHINGTO & PRODUCE CO PO BOX 15 YAKIMA, WA 989071588 18132412404 YAKIMA VALLEY COUNCIL ON ALCOHOLISM 102 S NACHES AVE YAKIMA, WA 98901 18132412415 EPIFANIO & MARIA ELENA HERMOSO 308 N 3RD AVE YAKIMA, WA 98902 18132411435 HIGHLAND PROPERTIES LLC PO BOX 6 YAKIMA, WA 989070006 18132411429 MICHELSEN PACKAGING CO PO BOX 89 YAKIMA, WA 989070089 18132411403 M INAANNA 301 1 1 YAK , WA 98902 18132411005 ROCHE FRUIT CO INC PO BOX 27 YAKIMA, WA 98907 18132412029 THE HOUSING AUTHORITY OF THE CITY OF YAK PO BOX 2910 YAKIMA, WA 989072910 18131344015 WASHINGTOI`(, & PRODUCE CO PO BOX Y , WA 989071588 18132411406 WASHIN IT & PRODUCE CO PO BOX I YAKIMA, WA 989071588 18132411444 DAVID & A P E PRENTICE 202 N l S YAK A 989022619 lad ®�s 18132 T 412400 J AN INDEX , 30 DST YAKIMA, WA 989022146 18132411402 HOLLINGBERY & SON INC PO BOX 966 YAKIMA, WA 989070966 18132411438 HOPS EXTRACT OF AM 305N2 YAVPW, WA 98902 18132411434 MICHELS GING CO P IMA, WA 98907 18132412461 PEOPLE FOR PEOPLE PO BOX 1665 YAKIMA, WA 98907 18132411430 ROCHE FRUIT PO BO YA , WA 989070027 18132411427 WASHINGTON FRUIT & PROD CO PO BOX 1588 YAKIMA, WA 98907 18132411003 WASHINGTON ' PRODUCE CO PO BOX I 3 Y WA 98907 18132411440 WASH FRUIT & PRODUCE CO PO BOX 1588 YAKIMA, WA 989071588 18132411446 DAVID K PRENTICE 202 N 1 ST AVE YAKIMA, WA 98902 18132412530 JUAN & T ARZAGA ROMO a01 WEST DST YAKIMA, WA 989022146 10 1 JLit 14-t I I+ I l b 13L41 1441 1 18132411441 MARTHA RAMIREZ )RIN E III & PATSY W HOLLINGBERY ;GRIN E III 8 HOLLINGBERY 305 W LINCOLN AV 4861 LATERAL ONE RD 486 L ONE RD YAKIMA, WA 98902 I WAPATO, WA 98951 I W TO, WA 98951 if 1411 RG, T F SINCLAIR PO BOX 6 YAKIMA, WA 989070006 39 0, I q � a Total Parcels - ops Extract Corp. of America - RWV #003 -12 18132412419 SALVADOR GILNAVARRO 404 N CAMAS AVE WAPATO, WA 98951 18132412417 SILVIA ZARATE 305 N 4TH AVE YAKIMA, WA 989022638 s [-�6i V'11�9 ol - Oct DOC. INDEX In -House Distribution E -mail List Name Division E -mail Address Dan Ford Engineering dford(,ci.yakima.wa.us Jeff Cutter Legal Dept jcutter@ci.yakima.wa.us Archie Matthews ONDS amatthew(a,ci.yakima.wa.us Brandon Dorenbush Fire Dept bdorenbu@ci.yakima.wa.us Jerry Robertson Code Administration jroberts@ci.yakima.wa.us Royale Schneider Code Administration rschneid(a)ci.yakima.wa.us Glenn Denman Code Administration gdenman@ci.yakima.wa.us Mike Shane Water/Irrigation mshane@ci.yakima.wa.us Nathan Thompson Code Administration nthompso ,ci.yakima.wa.us Kevin Futrell Transit Division kfutrell@ci.yakima.wa.us Dave Brown Water Division dbrownna,ci.yakima.wa.us Carolyn Belles Wastewater Division cbellesna,ci.yakima.wa.us For the Record/File Binder Copy Type of Notice: Pph File Number(s): V-w V -.pct_ , a— Date of Mailing: ++ �t. Ibarra, Rosalinda 'mom: Ibarra, Rosalinda Wednesday, January 09, 2013 9:43 AM Belles, Carolyn; Brown, Dave; Cutter, Jeff; Denman, Glenn; Dorenbush, Brandon; Futrell, Kevin; Ibarra, Rosalinda; Kallevig, Dana; Matthews, Archie; Mayo, Doug; Osguthorpe, Steve; Riddle, Dan; Robertson, Jerry; Schafer, Scott; Schneider, Royale; Shane, Mike; Thompson, Nathan Cc: Brown, Michael; Daily Sun News - Bob Story; El Sol de Yakima - Joseph Trevino; KAPP TV News; KBBO -KRSE Radio - manager; KCJT TV News; KDNA Radio; KEPR TV News; KIMA TV - Jim Niedelman; KIMA TV News; KIT /KATS /DMVW /KFFM - Lance Tormey; KNDO TV - Julie Stern; KNDO TV News; KUNS -TV Univision; KVEW TV News; Lozano, Bonnie; NWCN News; NWPR - Anna King; Tu Decides - Albert Torres; UNIVISION TV - Marta Isabel Sanchez; Yakima Herald Republic - Adriana Janovich; Yakima Herald Republic - Chris Bristol; Yakima Herald Republic - Craig Troianello; Yakima Herald Republic - Erin Snelgrove; Yakima Herald Republic - Mai Hoang; Yakima Herald Republic - Mark Morey; Yakima Herald Republic - Scott Mayes; Yakima Herald Republic Newspaper, Yakima Valley Business Times; Yakima Valley Business Times - George Finch; Beehler, Randy Subject: 01 -09 -2013 Press Release: Ntc of Petition and Hearing - Hops Extract - RWV#003 -12 Attachments: NTC OF PETITION AND HEARING - Hops Extract - RWV003- 12.pdf oZ9saCsnda 16arra Planning Technician NEW EMAEL: rosahnda.ibang@wkimawa.gov r'ty of Yakima North 2nd Street .ima, WA 98901 p: (509) 575 -6183 f. (509) 575 -6105 DOC. INDEX s' VT VV j YAKIMA HE X" PUBLIC RAL A daily part of your life Yakima herald.com -Ad Proof - This is the proof of your ad scheduled to run on the dates indicated below. Please confirm placement prior to deadline, by contacting your account rep at (509) 577 -7740. Date: 12/31112 Account #: 110358 Company Name: CITY OF YAKIMAIYAKIMA PLANNING $50.33 Contact: ROSALINDA IBARRA Address: DEPT OF COMM/ECON DEVELOPEMENT 6021 Account Rep: 129 N 2ND STREET Phone # YAKIMA, WA 98901 -2720 Ad ID: 274499 Start: 01/09/13 Stop: 01/09/13 Total Cost: $50.33 Agate Lines: 50 # of Inserts: 2 Ad Class: 6021 Account Rep: Simon Sizer Phone # (509) 577 -7740 Email: ssizeroa yakimaheraid.com Yakima Herald- Republic 01/09/13 YakimaHerald.com 01/09/13 NOTICE OF PETITION AND PUBLIC HEARING Notice is hereby given by the undersigned that a public hearing will be held by the City of Yakima's Hearing Examiner to con- sider the petition submit- ted by Hops Extract Cor- poration of America, for the vacation of a portion of N 2nd Avenue right -of- way located to the north of W Lincoln Avenue and south of W "D" Street. This public hearing has been set for February 14, 2013 beginning at 9:00 AM in the Council Cham- bers at Yakima City Hall, 129 North Second Street, Yakima Washington. Fur- ther information regard- ing this application may be obtained by contacting Bruce Benson, Supervis- ing Planner, 129 N 2nd Street, Yakima, Washing- ton 98901, or by calling 575 -6042. Steve Osguthorpe, AICP Director Community Development /Planning Manager (274499) January 9, 2013 L lbarra, Rosalinda om: ssizer@yakimaherald.com t: Monday, December 31, 2012 12:52 PM Ibarra, Rosalinda ubject: Ad: 274499, NOTICE OF PETITION AND PUBLIC HEARIN Attachments: IBARRA -31- 274499 -1.pdf I've scheduled this legal notice for 1/9, for a cost of $50.33. DW. INDEX 3b City of Yakima C i 0 Planning Department 129N 2nd St Yakima, WA 98901 Date of Notice of Application - 01/09/2013 Project Name: HOPS EXTRACT CORD OF AMERICA � ® ®� ®� Location: N 2ND AVE BETWEEN W LINCOLN AVE & W D ST Proposal: Vacate a portion of public right of way in the vicinity of North 2nd Avenue between West Lincoln Avenue and West D Street to expand and protect industrial development In this area. A land use application has been submitted near your property. This is your notice of that application. To view information on -line go to: htto: / /www.yakimawa.gov /postcard When prompted enter RWV#003 -12 in the Application ID text box. Click the Submit button to view the land use application information. More information is available from the City of Yakima Planning Division, 129 North 2nd Street, Yakima, WA 98901 or call (509) 575 -6183. Bruce Benson/575- 6042/Supervising Planner/bbenson @ci.yakima.wa.us Decisions and future notices will be sent to anyone who submits comments on this application or requests additional notice. Comments may be submitted in writing to the address above or by email to: planning @ci.yakima.wa.us - Please include the Application ID in the email subject line. Also include your name and address In the email. Written or emailed comments must be received by 5:00pm on 01/29/2013 Public Hearing Date: 02/14/2013 Public hearings are scheduled to begin at 9:00am in the Yakima City Council Chambers of City Hall located at: 129 North Second Street, Yakima, WA 98901 This application may include multiple land use types, including compliance with the State Environmental Policy Act (SEPA). For specific information, please contact the Planning Division. Si necesita informad6n en espaflol por favor Ilame al (509)575 -6183. Application Submitted: 11/21/2012 Application Complete: 12/24/2012 City of Yakima Planning Department 129 N 2nd St Yakima, WA 98901 LAND USE PUBLIC NOTICE NOTICE OF PETITION AND HEARING DATE: January 9, 2013 TO: Petitioner and Adjoining Property Owners FROM: Steve Osguthorpe, AICP Community Development Director / Planning Manager SUBJECT: Notice of Petition submitted for the vacation of a portion of North 2nd Avenue. RWV #003 -012 NOTICE OF PETITION The City of Yakima Department of Community Development has received a petition from Hops Extract Corporation of America requesting the vacation of that portion of North 2nd Avenue right -of -way lying between W. Lincoln Avenue and West "D" Street. The file containing the complete application is available for public review at the City of Yakima Planning Division, 2nd floor City Hall, 129 North 2nd Street, Yakima, Washington. NOTICE OF PUBLIC HEARING This request requires that an open record public hearing be held by the hearing examiner. This public hearing has been scheduled on Thursday, February 14, 2013 beginning at 9:00 a.m., in the Council Chambers, City Hall, 129 N 2nd Street, Yakima, WA. Any person desiring to express their views on this matter is invited to attend the public hearing or to submit their written comments to: City of Yakima, Planning Division, 129 N 2nd St., Yakima, WA 98901. If you have any questions concerning this proposal, please call Bruce Benson, Supervising Planner at (509) 575 -6042. Other Permits Required: None Encl.: Vicinity Map, Mailing Map DoC. IBdM # F"3 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: January 8. 2013 ITEM TITLE: Resolution to Set February 14, 2013 for a public hearing before the Hearing Examiner to vacate of portion of public right -of -way for N 2nd Avenue. SUBMITTED BY: Steve Osguthorpe, AICP Director Community Development / Planning Manager CONTACT PERSON/TELEPHONE: Bruce Benson, Supervising Planner 575 -6042 SUMMARY EXPLANATION: Hops Extract Corporation of America has submitted a petition requesting the vacation of a portion of the public right-of-way for N 2nd Avenue lying northerly of Lincoln Avenue and southerly of W "D" Street. You are being requested to adopt the resolution setting the date of the public hearing before the hearing examiner for February 14, 2013 Resolution X Ordinance Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt the resolution setting the date of the public hearing for this requested right -of -way vacation for February 14, 2013. BOARD /COMMISSION RECOMMENDATION: N/A ATTACHMENTS: Click to download O Resolution DOC. INDEX # RESOLUTION NO. R- 2013 -001 A RESOLUTION fixing time for a public hearing before the Hearing Examiner on February 14, 2013, on a petition to vacate a portion of N 2nd Avenue lying northerly; of Lincoln Avenue and southerly of W "D° Street. ' WHEREAS, pursuant to RCW 35.79.010, a petition has been filed with the City Clerk, requesting the vacation' of a street or alleyway (or portion thereof) within the City of Yakima, a true copy of which petition is attached and incorporated into this resolution; and WHEREAS, such a petition has been signed by the owners of more than two- thirds (2/3) of the property abutting upon the street or alley (or portion thereof) which is requested to be vacated, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The above - referenced petition for vacation is hereby referred to the Hearing Examiner for public hearing pursuant to section 1.43.080 of the City of Yakima Municipal Code. The Hearing Examiner is directed to make written recommendation to the City Council regarding said petition. The Hearing Examiner Public Hearing shall be held on February 14, 2013 at 9:00 a.m. in the City Council Chambers of City Hall, which date and time are not more than sixty (60) days nor less than twenty (20) days after the passage of this resolution It is further resolved that the City Clerk give notice of the Hearing Examiner in the form and manner prescribed by RCW 35.79.020 and Section 143 080 of the City of Yakima Municipal Code ADOPTED BY THE CITY COUNCIL this 8'h day of January, 2013. plll� ave."e Micah Cawley,( Mayor ATTEST: 1.� D 1 City Clerk ' ,;,..•�' ®OC. INDEX Date: To: Subject: Proposal: Location: Parcel No. �---� • + +• • ••�+ -. • ■ v, vvaralr� wY� t t rilYL G(�VIVV/YI /t, UL'* VCt.V/'ML41Y7 Planning Diviswn 129 North Second Street, 2nd Floor Yakima, Washington 98901 (509) 575 -6183 . Fax (509) 575 -6105 www.buildingyakima.cont . www. yakimawa,gov/serviceslplanning/ December 27, 2012 Hordan Planning Services 410 N 2nd Street Yakima, WA 98901 Determination of Application Completeness Right -of -way Vacation RW #003 -12 North 2nd Avenue 1913224 - 11438, 11439, 11448 Your application on this matter was submitted on November 21, 2012 and was determined to be complete as of December 24, 2012. Continued processing of your request will include, but is not limited to, the following actions: 1. A Notice of Petition will be sent to all petitioners and property owners within 300 feet of the subject property as well as to various agencies. This notice is followed by a 20-day public comment period as is required by the City of Yakima. Your Notice of Application is scheduled to be issued on January 9, 2013 and the comment period will end on January 29, 2013. 2. The Yakima City Council will by resolution set the date for a public hearing before the city's Hearing Examiner. After the close of the hearing the examiner will have ten working days to prepare his written findings and recommendation to the City Council. 3. When the Hearing Examiner's decision is received a second public hearing will be held before the Yakima City Council to hear the petition before determining whether or not to grant the petition and vacate the subject right -of -way. 4. Should the City Council accept the Hearing Examiner's recommendation an ordinance of street vacation will be adopted. This ordinance will be effective 30 days after publication. You may contact me at (509) 575 -6042 if you have any questions. ly Z� --- Bruce Benson Supervising Planner _...,na DOC. INDEX HOPS EXTRACT CORPORATION OF AMERICA RWV #003 -12 EXHIBIT LIST CHAPTER G Public Comments 1110 "®^ '*VIKE �!`i 141"' a , Comment letter received from Lynn Buchanan, Buchanan Warehouse LTD Fis - Silly G -1 02/01/2013 115 West D Street Yakima, WA 98902 509 - 248 -6841 FAX: 509 248 1457 Email: Lynn@lynnbuchanan.com www.buchananwarehouse.com 15 Jan 2013 Hearing Examiner % Bruce Benson, City Planner 129 North 2nd Street Yakima, WA 98901 RECEIVED FEB 0 a 2013 CITY OF YAKIMA UNNINO DIV. According to the sign across the street from my office, you are considering a petition to close North Second Avenue from Lincoln to D Street. I object to this for the following reasons: In the first place, when this city was North Yakima, a few years before we were born, the map of Yakima showed Yakima Avenue as a dirt road extending west from the railroad tracks. From that version of Yakima Avenue there was a dirt road extending north to the residence of one of the first mayors of Yakima. That dirt road became 2nd Avenue. As Yakima extended west, both 1 st Avenue and 2nd Avenue were poured concrete streets and were where the foundation of Yakima industry boomed. My father bought this property (115 West D Street) in the late teens or early 1920's, living in the former Mayor's house, selling coal and wood, and storing merchandise and vegetables in the warehouses he built. He started a truck line (using horses at first) here. When he bought this property, the house had a view to the south, directly down 2nd Avenue. Later, as he built this business, he built the office in the new warehouse with a view down 2nd Avenue so that customers could see the office from points south of it. Direction to the business is given as: North on 2nd Avenue to D Street. 1. Before 1930, the railroad had a three or four track siding on the east side of this property. (1 15 West D Street) When they sold that siding, it was to a local business for a parking lot. That closed off all access to the fuel yard and to the warehouses that had been built on our property to receive freight for storage. DOC. INDEX # C-� - 2. Then in approximately the mid 1930's, the City allowed the Union Pacific Railroad to condemn the west side of this property for a "through railroad ". The railroad never got "through" A Street and when they quit using the right of way, it was sold to other businesses, including the land condemned from L. L. Buchanan. That closed off all access to the west side of the warehouses that had been built on our property to receive freight for storage. 3. The City of Yakima allowed Washington Fruit to close Cherry Avenue and cut off access to and from First Avenue for the large trucks that bring products to our warehouses. Those trucks, Semi's and sometimes combination rigs, now have to traverse Cherry Avenue between a City Park (playground for little children) with low income housing on the other side of the street with more little children that play in the street. Currently: The City has spent millions building an underpass on Lincoln Avenue and plans to build another on Martin Luther King Boulevard. This is in response to the railroads stated plan to put up to 26 trains each day through Yakima. The calculations showed the traffic on the remaining east -west streets will be blocked for up to eight (8) hours each day. That includes D Street. That will limit our access to the east on D Street to the point of putting us out of business if we also lose the access to Lincoln and MLK Avenues. We are now the only commercial truck scales north of Union Gap, weighing approximately 67 trucks each day on average, five days each week and nine hours each business day. Now, the city is proposing to cut off our access via 2nd Avenue to Lincoln and MLK Avenues. We have been in business at this location, paying taxes and Business Licenses to the City of Yakima since the 1920's. How much is the City proposing to pay Buchanan Warehouse, Ltd. for this loss of access? With the loss of business, we will expect remuneration Sincerely, L Y nn/ Buchanan Buchanan Warehouse, Ltd. -z- INDEX ( 4 .0 - e' -A, t � I ' a � •y✓ � x .�. � � � tip, •t,, � .i � �• i � � �;, j +�. � � - - CIE ' � •'� , -�I r u _ d r FAft t r • . �� .. raw •{ � . s l.{���t VM4 Alto u; . R Y r r , _ to .rte 11►4=f7 p. „�- �'��.+ �f - -•� �r� -�l� _ �� ' -� '�_►,A ._ i"'F �i rte' ...I'�'°� _' a,+�s DG/ -- IL ' ory _ A�. 4 T �r{ Vii+ ' 6a/' � �— � • A$ � �9 l '![ W AF VTI- IW r?-07 P,- opa q- � ; v ��v' ,h' �•. � , , � ". F �b- .err' _ .� 1• s ` � s °.'� t_ i fl Al { f� B 1t ' �6 1y zI i ■ .: ,� ed K , r *� �li ■ 4 1t ' �6 1y zI i ■ .: ,� ed fir Ir • ♦ P � t r'*.q;..I�. ,.�,.... � •� .vr.a .�-weM ✓ 1'1N1? ^a_,.. -_+. 1 +rs�a + sue... - _-� r a , 1 1 r - . N •fir ��yy�� , 1 _ / � "�_ �� F •� 1 jaw jot its AMMW . � f'-� ti �� � � ��%•� may., � MOM C FOR LEASE AtxF}it)UiFIDriICF 5?ACF _, -- - _ 248 -684 _T E BUCf1A�NAN TRUCK SCALES `L`3 .-i 113 X w A z U O A � HOPS EXTRACT CORPORATION OF AMERICA RNW#003-12 EXHIBIT LIST CHAPTER H Exhibits Submitted at the Hearing 02/14/2013 V- a, I IN 4 H-1 V§ .ff-w- '.."Va , MOOR E- ggp �-i 10 "IA"t0w I , rg-, Exhibit Submitted by Bill Hordan, Petitioner's Representative "INW111A "7` 02/14/2013 H-2 Photo Submitted by Lynn Buchanan 02/14/2013 H-3 Photo Submitted by Lynn Buchanan 02/14/2013 H-4 Photo Submitted by Lynn Buchanan 02/14/2013 H-5 Photo Submitted by Lynn Buchanan 02/14/2013 H-6 Photo Submitted by Lynn Buchanan 02/14/2013 H--7- -Photo-Submitted by- Lynn Buchanan - -- -02/14/2013 H-8 Photo Submitted by Lynn Buchanan 02/14/2013 H-9 Photo Submitted by Lynn Buchanan 02/14/2013 H-10 Photo Submitted by Lynn Buchanan 02/14/2013 H-11 Photo Submitted by Lynn Buchanan 02/14/2013 H-12 Photo Submitted by Lynn Buchanan 02/14/2013 H-13 Photo Submitted by Lynn Buchanan 02/14/2013 H-14 Photo Submitted by Lynn Buchanan 02/14/2013 H-15 Letter Submitted by Grace Snodgrass, on behalf of David Buchanan 02/14/2013 H-16 Letter Submitted by Grace Snodgrass, on behalf of Wayne Martin 02/14/2013 H-17 Letter Submitted by Grace Snodgrass, on behalf of Terrance Altena 02/14/2013 H-18 Photo Submitted by Grace Snodgrass 02/14/2013 ,�C' EWt 1, 05 RIM Exhibits Submitted by Tyler Hinckley U ON H -19 02/14/2013 Letter H -20 Exhibits Submitted by Tyler Hinckley 02/14/2013 Declaration of Lynn Buchanan H -21 Exhibits Submitted by Tyler Hinckley 02/14/2013 Photo H -22 Letter Submitted by Kevin Jorgeson on behalf of Michelsen 02/14/2013 Packaging Company 0 Michelsen packaging company P O. BOX 89, 202 NORTH 2ND AVENUE, YAKIMA, WASHINGTON 98902 (509) 248 -6270 FAX 457 -8062 February 12, 2013 Yakima City Council, Re: Right of Way Vacation Application RWV #003 -12 Michelsen Packaging Company is located one block south of this location on 2nd Avenue and has conducted business in this location since 1937. Michelsen Packaging Company objects to the City of Yakima vacating the public street right of way as outlined in this application for a number of reasons: 1. General travel between our facilities at 202 N. 2nd Ave and at 922 N. 15t Ave would be restricted. Since the intersection at North 1St Ave and Lincoln Ave. has been rebuilt due to the underpass, a right turn off of North 1St Ave. onto Lincoln Ave. while traveling south has been restricted to a "no turn on red" configuration. Subsequently the majority of our traffic going between plants utilizes "D Street" to 2 "d Avenue and then south on the portion of the public street listed in the application for vacation. 2. Central Washington Recycling is a subsidiary of Michelsen Packaging Company and is located at 102 N. 2nd Ave. Many of our customers at Central Washington Recycling are directed to the commercial scales operated by Buchanan Transfer and Storage at the intersection of 2 "d Ave. and D Street. To deny those customers a direct line of sight route to and from Buchanan by giving up a right of way that belongs to them would cause a big inconvenience to all involved parties. 