HomeMy WebLinkAbout02/14/2005 Special Meeting 52
CITY OF YAKIMA, WASHINGTON
SPECIAL MEETING OF THE CITY COUNCIL
FEBRUARY 14, 2005 - 7:00 P.M.
YAKIMA CITY HALL - COUNCIL CHAMBERS
1. Roll Call
Present:
Council: Mayor Paul George, presiding, Council Members Ron Bonlender,
Dave Edler, Mary Place, Bernard Sims, and Susan Whitman
Staff: City Manager Zais, Assistant City Attorney McMurray, and City Clerk
Roberts
Also: Ken Harper, consultant attorney
Absent: Council Member Neil McClure, excused
2. Closed Record Public Hearing to consider an appeal filed by Pauline Polo, et al of
the Hearing Examiner's decision to uphold the MDNS and granting a land use
permit for Triumph Treatment Services to establish a day care center, group
home, and commercial kitchen at 3300 Roosevelt Avenue
Maximum Time Allowed
A. Introductory Comments regarding procedure for a 2 Min.
Closed Record Public Hearing
Mayor George stated that we are here for a closed record public hearing to
consider an appeal filed by Pauline Polo. He further stated that Council would
follow the agenda.
B. Declaration of ex -parte contact 2 Min.
Council Member Whitman reported she had conversations with Tom Davidson
and Dianne LaBissoniere, regarding the appeal process. She stated that neither
conversation would influence her ability to hear the appeal.
None of the other Council members reported any ex -parte contact, however,
Council Member Place reported she had visited the site.
C. Presentation by City staff and legal counsel 5 Min.
Mary Lovell, Associate Planner, commented that an open record public hearing
for a land use permit to establish a day care, group home and commercial
kitchen at this location, requested by Triumph Treatment Services, was held
before the Hearing Examiner. On December 23, the Hearing Examiner issued a
recommendation to affirm the mitigated declaration of non - significance and
granted the conditional approval of the requested Class 2 day care use, Class 2
group home use and unclassified commercial kitchen use, with conditions. She
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stated that the appeal was filed in a timely manner and all parties were notified
about the appeal.
Council Member Place questioned the classification of the application for a group
home. She thought it more resembled a halfway house. She distributed a copy •
of that section of the zoning code that indicated the halfway house would be a
class 3 use.
Prior to proceeding with the response by staff, Mayor George asked Ken Harper
to describe the procedure for this closed record hearing. Ken Harper stated that
Council is seated as an adjudicated body, as in the nature of court. The
proceeding is limited to the record prepared by the hearing examiner, and
Council's decision has to be based on his record. Council is not allowed to
decide the case as if it were being heard from scratch. If the Hearing Examiner
made a statement or reached a conclusion that Council does not believe is
supported by facts, for which there is no substantial evidence, that is a basis for
reversing his decision. If the Hearing Examiner made a legal opinion that is not
correct, Council could send it back for further consideration. Relating to the
definition of use, the Hearing Examiner's decision briefly touches on this use as a
group home, but does not say that much why it is not a halfway house. It may be
a legal issue Council thinks was not addressed by the Hearing Examiner. Tonight
it is not appropriate to hear new facts or evidence, although new argument is
acceptable. He stated he would advise Council on how to draw a distinction
between new testimony and new argument. For instance, a new legal brief from
Triumph Services dated 2/14 signed by Jamie Carmody is a legal argument and
is acceptable, and he then distributed copies of it to Council. Other documents
that came in since the record was created includes letters from Don Blesio, State
Community and Trade Economic Development, Steve Hill, Tim Sullivan for
United Way, and Judy Ponto, and an e-mail from Jim Benoit. These letters were
provided to Council with the understanding that they are not part of the record,
unless Council makes them part of the record because they argue positions, and
the attorneys can advise Council which of these are arguments and which are
new testimony.
Council Member Place stated she did not see anything that allowed Council to
zone for specific gender. This home is going to be for young women; however,
the children may be mixed gender. Do we have the right to say we can only allow
women, or men? Mr. Harper responded that Council might hear from both sides
on that issue. It is questionable that it can be enforced.