3. To sell off a public right of way (for $28,000.00) in the name of compliance with Federal Food Safety regulations is a very lame argument. Yakima has many food producing companies that will meet those regulations without closing public streets. This application seems to be more out of convenience and self indulgence of the applicant than anything to do with the common good for the citizens of Yakima. 4. The MLK underpass is about to begin construction. Closing this section of 2 "d Ave. at this time will further compound difficulties with construction related re- routing of traffic. Respectfully submitted by: Kevin Jorgensen Operations Manager Michelsen Packaging Company DOC. INDEX # H -aa File: Right -of -Way Vacation #003 -12, Petition No. 12 -05 Petitioner: Hops Extract Corporation of America Application Date: November 21, 2012 Hearing Date: February 14, 2013 DECLARATION OF LYNN BUCHANAN I. I make the following declaration based upon personal knowledge of facts to which I am competent to testify, and to which I would testify at trial. 2. 115 Trust owns the commercial property located at 115 W. "D" Street, Yakima, WA 98901 (Yakima County Tax Parcel No. 181324 - 11004) (hereinafter, "Property "). I am the manager of the 115 Trust. Buchanan Warehouse, Ltd. operates a commercial truck scale business on the Property and owns commercial and warehouse spaces on the Property, which Buchanan Warehouse, Ltd. leases to local businesses and individuals. I am the general manager of Buchanan Warehouse, Ltd. 3. , My family has owned the Property since the mid- 1920s. Since that time my family's business has operated a commnercial truck scale on my Property. Other commercial scales have come and gone, but our scale is the only commercial scale in Yakima that continues to meet state commercial scale requirements. 4. In addition to operating a commercial scale on the Property, we lease four commercial office spaces, lease ten warehouse spaces, and lease space in one warehouse to individuals for cars, boats, and recreational vehicles. 5. The office building that we lease is prominently located at the north end of Second Avenue. Due to its location on the Property, the office building is visible from Yakima Avenue, four blocks to the south. For nearly 90 years, our office building and scale have been visible from four major downtown Yakima streets: Lincoln Avenue, Martin Luther King Boulevard (formerly, "B" Street), Yakima Avenue, and Walnut Avenue. And since we began in the mid- 1920s, our customers have been able to access our Property by simply driving north to the end Second Avenue. DECLARATION OF LYNN BUCHANAN — Page 1 of 4 DOC. INDEX # H — 9Q 6. Our scale services semi - trucks as well as smaller trucks. The smaller trucks frequently access our scale via Second Avenue. Our warehouse tenants frequent load semis on our Property, which frequently exit our Property by driving straight down Second Avenue. Also, our warehouse tenants back semis onto the Property via Second Avenue to load and unload goods and materials stored in the warehouses on the Property. The inability for our tenants to use Second Avenue will greatly diminish the desirability and practicality of leasing our warehouses. Two of our tenants have informed me that if Second Avenue is closed off, they will likely move out of our warehouses and look for alternative warehouses. 7. Attached hereto as Exhibit 1 are true and correct copies of sworn statements from Hershel Corbin, Jr., of Continuous Gutter and Roofing Company, LLC, and Terry Wilkes, of Carpet Pros, in which they state that if Second Avenue is closed, their companies will be looking at other warehouse facilities. Continuous Gutter and Roofing Company, LLC and Carpet Pros are two of my current warehouse tenants. Also attached in Exhibit 1 is a true and correct copy of a sworn statement from Marvin Lindley, the former owner of Continuous Gutter, Inc., detailing the importance of Second Avenue access to the viability of renting a warehouse from Buchanan Warehouse, Ltd. 8. Although decreased accessibility to the Property and the eradication of the most practical route of accessing the Property will result from vacation of Second Street, the reduced accessibility is not the only detrimental impact to our Property. Vacating Second Avenue and fencing it off at West "D" Street and Lincoln Avenue will have a significant detrimental economic impact to my business. The reduced visibility and of our commercial office building, which will result from the vacation and fencing of Second Avenue, will reduce the rental value of the commercial offices. The loss of warehouse tenants who do not want to deal with the hassle of having to back semi - trucks around a corner to access the warehouses, as opposed to backing down a portion of Second Avenue, will have a significant, detrimental economic impact on our business. The increased difficulty in accessing our warehouses with semi - trucks caused by the vacation and fencing of Second Avenue will have a detrimental effect on the rental value of the warehouse space we own. 9. Vacation of Second Avenue will unreasonably and substantially limit 115 Trust and Buchanan Warehouse, Ltd.'s use and enjoyment of the Property, will reduce the market DECLARATION OF LYNN BUCHANAN — Page 2 of 4 1 ' value of the Property, and will have a significant economic impact on 115 Trust and Buchanan Warehouse, Ltd.'s business. 10. Attached hereto as Exhibit 2 is a true and correct copy of an aerial photograph that I took in 1962, which depicts, among other things, Second Avenue and the Property. 11. Attached hereto as Exhibit 3 is a true and correct copy of an aerial photograph that I took on April 30, 2004, which depicts, among other things, Second Avenue and the Property. 12. Attached hereto as Exhibit 4 is a true and correct copy of a photograph of our commercial office building that I took in December of 2004. The photograph shows the building that is visible all the way from Walnut Avenue, looking north down Second Avenue. The picture also depicts the location of the commercial scale, with a truck being weighed on the scale. 13. Attached hereto as Exhibit 5 is a true and correct copy of an aerial photograph that I took on January 8, 2005. The picture shows the Property, viewed from the West, and shows the prominence of the commercial office buildings at the north end of Second Avenue. 14. Attached hereto as Exhibit 6 is a true and correct copy of a photograph that I took in November of 2011. The photograph shows the building that is visible all the way from Walnut Avenue, looking north down Second Avenue. 15. Attached hereto as Exhibit 7 is a true and correct copy of a photograph that I took on February 12, 2013. The photograph shows our commercial office building and some of the warehouses on the Property. This photograph is taken from Second Avenue, south of Lincoln Avenue, looking north. If the City of Yakima vacates that portion of Second Avenue that Hop Extract Corporation of America has requested the City to vacate, and Hop Extract Corporation of America builds the fences that it claims it intends to build, my building will not be visible from this vantage point. The inability for members of the public to see the commercial office space from one block south, as depicted in exhibit 7, will greatly diminish the rental value of the commercial space. 16. Attached hereto as Exhibit 8 is a true and correct copy of a photograph that I took on February 12, 2013. The photograph is taken from our commercial office space, looking south down Second Avenue. This picture shows the portion of Second Avenue that Hop Extract Corporation of America has requested vacation of. DECLARATION OF LYNN BUCHANAN — Page 3 of 4 17. Attached hereto as Exhibit 9 is a true and correct copy of an aerial photograph that I took on February 12, 2013. This picture shows our Property in the foreground, and shows, among other things, the portion of Second Avenue that Hop Extract Corporation of America has requested vacation of This photograph also shows how our commercial office space is visible from well to the south of our Property. 18. Attached hereto as Exhibit 10 is a true and correct copy of a photograph that I took on February 13, 2013. This picture shows a truck using Second Avenue to back onto the Property for purpose of unloading the materials on the semi -truck to store in a warehouse on the Property. I declare under penalty of perjury of the laws of the state of Washington that the foregoing is true and correct. Signed this 14`x' day of February, 2013 at Yakima, Washington, 1 LYN UCHANAN DECLARATION OF LYNN BUCHANAN — Page 4 of 4 0 -i z Continuous Gutter and Roofing Company LLC P O Box 10475 Yakima, WA 98909 My name is Hershel Corbin Jr. _I am the current owner of Continuous Gutter and Roofing Company LLC. Continuous Gutter and Roofing Company's predecessor was Continuous Gutter, which maintained a warehouse here since 1991. When I bought the company I continued to rent the same warehouse. One of the principle reasons I continue to rent from Buchanan Warehouse is the ability to receive and store my roofing and gutter materials here. This is a working warehouse where we load our job trucks and trailers to prepare for our next job and then we are usually gone until the end of the day. This is not a manned warehouse so we have to return to the warehouse when we know that we have a semi truck coming to deliver gutter and roofing materials. In my line of work, time is of the essence and I need my workers to be able to unload these trucks quickly and get back to the job site. It is important to be able to get semi trucks as close to my warehouse as possible. The only way to get a semi truck close to my warehouse is for the semi to back into this property via 2nd Avenue. Unloading a semi truck off of D Street to my warehouse, in winter, would be extremely difficult and time consuming; especially the way the city plows the snow on D street. One roll of gutter metal weighs 2000 lbs and maneuvering that with a forklift around snow and ice is not something I would want my crew to do. In the better months they would still be maneuvering my product close to the D Street traffic which is also not something I would want my workers to contend with. If 2nd Avenue is closed, Continuous Gutter and Roofing Company LLC-w111 most likely be looking at other warehouse rental options to better suit our business needs. I declare under penalty of perjury under the laws of the state of Washington that the forgoing is true and correct. Signed at 4 , Washington this of February 2043. Hershe Corbin Jr. DM '�ND�ao � IX ♦ :F LN IN rc'FJoar�nglrasrsllai�on Cnr�parry 1071 N. Batavia Road Orange, CA 92867 CL # 815076 WACCB# SPCARP1956N2 ORCCB# 164310 My name is Terry Wilkes and 2 am the Central Washington and Oregon Business Center Manager for Carpet Pros. Carpet Pros has been in the flooring industry for over 25 years. We have been serving The Home Depot for over 14 years. we started our career with Home Depot in the Orange County area. Since then, we have expanded to over 5 states and serve over 145 Home Depot stores. We employ over 250 installers and have installed over 10 million yards of carpet. we first began renting warehouse space from Buchanan Warehouse in March of 2007. We use this space for the delivery and storage of our carpets and pads, and our installers work out of this site. we have semi trucks deliver to this warehouse almost every week. 2 "` Avenue is directly across from the gate opening that our semi trucks use to back in to the entrance of our warehouse. Without the use of 2 "a Avenue we will not be able to get our product close to our warehouse. We have had a semi truck try to "jack knife" into the opening which did not work This semi truck backed into the fence at Buchanan Warehouse Ltd and did substantial damage. Due to another semi truck being unloaded on site at Buchanan warehouse, we have had to unload a semi truck parked on D Street. This is fine on a rare occasion as it is very time consuming and we need our installers installing, not unloading trucks. The unloading of our semis on D Street on a permanent basis would be completely out of the question, as our electric forklifts cannot be used through the snow or over ice in winter. if ?rb Avenue is closed, our company will be looking at other warehouse facilities. I declare under penalty of perjury under the laws Washington that the forgoing is true and correct. of the state of Signed at (-0 Washington on this day of February 2013. Terry pil es oOC. INDEX MARVIN LINDLEY 4101 MCLEAN DRIVE YAKIMA, WA 98908 I was the owner of Continuous Gutter Inc, beginning 1991 to 2005, however I have had a vested interest in this company as I am still in a contractual basis with the new owners. Continuous Gutter has leased warehouse space from Buchanan Warehouse since July 1991 to the current time. Additionally we rented office space from Buchanan Warehouse from 2002 until 2010. The address of that office was 113 West D Street. We have always had semi trucks delivering materials, equipment and supplies to the warehouse located at this site. These deliveries occurred several times per week and the current company still receives these types of deliveries. The access to our warehouse has always been off of D Street and 2nd Avenue. This access is critical especially as we receive large shipments in excess of over 100,000 lbs. It was common to have customers, contractors and suppliers come to our warehouse and office via 2nd avenue. Major traffic flow in the vicinity of Buchanan Warehouse used the east west corridors of Lincoln and Martin Luther King Blvd. The most direct route is going north on 2nd Avenue which dead ends at our office. This is how we directed our customers to our office, as it was the highest visibility for our signage, front door and office window. I considered this to be as valuable as any other type of advertising I did. Visibility is everything. It is imperative that 2nd Avenue remains open for the viability of any business that would rent a warehouse for the purpose of receiving freight. Limiting access would severely reduce the ability for Buchanan Warehouse to rent to construction companies successfully operating from this site. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. Signed at Washington this y of February 2013. a » N. �,mac LN SN ,: _I' .''"` 11111111 \11\11rt � �. � �� �>. ��t��\` ir` ,��• " � ;. . r � .,. , a , � p �, ' • � ,,..:.; 4111111 �°� *�, 1 �"� �: _..,,,. r'�1r'` c .�, � ��., y, 'aSP ! r mqyQ,�i • � . I 1 „ 7,L, r._�....� - _. �_Y 1 � 1 �I Nw' _ y ' �� rtiY�. ��.� ♦�J .......... . . AMA *r" -"tom., � • i �.. - , I 11 IN .,r r AS door At cop - . ' . 7 4 ^• 4% 4po Ar r f y�p I S - A < • V. . ; A f� w E r V Lxt 'ell %t% J r' *r 4 / - - X-1 .�.._ 'a OP �_ �► ■ -� _ 1 i v � IR LEASE HOUSE/ OFFICE SPACE ..., t8 -6841 . •7 Y �. go- Unit Leasing a .., k EXHIBIT "r, r -. - �`•�.� ya �r ivy 3'y. 1 EXHIBIT �'_.. ._. / r ^. ^.^,.AA�.c JCt �F.>^iZf l®talv�•Ar SR11 1c...: -. -� .- acs *oc - -. _ .,_....� e__..___�. w�_..w....�.. •...._� ... �_r�w.�...,.� ...�sw rr.r•� +RSC�I� �1= ���tp!• \������� -`�.t ..., esw. swws.._ wow.. •mow awwr. ...- ...... wr ++.•,. - e�.u+.. -' .+.-v`. t F. T wo, ►0'611 e i, I � Q n z ,v �x O 1 m• ry , I NO - ._. y . =Ol aA; _ - J l- E OM J 6 t DOC. INDEX r s O NTOYA N C KLEYLLC LAW FIRM February 14, 2013 City of Yakima Hearing Examiner 129 N. 2nd Street Yakima, WA 98901 KEVAN T. MONTOYA* 'adauffed h) prachce in WA and OR Re: Opposition to proposed vacation of a portion of N. 2nd Avenue Right -of -Way Vacation #003 -12, Petition No. 12-05 Hops Extract Corporation of America — Petitioner Dear Hearing Examiner: TYLER M. HINCKLEY I represent 115 Trust, which owns the property located at 115 W. "D" Street, Yakima, WA 98901 (Yakima County Tax Parcel No. 181324- 11004), and Buchanan Warehouse, Ltd. (hereinafter collectively referred to as "Buchanan "), which operates the business on said property, in opposition to the proposed vacation of that portion of N. 2nd street lying between W. "D" Street and W. Lincoln Avenue. Attached to this letter is a Declaration of Lynn Buchanan, as well as exhibits thereto, in support of Buchanan's opposition to the proposed vacation. There is no public use associated with vacation of the street. Any city ordinance enacted providing for the vacation of a public street "must be enacted for a public use." Hoskins v. City of Kirkland, 7 Wn. App. 957, 959 -60, 503 P.2d 1117 (1972); see Young v. Nichols, 152 Wash. 306, 278 P. 159 (1929) ( "[I]n all instances, the order of vacation must have within it some element of public use.... "). And while a public use may exist even if some private benefit may result, the proposed vacation of N. 2 "d Avenue is for the sole benefit of Hops Extract Corporation of America (Hops Extract). The public will not own the vacated portion of N. 2nd Avenue. In fact, no member of the general public will even be allowed to use the land. The vacation is requested precisely to keep the public off of N. 2nd Avenue. There is no public benefit associated with vacation of the street; the only benefit is ostensibly a perceived cost savings to Hops Extract in complying with the Food Safety Modernization Act, a purely private benefit. The purported "public benefits" contained in the Planning Division Staff Report have no factual support, and are not actually "public benefits ". According to the Planning Division Staff Report, at page 4, "[t]he petition explains that this vacation will benefit the public by allowing the petitioner to connect their properties, which are currently separated by this right -of -way and thereby creating [sic] a larger area for the expansion of industrial development in this area" But the only party to benefit by this expansion is Hops Extract. Moreover, given the recommended INDEX 1 4702 A Tieton Dr. - Yakima, WA 98908 0 Ph: 509.895.7373 - Fax: 509.895 -7015 0 www.manroyalegal.com Opposition to proposed vacation of a portion of N. 2 °d Avenue February 13, 2013 Page 2 of 3 conditions in the Planning Division Staff Report, at page 5, section H.5., that the retention of the required easements "will essentially render the vacated right -of -way as unbuildable ". The alleged public benefit of "expansion of industrial development" is not supported by the record and, even if it were, is a private benefit to Hops Extract, not a public benefit. As a second "public benefit ", the Planning Division Staff Report,-.at page 4, section H. L, states that "the petitioner indicates that the vacation is being requested so that their company might secure their property in compliance with the Food and Drug Administration's guidelines, set forth in the Food [Safety] Modernization Act, which are designed to help protect the nation's food supply from intentional acts of contamination or tampering." The Food Safety Modernization Act requires companies to identify potential hazards and to put in place steps to address hazards. (The full text of the Food Safety Modernization Act, can be found at: http: / /www.fda.gov/ Food/ FoodSafety /FSMA/ucm247548.htm). Hops Extract apparently claims that, to comply with the Food Safety Modernization Act, it wants to erect fences on the north and south ends of the proposed vacated portion of N. 2nd Avenue. But nothing in the Food Modernization Act specifically requires Hops Extract to erect fences around its buildings or across N. 2 "d Avenue. In fact, there are no specifically prescribed methods of securing Hops Extract's facilities in the Food Safety Modernization Act. Ostensibly then, Hops Extract prefers to fence from building to building because it is easier or cheaper to secure its facilities in that manner than through alternative measures. Vacation of N. 2nd Avenue for the purpose of providing Hops Extract with the easiest or most cost effective means of complying with the Food Safety Modernization Act provides a purely private benefit to Hops Extract. Hops Extract does not allege that it cannot comply with the Food Safety Modernization Act without obtaining vacation of N. 2 "d Avenue. The third purported "public benefit" contained in the Planning Department Staff Report, at page 4, section H.l ., is the alleged "added benefit of eliminating traffic unrelated to [Hops Extract's] business, both vehicular and pedestrian, which can disrupt their firm's activities and perhaps endanger their employees and the general public." The alleviation of disruption to Hops Extract's business is beneficial only to Hops Extract, not the general public. The claim that vehicular and pedestrian traffic may "perhaps endanger [Hops Extract's] employees and the general public" is vague, does not truly describe any public benefit, and essentially applies to every street in the City of Yakima in which an employee or member of the general public are present at any time. Hops Extract chose to locate its business on both sides of N. 2 "d Avenue, thereby apparently requiring its employees to cross the road to perform their duties. Vacating N. 2 "d Street to protect those employees provides a benefit to Hops Extract, not a public benefit. The Planning Department Staff Report concludes, at page 7, section IV, that "there is no public purpose to be served by maintaining the subject portion of N. 2nd Avenue as a public right -of- way." The street has served the public — individuals and area business owners —as a route of travel for 128 years. "[T]he right of the public to use public streets for the primary purpose of travel is paramount...." City of Seattle v. P.B. Inv. Co., Inc., 11 Wn. App. 653, 660, 524 P.2d 419 (1974). The conclusion that there is no public purpose to be served by maintaining the street is not supported by fact. D ®C.1 DEX Opposition to proposed vacation of a portion of N. 2 "d Avenue February 13, 2013 Pace 3 of 3 If the requested vacation ordinance is enacted, Buchanan will likely file suit to challenge the validity of the ordinance. As a non - abutting landowner, Buchanan has standing to challenge the validity of an ordinance vacating the proposed portion of N. 2 "d Avenue because the economic impact to Buchanan is a special injury not shared with the general public. See Hoskins, 7 Wn. App. at 960. Unlike the complaining landowners in Hoskins, and other cases in which the owners' complaint has been the deprivation of access to their property, Buchanan will, in addition to suffering a deprivation of the most practical access route, also suffer a decrease in property value and rental value in its commercial office building, and is likely to lose several warehouse tenants who cannot feasibly access the warehouses without the use of N. 2 "d Avenue. See Exhibit 1 to the attached Declaration of Lynn Buchanan. Any vacation ordinance is also likely a partial regulatory taking, for which Buchanan has not been offered just compensation. Article I, section 16 of the Washington Constitution provides, "No private property shall be taken or damaged for public or private use without just compensation having first been made." Under this section, a government body effects an unconstitutional regulatory taking when it enacts a regulation that goes "too far" in infringing the plaintiffs property rights. See, e.g., Orion Corp. v. State, 109 Wn.2d 621, 646, 747 P.2d 1062 (1987). An unconstitutional taking has occurred if the economic impact on the landowner outweighs the public benefit conferred. Guin:ont v. City of Seattle, 77 Wn. App. 74, 81, 896 P.2d 70 (1995). Because there is no public benefit conferred by the vacation, and the economic impact to Buchanan is great, an ordinance vacating N. 2nd Avenue will likely constitute an "as applied" partial regulatory taking. See Thun v. City of Bonney Lake, 164 Wn. App. 755, 760 -61, 265 P.3d 207 (2011). No compensation has been offered to Buchanan to account for the economic impact that vacation will cause Buchanan. Because there is no element of public use associated with the proposed vacation of N. 2 "d Avenue, because there is a public benefit associated with maintaining N. 2 "d Avenue as a public right -of -way, and because any vacation ordinance is likely a partial regulatory taking of Buchanan's property, Buchanan respectfully requests the Hearing Examiner to recommend rejection of Hops Extract's application. Very truly yours, MONTOYA HINCKLEY PLLC er M. inc Z; DOC. INDEX # 0_1 . .0 Terry Altena P0 BOX 106 Sioix Center, Iowa 51250 (712) 540 -9092 I am Terry Mena and I am an owrterlopeu~ator of a seal tick. t have bow dd*kg tnidk sine 23 years. 1 have been th Buchanan Warehouse Ltd on a oauple of occasions and am familiar with the street in fist of the buik tg. In order to de fiver to times warehouse a truck needs to drive aonoss D Street and onto 2rd Avenue. Once on 2nd Averm the driween pull ahead to Oreighlen the smni and traler in preparation for brJ ft into the Buchanan Warehouse property. The semi and trailer is filly on 2nd Ave. Then it is a simple and quick backup onto the p luperty taft but a few seconds. To erder the Buchanan Warahmise propedy without 2" Ave would be a driver's nit MM. First would have to nearly jack knife my truck back and fA kpg to get onto that lot. This might take as tong as 14 minutes and would disrupt traft on 0 Street. With today's passenger Cat' drives, it would be a traffic hazard because there would be those with no patience who would try to drive around my tuck while t was maneuvering W. In my years of experience, most truck drivers would take one look at the situation and not even attempt Ws manuever with their wdm. I dekt+e under penalty of perjury under the laws of the We of Wyashlnpn that ft foregoing is true and correct. Signed at Tenimsee this N day of February 2013. 7 TerranCe Attene DOC. INDEX # a/ 7 ® r i Ili I am the owner of Harris Office Interiors. Harris began doing business in 1947.- Harris bought Budget Office Furniture in 2002. Budget Office Furniture first began renting from Buchanan Warehouse Ltd in 1987. We have continued that relationship by also renting warehouse space from Buchanan Warehouse Ltd. One of the primary reasons we chose to rent from Buchanan Warehouse Ltd was for the ability for semi trucks to deliver our products. We are intimately aware of what it takes for these semi trucks to maneuver their trucks on to this property. Without access to 2nd Avenue, our trucks will be unable to deliver our products directly to our warehouse door. Having to unload our products by forklift or by hand off of D Street is not something we are interested in. I f 2^d Avenue is closed, we will be looking for another warehouse. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. Signed at , Washington this li I may of February 2013. Wayne M ,qAn DOC. INDEX # - / to David Buchanan P 0 Box 39666 Tacoma, WA 98496 (360) 880 -7755 I am David Buchanan and the son of Lynn K Buchanan. Buchanan Warehouse and Scales, Ltd has been in the Buchanan family since my grandfather was a young man. This business has been a source of pride and income since the 1920s. All of the Buchanan grandchildren worked at Buchanan Warehouse Ltd beginning in our teens. I was one of those grandchildren along with my brother William. I have vivid memories of all the trucks that delivered to our warehouse on a daily basis. All of the semi trucks have always used 2nd avenue as a means to entering our yard, either by driving straight in to our yard or for backing up. Cutting of 2"d avenue will do serious harm to the warehousing aspect of our business and the ability William Buchanan and I have always known that at some point in time, one of us would take the helm of Buchanan Warehouse Ltd when our father decides to retire. Both of us are now ready and willing and have been made plans in preparation to do SO. There is also a generation of great grandchildren and any one of them could conceivably continue this business on into the farther future. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct Signed at TA"Cari -& . Washington this 14 David Buchanan day of February 2013. DOC. INDEX # �/ - /�S" L� x ;a)MY, - 3 0 ma C7) XaQM ,joa lY t jr yesA U —H # x3cm •30a r r A A PAP 1-t --I C> n DC Qw� z� O IA� �: ,3.�,.,� . �...._ W D � z .. U O A� H^9 \3� }4-1 �i.(� pwl z U O o u Lm DOC. INDEX # 5 r i -*�_ "& 0 �� �� • � ,, psi�+i�. -�;wJ� ': �, �' , 1 . ,�' ,.__ �• ,.�, - ., � ;, �, r �, �tiu�,, ,moo ��' :;, � f M ^����,. �'�;� � .��o-�� -.,nom .�" �:'�r� s"?:�r � � ._� �� -_ �- �,'�`_ � «�„ ,W.. s., .�.. , w �. � r',� . _�• .. ��. �. ` w '' � '; .- �" r:a ; z� i-` ^' _— , a k_, :.z �r :_ _ � li ■ r. , ,� „�� .,` a .. �� . �qy. F F'.:, d '�.e � SLY.. s4� �_.5` t .J 1 40 i VY r� 1 f d R c t • s_' • • t tr LIP r t v GEOGRAPHIC INFORMATION SERVICES ,+ I r�`� Hops Extract • All Roads Tax Lots I i f� 1 / 2011 Ortho -photo mosaic taken 6/7 - 6114 i Parcel Lot lines are for visual display only Do not use for legal purposes. 0— 50 _ 100 150 _ 200 Feet 1'= 100 feet N rna , Y�.�cirrlap.c� I Copyright (C) 2012 Yakima County This map was derived from several databases. The County cannot accept responsibility fo, any errors. Therefore.there are no warranties for this product - 1 DOC1 INDEX Plot date. Aug 6. 2012 map # �� HOPS EXTRACT CORPORATION OF AMERICA RWV#003-12 EXHIBIT LIST CHAPTER Supplemental Hearing Submittals v ffirbot 10 1-1 Supplemental Materials for Record & Examiner submitted by Mark Fickes (12 pages) 02/21/2013 1-2 Hearing Examiner's Interim Decision 02/25/2013 1-3 Memorandum of Buchanan Warehouse LTD in Response to Hops Extract Corp submitted by Tyler Hinckley (17 pages) 03/05/2013 1-4 Supplemental Declaration of Lynn Buchanan submitted by Tyler Hinckley (31 pages) 03/05/2013 1-5 Letter submitted by Mark Fickes 03/08/2013 HALVERSON] NORTHWEST March 8, 2013 Gary Cuillier 314 N. Second St. Yakima, WA 98901 City of Yakima Planning Division Attention: Bruce Benson 129 N. Second St. 2 "d Floor Yakima, WA 98902 LAW GROUP RECEIVED MAR 0 8 2013 CITY OF YAKIMA PLANNING ply, RE: Hops Extract Right -of -Way Vacation (RWV #003 -12) Gentlemen: Mark E. Fickes Email: mfickes @halversonNW.com Reply to Yekrma Office On behalf of the Petitioner and Applicant, Hops Extract Corporation of America we object to portions of the supplemental materials provided in response to the Examiner's Notice of Interim Decision dated February 26, 2013. The record was held open for the limited purpose of providing "information and argument relative to the letter submitted by" the petitioner, which in turn dealt solely with two issues (1) the potential set -back condition recommended by staff for which the Examiner specifically asked for additional information and (2) legal standards applicable to street vacations. Hops Extract objects to section C pages 6 and 7 of Mr. Buchannan's legal memorandum as it deals with valuation issues not within the Examiner's jurisdiction and not supported in the record (see, City Resolution No. R- 2007 -126). Hops Extract specifically objects to the entire Supplemental Declaration of Lynn Buchannan and the attachments at it fails to deal with any issues "relative to the information and argument' submitted by Petitioner and for which the record was held open. Such material should not be considered by the Examiner in making his recommendation and should be stricken from the record prior to the closed meeting of the City Council. R--eespectful) ,s bmi d th' 8th day of March, 2013. /�� Mark E. Fickes MEF /jk cc: Mark Kunkler, City Attorney Dave Dunham G VrtERNops ExtrachCulber, Benson Itr 3.8.13.doc HALVERSON I NORTHWEST LAW GROUP P.C. Yakima Office: 405 E. Lincoln Avenue I PO Box 22S5o I Yakima, WA 98907 1 P) 509.248.6030 1 f) 509.453.688o Sunnyside Office: 9io Franklin Avenue, Suite i I PO Box 210 I Sunnyside, WA 98944 1 P) 509.8375302 I f) 509.837.2465 halversonNW.com 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29' 30 31 32 33 34 35 BEFORE THE CITY COUNCIL OF THE CITY OF YAKIMA, WASHINGTON In the Matter of a Petition for Vacation of Street Right -of -Way Submitted by: Hops Extract Corporation of America To Vacate 2nd Avenue Right -of -Way Between Lincoln Avenue & West D Street RWV # 003 -12 'Y OF YAKIMA ADMIN. DIVISI ��..,, //MAR -- 5 2013 IJRECTI) FA. ❑PAID FYt❑ SUPPLEMENTAL DECLARATION OF LYNN BUCHANAN 1. I make the following declaration based upon personal knowledge of facts to which I am competent to testify, and to which I would testify at trial. 2. I have been a citizen of Yakima for 82 years, the last 66 of which I have paid taxes, provided jobs, and volunteered for various public duties in Yakima. For 25 years, I was a member of the Yakima City Council. I was Mayor of Yakima for 2 years. 3. When I was a member of the City Council, the Council approved closure of 101h Avenue because Providence Hospital (now Yakima Regional) claimed it needed to have an enclosed walkway to transport patients from their helicopter landing pad on the roof of the building on the west side of 10th Avenue, across 10th Avenue, to the Emergency Department on the east side of 10th Avenue. Providence claimed that the enclosed walkway was necessary for the protection of patients, its proffered public benefit. 10`h Avenue was formerly the longest north -south street in Yakima between 3rd Avenue and 16th Avenue, both of which are reaching capacity. 4. Attached hereto as exhibit 1 and exhibit 2 are photographs that I took on February 27, 2013 that depict the portion of the vacated 10th Avenue that Providence claimed it needed to vacate to build its enclosed walkway, which it claimed it needed to safely transport patients. The photographs show that no enclosed walkway was built; rather, Providence built a parking lot, planted a few trees, and apparently uses the area for shipping and receiving. Once a street is vacated, the owners may do whatever they wish with the property, regardless of the purported reasons or benefits provided in support of vacation. Once the street is vacated, the property owner has fee title to the property, with all rights incident a fee title holder is entitled to. SUPPLEMENTAL DECLARATION OF DW. LYNN BUCHANAN - 1 Its Mot�rrOYA HINCKLEY PI.LC 4702 A Tieton Drive T�— Yakima, WA 98908 �- (509) 895 -7373 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 5. Attached hereto as exhibit 3 is a photograph of a vacated portion of 301h Avenue. Attached hereto as exhibit 4 is a photograph of a vacated portion of 29`h Avenue. I took these photographs on February 27, 2013. The streets, curbs, and gutters were built with City funds, and now the public no longer has the benefit of using those roads. The only benefit provided by vacation of 29`" and 30`h avenues was for Memorial Hospital to have a "campus ". And although vacation, in and of itself, did not provide any public benefit, unlike Hops Extract, Memorial Hospital at least provides a true public benefit through its hospital and medical providers. 6. Attached hereto as exhibit 5 and exhibit 6 are photographs of a vacated portion of Poplar Street. Two blocks of Poplar Street were vacated. The streets, curbs, and gutters were built with City funds, and now the public no longer has the benefit of using those roads. The closure of Poplar clearly benefits only the fruit company owning land on both sides of the road. Presumably, no neighboring land owners opposed the vacation. 7. Several truck drivers who are customers of Buchanan Warehouse Ltd. have complained to us about the closure of streets. Quince is the only street left open between "D" Street and "I" Street, west of J." Avenue. For a significant period of time, until February 27, 2013, Quince had a sign posted on it stating that the road was "closed ". 8. North Second Avenue has been paid for and maintained by the taxpayers of the City of Yakima for well over 125 years. It was not paved 100 feet wide with concrete until relatively recently. I recently spoke with a representative of Central Pre -Mix, who informed me that it costs approximately $6.50 per square foot to pave a city street. At approximately 40,000 square feet, that is $260,000.00 worth of concrete the City of Yakima taxpayers have paid for the surface of North Second Avenue. It's no wonder Hops Extract is eager to buy the land for $28,000.00. -9. Attached hereto as exhibit 7 is a photograph that I took in 1968. This photograph shows a portion of North Second Avenue at issue, with Hops Extract's building in the background. North Second Avenue has been repaved since this photograph, and patched a couple of times in the last 6 years or so. The concrete on North Second Avenue is relatively new. 10. Hops Extract owns the almost one - half -acre parcel to the east of the building to the east of North Second Avenue. According to the Yakima County Assessor's Office, Hops Extract purchased that parcel of real property (formerly Yakima County Assessor's Parcel No. 181324 - 11447) for $70,190.25 on October 13, SUPPLEMENTAL DECLARATION OF DOC LYNN BUCHANAN - 2 �N�Gg MONTOYA HINCKLEY PLLC X 4702 A Tietnn Drive ' T % Yakima, WA 98908 Y. l (509) 895 -7373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17' 18' 19'i 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 2005. That parcel was bare dirt when Hops Extract purchased it. Since then, Hops Extract has paved the parcel and added a drain basin to it. Hops Extract loads and unloads trucks and stacks their hop bales on that parcel, which has subsequently been merged with the parcel lying immediately east of North Second Avenue, to form a single parcel - (See Seg Merge Number SMI10141, 8/26/2011). The paving and adding of a drain basin to that parcel would presumably have at least doubled the cost of that parcel, to approximately $140,000.00. Nonetheless, the City Planning Division has recommended the sale of almost twice as much land, which is already paved, for under 40% of the cost that Hops Extract paid for the bare dirt parcel in 2005. Hops Extract's appraiser has grossly undervalued North Second Avenue at $56,000.00, and failed to compare any sale in "fruit row" when developing his appraisal. 11. Attached hereto as exhibit 8 is a photograph that I took in 1962 that shows the width of the parcel that Hops Extract purchased for $70,190.25 on October 13, 2005. I have included this picture to show that the width of Hops Extract's parcel, as depicted in Exhibit C to the Planning Division's Staff Report is inaccurate. The eastern boundary of Parcel No. 181324 -11448 (Hops Extract's parcel lying east of North Second Avenue) is parallel to the east line of the former railroad right of way, depicted on Exhibit C to the Planning Division Staff Report as that parcel immediately east of Buchanan's property. 12. Attached hereto as exhibit 9 is a photograph that I took on February 27, 2013. During the February 14, 2013 hearing, Hops Extract claimed that trucks that back onto our property via North Second Avenue are illegally driving on the wrong side of North Second Avenue. Exhibit 9 depicts a semi -truck that has traveled on, and is parked on, the wrong side of North Second Avenue to receive a load of material from Hops Extract. Semi - trucks that load and unload material at Hnnc FXtrant routinely drive on the wrong side of the roadway. Our businesses are located in an industrial area where semi - trucks are commonly loading and unloading material. It is common for trucks on North Second Avenue to back up on the roadway, use the wrong side of the roadway, park in the middle of the roadway, and turn around in the roadway. 13. Attached hereto as exhibit 10 are true and correct copies of weight tickets for trucks that have been loaded by Hops Extract. Washington State law limits the maximum weight of loaded semi - trucks to 105,500 pounds gross. Attached hereto as exhibit 11 is a true and correct copy of the maximum gross vehicle weight table in SUPPLEMENTAL DECLARATION OF MONTOYA HINCKLEY PLLC LYNN BUCHANAN - 3 INDU 4702A Teton Due Yaklme, WA 88908 (609) 895 -7373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 RCW 46.44.041. The State maximum weight laws are for the protection of the public and for the protection of state highways. 14. Attached hereto as exhibit 12 is and a true and correct copy of Legal Load Limits, Overweight Loads and Pavements and Bridges, a Washington State Department of Transportation publication, dated June 2006. - According to this WSDOT publication "The relationship between axle weight and pavement damage is not linear, but exponential. For example, a single axle loaded to 40,000 pounds (twice the legal load) causes 16 times more damage than a single axle legally loaded to 20,000 pounds." 15. As the attached weigh tickets show, Hops Extract's trucks are often loaded over the 105,500 pound limit. These tickets show an example of overloads that semi - trucks can be carrying. Trucks carrying goods such as dry freight, canned fruit, packed fruit, and liquids can be overloaded as well. The purpose and primary safety function of the scale is to allow truck drivers to check their gross and axle weights to ensure that they are of legal weight. Truck drivers will take these tickets back to the shipper and unload or redistribute the excess weight over the truck's axles. Professional truck drivers do not want to incur expensive overweight fines. An even bigger concern for the truck driver is the potential to lose steering control or have the brakes fail due to excessive overloading. Buchanan Warehouse and Scales Ltd. serves the public good by helping to ensure the safe traversing of semi - trucks through and on the City's streets. 16. If our scale is shut down, which we believe will be one effect of closing North Second Avenue, semi - trucks will have to travel to Union Gap to check their weight. If they are overweight, those trucks will have to traverse City streets back to the shipper's loading dock so they can unload or redistribute weight to comply with State law. These overloaded trucks will cause additional damage to the City's streets as they travel back and forth from Union Gap. 17. Buchanan Warehouse Ltd. did not receive notice of the February 14, 2013 public hearing until February 8, 2013. We did not have an adequate amount of time to prepare our objection to the proposed application. 18. Hops Extract will have no obligation to build a fence across North Second Avenue once it owns the property. Hops Extract would have no obligation to allow trucks intending to load and unload on the Buchanan Warehouse Ltd. property from driving onto Hops Extract's property to back into the Buchanan property. SUPPLEMENTAL DECLARATION OF DM LYNN BUCHANAN - 4 MON70YA HINCKLEY PLLC INDEX 4702ATieton Drive Yakima, WA 98908 #�� (509) 895 -7373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 19. If the City of Yakima vacates North Second Avenue, as requested by Hops Extract, and requires Hops Extract to pay $28,000.00 for the property, the City of Yakima will literally deprive the City's taxpayers of money the taxpayers should receive. I declare under penalty of perjury that the foregoing is true and correct. Signed this day of March, 2013, at Yakima, Washington. / J / -'LYNN/ BUCHANAN SUPPLEMENTAL DECLARATION OF LYNN BUCHANAN -5 DOC. INDEX MONTOYA HINCKLEY PLLC 4702 A Tieton Dave Yakima, WA 98908 (509) 895 -7373 t v r' S' t $ -� a 1� L 1 a i' �•^ j�f` it ��r � ���i'. 