Council Member Place questioned the restriction to limited use of drugs, alcohol
or caffeinated drinks, since that is not our responsibility. Mr. Harper said that
would be an argument for the two attorneys; that was included in an agreement
with the church next door relating to the parking lot.
Council then discussed the issuance of a zoning certificate, which would expire if
the use were not acted upon within one year.
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D. Appellant's presentation to Council (including legal counsel) 10 Min.
Wylie Hurst, attorney representing Pauline Polo, stated that the neighbors filed an
appeal to the Hearing Examiner's decision because he is wrong. He did not do this
right, or in a timely manner. Starting his argument with 34 Avenue, he stated it is not
possible to access that without violating the city /county set back codes. That narrow
road was put in by the Polo's and is 26 foot wide, and on one side of the road there is
a home that is almost in the street. They intend to take down the barricade and use
that lane as a road. The Hearing Examiner says they don't have to put any
improvements on this road, yet it is inadequate. There are improvements on the
surrounding roads (34 Avenue, Powerhouse Rd. and Englewood). He related that the
people taking food to the Ponderosa go east on Roosevelt and there is no room to turn
around; the truck has to back up the road with it beeping at 5:30 a.m. Triumph would
bring more traffic. To do this right by opening up 34 Avenue or Franklin, you would
have to buy a home in order to get space for a turnaround. They are saying only 61
cars per day will go there, but that is wrong. These women will have children,
babysitters, and boyfriends. He thinks there will be over 100 cars per day. Also, where
will the water runoff go if they don't put in gutters? Another issue is the 19 women at
the Center, and the Hearing Examiner provided no mechanism to enforce the women
only provision.
Ken Harper asked Mr. Hurst about accepting the letters that were received after the
record was closed; however, he did not respond at that time to the question.
E. Respondent's presentation to Council (including legal counsel) 10 Min.
Jamie Carmody, attorney representing Triumph Treatment Center, reiterated a few
comments made by Ken Harper concerning the hearing procedure. The decision -
making authority for Class 2 applications rests with the Hearing Examiner. Council is
sitting in an appellant capacity. The zoning ordinance requires that the notice of appeal
shall specify the issues being appealed, and the hearing is limited to those issues. The
appeal decision needs to be based on whether the hearing examiner recommendation
is valid. The uses proposed here are permitted under the zoning ordinance. The
Growth Management Act says where you have a specified use, you don't revisit the
permissibility of that use. The decision of whether it is a group home or a halfway
house has been made. We will not revisit the density issue; this is a multi - family zone
and the day care and group home were Class 2 uses in that zone. Mr. Hurst made an
argument that the Hearing Examiner just made the decision himself; that is not the way
we process things here. A design services team, which included traffic and fire,
reviewed this application and suggested certain conditions be imposed on the project.
City staff supported the application with those conditions. The point that comes up
frequently in the appeal is the opening of 34 Avenue. The applicant did not make that
proposal; it came from the City Fire Department and Traffic Division. They wanted a
secondary access to support Triumph Services and the neighborhood. That condition
does not create a violation of setbacks. The right -of -way on 34 Avenue is legal, as
are the setbacks. The second element of the appeal statement included questions
regarding wastewater and stormwater. This property is served by sewer and all public
services are available to the site. The stormwater issue has two components. When
you design the project and you have a permit, you have to contain the stormwater on
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site, so it has to be engineered to do that. The Hearing Examiner's decision made that
overflow condition impossible. If you pull out the barrier and it creates a stormwater
problem, it would be looked at further. The City staff and the Hearing Examiner also
addressed that element. The appeal statement also had attached to it a petition that
says if you bring these types of people into the neighborhood you will have increased
crime and a decrease in property value. He Hearing Examiner dealt with that issue. In
group home situations based on state law, generalized comments, prejudices,
stereotypes aren't a basis for denial. The state law also says that is an improper
element of consideration. The third element is federal law, in the Fair Housing Act.