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"J "may 1 I \. i r *, s c �, iIBIT BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET - YAKIMA, WA 98902 (509) 248 -6841 - FAX (509) 248 -1457 Load Y-� Cz-f3 Bins From To Truck ll<a4# -,.,k _3-3 Trailer Z38 b STATE CERTIFIED SCALES BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET - .YAKIMA, WA 98902 237344 (509) 248 -6841 - FAX (509) 248 -1457 FEE CHARGE ❑ PAID ❑ Driver ON Driver OFF WEIGHER Weighmaster No. 38 lc-r C t NL+ G 6, 2D a ZO Q Signature C� EXHIBIT�� Load ��� Puleh Bins From To L Truck :33 Trailer 390 15TATE CERTIFIED SCALES 237522 FEE CHARGE ❑ PAID ❑ Driver O Driven' OFF WEIGHER Weighmaster No. 38 OT� LOP Signature BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET - YAKIMA, WA 98902 (509) 248-6841 - FAX (509) 248-1457 Load Bins From dr,'ts IxAr-'-'ct I 0 b - "I 5 Truck, g&4;�'k Trailer... S 45 STATE CERTIFIED SCALES G 6120 D BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET -.YAKIMA, WA 98902 237344 (509) 248-6841 -- FAX (509) 248-1457 CHARGE ❑ PAID ❑ Driver ON Driver OFF Welghmaster No. 38 jii5! r! cow z Signature EXHIBIT Load tzap— &-dLins From To , KaA, L'&L Truck Trailer -9-TATE CERTIFIED SCALES 237522 CHARGE ❑ PAID ❑ Driver ON, -Driver!' OFF WEIGHER Welghmasler No. 38 Signature `iUCHANAN WAREHOUSE, LTD. ,15 WEST D STREET • YAKIMA, WA 98902 (509) 248-6841 • FAX (509) 248-1457 Load BIns From TO Truck Trailer STATE CERTIFIED SCALES i BUCHAN2 WAREHOUSE, LTD. 237590 115 WEST D STREET * YAKIMA, WA 98902 (509) 248-6841 - FAX (5 9) 248-1457 CHARGE/M PAID ❑ Driver ON Driver Welghmaster No. 38 Signature rn_ EXHIBIT Load , Bins M From To SdIxk- S, 'z STATE 237683 CHARGE K"I P /-q AID -13 1 Driver Driver ,-A 10-IGHER W '�nwster No. 38 off) G6frL+o Signature BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET* YAKIMA, WA 98902 (509) 248-6841 - FAX (509) 248-1457 Load 1 Bins From To Truck Traller,3'bb STATE CERTIFIED ,SCALES cl H�• EXHi.- -, � 0 -3 237977 CHARGE ❑ PAID ❑ Driver ON Driver 91,10 WEIGHER Welghmaster No. 38 Signature BUCHANAN WAREHOUSE, OUSE, LTD. 115 WEST D STREET a YAKIMA, WA 98902 (509) 248-6841 - FAX (509) 248-1457 Load From TO 237987 FEE Bins CHARGE �K PAID Driver Driver PFF O'd 53Trailer O L/ 4p%J --5 --- -M fATE CERTIFJW19CALE HER 111teighmastAGAlo.38 Signature BUCHANAN WAREHOUS,, LTD. 115 WEST D STREET - YAKIMA, WA 98902 (509) 248-6841 - FAX (509) 248-1457 Load From To - STATE CERTIFIED SCALES ® 00 EXHIBIT I O ' 4 PAID . ,10 Driver ;A, Driver -Ci - IWER 'eki master ' No. 38 ' Signature bdCHANAN WAREHOUSE, LTD. 115 WEST D STREET'- YAKIMA, WA 98902 (509) 248-6841 - FAX (509) 248-1457 Load Bins From Trailer -!:;P2--f' STATE CERTIFIED SCALES CHARGE -0 PAID 0 Driver ON Drive '!� OF VMMHER U Welghmwer No. 3E Ci "T7, Signature BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET a YAKIMA. WA 98902 (509) 248 -6841 o FAX (509) 248 -1457 LoadG= eljrS Bins From�n,� -, To Truck Trailer �'C) STATE CERTIFIED SCALES 237716 FEE CHARGE ❑ PAID ❑ Driver ON Driver OFF WEIGHER Wefghmaster No. 38 36. )3o Signature Q EXHIBI, -1-5 BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET ® YAKIMA, WA 98902 (509) 248 -6841 a FAX (509) 248 -1457 Load From To CrfVs3 C.� 23774-7 FEE CHARGE PAID ❑ Driver ON Driv IGHER Weighmaster No. 38 Signature BUCHANAN WAREHOUSE, L.TD. BuCHANAN WAREHOUSE, LTD. 115 WEST D STREET * YAKIMA, WA 98902 115 WEST D STREET * YAKIMA, WA 98902 (509) 248-6841 - FAX (509) 248-1457 237804 (509) 248-6841 - FAX (509) 248-1457 Load 6vjO'IAA Bins From GCS TO Y,OA,ce ✓-w Trailer STATE CERTIFIED SCAT 411,51!ro d"5 z H 41, EXHIBIT CHARGE'U PAID ❑ Driver --QU Driv!'-; .& WETGHER Welghmaster No. 38 W Signature Load �� //r From A ff4-� TO SCALES 237917 t-hh CFrARGE-' IZ PAID ❑ Driver Ohl- D r WItIGHER Welghmaster No. 38 Signature BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET a YAKIMA, WA 98902 (509) 248 -6841 a FAX (509) 248 -1457 238233 Load Bins From To t&As Ira r- Truck ke C107c, �' . Trailer STATE CERTIFIED'SCALES �r l9 pi� u� EXHIBI'. L-7 CHARGE PAID Driver ON Driver. E GHER Weighmaster No. 38 Signature BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET a YAKIMA, WA 98902 (509) 248 -6841 a FAX (509) 248 -1457 Load I wfle 5 Bins From V. To Truc ' °�;�r. ?` Trailer SPATE bERTIFIED SCALES r � - • CHARGE PAID Driver Driver C Weighmaster No. 38 2 Signature z 41- EXHIBIT BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET • YAKIMA, WA 98902 (509) 248-6841 • FAX (509) 248-1457 Load HOP,5 -Me, Bins From Rop—s -Ekkax TO T6 Truck L Trailer' :; STATE CERTIFIES! SCALES' 47 7 Nallift CHARGE ❑ PAID ❑ Driver ON Driver OFF Weighniasfer No. !a Signature BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET • YAKIMA WA 98902 (509) 248-6841 - FAX (509) 248-i457 238574 FEE Load Bins CHARGE ❑ From 1400-s f "'J-CACJ PAID ❑ Driver , .ON Driver CO Trailer r STATE CERTIFIED SCALES WEIGHER Welghmaster No. 38 N Signature BUCHANAN WAREHOUSE, LTD. 115 WEST D STREET a YAKIMA, WA 98902 (509) 248 -8841 a FAX (509) 248 -1457 Load- 0 .5 '4+1, e,;l From R To' 1. Truck. EXHIM. . �7taJr�, f' -Bins CHARGE .O' tx r •Driver OFF.. W ®:BCAI:E9° E14HER = - INetgtimastee ' `Signature 0 0 * � H vn � VEHICLE WEIGHT TABLE (RCW 46.44.041) FEET 2—LES1 3 AXLES 4 ARLES 6 AXLES SAXLES1 7AXLES1 SAXLES1 9 AXLFS 4 3,%001 81,000 86.0001 " "'Slim 97 4E 7Z5M 5 000 87. 000 'No vehicle or combination of vehicles shall operate upon the public highways of this state with a gross load on any *Ingle axle In excess of 20,000 ft., or upon any group of axles In excess of that set forth In the following table, except that two consecutive sets of tandem axles may carry a gross bed of 34,000 Its. each, if the overall distance between the first and last axle* of such consecutive sets of tandem axles Is 36 feet or more. 6 ROOD I 7 34.0001 48 8 a Less 34.000 34.000 000` Over 8 38,000 4 000 7 9 So 4ZAM I 10 40,000 43.5001 79AM 11 59 000 446M 100 000 12 76 0001 46,000 W 000 000 IMADOI 62 76.500 13 1 85.000 90.SDO 99ADO, 101000 53 77,M SIAM I 86AN, 14 96AM 46,600, slim 78,000 SIAM I 86jim 91 600 97 000 16 65 47,000 OZ I 97AIMI, OZOOO 97,600 1 66 16 1 48,000 52,5W MWO 1 67 80,00111, 17 000? 48AW 63;r; 68 KOW 8II 000 18 1 49,500 64,000 59.0001 gt' 1 19 SUM 90.0001 ,.1 1 100.5001 1NIM 61 20 90MO 61000 600 ODA= I KOOO 86AW 91000 21 1 101 600 6T 000 M SOAQ , 1 n0 22 64 62,500 5600 81 67,000 1OZODO 1 66 23 SIIAOO MWO ='6T 103,000 000 66 89.000 24 1 KOOO, 000 000 74,000 0004. 25 1 88 , "_ I 96= 7 105,O00 105A00 I 26 1 K 600 SOADO, 6%000 69 000 70 27 1 scow 1011.500 Z!LOOQ 28 IO&M 67,000 72 71,000 97AN I 82.000 05.6DO 29 73 67161'OOD 1 71' 110 77 000' w 74 30 AkOOO OLSM 1 000 I 66ADO 1 77,4100 77AW I IMODO 31 10%m 6 1 000 1 83"0 IMAM 32 106AN 000 600 MODO 000 1 I 600 90.000 33 96,500 000• OMW 74A00 79.0001 000 34 101 1 64im 000 74.6W MOW I 8114M 91.000 36 IOLSDO I 1 81 000 800 102A001 000' 91' no 82 now 600 IMM 81000 1 900 37 100AM, 104AN tgWO 7 000 6T Sr M 38 I 600 1 71 77.000 000 87 600 39 IqkM 86 or more 77 105,5M 1 O9D 40 73.000 78,000 vw 89000 K600 41 ', T,1 • ry ; . `OLIO 42 000 7 000 000 000 9%1 9600 43 7O OW ODD 000 MMW 44 71,600 75,500 91 000 EXHIBIT _� FEET 4 AXLES1 6 AXLES 6 AXLES1 7 AXLES 1 8 AXLES 9 AXLES 46 7ZODO 1 76,000 81,000 86.0001 " "'Slim 97 4E 7Z5M I 76AM 81 87. 000 47 77 87 000 48 NOW 000 000` I O&M 90000 49 7 000 50 76j= 79AM 840M 59 000 100 000 61 76 0001 000 IMADOI 62 76.500 8016W 1 85.000 90.SDO 99ADO, 101000 53 77,M SIAM I 86AN, 9toollkl 96AM 1 64 78,000 SIAM I 86jim 91 600 97 000 1 65 78AN OZ I 97AIMI, OZOOO 97,600 1 66 79,500 87 600 000 1 67 80,00111, 000? - Q%6OO 1 68 KOW 8II 000 I mom 1 69 e f 85AM gt' 1 60 SUM 90.0001 000 1 100.5001 1NIM 61 1 SDAM 90MO 21 10 00o IOSAM 82 86AW 91000 9416000 1 101 600 IOSAW 63 $T , 1 n0 1 64 a8,QW 92AN 97 ti00 1OZODO 1 66 SIIAOO MW 103,000 1 66 89.000 93 103,500 105.600 67 0004. 1 1 1 88 90AW I 96= 9&500 105,O00 105A00 I ®9 OIAN I 96' 1 000 2?11010&= 1 70 91 "1000 1 101000 1 1011.500 106 71 m—`Irlft AGO 1 IO&M , 72 MOOD 97AN I 11OZOOD I 05.6DO 105.500 73 105.00 I 74 AkOOO OLSM 1 103.000 1 O6.MO I 1whNO 75 10%m 10LOOD I 1 78 gum 99AW IMAM IOLSOO I 106AN 77 10%M, 1 IO&M 1 1 78 96,500 101,000 1000 OLSOO 1 105 79 97AN 101 1 IOMM I IMAM 80 916000 1 O00 10%600 IOLSDO I 1 81 98AW 102A001 110SA01, 1 105,600 82 now 1 000 I IMM IOMDO 1 1 83 100AM, 104AN 11011MID, 1 1 MAN 84 1 04,M I I 600 1 IOSAOO 85 105,0091 105AF i IqkM 86 or more 105,6001 105,5M 1 1 When Inches are Involved: Under 6" Take the Lower, Over 6" Take the Higher (Except Between 8 and 9 Feet) DOT Materials Laboratory Aft legal Load Limits, Overweight loads and Pavements and Bridges June 2006 Washington State follows federal law by placing weight limits on trucks in order to protect pavements and bridges from damage and excessive wear and tear The Washington State Department of Transportation MGDOT) often receives requests to increase truck (or axle) weight limits, or to implement programs that would collect additional fees for compensation of overweight loads. There are several reasons for these requests. Hauling larger loads with fewer trucks can help some industries reduce transportation costs and increase efficiency. Competition and changing market conditions continue to put pressure on freight - dependent industries to lower costs and increase service quality. Transportation costs and flexibility for load size can have a significant effect on economic sustainability, particularly for heavy/bulk commodities and highly priced sensitive goods, such as agriculture, lumber /timber, construction, etc. Its important to us and to the economic vitality of the state that we maintain an efficient freight transportation system and support freight - dependent industries. WSDOT's mission is to keep people and business moving by operating and improving the states transportation systems vital to taxpayers and communities. To do this, we must manage the resources entrusted to us for the highest possible return of value and to protect the citizens' investment in Washingtons transportation infrastructure. it is vital that WSDOT, decision makers and the public understand the trade -offs between economic benefit and increased infrastructure costs that occur when considering increasing load limits. "On major roads, damage caused by overweight trucks - Photo: 190 or by more legally loaded trucks than the road was designed for - can take years to show up..." 20 Washington State LTAP News EXHIBIT `Pounding the Pavement- By Pat Stith, Staff Writer The News & Observer / newsobserver.com Thursday. June 23.2005 INDEX Issue 95, Fall 2007 #-2:7 — What are weight limits and how are they established? limits restrict how much weight can be carried on an axle, a ``.,, �Ie fire or pair of tires, and on the vehicle or vehicle combination in otal. Concerns over the impacts of tire load and gross vehicle weight on a fragile infrastructure were first addressed in the 1913 and 1915 Legislative sessions, respectively. Tire loads began at 400 pounds per inch width of tire and a gross vehicle weight limit was established at 24,000 pounds. In almost every subsequent legislative session, Why are weight limits placed on axles and tires? Tire and a)de limits are imposed for a number of reasons; foremost, is to ensure that loads carried by trucks are transported safely. Having defined load limits allows engineers to design pavements that will hold up under anticipated truck traffic with minimal maintenance required for fixing cracks, ruts, and potholes. Load limits are also necessary for protecting bridges from structural weakening or fatigue, preventing unsafe conditions and early replacement of bridge structures. Current information shows that even slight changes in load limits have major impacts on pavement and bridge performance. Both the axle and tire load affect pavements and bridges. through 1975, load limits have been refined to address changes in infrastructure design and observed effects of vehicle loads. In 1975, federal laws were implemented to provide protection to the highway infrastructure and uniformity among the states for interstate use. The Washington State Legislature adopted the federal weight limits for all state highways. Total axle loads affect large areas of a pavement or a bridge, while tire loads affect smaller, more local'¢ed areas. Narrow width tires concentrate the vehicle's weight on a small area, while wider width tires distribute the weight over a larger area and cause less stress on a single spot. As the total load carried by an axle increases, so does the total load on the pavement or bridge. An axle carrying 20,000 pounds puts the same total weight on a bridge or a pavement whether 6-inch wide or 12 -inch wide tires are used. The total load may cause damage or failure, even if the local point stresses under the tires are not large. Photo: SR 153 Issue 96, Fall 2007 INDEX EXHIBIT 12` ?. Washington State LTAP News 21 # Z- What are the current tire and axle load limits? Loads are typically defined according to the type of axle as well as the number of tires per axle. Legal load limits for the various axle configurations in Washington State are shown in Figure 1 and Table 1. Figure 1. Tire-axle combinations �1 Singe Mole & Single Tres i Single Axle & Dual Tires o e r Tandem Axles & single -nm Tandem Axleu & Dual Tires Table 1. Current Washington State tire and axle bad limfts I Ting /Aide Limit�a Tire Load 600 Ibd'mch of fire v`i M Single Ale 20,000 bs Single Axle with Wo tires 500 Inch of fire width (carrying moue than 10,000 Ibs) Tandem Axle 34.000 bs Goss Vehicle Weigh 105.500 bs Most of the current state highway system, and all new state highways, are designed using these load limits. Some of the older highways were not built to current design standards and require work to upgrade to today's standards. As designed, these highways can withstand current legal loads without damaging the pavement structure. Maintenance varies by pavement type: • The surface of asphalt pavements wears out and needs to be replaced on a regular cycle, about every 15 years, but the pavement below the worn surface remains. Repladng just the surface is much less expensive than replacing the full depth of the paverwit structure. • Concrete pavements are designed to handle the weight of legal loads and last for up to 50 years. These pavements need to be 'gmund" smooth about every 25 years to remove wear caused by studded tires. This is much less expensive than replacing cracked and broken concrete. Washington State has an inventory of 2,975 bridges that have a length of 20 feet or more: • 16 percent are designed for trucks (H10, H15, H20) weighing 20 tons (40,000 Ibs) or less. • 6 percent are designed for trucks (HS15) weighing 27 tons (54,000 Ibs). • 70 percent are designed for trucks (HS20) weighing 36 tons (72,000 Ibs). • 8 percent are designed for trucks (HS25 or HL93) weighing more than 36 tons (72,000 Ibs). Note: The American Association of State and Highway Transportation Officials (AASHTO) designates standard truck loadings for designing highway structures. Type "H" is for Highway Truck, "HS" for Highway semi - trailer and "HL" for Highway Lane loading. 22 Washington State LTAP News' INDEX EXHIBIT 2 "� Issue 95, Fail 2007 �_ # �� r What happens to pavements exposed to loads they were not designed to handle? Repeated overweight loads, or an increased n r Aber of legal loads, -°,.- ' -'L mage asphalt pavements by overstressing the pavement structure, causing cracking and eventually potholes. Corxxete pavenients also break and crack under repeated overweight bads, or an irxxeased number of legal bads, making them rough and decreasing the It of the pavemer -t The relationship between axle weight and pavement damage is not linear, but exponential. For example, a single axle loaded to 40,000 Ibs (twice the legal load) causes 16 times more damage than a single axle legally loaded to 20,000 lbs. Many highway pavements around the state do not have sufficient thickness to carry heavy loads and without bad restrictions would suffer pavement failures, as shown in Figure 2 and Figure 3. Unlike bridges, a single overloaded truck rarely causes a spectacular pavement failure. Many repetitions of ticks beyond the current legal load limit, or above the original estimated number of trucks, must occur before you see damage in the form of extensive pavement cracking or potholes. unfortunately, by the time this damage is visible the pavement structure may have been damaged to the point where It must be replaced — which is an expensive and time miming process. Figure 2. Cracking due to Heavy Loads (SR -532 near 1 -6) Figure 3. Rutting due to Heavy Loads 0-90, Spokane, Weigh Scale) What are the choices and related costs for pavements? For asphalt pavements, which constitute the majority of roadways in Washington State, WSDOT calculates that the increased pavement depth needed to handle larger truckloads are as shown in Figure 4 (dual single axle) and Figure 5 (dual tandem axle). ..� IiSO L :.✓ ad Ytle -.� Figure 4. Impact of Single Dual Axle Load Increase on Pavement Thickness Figure 5. Impact of Tandem Dual Axle Load Increase on Pavement Thickness If legal load limits are increased, there are two basic choices for preserving current pavement infrastructure: Spend more money to handle the increased load by increasing the pavement thickness of existing roadways and changing designs for new pavement, or Spend more money repairing the damage caused by the increased loads. Increasing the axle load on a dual single tire axle by 10,000 pounds would result in an immediate need of $900 million to ensure additional pavement damage does not occur . Under the same scenario, an increase of 10,000 pounds on the dual tandem axle would require just under $500 million. There would also be associated societal costs and inconveniences due to the closure of highways for repairs or upgrades. Issue 96, Fall 2007 INDEX EXHIBIT _ Washington State LTAP News 23 What happens to bridges exposed to loads that they were not designed to handle? Concrete and structural steel bridges exposed to overweight loads, or increased legal load limits, most often suffer from fatigue. Fatigue results from repetitive stress, much like bending a paper clip back and forth repeatedly, eventually the metal fatigues and breaks. Structural steel fatigue cracks continue until the carrying capacity of the affected structure is reduced to the pant that it will no longer support a load. In steel reinforced concrete bridges, fatigue cracks the concrete and allows water or other contaminants to affect the steel reinforcing bars. The bars corrode and cause expansion, which breaks off the concrete cover and creates more exposure for corrosion. This process continues until the can-ying capacity is reduced to the pant that the bridge can no longer support a load. The heavier and more frequent the loads, the faster these fatigue cracks will grow in size and length. Bridges consist of several different structural elements, combining together to form the complete bridge. Dads greater than the current legal loads affect these structural elements in different ways. Bridge decks must transfer the wheel load to the main support beams, which in turn transfer the load to the foundation supports. Each of these elements can experience fatigue and fatigue damage from larger than legal loads (Figures 6, 7 and 8). Figure 6. Concrete Roadway Deck Section and Fatigue Location Figure 7. Beam "Bending" Failure 24 Washington State LTAP News ,ow ffzm�-' DIM Figure 8. Beam Shaer Falure INDEX EXHIBIT —L-!Z�� issue 95, Fail 2007 Allowable load limits have increased over the years and bridges designed for lighter loads have riot been strengthened. Partly because of repeated heavy loads, many bridges are showing signs of structural distress. Signs of distress include fatigue cracking of structural steel (Figure 9) and corrosion of the reinforcing steel in concrete members (Figure 10). This can lead to bridge closure or collapse (Figures 11 and Figure 12). Figure 9. Fatigue Crack in Structural Steel Beam 0 -5, Nisqualy RKw Bridge) Figure 10. Corroding Reinforcing Steel Bars in Concrete Beam (SR -2, Ebey Island Viaduct) are the choices and related costs for bridges? To maintain safe bridges for everyone, WSDOT engineers need to reduce allowable loads as bridges suffer from fatigue damage. A bridge with fatigue damage may first be 'load restricted making it illegal for any overloaded truck to use the bridge. As the fatigue damage progresses, the bridge's capacity to carry heavy loads decreases and the bridge is 'load posted ". This restricts the allowable weight of trucks below typical legal weight limits. The final step for a seriously fatigued bridge is total closure. Since bridges have a limited load capacity, increasing the maximum allowable load would accelerate the need for load restrictions on affected bridges as they become fatigued. These bridges could also need to be entirely dosed, decreasing mobility of people and business. Alternatively, the bridges would need to be strengthened to accommodate heavier loads or replaced before the expected life of the structure; both would require significant costs dependent on the affected structure. Figure 11. Bridge Falure due to Truck Loading (old SR -106, Skokomish River; circa 1984) Figure 12. Bridge Failure due to Tnx:k Loading (old SR -106, Skokornish River, circa 1984) DM INDEX Issue 96. Fall 2007 EXHIBIT I_? Washington State LTAP News 25 For more information contaCt This briefing paper provides a brief overview of weight restrictions in Washington State and the associated costs of increasing load limits. For more information, please contact: Pavements: Linda Pierce Tom Baker (360) 709 -5470 (360) 709 -5401 piercel @wsdot.wa.gov bakert@wsdot.wa.gov Bridges: Mario R. Wallace (360) 570 -2560 wallacm@wsdot.wa.gov Harvey Coffman (360) 570 -2556 coffmah ®wsdot.wa.gov Jugesh Kapur (360) 709 -7200 kapudu @wsdot.wa.gov Freight Strategy and Policy Office: Elizabeth Stratton (206) 464 -1372 stratte @wsdot.wa.gov DOC. INDEX #- _7_ 26 Washington State LTAP News EXHIBIT J?, Issue 95, Pali 2007 ,� 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 BEFORE THE CITY COUNCIL OF THE CITY OF YAKIMA, WASHINGTON In the Matter of a Petition for Vacation of Right -of -Way Submitted by: Hops Extract Corporation of America To Vacate 2nd Avenue Right -of -Way Between Lincoln Avenue & West D Street RWV # 003 -12 YAKIMA IN. DIVISIO AR - 5 20D 8ftEC'VD FAXED❑ ❑PAID FYI❑ MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET COMES NOW Buchanan Warehouse Ltd. and, pursuant to the Hearing Examiner's Interim Decision, submits this additional memorandum in response to the memorandum that Hops Extract Corporation of America's (Hops Extract's) filed after the close of the February 14, 2013 public hearing. For the following reasons, and those already in the record, the Hearing Examiner should recommend denial of Hops Extract's petition. A. The Hearing Examiner should recommend denial of Hops Extract's vacation application, and the City Council should deny the application, because vacation serves no legitimate public purpose. The proposed vacation will not provide any public benefit. Any city ordinance enacted providing for the vacation of a public street "must be enacted for a public use." Hoskins v. City of Kirkland, 7 Wn. App. 957, 959 -60, 503 P.2d 1117 (1972); see Young v. Nichols, 152 Wash. 306, 308, 278 P. 159 (1929)( "[I]n all instances, the order of vacation must have within it some element of public use.... "). While vacation for public use may be valid even if some private benefit results, vacation of a public street solely for private purpose is illegal. Capitol Hill Methodist Church of Seattle v. City of Seattle, 52 Wn.2d 359, 368, 324 P.2d 1113 (1958). The City should deny Hops Extract's vacation application because vacation serves a purely private benefit. 1. Hops Extract's claim that vacation is necessary to allow it to comply with the Food Safety Modernization Act is inaccurate. Hops Extract's claim that vacation is necessary for Hops Extract to comply with the Food Safety Modernization Act (FSMA) and Food and Drug Administration (FDA) MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM MOPIT0702ATetonoLEY PLLC IN SUPPORT OF PETITION TO VACATE STREET - 1 a�)M737oa DOC. INDEX t�l �-�� 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19' 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 regulations issued pursuant to the FSMA is untrue and misleading. In its application, Hops Extract states that "this proposed right -of -way vacation is also being requested to comply with the [FDA] guidelines for the [FSMA]," and cites several "guidelines" with which Hops Extract claims it must comply. The guidelines cited in Part III - Written Narrative of Hops Extract's petition for vacation are taken from an FDA webpage, which, at the top of the page, states that the guidelines are "Nonbinding Recommendations ". 1 The FDA further states, on the same page, that "This guidance represents the Food and Drug Administration's (FDA's) current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. You can use an alternative approach if the approach satisfies the requirements of the applicable statutes and regulations." (emphasis added). Alternative approaches listed in the guidelines, but not in Hops Extract's petition, include: • Add a receptionist or security guard at facility entrance to screen employees, contractors and visitors. • Hire additional surveillance personnel to patrol the facility. • Conduct daily security checks of the premises for signs of tampering. • Install surveillance cameras. • Periodically monitor security camera feeds. The guidelines above are not exhaustive, and many other alternatives to fencing off Second IAvenue exist. In any event, the guidelines above and those cited by Hops Extract in its petition are not binding. Buchanan respectfully requests the Hearing Examiner and the City Council to review the FSMA and any FDA regulation issued thereunder to see that Hops Extract's claimed need to comply with the FSMA by having North Second Avenue vacated and ostensibly building fences across North Second Avenue is false. Neither the FSMA, any FDA regulation, nor even a proposed FDA rule require vacation of North Second Avenue to allow Hops Extract to build fences across Second Avenue, around their facilities, or in any location on their property. Two provisions of the FSMA pertain to the protection of food against intentional tampering: Section 103 (Hazard analysis and risk -based preventive controls) and Section 106 (Protection against intentional 1 The FDA website that sets forth the nonbinding recommendations cited in Hops Extract's applications can be found at ho?Hwww.accessdata.fda.?ov/ scripts / fooddefensemitigationstrategies /Card.cfm ?card =64. MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM MONTOY z HINCKLEY *twD B PLLC Yakima, WA 9M IN SUPPORT OF PETITION TO VACATE STREET - 2 DOC. INDEX (609) 89&73n # -7: `3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16, 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 adulteration), which are codified at 21 U.S.C. § 350g and 21 U.S.C. § 350i, respectively. (Copies of 21 U.S.C. §350g and 21 U.S.C. §350i are attached hereto as exhibit 1). The FDA has issued a proposed rule under 21 U.S.C. § 350g, but no regulation. That proposed rule merely "proposes firms have written plans in place to identify potential hazards, put in place steps to address them, verify that the steps are working, and outline how to correct any problems that arise. "2 (http: / /www.fda.gov/ Food /FoodSafety /FSMA/ucm334120.htm, visited March 5, 2013). Nothing in the proposed rule requires the construction of fences, or the implementation of any of the "guidelines" set forth in Hops Extract's petition. Indeed, nothing in the proposed rule specifies any particular manner of compliance or any specific preventative measures that any company must take. The FDA has not even issued a proposed rule for Section 106 (21 U.S.C. 350i). Hops Extract's claimed need for vacation to comply with the FSMA is an attempt to manufacture a "public benefit" that justifies vacation. In fact, some portions of Hops Extract's facilities Hops Extract may be exempt from compliance with the FSMA. "Sections 418OHm) of the FD &C Act3 and sections 103(c)(1)(D) and (g) of FSMA provide authority for certain exemptions and modifications to the requirements of section 418 of the FD &C Act ", including "the storage of raw agricultural commodities (other than fruits and vegetables) intended for further distribution or processing." Proposed Rule at pages 3669 Federal Register Vol. 78 No. 11 (January 16, 2013). Hops Extract does not cite to any specific provision of the FSMA that it claims requires Hops Extract to take any safety precautions it claims as a basis for seeking vacation. The Hearing Examiner and City Council should not be persuaded by Hops Extract's manufactured "public benefit ". 2. The purported "greater protection of food - grade" products that Hops Extract claims as a "public benefit" served by vacation is pretense. Nothing in the record suggests that the current conditions permit contamination and tampering of its food -grade products, or that contamination and tampering is a current problem at Hops Extract. Nonetheless, Hops Extract claims that vacation of Second Avenue is necessary to protect its food -grade products from contamination and tampering. Nothing in Hops Extract's application, or in any of the materials Hops Extract has submitted, explains '' The proposed rule can be viewed here: http:// www. regu lations.gov / #!documentDetail;D= FDA -201 ]- N -0920- 0001 3 The FSMA amended portions of the FD &C Act and created some new provisions. MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE MONTOYA HINCKLEY PLLC TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM 4702AT*WDnve Yakima, WA 98908 IN SUPPORT OF PETITION TO VACATE STREET - 3 (509)895.7373 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23. 24' 25' 26 27 28 29 30 31 32 33 34' 35 how vacation of Second Avenue affords protection, the extent of protection, and/or the desirability or necessity of greater protection than that already present at Hops Extract. In any event, to the extent that the public benefits from greater protection of Hops Extract's food products, the benefit is derived simply from better protected food products, not from allowing Hops Extract to protect food products in the manner that is cheapest, easiest, and that provides the greatest competitive advantage for Hops Extract. 3. Hops Extract cannot create safety hazards and then claim that vacation is necessary to mitigate those hazards. Hops Extract, like Michelsen and other companies who operate on multiple parcels in the same industrial area, chose to operate on both sides of North Second Avenue. It cannot now claim that mitigation of the alleged safety hazards its operations create, in the location in which it chose to operate, is truly a "public benefit" and not a purely private benefit to Hops I Extract. Hops Extract offers nothing but mere assertions to show that traffic safety will improve for other pedestrian and vehicular traffic. Nothing in the record shows that pedestrian and vehicular traffic will become safer by vacating Second Avenue and diverting pedestrian and other vehicular traffic that once traveled on Second Avenue to the surrounding streets. Nothing in the record suggests that the purported unsafe conditions caused by Hops Extract's current operations cannot be ameliorated by better management practices on Hops Extract's behalf, as opposed to vacating North Second Avenue. While traffic safety for Hops Extract's employees may increase with vacation, improved safety for Hops Extract's employees is not a "public benefit" of the proposed vacation, particularly where Hops Extract alone is causing the alleged hazard it claims vacation will prevent. 4. Hops Extract's employment of taxpayers and payment of property taxes is not a "public benefit" resulting from vacation because its employment of taxpayers and payment of taxes will continue regardless of vacation. Hops Extract's claim that vacation will provide a public benefit because it employs people is evidence of the lack of any real public benefit to be served by vacation. The City should not find that a public benefit exists because Hops Extract employs 45 taxpayers, and pays property taxes, and vacation will generate additional property tax revenue. Under that rationale, every proposed vacation that benefited any private business or individual would satisfy the "public benefit" criteria, regardless of whether vacation provided any true public benefit. City policy and state law requires more. See Hoskins, 7 Wn. App. at 959 -60 (Any city ordinance enacted providing for the vacation of a public street "must be enacted for a public use. "). Hops Extract will employ personnel and pay taxes regardless of whether the City vacates North Second Avenue. MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE MONTOYA HINCKLEY PLLC TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM 4702 A T*tM Dnve IN SUPPORT OF PETITION TO VACATE STREET - 4 Ya5)895 -7asoe IDOC. INDEX (�) 89s -7373 # _ -.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 271 28 29 30 31 32 33 34 35I Hops Extract wants to gain a competitive advantage by purchasing a public right of way that lies between its facilities at a fraction of the property's market value. Hops Extract does not need the vacation "to help it run a safe, efficient and competitive business ", as it claims. Vacating Second Avenue does not truly provide any public benefit; it provides Hops Extract purely private profit. B. The Hearing Examiner should recommend denial of Hops Extract's vacation application, and the City Council should deny the application, because vacation of North Second Avenue is inappropriate given existing land use. The proposed vacation is inconsistent with existing land uses in the area. Specifically, the proposed vacation is inconsistent with Buchanan Warehouse Ltd.'s use of its property lying north of the intersection of West "D" Street and North Second Avenue. A portion of the February 14, 2013 hearing, and material that Hops Extract submitted following the hearing, focused on the location of a fence on North Second Avenue that would permit semi - trucks to pull onto what is currently North Second Avenue and back into the warehouses on Buchanan's property. The undisputed testimony elicited during the hearing was that backing onto Buchanan's property via North Second Avenue is the only feasible manner in which semi - trucks can access the warehouse facilities on Buchanan's property. It is also undisputed that several of Buchanan's clients have indicated they will no longer do business with Buchanan if North Second Avenue is vacated. If North Second Avenue is vacated and sold to Hops Extract, Buchanan will have no right to use Hops Extract's property absent an easement or other usage right, which it will be required to purchase from Hops Extract. Accordingly, even if vacation is conditioned upon a requirement that any fence be build a certain distance from West "D" Street, Buchanan's customers will have no right to enter upon Hops Extract's property to access Buchanan's property —the only feasible way of entering Buchanan's property — without Hops Extract's permission. Hops Extract has no obligation to provide that permission. Moreover, during the February 14, 2013 hearing, a representative of Michelsen Packaging Company testified that its trucks regularly use the portion of North Second Avenue that Hops Extract seeks to vacate in connection with its operations. The proposed vacation is inconsistent with, and inappropriate in light of, the current use of North Second Avenue. MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDI Im IN SUPPORT OF PETITION TO VACATE STREET - 5 DOC. INDEX # Z_ MONTOYA HINCKLEY PLLC 4702 A Tieton Drive 'akima, WA 96908 (509) 895 -7373 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 C. Should the City decide to vacate North Second Avenue, the City should require a more accurate appraisal of the vacated portion of North Second Avenue and should require Mops Extract to pay the full appraised value. Should it vacate North Second Avenue according to the Planning Staff's recommendation, the City of Yakima is poised to sell a prime piece of industrial real estate, in the heart of Yakima's industrial area, for pennies on the dollar, at the expense of Yakima's taxpayers. In actuality, if it vacates North Second Avenue, the City will create one large lot, which has a much greater value than the sum of its components considered in isolation. Also, the cost of the concrete alone is far greater than the purported appraised value of North Second Avenue according to Hops Extract's appraiser. According to a representative of Central Pre -Mix, it costs approximately $6.50 per square foot to pave a city street. (Supplemental Declaration of Lynn Buchanan, filed March 5, 2013, hereinafter "Supp. Dec. of Buchanan" at 18). At approximately 40,000 square feet, that is $260,000.00 worth of concrete the City of Yakima taxpayers have paid for the surface of North Second Avenue. Id. Hops Extract's appraisal does not appear to place any value on the fact that the property is paved with over $200,000.00 of concrete. Furthermore, the appraiser neglected to obtain a comparable sale within the same industrial area of the subject property. (See Appraisal of Davis Appraisal Company, Chapter E, Exhibit E -1 of Hearing Examiner's Record). Hops Extract owns the almost one - half -acre parcel to the east of the building to the east of North Second Avenue. (Supp. Dec. of Buchanan, ¶ 10). According to the Yakima County Assessor's Office, Hops Extract purchased that parcel of real property (formerly Yakima County Assessor's Parcel No. 181324- 11447) for $70,190.25 on October 13, 2005. Id. Hps Extract's appraisal does not mention that an approximately one -half -acre parcel within about 100 feet of North Second Avenue sold to Hops Extract for over $70,000.00 seven years ago. Moreover, that parcel was bare dirt when Hops Extract purchased it. Id. Since then, Hops Extract has paved the parcel and added a drain basin to it. Id. Hops Extract loads and unloads trucks and stacks their hop bales on that parcel, which has subsequently been merged with the parcel lying immediately east of North Second Avenue, to form a single parcel (See Seg Merge Number SM 110141, 8/26/2011). Id. The paving and adding of a drain basin to that parcel would presumably have at least doubled the cost of that parcel, to approximately $140,000.00. Id Nonetheless, the City Planning Division has recommended the sale of almost twice as much land, which is already paved, for under 40% of the cost that Hops Extract paid for the bare dirt parcel in 2005. Id. Hops Extract's appraiser has grossly undervalued North Second Avenue at $56,000.00. The City, if it decides to vacate North Second Avenue, MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM Mor�TO4 Q A etwM EY PLLC Yakima, WA 98908 IN SUPPORT OF PETITION TO VACATE STREET - 6 DOC. INDEX (W9)89s -n" # _T 3 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 should require another appraisal and should sell the property at a price that is more in line with the sale price of that parcel that Hops Extract purchased in October of 2005. The City has authority to charge full appraised value, not just 50% of the appraised value. RCW 35.79.030 states that "If the street or alley has been part of a dedicated public right -of -way for twenty -five years or more ... the city or town may require the owners of the property abutting the street or alley to compensate the city or town in an amount that does not exceed the full appraised value of the area vacated." The undisputed record evidence is that Ithe portion of North Second Avenue that Hops Extract seeks to vacate has been a public right -of -way for over 125 years. Accordingly, the City should require Hops Extract to compensate the City for the full newly appraised value of the area vacated. ID. The City's discretion to deny Hops Extract's application is extremely broad. The cases that Hops Extract cites with respect to the City's discretion to vacate apply with equal force to the City's decision to deny Hops Extract's application. The rule of law set forth in Branchero v. City Council of City of Seattle, 2 Wn. App. 519, 523, 468 P.2d 728 (1970) and London v. City of Seattle, 93 Wn.2d 657, 662, 611 P.2d 781 (1980) is essentially that the City Council has broad authority to deny or accept a petition to vacate a right -of- way, as the City is in the best position to determine the propriety of the proposed vacation. All of the cases that Hops Extract cites apply to review of the City's decision on an application for vacation. The Washington State legislature acknowledges the City's broad discretion, stating that "If the hearing is before a hearing examiner, the hearing examiner shall, following the hearing, report its recommendation on the petition to the legislative authority, which may adopt or reject the recommendation." RCW 35.79.030 (emphasis added). "Whether it is expedient to discontinue a highway is a question for legislative decision...." Ponischil v. Hoquiam Sash & Door Co., 41 Wash. 303, 307, 83 P. 316 (1906) (citations omitted). In exercising its broad discretion, however, the City is still guided by the rule that any city ordinance enacted providing for the vacation of a public street "must be enacted for a public use." Hoskins v, 7 Wn. App. at 959 -60; see Young v., 152 Wash. at 308 ( "[I]n all instances, the order of vacation must have within it some element of public use.... "). Thus, although the City's discretion to deny or approve is broad, the City has slightly less discretion to approve vacation than to deny it. MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET - 7 DOC. INDEX MONTOYA HINCKLEY PLLC 4702 A Tieton Drive Yakima, WA 98908 (509) 8957373 1. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 E. Buchanan Warehouse Ltd. has standing to challenge Bops Extract's petition because Buchanan Warehouse Ltd. will suffer a special injury if the City vacates North I Second Avenue. As a non - abutting landowner, Buchanan has standing to challenge the validity of an ordinance vacating the proposed portion of North Second Avenue because the economic impact to Buchanan is a special injury not shared with the general public. See Hoskins, 7 Wn. App. at 960 (a nonabutting landowner who suffers a special injury has standing to challenge legality of vacation) (citing Yarrow First Associates v. Clyde Hill, 66 Wn.2d 371, 403 P.2d 49 (1965)). Unlike the complaining landowners in Hoskins, and other cases in which the owners' complaint has been the mere deprivation or inconvenience of access to their property, Buchanan will, in addition to suffering a deprivation of the most practical access route, also suffer a decrease in property value and rental value in its commercial office building, and is likely to lose several warehouse tenants who cannot feasibly access the warehouses without the use of North Second Avenue. It is undisputed that several of Buchanan's clients have indicated that they will seek other warehouses to store their materials in if North Second Avenue is vacated. Because Buchanan will suffer a special injury that differs in kind than the injury suffered by the general public should vacation occur, Buchanan will have standing to challenge the validity of any ordinance vacating North Second Avenue. Regardless, the legal standing issue is not before the Hearing Examiner or the City Council at this point because any member of the public who opposes the proposed vacation is entitled to be heard before the City Council renders its decision. III. CONCLUSION For the reasons stated herein, the reasons set forth in the materials timely submitted to the Hearing Examiner on February 14, 2013, and for the reasons espoused by those in opposition to Hops Extract's petition during the February 14, 2013 hearing, the Hearing Examiner should recommend denial of Hops Extract's petition, and the City Council should deny Hops Extract's petition. Respectfully submitted this 5th day of March, 2013. MONTOYA HINCKLEY PLLC Attorneys for Buchanan Warehouse Ltd. By: TY IN , WSBA 37143 MEMORANDUM OF BUCHANAN WAREHOUSE LTD. IN RESPONSE MONTOYA HINCKLEY PLLC TO HOPS EXTRACT CORP. OF AMERICA'S MEMORANDUM 47o2ArietonDrive Yakima, WA 98908 IN SUPPORT OF PETITION TO VACATE STREET - 8 DOC. INDEX (509)895.7373 EXHIBIT I DM 1NI% # -� Page 127 TITLE 21 -FOOD AND DRUGS of the Secretary, permit inspection of such records as provided for sections 350c of this title. (k) Request for information Except as provided by section 350d(a)(4)1 of this title, section 552 of title 5 shall apply to any request for information regarding a record in the Reportable Food Registry. (1) Safety report A report or notification under subsection (d) shall be considered to be a safety report under section 379v of this title and may be accom- panied by a statement, which shall be part of any report released for public disclosure, that denies that the report or the notification con- stitutes an admission that the product involved caused or contributed to a death, serious injury, or serious illness. (m) Admission A report or notification under this section shall not be considered an admission that the article of food involved is adulterated or caused or contributed to a death, serious injury, or seri- ous illness. (n) Homeland Security notification If, after receiving a report under subsection (d), the Secretary believes such food may have been deliberately adulterated, the Secretary shall immediately notify the Secretary of Homeland Security. The Secretary shall make relevant information from the Reportable Food Registry available to the Secretary of Homeland Security. (June 25, 1938. ch. 675, §417, as added Pub. L. 110 -85, title X. §1005(b), Sept. 27, 2007, 121 Stat. 965; amended Pub. L. 111-353, title II, §211(a), Jan. 4, 2011. 