These women are coming out of a treatment program and we can't discriminate
against them. The housing for residents is not a treatment program. These women
have already gone though treatment and are transitioning into the community; some
with children. He made two points regarding the question of group home or halfway
house, 1) this issue was not enumerated in the appeal, and 2) City staff made that
decision. A halfway home is a home or rehabilitation center and that is not what we
have; it fits more in terms of a place for handicapped or alcohol.
Council Member Place interjected that you have to look at the entire definition.
Mr. Carmody stated that according to the zoning ordinance, in interpreting the zoning
ordinance you are to give deference to the staff and hearing examiner interpretation,
and they agreed on group home. Council Member Place commented that if there is a
conflict of provisions, the most restrictive shall govern, and asked how we handle that?
Mr. Carmody summed it up, stating that that interpretation was provided by staff,
notice of the proposed use was given, a decision was made by the Hearing Examiner,
and that issue was never raised in the appeal, which limits this discussion. Council
Member Place then commented that the commercial kitchen was not addressed and
asked who would operate it. Mr. Carmody stated that the employees of Triumph
Treatment Center would work in the kitchen. He then responded to questions
concerning the plan to handle storm runoff, stated it is not known which method would
be used; however, it would be engineered to be retained onsite and approved by the
City. Mary Lovell provided Council with background information on the facility as its
previous use as a nursing home. It was a nursing home for at least 37 years, with 47
beds occupied in 2002. It was not required to keep the stormwater onsite then, and
some neighbors have testified that it was allowed to run off onto their properties.
Referring back to the classification of this as a group home, she stated that they
looked at this as a group home because these individuals are handicapped. This group
home is not for users, but for people in the second stage of recovery done in a
homelike environment.
Ken Harper reminded Council that it is important to clarify the record regarding
whether the written documents received after the record was created should be
considered during this deliberation. He asked if the two attorneys had any argument as
to whether the letters should be accepted into the record. Mary Lovell stated that there
is a 14 -day period to comment after the notice of appeal was sent; therefore, the e-
mailed letter should not be included since the 14 -day period ended on the 28 of last
month. Mr. Hurst stated he needs time to look at them. Ken Harper concluded that
since we have not heard argument on these letters, he would recommend taking a
conservative approach and not include them in the records. Mr. Carmody responded
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that he reviewed the documents and the only one he sees that introduces new
evidence is the one sent by Mr. Blesio, but if the others are excluded too, that is okay.
EDLER MOVED AND PLACE SECONDED TO EXCLUDE THE LETTERS FROM
THE RECORD. The motion carried by unanimous voice vote; McClure absent.
F. Citizen comments each 3 Min.
Mayor George opened the public hearing. Council Member Sims announced that this
is limited to the existing evidence. No new evidence may be brought up, and he will
hold the attorneys present accountable to advise about any new evidence being
presented.
•
Pauline Polo, 3401 Roosevelt Avenue, located on the corner of 34 Avenue, provided
background information on the barricading of the street, stating the neighbors
petitioned to block off that street when the Ponderosa was built. She pointed out that
removing the barricade would cause an increase in traffic and create a blind corner.
She asked who would maintain 34 Avenue, since the four families on that street paid
to have it paved. She asked Council to consider the small children who live on the
east side of the road and to not create a dangerous situation for them.
Joseph Holko, 3410 Roosevelt, distributed pictures and aerial photos that had been
provided to the Hearing Examiner. He stated his concerns including water run -off, the
non- standard street, and the impact to their quality of life by adding to the density of
the neighborhood, particularly ex- addicts in transition.
Steve Hill, Yakima County Community Services, stated that Triumph Treatment has
been a client of theirs for 25 years and they have helped people obtain sobriety. He
spoke in favor of allowing the transitional housing.
Jim Benoit, 3402 Englewood, spoke in favor of the appeal, stating this is not a proper
location for a treatment center. The road is really a 17.5 ft. access road for the
neighborhood, similar to a driveway, which he cleans.