124 Stat. 3951.) REFERENCES IN TEXT Section 350d(a)(3),(4) of this title, referred to in sub- secs. (e)(1) and (k), was redesignated section 350d(a)(4). (5), respectively, of this title by Pub. L. 111 -353, title I, §102(a)(2), Jan. 4. 2011, 124 Stat. 3887. AMENDMENTS 2011 - Subsets. (f) to (n). Pub. L. 111 -353 added subsecs. (f) to (h) and redesignated former subsecs. (f) to (k) as (1) to (n), respectively. EFFECTIVE DATE Pub. L. 110 -85, title X, §1005(e), Sept. 27, 2007. 121 Stat. 959, provided that: -The requirements of section 417(d) of the Federal Food. Drug. and Cosmetic Act [21 U.S.C. 350f(d)], as.added by subsection (a) [probably should be (b)]. shall become effective 1 year after the date of the enactment of this Act [Sept. 27, 20071." CONSTRUCTION OF 2011 AMENDMENT Nothing in amendment by Pub. L. 111 -353 to be con- strued to apply to certain alcohol - related facilities, to alter jurisdiction and authorities established under cer- tain other Acts, or in a manner inconsistent with inter- national agreements to which the United States is a Party, see sections 2206. 2251, and 2252 of this title. FrcDrms Pub. L. 110 -85, title X, §1005(a). Sept. 27, 2007, 121 Stat. 964, provided that: "Congress makes the following findings: 3So in original. Probably should be --in section' § 350g "(1) In 1994, Congress passed the Dietary Supple- ment Health and Education Act of 1994 (Public Law 103 -417) [see Short Title of 1994 Amendments note set out under section 301 of this title] to provide the Food and Drug Administration the legal framework which is intended to ensure that dietary supplements are safe and properly labeled foods. "(2) In 2006, Congress passed the Dietary Supple- ment and Nonprescription Drug Consumer Protection Act (Public Law 109 -462) [see Short Title of 2006 Amendment note set out under section 301 of this title] to establish a mandatory reporting system of serious adverse events for nonprescription drugs and dietary supplements sold and consumed in the United States. "(3) The adverse event reporting system created under the Dietary Supplement and Nonprescription Drug Consumer Protection Act is intended to serve as an early warning system for potential public health issues associated with the use of these products. 11(4) A reliable mechanism to track patterns of adulteration in food would support efforts by the Food and Drug Administration to target limited in- spection resources to protect the public health." GUIDANCE Pub. L. 1105, title X, § 1005(!), Sept. 27, 2007, 121 Stat. 969, provided that: "Not later than 9 months after the date of the enactment of this Act [Sept. 27, 2007j, the Secretary [of Health and Human Services] shall Issue a guidance to industry about submitting reports to the electronic portal established under section 417 of the Federal Food. Drug, and Cosmetic Act [21 U.S.C. 350f] (as added by this section) and providing notifications to other persons in the supply chain of an article of food under such section 417." § 350g. Hazard analysis and risk based preven- tive controls (a) In general The owner, operator, or agent in charge of a facility shall, in accordance with this section, evaluate the hazards that could affect food man- ufactured, processed, packed, or held by such fa- cility, identify and implement preventive con- trols to significantly minimize or prevent the occurrence of such hazards and provide assur- ances that such food is not adulterated under section 342 of this title or misbranded under sec- tion 343(w) of this title, monitor the perform- ance of those controls, and maintain records of this monitoring as a matter of routine practice. (b) Hazard analysis The owner, operator, or agent in charge of a facility shall - (1) identify and evaluate known or reason- ably foreseeable hazards that may be associ- ated with the facility, including - (A) biological, chemical, physical, and ra- diological hazards, natural toxins, pes- ticides, drug residues, decomposition, para- sites, allergens, and unapproved food and color additives; and (B) hazards that occur naturally, or may be unintentionally introduced; and (2) identify and evaluate hazards that may be intentionally introduced, including by acts of terrorism; and (3) develop a written analysis of the hazards. (c) Preventive controls The owner, operator, or agent in charge of a facility shall identify and implement preventive $ 350g TITLE 21 —FOOD AND DRUGS Page 128 controls, including at critical control points, if any, to provide assurances that — (1) hazards identified in the hazard analysis conducted under subsection (b)(1) will be sig- nificantly minimized or prevented: (2) any hazards identified in the hazard analysis conducted under subsection (b)(2) will be significantly minimized or prevented and addressed, consistent with section 3501 of this title, as applicable; and (3) the food manufactured, processed, packed, or held by such facility will not be adulterated under section 342 of this title or misbranded under section 343(w) of this title. (d) Monitoring of effectiveness The owner, operator, or agent in charge of a facility shall monitor the effectiveness of the Preventive controls implemented under sub- section (c) to provide assurances that the out- comes described in subsection (c) shall be achieved. (e) Corrective actions The owner, operator, or agent in charge of a facility shall establish procedures to ensure that, if the preventive controls implemented under subsection (c) are not properly imple- mented or are found to be ineffective — (1) appropriate action is taken to reduce the likelihood of recurrence of the implementa- tion failure; (2) all affected food is evaluated for safety; and (3) all affected food is prevented from enter- ing into commerce if the owner, operator or agent in charge of such facility cannot ensure that the affected food is not adulterated under section 342 of this title or misbranded under section 343(w) of this title. (f) Verification The owner, operator, or agent in charge of a facility shall verify that — (1) the preventive controls implemented under subsection (c) are adequate to control the hazards identified under subsection (b); (2) the owner, operator, or agent is conduct- ing monitoring in accordance with subsection (d); (3) the owner, operator, or agent is making appropriate decisions about corrective actions taken under subsection (e); (4) the preventive controls implemented under subsection (c) are effectively and sig- nificantly minimizing or preventing the occur- rence of identified hazards, including through the use of environmental and product testing programs and other appropriate means; and (5) there is documented, periodic reanalysis of the plan under subsection (i) to ensure that the plan is still relevant to the raw materials, conditions and processes in the facility, and new and emerging threats. (g) Recordkeeping The owner, operator, or agent in charge of a facility shall maintain, for not less than 2 years, records documenting the monitoring of the pre- ventive controls implemented under subsection (c), instances of nonconformance material to food safety, the results of testing and other ap- propriate means of verification under subsection (f)(4), instances when corrective actions were implemented, and the efficacy of preventive con- trols and corrective actions. (h) Written plan and documentation The owner, operator, or agent in charge of a facility shall prepare a written plan that docu- ments and describes the procedures used by the facility to comply with the requirements of this section, including analyzing the hazards under subsection (b) and identifying the preventive controls adopted under subsection (c) to address those hazards. Such written plan, together with the documentation described in subsection (g). shall be wade promptly available to a duly au- thorized representative of the Secretary upon oral or written request. (i) Requirement to reanalyze The owner, operator, or agent in charge of a facility shall conduct a reanalysis under sub- section (b) whenever a significant change is made in the activities conducted at a facility operated by such owner, operator, or agent if the change creates a reasonable potential for a new hazard or a significant increase in a previously identified hazard or not less frequently than once every 3 years, whichever is earlier. Such re- analysis shall be completed and additional pre- ventive controls needed to address the hazard identified, if any, shall be implemented before the change in activities at the facility is opera- tive. Such owner, operator, or agent shall revise the written plan required under subsection (h) if such a significant change is made or document the basis for the conclusion that no additional or revised preventive controls are needed.'The Secretary may require a reanalysis under this section to respond to new hazards and develop- ments in scientific understanding, including, as appropriate, results from the Department of Homeland Security biological, chemical, radio- logical, or other terrorism risk assessment. 0) Exemption for seafood, juice, and low -acid canned food facilities subject to HACCP (1) In general This section shall not apply to a facility if the owner, operator, or agent in charge of such facility is required to comply with, and is in compliance with, 1 of the following standards and regulations with respect to such facility: (A) The Seafood Hazard Analysis Critical Control Points Program of the Food and Drug Administration. (B) The Juice Hazard Analysis Critical Control Points Program of the Food and Drug Administration. (C) The Thermally Processed Low -Acid Foods Packaged in Hermetically Sealed Con- tainers standards of the Food and Drug Ad- ministration (or any successor standards). (2) Applicability The exemption under paragraph (1)(C) shall apply only with respect to microbiological hazards that are regulated under the standards for Thermally Processed Low -Acid Foods Packaged in Hermetically Sealed Containers under part 113 of chapter' 21, Code of Federal Regulations (or any successor regulations). ISo In original. Probably should be "title" INDEX # �J- -3 Page 129 TITLE 21 —FOOD AND DRUGS § 350g (k) Exception for activities of facilities subject to section 350h of this title This section shall not apply to activities of a facility that are subject to section 350h of this title. (1) Modified requirements for qualified facilities (1) Qualified facilities (A) In general A facility is a qualified facility for pur- poses of this subsection if the facility meets the conditions under subparagraph (B) or (C). (B) Very small business A facility Is a qualified facility under this subparagraph — (f) if the facility, including any subsidi- ary or affiliate of the facility, is, collec- tively, a very small business (as defined in the regulations promulgated under sub- section (n)); and (ii) in the case where the facility is a subsidiary or affiliate of an entity, if such subsidiaries or affiliates, are, collectively, a very small business (as so defined). (C) Limited annual monetary value of sales U) In general A facility is a qualified facility under this subparagraph if clause (ii) applies — (I) to the facility, including any sub- sidiary or affiliate of the facility, collec- tively; and (II) to the subsidiaries or affiliates, collectively, of any entity of which the facility is a subsidiary or affiliate. (ii) Average annual monetary value This clause applies if— (I) during the 3 -year period preceding the applicable calendar year, the average annual monetary value of the food man- ufactured, processed, packed, or held at such facility (or the collective average annual monetary value of such food at any subsidiary or affiliate, as described in clause (i)) that is sold directly to qualified end -users during such period exceeded the average annual monetary value of the food manufactured, proc- essed, packed, or held at such facility (or the collective average annual monetary value of such food at any subsidiary or affiliate, as so described) sold by such fa- cility (or collectively by any such sub- sidiary or affiliate) to all other pur- chasers during such period; and (II) the average annual monetary value of all food sold by such facility (or the collective average annual monetary value of such food sold by any subsidiary or affiliate, as described in clause (i)) during such period was less than $500,000, adjusted for inflation. (2) Exemption A qualified facility — (A) shall not be subject to the require- ments under subsections (a) through (i) and subsection (n) in an applicable calendar year; and (B) shall submit to the Secretary - 0)(I) documentation that demonstrates that the owner, operator, or agent in charge of the facility has identified poten- tial hazards associated with the food being produced, is implementing preventive con- trols to address the hazards, and is mon- itoring the preventive controls to ensure that such controls are effective; or (II) documentation (which may include licenses, inspection reports, certificates, permits, credentials, certification by an appropriate agency (such as a State de- partment of agriculture), or other evidence of oversight), as specified by the Sec- retary, that the facility is in compliance with State, local, county, or other applica- ble non - Federal food safety law; and (ii) documentation, as specified by the Secretary in a guidance document issued not later than 1 year after January 4, 2011, that the facility is a qualified facility under paragraph (1)(B) or (1)(C). (3) withdrawal; rule of construction (A) In general In the event of an active investigation of a foodborne illness outbreak that is directly linked to a qualified facility subject to an exemption under this subsection, or if the Secretary determines that it is necessary to protect the public health and prevent or mitigate a foodborne illness outbreak based on conduct or conditions associated with a qualified facility that are material to the safety of the food manufactured, processed, packed, or held at such facility, the Sec- retary may withdraw the exemption pro- vided to such facility under this subsection. (B) Rule of construction Nothing in this subsection shall be con- strued to expand or limit the inspection au- thority of the Secretary. (4) Definitions In this subsection; (A) Affiliate The term ,affiliate" means any facility that controls, is controlled by, or is under common control with another facility. (B) Qualified end -user The term "qualified end - user ", with re- spect to a food, means - (i) the consumer of the food; or (ii) a restaurant or retail food establish- ment (as those terms are defined by the Secretary for purposes of section 350d of this title) that — (I) is located - (aa) in the same State as the quali- fied facility that sold the food to such restaurant or establishment; or (bb) not more than 275 miles from such facility; and (II) is purchasing the food for sale di- rectly to consumers at such restaurant or retail food establishment. (C) Consumer For purposes of subparagraph (B), the term "consumer" does not include a business. OMs INDEX # 3 EMONUM § 350g TITLE 21 —FOOD AND DRUGS Page 130 (D) Subsidiary The term "subsidiary" means any com- pany which is owned or controlled directly or indirectly by another company. (5) Study (A) In general The Secretary, in consultation with the Secretary of Agriculture, shall conduct a study of the food processing sector regulated by the Secretary to determine - (i) the distribution of food production by type and size of operation, including mone- tary value of food sold; (ii) the proportion of food produced by each type and size of operation; (iii) the number and types of food facili- ties co- located on farms, including the number and proportion by commodity and by manufacturing or processing activity; (iv) the incidence of foodborne illness originating from each size and type of op- eration and the type of food facilities for which no .reported or known hazard exists; and (v) the effect on foodborne illness risk associated with commingling, processing, transporting, and storing food and raw ag- ricultural commodities, including dif- ferences in risk based on the scale and du- ration of such activities. (B) Size The results of the study conducted under subparagraph (A) shall include the informa- tion necessary to enable the Secretary to de- fine the terms "Small business" and "very small business ", for purposes of promulgat- ing the regulation under subsection (n). In defining such terms, the Secretary shall in- clude consideration of harvestable acres, in- come, the number of employees, and the vol- ume of food harvested. (C) Submission of report Not later than 18 months after January 4, 2011, the Secretary shall submit to Congress a report that describes the results of the study conducted under subparagraph (A). (6) No preemption Nothing in this subsection preempts State, local, county, or other non - Federal law re- garding the safe production of food. Compli- ance with this subsection shall not relieve any person from liability at common law or under State statutory law. (7) Notification to consumers (A) In general A qualified facility that is exempt from the requirements under subsections (a) through (i) and subsection (n) and does not prepare documentation under paragraph (2)(B)(i)(I) shall - (i) with respect to a food for which a food packaging label is required by the Sec- retary under any other provision of this chapter, include prominently and con- spicuously on such label the name and business address of the facility where the food was manufactured or processed; or (ii) with respect to a food for which a food packaging label is not required by the Secretary under any other provisions of this chapter, prominently and conspicu- ously display, at the point of purchase, the name and business 'address of the facility where the food was manufactured or proc- essed, on a label, poster, sign, placard, or documents delivered contemporaneously with the food in the normal course of busi- ness, or, in the case of Internet sales, in an electronic notice. B) No additional label Subparagraph (A) does not provide author- ity to the Secretary to require a label that is in addition to any label required under any other provision of this chapter. (m) Authority with respect to certain facilities The Secretary may, by regulation, exempt or modify the requirements for compliance under this section with respect to facilities that are solely engaged in the production of food for ani- mals other than man, the storage of raw agricul- tural commodities (other than fruits and vegeta- bles) intended for further distribution or proc- essing, or the storage of packaged foods that are not exposed to the environment. (n) Regulations (1) In general Not later than 18 months after January 4, 2011, the Secretary shall promulgate regula- tions— (A) to establish science -based minimum standards for conducting a hazard analysis, documenting hazards, implementing preven- tive controls, and documenting the imple- mentation of the preventive controls under this section; and (B) to define, for purposes of this section, the terms "small business" and every small business ", taking into consideration the study described in subsection (1)(5). (2) Coordination In promulgating the regulations under para- graph (1)(A), with regard to hazards that may be intentionally introduced, including by acts of terrorism, the Secretary shall coordinate with the Secretary of Homeland Security, as appropriate. (3) Content The regulations promulgated under para- graph (1)(A) shall — (A) provide sufficient flexibility to be practicable for all sizes and types of facili- ties, including small businesses such as a small food processing facility co- located on a farm; (B) comply with chapter 35 of title 44 (com- monly known as the "Paperwork Reduction Act "), with special attention to minimizing the burden (as defined in section 3502(2) of such title) on the facility, and collection of Information (as defined in section 3502(3) of such title), associated with such regulations; (C) acknowledge differences in risk and minimize, as appropriate, the number of sep- arate standards that apply to separate foods; and �■ INDEX # T -3 Page 131 TITLE 21 -FOOD AND DRUGS § 3509 (D) not require a facility to hire a consult- ant or other third party to identify, imple- ment, certify, or audit preventative con- trols, except in the case of negotiated en- forcement resolutions that may require such a consultant or third party. (4) Rule of construction Nothing in this subsection shall be con- strued to provide the Secretary with the au- thority to prescribe specific technologies. practices, or critical controls for an individual facility. (5) Review In promulgating the regulations under para- graph (1)(A), the Secretary shall review regu- latory hazard analysis and preventive control Programs in existence on January 4, 2011, in- cluding the Grade "A" Pasteurized Milk Ordi- nance to ensure that such regulations are con- sistent, to the extent practicable, with appli- cable domestic and internationally - recognized standards in existence on such date. (o) Definitions For purposes of this section: (1) Critical control point The term ­critical control point" means a point, step, or procedure in a food process at which control can be applied and is essential to prevent or eliminate a food safety hazard or reduce such hazard to an acceptable level. (2) Facility The term ,facility" means a domestic facil- ity or a foreign facility that is required to reg- ister under section 350d of this title. (3) Preventive controls The term ­preventive controls" means those risk - based, reasonably appropriate procedures, practices, and processes that a person knowl- edgeable about the safe manufacturing, proc- essing, packing, or holding of food would em- ploy to significantly minimize or prevent the hazards identified under the hazard analysis conducted under subsection (b) and that are consistent with the current scientific under- standing of safe food manufacturing, process- ing, packing, or holding at the time of the analysis. Those procedures, practices, and processes may include the following: (A) Sanitation procedures for food contact surfaces and utensils and food - contact sur- faces of equipment. (B) Supervisor, manager, and employee hy- giene training. (C) An environmental monitoring program to verify the effectiveness of pathogen con- trols in processes where a food is exposed to a potential contaminant in the environment. (D) A food allergen control program. (E) A recall plan. (F) Current Good Manufacturing Practices (cGMPs) under part 110 of title 21, Code of Federal Regulations (or any successor regu- lations). (G) Supplier verification activities that re- late to the safety of food. (June 25, 1938, ch. 675, §418, as added Pub. L. 111 -353, title I, §103(a), Jan. 4, 2011, 124 Stat. 3889.) EFFECTIVE DATE Pub. L. 111 -353, title I. §103(1), Jan. 4, 2011, 124 Stat. 3898. provided that: •11) GENERAL RULE. -The amendments made by this section [enacting this section and amending section 331 of this title] shall take effect 18 months after the date of enactment of this Act [Jan. 4. 2011]. 11(2) FLERIBmrry FOR SMALL RUSWESSES.-Notwlth- standing paragraph (1)- "(A) the amendments made by this section shall apply to a small business (as defined in the regula- tions promulgated under section 418(n) of the Federal Food, Drug. and Cosmetic Act [21 U.S.C. 350g(n)] (as added by this section)) beginning on the date that is 6 months after the effective date of such regulations: and ••(B) the amendments made by this section shall apply to a very small business (as defined in such reg- ulations) beginning on the date that is 18 months after the effective date of such regulations." CONSTRUCTION Nothing in this section to be construed to apply to certain alcohol- related facilities, to alter jurisdiction and authorities established under certain other Acts, or in a manner inconsistent with international agree- ments to which the United States is a party. see sec- tions 2206, 2251. and 2252 of this title. GUIDANCE DOCUMEIT Pub. L. 111 -353, title I• §103(b). Jan. 4, 2011. 124 Stat. 3896, provided that: "The Secretary shall Issue a guid- ance document related to the regulations promulgated under subsection (b)(1) [probably means 21 U.S.C. 350g(n)(1)] with respect to the hazard analysis and pre- ventive controls under section 418 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 350g] (as added by subsection (a))." (SMALL ENTITY COMPLIANCE POLICr GUIDE Pub. L. 111 -353, title I, §103(d), Jan. 4. 2011, 124 Stat. 3898, provided that: "Not later than 180 days after the issuance of the regulations promulgated under sub- section (n) of section 418 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 350g(n)] (as added by subsection (a)), the Secretary shall issue a small entity compli- ance policy guide setting forth in plain language the requirements of such section 418 and this section [en- acting this section• amending section 331 of this title, and enacting provisions set out as notes under this sec- tion and sections 342 and 350d of this title] to assist small entities in complying with the hazard analysis and other activities required under such section 418 and this section." NO EFFECT ox HACCP AUTHORITIES Pub. L. 111 -353. title I, §103(f). Jan. 4, 2011, 124 8tat. 3698, provided that: "Nothing in the amendments made by this section [enacting this section and amending section 331 of this title] limits the authority of the Sec- retary under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 301 at seq.) or the Public Health Service Act (42 U.S.C. 201 at seq.) to revise, issue, or enforce Hazard Analysis Critical Control [Points] programs and the Thermally Processed Low -Acid Foods Packaged in Her- metically Sealed Containers standards." DIETARY SUPPLEMENTS Pub. L. 111 -353, title I, §103(8), Jan. 4. 2011, 124 Stat. 3898. provided that: "Nothing In the amendments made by this section (enacting this section and amending section 331 of this title] shall apply to any facility with regard to the manufacturing, processing, packing, or holding of a dietary supplement that is in compliance with the requirements of sections 402(g)(2) and 761 of the Federal Food. Drug, and Cosmetic Act (21 U.S.C. $42(g)(2), 379aa -1).•• INDEX §350h TITLE 21 —FOOD AND DRUGS Page 132 § 350h. Standards for produce safety (a) Proposed rulemaking (1) In general (A) Rulemaking Not later than 1 year after January 4, 2011, the Secretary, in coordination with the Sec- retary of Agriculture and representatives of State departments of agriculture (including with regard to the national organic program established under the Organic Foods Produc- tion Act of 1990 [7 U.S.C. 6501 et seq.]), and in consultation with the Secretary of Home- land Security, shall publish a notice of pro- posed rulemaking to establish science -based minimum standards for the safe production and harvesting of those types of fruits and vegetables, including specific mixes or cat- egories of fruits and vegetables, that are raw agricultural commodities for which the Sec- retary has determined that such standards minimize the risk of serious adverse health consequences or death. (B) Determination by Secretary With respect to small businesses and very small businesses (as such terms are defined In the regulation promulgated under sub- paragraph (A)) that produce and harvest those types of fruits and vegetables that are raw agricultural commodities that the Sec- retary has determined are low risk and do not present a risk of serious adverse health consequences or death, the Secretary may determine not to include production and harvesting of such fruits and vegetables in such rulemaking, or may modify the appli- cable requirements of regulations promul- gated pursuant to this section. (2) Public input During the comment period on the notice of proposed rulemaking under paragraph (1), the Secretary shall conduct not less than 3 public meetings in diverse geographical areas of the United States to provide persons in different regions an opportunity to comment. (3) Content The proposed rulemaking under paragraph (1) shall — (A) provide sufficient flexibility to be ap- plicable to various types of entities engaged in the production and harvesting of fruits and vegetables that are raw agricultural commodities, including small businesses and entities that sell directly to consumers, and be appropriate to the scale and diversity of the production and harvesting of such com- modities; (B) include, with respect to growing, har- vesting, sorting, packing, and storage oper- ations, science -based minimum standards re- lated to soil amendments, hygiene, packag- ing, temperature controls. animals in the growing area, and water, (C) consider hazards that occur naturally, may be unintentionally introduced, or may be intentionally introduced, including by acts of terrorism; (D) take into consideration, consistent with ensuring enforceable public health pro- tection, conservation and environmental practice standards and policies established by Federal natural resource conservation. wildlife conservation, and environmental agencies; (E) in the case of production that is cer- tified organic. not include any requirements that conflict with or duplicate the require- ments of the national organic program es- tablished under the Organic Foods Produc- tion Act of 1990, while providing the same level of public health protection as the re- quirements under guidance documents, in- cluding guidance documents regarding ac- tion levels, and regulations under the FDA Food Safety Modernization Act; and (F) define, for purposes of this section, the terms "small business" and ­very small business ". (4) Prioritization The Secretary shall prioritize the Implemen- tation of the regulations under this section for specific fruits and vegetables that are raw ag- ricultural commodities based on known risks which may include a history and severity of foodborne illness outbreaks. (b) Final regulation (1) In general Not later than 1 year after the close of the comment period for the proposed rulemaking under subsection (a), the Secretary shall adopt a final regulation to provide for minimum science -based standards for those types of fruits and vegetables, including specific mixes or categories of fruits or vegetables, that are raw agricultural commodities, based on known safety risks. which may include a history of foodborne illness outbreaks. (2) Final regulation The final regulation shall — (A) provide for coordination of education and enforcement activities by State and local officials, as designated by the Gov- ernors of the respective States or the appro- priate elected State official as recognized by State statute; and (B) include a description of the variance process under subsection (c) and the types of permissible variances the Secretary may grant. (3) Flexibility for small businesses Notwithstanding paragraph (1)- (A) the regulations promulgated under this section shall apply to a small business (as defined in the regulation promulgated under subsection (a)(1)) after the date that is 1 year after the effective date of the final reg- ulation under paragraph (1); and (B) the regulations promulgated under this section shall apply to a very small business (as defined in the regulation promulgated under subsection (a)(1)) after the date that is 2 years after the effective date of the final regulation under paragraph (1). (c) Criteria (1) In general The regulations adopted under subsection (b) shall— INDEX # 2-3 v.J.%, I ItIV .:1 - LAJU1J l-XINU 1JtcU%_J3 Pagel of 2 21 U.S.C. United States Code, 2010 Edition Title 21 - FOOD AND DRUGS CHAPTER 9 - FEDERAL FOOD, DRUG, AND COSMETIC ACT SUBCHAPTER IV - FOOD Sec. 350i - Protection against intentional adulteration From the U.S. Government Printing Office, EHw.:;Do.;.'ov §3501. Protection against intentional adulteration (a) Determinations (1) In general The Secretary shall — (A) conduct a vulnerability assessment of the food system, including by consideration of the Department of Homeland Security biological, chemical, radiological, or other terrorism risk assessments; (B) consider the best available understanding of uncertainties, risks, costs, and benefits associated with guarding against intentional adulteration of food at vulnerable points; and (C) determine the types of science -based mitigation strategies or measures that are necessary to protect against the intentional adulteration of food. (2) Limited distribution In the interest of national security, the Secretary, in consultation with the Secretary of Homeland Security, may determine the time, manner, and form in which determinations made under paragraph (1) are made publicly available. (b) Regulations Not later than 18 months after January 4, 2011, the Secretary, in coordination with the Secretary of Homeland Security and in consultation with the Secretary of Agriculture, shall promulgate regulations to protect against the intentional adulteration of food subject to this chapter. Such regulations shall — (1) specify how a person shall assess whether the person is required to implement mitigation strategies or measures intended to protect against the intentional adulteration of food; and (2) specify appropriate science -based mitigation strategies or measures to prepare and protect the food supply chain at specific vulnerable points, as appropriate. (c) Applicability Regulations promulgated under subsection (b) shall apply only to food for which there is a high risk of intentional contamination, as determined by the Secretary, in consultation with the Secretary of Homeland Security, under subsection (a), that could cause serious adverse health consequences or death to humans or animals and shall include those foods — (1) for which the Secretary has identified clear vulnerabilities (including short shelf -life or susceptibility to intentional contamination at critical control points); and (2) in bulk or batch form, prior to being packaged for the final consumer. (d) Exception This section shall not apply to farms, except for those that produce milk. (e) Definition For purposes of this section, the term "farm" has the meaning given that term in section 1.227 of title 21, Code of Federal Regulations (or any successor regulation). (June 25, 1938, ch. 675, §420, as added Pub. L. 111 -353, title I, §I06(a), Jan. 4, 201 bw tat. IN= http: / /www.gpo.gov /fdsys /pkg/USCODE- 2010- title2l/html/USCODE- 2010- title2l- chap9 -s. "`X o v.�.� . i uic =.1 - V JVLJ 1i1V1J 1JL- VUUO rage L oI L 3905.) CONSTRUCTION Nothing in this section to be construed to apply to certain alcohol- related facilities, to alter jurisdiction and authorities established under certain other Acts, or in a manner inconsistent with international agreements to which the United States is a party, see sections 2206, 2251, and 2252 of this title. GUIDANCE DOCUMENTS Pub. L. 111-353, title 1, § 106(b), Jan. 4, 2011, 124 Stat. 3906, provided that: "(l) In general. —Not later than 1 year after the date of enactment of this Act [Jan. 4, 2011 ], the Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security and the Secretary of Agriculture, shall issue guidance documents related to protection against the intentional adulteration of food, including mitigation strategies or measures to guard against such adulteration as required under section 420 of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 450i], as added by subsection (a). "(2) Content. —The guidance documents issued under paragraph (1) shall — "(A) include a model assessment for a person to use under subsection (b)(1) of section 420 of the Federal Food, Drug, and Cosmetic Act, as added by subsection (a); "(13) include examples of mitigation strategies or measures described in subsection (b)(2) of such section; and "(C) specify situations in which the examples of mitigation strategies or measures described in subsection (b)(2) of such section are appropriate. "(3) Limited distribution. —In the interest of national security, the Secretary of Health and Human Services, in consultation with the Secretary of Homeland Security, may determine the time, manner, and form in which the guidance documents issued under paragraph (1) are made public, including by releasing such documents to targeted audiences." PERIODIC REVIEW Pub. L. 111 -353, title 1, § 106(c), Jan. 4, 2011, 124 Stat. 3906, provided that: "The Secretary of Health and Human Services shall periodically review and, as appropriate, update the regulations under section 420(b) of the Federal Food, Drug, and Cosmetic Act [21 U.S.C. 450i(b)], as added by subsection (a), and the guidance documents under subsection (b) [section 106(b) of Pub. L. 111 -353, set out above]." NX. IN= # � -3 http: llwww.gpo.gov /fdsysipkg/USCODE- 2010- title2 l /html/USCODE- 2010- title2l - chap9 -s... 3/2/2013 City of Yakima, Washington Hearing Examiner's Interim Decision February 25, 2013 In the Matter of a Petition for Vacation of ) Street Right -of -Way Submitted by: ) Hops Extract Corporation of America ) To Vacate 2 Avenue Right-of-Way ) Between Lincoln Avenue & West D Street ) RMLtI V ED FEB 2 5 2013 CITY OF YAKIMA PLANNING DIV. RWV # 003 -12 A. Backmround. The background leading to this interim decision may be summarized as follows: (1) The Hearing Examiner conducted a public hearing relative to this matter on February 14, 2013. At the conclusion of the hearing, the Hearing Examiner held the record open for the petitioner to submit the measurement from the West D Street right -of- way to the door of the building on the east side of 2nd Avenue in order to determine how much room could be provided to allow semi - trucks to straighten out before backing into opponent Lynn Buchanan's storage warehouses on the north side of West D Street. (2) On February 22, 2013, the Hearing Examiner received from the City Planning Division a copy of a letter (1'/ pages) with a diagram attached (1 page) and a Memorandum in Support of Petition to Vacate Street or Alley (8% pages). Both were signed by Mark Fickes, attorney for the petitioner, and were dated February 21, 2013. (3) Since the information and argument submitted for the record by the petitioner covered subjects beyond that for which the record was held open, the Hearing Examiner was faced with the decision whether to exclude the submittal or to allow the primary opponent's attorney, Tyler Hinckley, the opportunity to submit a comparable amount of information and argument on those subjects. Since the Hearing Examiner wishes to have Hops Extract Corporation of America Vacation of 2°d Avenue between West Lincoln Avenue & West D Street RWV #003 -12 om the benefit of the additional information and argument submitted before making a recommendation, same will not be excluded from the record and the second course of action will be taken. B. Interim Decision. Tyler Hinckley, the attorney for the primary opponent to this petition, shall have six business days from the date of this interim decision to provide information and argument relative to the subjects addressed in the letter and the Memorandum submitted by Mr. Fickes if he should wish to do so. Any letter and/or Memorandum submitted by Mr. Hinckley must be comparable in length, spacing and font size to the letter and Memorandum submitted by Mr. Fickes. If Mr. Hinckley has not been provided a copy of the letter and Memorandum of Mr. Fickes, he may obtain a copy from the City Planning Division. Mr. Hinckley shall submit his letter and/or Memorandum to the Yakima Planning Division by 4 :30 p.m. on Tuesday, March 5, 2013. If he was provided a copy of the letter and Memorandum by Mr. Fickes, he shall also provide Mr. Fickes a copy of his letter and Memorandum when it is filed with the City Planning Division. Otherwise Mr. Fickes may obtain a copy of any information and argument submitted by Mr. Hinckley from the City Planning Division. The record of this matter will be closed without the opportunity for any more information or argument to be submitted into the record for the Hearing Examiner's consideration after 4 :30 p.m. on Tuesday, March 5, 2013. DATED this 25h day of February, 2013. Hops Extract Corporation of America Vacation of 2°d Avenue between West Lincoln Avenue & West D Street RWV #003 -12 2 Gary M. Cuillier, Hearing Examiner r• r ,y HALVERSON I NORTHWEST Raymond G Alesanclei LAW GROUP Adam K Anaersry Alan D Car West H Car James C. Cain._ J Jay Carroll Paid C Dempsey February 21, 2013 James S Elliott Robert N Faber Mark E Fickei City of Yakima Planning Division CaderL Field Attention: Bruce Benson Fredenck N Halverson - Paul E Hart- 129 North Second Street, 2 "d Floor Gary E Lofland- Yakima WA 98902 LawrLaceyN OB tl Terry C Schmaix- RE: Hops Extract Corporation of America — Linda A Sutlers Michael Shorn Petition to Vacate Right -of -Way (RWV #003 -12) — Supplemental A4hur A Simpson Kathryn Knudsen Smith Materials for Record and Examiner Sari Watkins' Stephen P. Winfree Dear Mr. Benson: Also Oregon Bar Wisjhei •Ot Carmsel At the Examiner's request, the record was held open to provide additional measurements relating to the location of a potential fence or gate where the Second Avenue right -of -way intersects D Street. Accordingly, I am enclosing a scaled Site Map which provides some of the information the Examiner requested, and which relates to Staff's proposed condition #5. As indicated on the Site Plan, the maximum amount a gate or fence could be set back from D Street without jeopardizing the security of the Petitioner's facility (and the primary purpose of the proposed vacation) would be for the fence or gate to be set back 42 feet from the corner of Hops Extract's western building or 82 feet from the physical, striped centerline of West D Street. Therefore, there is some flexibility in the setback from what Staff was recommending (N25 feet +/- from the curb ") — although the Petitioner believes Staffs proposed setback is adequate. With Staff's suggested setback in Paragraph 5 on Page 8 of its Staff Report, or a slightly increased setback based on the enclosed Site Plan, there is more than adequate area for any commercial truck heading west on West D Street to pull into the right -of -way to be vacated up to the gate, and to back into the Buchanan storage facility. As the Site Plan indicates, there is 135 feet available between the maximum distance of the proposed gate and fence, and the Buchanan gate. Under AASHTO standards for geometric design of highways and streets, commercial truck lengths run from single -unit trucks with a length of 30 feet to interstate semi - trailers with a total length up to 73.5 feet. Based on their minimum turning radius, there is more than enough room to accomplish any backing maneuver described by Buchanan representatives, given the available right -of -way and setbacks proposed. We are also enclosing three copies of a Memorandum in Support of Petition to Vacate Street or Alley, clarifying the discretion given to cities when vacating right -of -ways, and the legal standards for their approval. Please provide a copy of the Memorandum to the Examiner and the City Attorney for consideration prior to the Council meetin . HALVERSON I NORTHWEST LAW GROUP P.C. Yakima Office: 405 E.. Lincoln Avenue i PO Box 22550 1 Yakima, WA 98907 1 P) 509.248.6o3o 1 E) 509.453.688o Sunnyside Office- 9to Franklin Avenue, Suite t I PO Box ato I Sunmside, WA 98944 P) r -^ DOC. INDEX # --c=1 N J FEB 2 1 2013 CITY OF YAKIMA PLANNING DIV. February 21, 2013 City of Yakima Planning Division Attention: Bruce Benson Page 2 of 2 It is our position that this cover letter and the enclosures be considered part of the record in this proceeding. We look forward to hearing from you after the City adopts a Resolution setting the public meeting for consideration of the Examiner's recommendation once it is completed. Yours very truly, HALVERS NORTHW ST LAW GROUP P.C. v6tkz ;M/� Mark E. Fickes MERtia Enclosures CC: Dave Dunham (w/ enclosures) Bill Hordan (w/ enclosures) MC. INIXX ## _ -I RECEIVED FEB 2 1 2013 CITY OF YAKIMA PLANNING DIV. 1 fi Hop Extract's Site Plan & Measurements /3�,�Aatr.