Mary Pyle, 3312 and 33121/2 Englewood, east side of 34 Avenue, reported that her
father built the house by the barrier and when the Ponderosa was built, they got a
court order that the barrier should remain. The road was their driveway, maintained
and paved by them. She suggested that a different location would be more appropriate
for this facility.
Dale Wicke, 3210 Englewood (off the parking lot), expressed concern about the noise
generated from the daycare operation. He stated the daycare should not be permitted
to operate after 9:00 p.m., nor open before 7:00 a.m. They want to keep it open until
12:30 a.m. even though the curfew for the home would be 10:00 p.m. He spoke about
the impact to the neighborhood and the need to minimize it by limiting hours ofthe
daycare and kitchen operations and not permitting children over the age of 6 or 8 to
reside there.
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Linda Murray, 10 S. 55 Avenue, stated she works at Jane's House at Yakima Valley
Memorial Hospital. She worked for Triumph working with women in transition and gave
an example of a success story for one woman who is now teaching in Yakima. She
supported the new day care center and spoke about seven benefits of having quality
early childhood programs that Triumph would provide.
Dianne LaBissoniere, 511 N. 35 Avenue, stated that although the program Triumph
Treatment provides is good, the location they selected is not. The area is 1 1/2 blocks
long and adding 73 cars and 97 kids that would be dropped off and picked up is not
compatible with the neighborhood.
Bob Ponto, 601 N. 35 Avenue, agreed with the supporters of the appeal. He pointed
out that 35 Avenue is used as a freeway for shortcuts. He shared that the Tennis
Club is concerned that druggies would congregate near where parents would drop off
their children for tennis lessons. He asked why did Triumph close their other facilities?
Jennifer Woodkey, 3210 Englewood, next to the nursing home, pleaded to Council to
not allow Triumph to locate there and shatter the safe environment for her family. She
emphasized a request she made twice to Triumph to not remove the trees that provide
a noise barrier. She stated that Triumph has not promised security except for their
facility, which is only one person at night, yet they want to keep the childcare facility
open till 12:30 a.m. and start the kitchen at 5:00 a.m.
Ms. Woodkey introduced, and spoke for Inga Skidmore, an 86- year -old widow, whose
home is adjacent to the nursing facility. She stated her concern is that people would
think Mrs. Skidmore's property is a good place to loiter. She agreed with Linda Murray
in her comments about quality childcare programs, but emphasized that children also
need 10 -12 hours of uninterrupted sleep, which would not be possible if they are
picked up late at night. The hours of operation also need to be limited in order to
control evening noise impact to the neighborhood.
Albert Austin, 3501 Highview Drive, vicinity of 35 Avenue and Englewood, asked
Council members to keep the neighbors' comments and concerns in mind when
making a decision on whether to place this facility in their neighborhood.
Mathew Ball stated he lives in a house that is situated eight feet from the road. He
commented that to remove the barrier would be insane. His three children ride bikes
and rollerblade in front on their home and they would be forced to find another location
to live if this goes through.
Ramon Mesa, 3208 Englewood, stated that his house sits back about 25 feet from the
road. He expressed concern for the safety of his three children if additional traffic is
added to his area. He said that his house is next door to the Ponderosa and reported
there is a lot of noise at the 3 a.m. shift change. He was also concerned about the sick
and elderly citizens who live in that area and can't move away.
Kristie Hartman, Triumph Treatment employee hired to open their daycare center,
spoke about the location of the daycare within the facility, which will be accessed
through a coded security entrance. She advised that at the previous hearing the Fire
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Department suggested that a swinging barricade might be a solution so that 34
Avenue would not be a primary access road to the facility.
Jeanne Holko, 3410 Roosevelt Avenue, two houses from the proposed treatment
center, spoke in opposition to the removal of the barrier for the safety of the
neighborhood. She stated that the other Triumph Treatment facilities have barred
windows at ground level and having such a facility in the neighborhood would diminish
their property values. She mentioned the problems caused to the neighborhood by
Triumph Treatment at their Yakima Avenue location. She recommended that they
relocate their administrative office, put the commercial kitchen there, thereby
eliminating parking, traffic, and odor issues here, and also diminish the hours of
operation and the impact to the neighborhood. They could refurbish their facility at 102
N. Naches for these recovering women, which makes sense since they already have a
facility at 104 N. Naches.
Nancy Charron, architect with Wardell Architects, spoke in favor of Triumph
Treatment Center. She worked with the City and Triumph staff regarding the
preliminary investigation in using this building, which is very viable for their needs. She
stated that it would not meet codes for a nursing home. She provided specifics on the
facility: a lot of the people using the facility would be brought in by van, minimizing the
traffic; the development of the daycare would be based on demand and it would use
the interior courtyard for its play area; and the stormwater drainage would be
engineered to be retained onsite.
Beth Dannhardt, Executive Director of Triumph Treatment Services, stated they
would be doing three things in the building. Recovering people would not run the
commercial kitchen; we have a staff of cooks and a food service manager to operate
the kitchen. The housing is transitional, helping low- income women with children who
are leaving treatment move into the community. They are case managed while they
are at the facility, with an end goal to leave the facility. There is a lack of daycare with
extended hours; not everyone works 8 -5 during the week. She stated that after
speaking with the director of the Ponderosa, she had no problems with it. We have
foster grandparents for the kids in daycare and she thought their staff might utilize the
daycare.
Wylie Hurst circulated an aerial photo of Roosevelt and Franklin Avenue showing the
turnaround. He asked Council to look at those streets and asked why the Hearing
Examiner did not take this into consideration; when trucks come in they have to back
out.
Mary Pyle spoke about the access issue, lack of notification to her about this hearing,
and asked why would you have a daycare center in the same facility housing people
coming off of a drug problem.
Mary Lovell provided information about the notification process to property owners
within 500 feet of the project and the parties of record that was created for future
notification.
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• Deliberation by Council
Ken Harper stated that since it appears that no one else wants to testify, it is time for
Council to make a decision. He enumerated Council's options: 1) if there is substantial
evidence to support the Hearing Examiner's decision, that decision should be affirmed;
2) if Council doesn't believe it should be affirmed, or if they believe the Hearing
Examiner made a legal error, it would be appropriate to either reverse the Hearing
Examiner's decision or send it back to him to correct whatever legal error Council
believes he may have made. He also stated that Council is not required by law to
issue a decision now. The Hearing Examiner was given authority by the Yakima
Municipal Code to make a decision and that is why Council can't substitute their •
decision for his. If you remand it to the Hearing Examiner and he modifies his
decision, it would not come to Council again unless someone appeals his modified
decision. Mayor George suggested continuing the hearing to maybe March 1 to give
Council an opportunity to review the material that was presented. Council Member
Place stated that she would like to have all council members present to vote on this
issue. She asked whether the Hearing Examiner would only look at the issues
remanded to him or would he conduct another open record hearing. Mr. Harper replied
that if it were remanded for legal points only, it would be unlikely for him to open the
hearing; however, on a remand, he would have some discretion to do what is
necessary to address Council's concerns.
Council Member Place stated that several issues are of concern to her:
• Definition in Table 4.2 for a permitted home occupation use
• Width of 34 Avenue
• Stormwater runoff
• Gender specific condition
• Conflict of commercial kitchen for home occupation permit
• Definition of daycare - operated Tess than 24 hours
• Compatibility of these uses with the residential neighborhood
• Conflict with 15.01.010 regarding most restrictive shall govern
Since the neighbors said they paved 34 Avenue /Franklin and maintain it, Council
Member Sims asked if it is a private road, could they could restrict its use. Mary Lovell
responded that 25 feet of public right -of -way was dedicated in 1956 when it was
platted. It was annexed into the City in 1959. The traffic engineer supports removal of
the barricade for better maintenance of the road and access for refuse trucks so they
would not have to back down the road. Staff has not found records on when it was
paved.