� L4*71g2 � grrc.w.Jy 7-R4,v-- --V� _r 1 / .tf -- — ,— 94&X ale 41fe6 Hops C-iKrP c r f3u�c.aw y �o ce�� t3u«/�i�/G1 ioo N. Z°3 AVO /'',jPv n MT M 65 � < �> _ w Hop Extract's Site Plan & Measurements /3�,�Aatr.� L4*71g2 � grrc.w.Jy 7-R4,v-- --V� _r 1 / .tf -- — ,— 94&X ale 41fe6 Hops C-iKrP c r f3u�c.aw y �o ce�� t3u«/�i�/G1 ioo N. Z°3 AVO /'',jPv V 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BEFORE THE CITY COUNCIL OF THE CITY OF YAKIMA, WASHINGTON In re HOPS EXTRACT CORP. OF AMERICA, a Washington Corporation, Petition to Vacate Street (N. 2nd Avenue) Petitioner. RWV No: 003 -12 Petition No.: 12 -05 MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY THIS MEMORANDUM is submitted by Hops Extract Corporation of America ( "Hops Extract" or "Petitioner ") in support of its Petition to Vacate the section of North 2nd Avenue located between West Lincoln Avenue and West "D" Street, in Yakima, Washington. I. INTRODUCTION At the hearing before the Hearing Examiner, several non - abutting local businesses voiced their opposition to Hops Extract's Petition. Chief among them was Buchanan Warehouse Ltd. ( "Buchanan "), which argued that (1) Hops Extract's Petition should be denied because it would confer a purely private benefit upon Hops Extract; and (2) Buchanan would be entitled to MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 1 RECEIVED FEB 2 1 2013 CITY OF YAKIMA PLANNING DIV. HALVERSON I NORTHWEST P.C. 405 East Lincoln Ave. I P.O. Box 22550 Yakima, WA 98907 509.249�..6030 8JC. INDEX #.Z- ... 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damages if the Petition was granted because its visibility would be obscured and its preferred method of ingress and egress would be impaired. As this Memorandum will make clear, Buchanan's objections misstated Washington law. Hops Extract's Petition should be granted because (1) the vacation of a public roadway is a legislative decision left to the sound discretion of the City; (2) a city's determination of public benefit is presumed valid and a court will not inquire into it unless absolutely no public benefit exists; (3) the public benefit requirement is easily met in this case because Washington decisions state that a vacation benefiting a local business's operations also benefits the public; and (4) none of the parties that objected to the Petition have standing to challenge it or would suffer a special injury. 11. ARGUMENT 2.1 A City Has Extremely Broad Discretion To Vacate Streets, Which Washington Courts Will Almost Never Review. A municipality's decision to vacate a street is a legislative decision that Washington courts will not review except in a few narrowly prescribed circumstances, none of which are present in this case: There can be no question but [t]hat, under our decisions, the power of vacation of streets and alleys or portions thereof belongs to the municipal authorities, and the exercise of that power is a political function which, in the absence of collusion, fraud, or the interference with a vested right will not be reviewed by the court.... Capitol Hill Methodist Church of Seattle v. City of Seattle, 52 Wash. 2d 359, 368, 324 P.2d 1113, 1119 (1958) (citations omitted) (emphasis in original). Washington courts will only review challenges to the liberally construed "public benefit" requirement when it is clear that the vacation cannot possibly confer any public benefit whatsoever: "[T]he city council is the proper body to weigh the benefit to the public. Only where there is no possible benefit to the public will this court review the legislative determination." Banchero v. City Council of City of Seattle, 2 Wash. App. 519, 523, 468 P.2d 724, 728 (1970) (citations omitted) (emphasis added). MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 2 HALVERSON ( NORTHWEST P.C. 405 East lmcoln Ave. I P.O. Sox 22550 Yakkm, WA 98907 509.248.6030 DOC. INDEX # -� 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 An ordinance vacating a street is presumed valid, and therefore the burden is on the challenging party to demonstrate either procedural impropriety or a complete lack of public benefit: "There is a presumption that [an ordinance vacating a street] was validly enacted for a public purpose." London v. City of Seattle, 93 Wash. 2d 657, 662, 611 P.2d 781, 785 (1980) (citations omitted). In the present case, the City Council has extremely broad discretion to carry out its legislative function of vacating the above - described section of North 2nd Avenue, and the Council's decision is not subject to review unless the challenging party can demonstrate an abuse of that discretion: Whether it is expedient to discontinue a highway is a question for legislative decision, and when the authority to discontinue is delegated to local officers, and no restrictions are placed upon its exercise, the officers are invested with a very broad discretion, and, unless this discretion has been abused, the courts cannot interfere. This is in accordance with the general rule that, where officers are invested with discretionary power, courts will not substitute their judgment for that of the officers invested by law with the right to decide upon the necessity or expediency of doing a designated act. Ponischil v. Hoquiam Sash & Door Co., 41 Wash. 303, 307, 83 P. 316, 317 (1906) (citations and quotations omitted). 2.2 The Public Benefit Requirement Is Satisfied Under Washington Law Because Granting The Petition Would Improve Hops Extract's Ability To Protect The Food Supply, Contribute To The Local Economy, And Improve Traffic Safety. RCW 35.79.010 provides that the owners of abutting real estate "may petition the legislative authority to make vacation" so long as "the petition is signed by the owners of more than two- thirds of the property abutting upon the part of such street or alley sought to be vacated ...." The vacation statute does not set forth the considerations that the legislative authority must make, because such a decision is within the sound discretion of the legislative authority. Washington case law states that the vacation must include only "some element" of MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 3 HALVERSON I NORTHWEST P.C. 405 East Lincoln Ave. I P.O. Box 22550 Yakima, WA 98907 509.248.6030 ®® ^r INDEX # J-- I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 public benefit. Banchero, 2 Wash. App, at 522 -23 (citations omitted) (emphasis added). This is a low threshold that is easily satisfied in the present case. The "public benefit" requirement is met in the present case because the vacation of the portion of North 2nd Avenue would enable Hops Extract to (1) protect its food -grade products from contamination and tampering; (2) comply with Food and Drug Administration guidelines for the Food Safety Modernization Act; and (3) improve traffic safety for its employees as well as other pedestrian and vehicular traffic. Further, because Hops Extract is a local employer that employs 45 local persons and taxpayers, its interests and those of the City are interrelated and inextricably linked. The vacation will improve the safety and efficiency of its operations, and will result in additional property tax revenue. Washington case law makes clear that a vacation confers a public benefit when local businesses are encouraged and promoted because doing so benefits the municipal tax base and furthers the interests of the local economy. In Banchero, a case with very similar facts, Consolidated Dairy Products Co. ("Consolidated Dairy") filed a petition asking for the vacation of a portion of a north -south running street that was abutted on both the east and west by Consolidated Dairy's facilities. 2 Wn. App. at 520 -21. A non - abutting property owner challenged the vacation, arguing that it would be for the exclusive benefit of Consolidated Dairy. Id. at 524. The court upheld the vacation as proper. Id. at 525. The court first reasoned that it would review a legislative determination of public benefit "only where there is no possible benefit to the public." Id. at 523 (emphasis added). The court further stated that "[t]he fact that some one private party may benefit directly or incidentally from a street vacation does not mean the vacation will not also serve a public use or putpose." Id. at 524 (citation omitted) (emphasis added). The court went on to state that the city council had sufficiently considered the public interest because it had considered (1) the city's need for dairy products; (2) Consolidated Dairy's payroll contributions to the local economy; (3) the property taxes that Consolidated Dairy paid to MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 4 HALVERSON I NORTHWEST P.C. 405 East Lincoln Ave. I P.O. Box 22550 Yakima, WA 98907 509.248.6030 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the city; and (4) the developing industrial and residential uses of the property in the area. Id. The court stated that the city council's mere consideration of these factors demonstrated that the city had satisfied the "public purpose" requirement. Id. Similarly, in the present case the vacation of North 2nd Avenue would provide a public benefit because (1) hops processing is a vital component of the City of Yakima's economy; (2) Hops Extract's continued employment of local residents provides numerous and ongoing benefits to the City's economy in the form of wages paid, spent, and saved locally; (3) Hops Extract pays property taxes to the City, and will pay some more after the vacation; and (4) the vacation is in line with the developing M -1 land uses in the area. The vacation confers a public benefit and should be granted. There appears to be only one Washington case construing RCW 35.79 in which a court determined that the public benefit requirement was not satisfied, and that case is entirely distinguishable from the present because it involved one municipality's attempt to deny access to the residents of another municipality. In Yarrow First Associates v. Town of Clyde Hill, the court determined that the town of Clyde Hill had improperly vacated a street because it did so for the purpose of excluding the residents of a neighboring municipality from Clyde Hill. 66 Wn.2d 371, 375 -76, 403 P.2d 49 (1965). Clyde Hill did so because it wished to prevent the construction of an apartment building that the neighboring town had authorized. Id. In support of the vacation, Clyde Hill had reasoned that the neighboring town's residents would not contribute taxes to Clyde Hill or otherwise contribute to the construction and maintenance of Clyde Hill's streets. Id. at 375. In overturning the petition, the court stated that "the residents of a particular town possess no proprietary rights to the use of its streets, in priority to or exclusion of the general public." Id. at 376. The present case has no factual similarity to Yarrow because it does not concern one municipality inappropriately attempting to exclude the residents of another municipality. Rather, the present case concerns a private party attempting to vacate a portion of a public street in order to further its commercial operations (and, by extension, the City of Yakima's interests), where MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 5 HALVERSON I NORTHWEST P.C. 405 EM Lincoln Ave. I P.O. Box 22550 Yakima, WA 98907 509.248.6030 ABC. INMX # �J— ' 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 adequate street infrastructure still exists Therefore, Banchero controls the present case and the Petition should be granted. 2.3 The Vacation Petition Satisfies The City's Five Criteria For Granting A Right -Of -Way Vacation Petition. RCW 35.79 gives municipalities broad discretion to implement their own street vacation criteria. The City of Yakima has elected to consider five general criteria in its right -of -way vacation application. In the present case, as recognized by City staff (and as demonstrated at the hearing), these criteria are all easily satisfied. Therefore, the Petition should be granted. A. "What Is The Public Benefit, Reason For, And Limitations Of The Proposed Right -Of -Way Vacation ?" The vacation's public benefits are discussed at length above. As a brief summary, the vacation's public benefits are as follows: (1) it will protect Hops Extract's food -grade products from contamination and tampering; (2) it will ensure Hops Extract's compliance with Food and Drug Administration guidelines for the Food Safety Modernization Act; (3) it will improve traffic safety for Hops Extract's employees as well as other pedestrian and vehicular traffic; (4) it will promote Hops Extract's employment of around 45 local persons and taxpayers; and (5) it will result in additional property tax revenue for the City. Hops Extract needs the vacations to help it run a safe, efficient and competitive business supplying food -grade products in interstate commerce. B. "Does The Vacation Deny Sole Access To A Public Street For Any Property ?" The vacation would not deny sole access to a public street for any property. All nearby, non - abutting properties would still have access to 1st Avenue, 3rd Avenue, and MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 6 HALVERSON I NORTHWEST P.C. 405 East Lincoln Ave. ( P.O. Box 22550 Yakima, WA 98907 609.248.6030 D�/���st OD. INDEX . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 "D" Street. Hops Extract would still have direct frontage to West Lincoln Avenue and West "D" Street. C. "Is The Proposal Consistent With Existing Plans Of The City ?" The vacation would be consistent with the existing plans of the City. The City's Six -Year Transportation Improvement Plan does not indicate any planned improvements for the portion of North 2nd Avenue at issue. The vacation would further the goals of the Urban Area Comprehensive Plan because it promotes infill and the efficient use of the portion of North 2nd Avenue once it is vacated, and because that area is designated for industrial use under the Comprehensive Plan's Future Land Use Map. D. `Is The Vacation Appropriate With Existing Zoning And Land Use ?" The vacation is appropriate with existing zoning and land use because all abutting properties are zoned as light industrial, and nearby land uses are of a light- industrial nature: a truck scale; warehousing; storage; and processing. By permitting Hops Extract to consolidate its facilities via the vacation, the City would be permitting Hops Extract's properties to operate as a single, integrated light- industrial entity. This would improve its operating efficiency and increase its workplace safety. Neither the proposed use, nor the vacation of the right -of -way itself significantly interferes with existinig or planned future land uses. E. "Are There Any Public Or Franchised Utilities In The Right -Of -Way To Be Vacated And If So, Will They Be Relocated ?" The vacation would affect a portion of North 2nd Avenue that is encumbered with domestic water, sanitary sewer, industrial waste water, natural gas, telephone, and electrical lines. There is no proposal to relocate these utilities, and all approximate public utility easements will be reserved. MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 7 HALVERSON I NORTHWEST P.C. 405 East Lincoln Ave. I P.O. Box 22550 Yakima, WA 98907 509.248.6030 DOC. INDEX # 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2.4 Neither Buchanan Nor Other Non - Abutting Property Owners Have Legal Standing To Challenge Hops Extract's Petition. None of the parties opposing Hops Extract's Petition would have legal standing to challenge the vacation petition once granted because they are not abutting owners and they will not suffer a "special injury": A landowner whose property does not abut on the street or portions thereof sought to be vacated or a nonabutting landowner who does not suffer special injury may not question a procedurally correct vacation or the purpose therefor. Property abuts on a street when there is no intervening land between it and the street. London, 93 Wash. 2d at 660-61 (citations omitted). A party claiming to have suffered a "special injury" must demonstrate that the vacation has caused his property to become landlocked, or nearly so. A special injury must be of a kind categorically distinct from those suffered by the public at large: In Washington ... a landowner whose land becomes landlocked or whose access is substantially impaired as a result of a street vacation is said to sustain special injury. If, however, the landowner still retains an alternate mode of egress from or ingress to his land, even if less convenient, generally speaking he is not deemed specially damaged. [] To maintain [an] action, their right of access must be `destroyed or substantially affected,' or, to put it another way, their reasonable means of access must be obstructed, and they must suffer a special damage, Different in Kind (sic) and not merely degree, from that sustained by the general public. Hoskins v. City of Kirkland, 7 Wash. App. 957, 960 -61, 503 P.2d 1117, 1120 (1972) (citations and quotations omitted) (emphasis added). In the present case, none of the parties that have objected to the Petition will have their parcels landlocked or their access substantially impaired as a result of the vacation. The vacation would still leave multiple alternative access routes to all nearby parcels, including to Buchanan's property, because 1st Avenue, 3rd Avenue, and "D" Street would remain open. Trucks can still access the Buchanan scales and its loading docks. So long as Buchanan and other nearby parcels MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 8 HALVERSON j NORTHWEST P.C. 405 East Lincoln Ave. I P.O. Box 22550 Yakima, WA 98907 509.248.6030 ®OCs INDEX r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24 25 have reasonable alternative means of ingress and egress, they would have no legal standing to challenge the vacation petition if granted. Further, any claim Buchanan alleges would arise from a loss of visibility of its business is simply not compensable as a matter of law because it would not arise from any physical injury to its property: "[L]oss of business revenue is not compensable by damages unless there is some physical injury to property." Banchero, 2 Wash. App. at 524-25 (citations omitted). III. CONCLUSION For the above reasons, Hops Extract requests that the Hearing Examiner adopt the findings of City staff, recommend approval of the vacation, and that City of Yakima grant its Petition to Vacate. DATED this 2�/day of February, 2013. HALVERSON NORTHWEST LAW GROUP, P.C. Attorneys for Petitioner By: MARK E. FICKES, WSBA# 17427 MEMORANDUM IN SUPPORT OF PETITION TO VACATE STREET OR ALLEY - 9 HALVERSON I NORTHWEST P.C. 405 East Lincoln Ave. I P.O. Box 22550 Yakima, WA 98907 509.248.6030 DOC. INDEX 7�� City of Yakima - Geographic Information Services All r ppI 'tip r� � 4 k. t !LR s r 11110 (D LA CL _a ..soon 1! .�. �� , :a � `, *- s � r � - — ''4 CD Copyright 2011 City of Yakima. Washington. All rights reserved. Map D's::a. oar. Information ,'— - on this map is for piano ng and illustration purposes only The City or val, -a assumes no liability for any ermre. omisst or inaccuracues in the Information provided or for any action taken, or action not taken by the user In reliance upon any maps or information provided hr Created: Tuesday, May. 7, 2013 at 3:44 PM