Council Member Edler asked Ken Harper if he has any concerns with the Hearing
Examiner's recommendations. Mr. Harper replied that he has some concern about the
Hearing Examiner limiting the facility to use by women only, which may not be
enforceable. He commented that to what extent his opinion would impact the Hearing
Examiner's decision, he wasn't sure. If the Hearing Examiner were asked to look at
that gender limitation, he may agree that it can't be enforced, but he may still agree
regarding the compatibility. The facts are set forth in the record and it is Council's task
to weigh whether there are legal questions.
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City Manager Zais reminded Council that the hearing has not been closed. Council has
the option to close the hearing and continue deliberation, or leave the hearing open
and allow the matter to come back. If Council closes the public testimony portion and
ponders deliberation later, Council could request a legal briefing from the city attorney
as well as legal representatives for the appellant and the applicant. Council Member
Sims agreed with the suggestion to continue this and meet with the attorneys. We
could discuss the issues brought up by Council Member Place and this would let
Council Member McClure review the record so he could participate in the decision.
Mr. Harper said that Council could keep the hearing open, but close the public
comment portion of the hearing.
Jamie Carmody, responding to comments he heard, made the following points:
• Cited two cases that said a remand is inappropriate unless a decision is
made that the finding is not supported by substantiated evidence.
• Disagreed that the way this is written that the gender issue is violative of the
Fair Housing rules. They accept that condition.
• They proposed to the Hearing Examiner that if there were a change from the
basic application they would be willing to go through another public review
process.
• Questioned whether those discrimination rules would apply, i.e. a battered
women shelter.
• The ordinance limits the scope of the appeal to what is on the appeal. If an
issue is not brought to Council on an appeal, you have to accept it as
accurate and you cannot bring it forward for further review.
Ken Harper agreed with some of Mr. Carmody's advice, stating that Council should not
remand an issue simply because Council would like the Hearing Examiner to issue an
opinion on it; however, if Council believes that a portion of the Hearing Examiner's
decision is not supported, or he made a legal error, Council should identify those
circumstances. It is problematic for Council to allow a gender specific condition in the
Hearing Examiner's decision and then subsequently attempt to enforce that condition.
The final point of Mr. Carmody's is what has and has not been appealed. The
Municipal Code states the issues on grounds of appeal not identified on appeal need
not be considered by the legislative body; however, need not is not necessarily must
not be considered. Ordinarily in superior and appellate courts, if an item were not
raised, it would be waived. Council should be careful remanding an item not in the
appeal, but the need to get a decision right weighs more heavily. If that item is of great
significance, it would be appropriate to remand that to the Hearing Examiner.
G. Close Closed Record Public Hearing
PLACE MOVED AND SIMS SECONDED TO CLOSE THE PUBLIC COMMENT
PORTION OF THE PUBLIC HEARING, ASK LEGAL STAFF TO BRING BACK
IDEAS ON MARCH 1 PROVIDING GUIDANCE FOR ADDITIONAL INPUT,
AND GET BRIEFS FROM THE APPELLANT AND APPLICANT. Discussion
followed concerning the points on which Council wishes clarification, which are:
• Distinction between home occupation regarding the kitchen
• Definition for use as halfway house or group home
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• Gender specific condition
• Verify whether 34th Avenue is a public street
• Set back requirement and whether it impacts the Hearing Examiner decision,
and is it appropriately mitigated
• Question regarding most restrictive requirement
• Compatibility of the three uses
The question was called for a vote on the motion. The motion carried by
unanimous voice vote; McClure absent. A deadline to receive the legal briefs was
set for 5 p.m. on February 23, 2005.
3. Adjournment
SIMS MOVED AND EDLER SECONDED TO ADJOURN THE MEETING. The
motion carried by unanimous voice vote; McClure absent. The meeting
adjourned at 9:35 p.m.
READ AND CERTIFIED ACCURATE BY ,/
COUNC EMBER DATE
OUNCIL MEMBER DATE
ATTEST:
p ,
-v■—
CITY CLERK PAUL P. GEORGE, MAYOR
Minutes prepared by Karen Roberts. An audio and video tape of this meeting are available in the City
Clerk's Office
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