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HomeMy WebLinkAbout04/17/2006 Closed Record Appeal Hearing 13 CLOSED RECORD APPEAL HEARING Re: Hearing Examiner's Decision for Proposed Wal -Mart Superstore at S. 64 Avenue and W. Nob Hill Blvd. APRIL 17, 2006 — 6:00 P.M. THE SEASONS 101 N. Naches Avenue 1. Roll Call Present: Council: Mayor Dave Edler, presiding, Council Members Ron Bonlender, Micah Cawley, Norm Johnson, Bill Lover, Neil McClure, and Susan Whitman (present after 6:12 p.m.) Staff: City Manager Zais, City Attorney Paolella, Acting City Clerk Moore, and Records Clerk Watkins Attorneys: Ray Paolella, City Attorney; Terry Danysh representing the City of Yakima; James Carmody, representing Concerned Citizens of Yakima; and Jack McCullough representing WaI -Mart Stores, Inc. 2. Closed Record Appeal Hearing to consider an appeal filed by Concerned Citizens of Yakima (CCY) and Wal -Mart Stores, Inc. (W -M) A. Mayor's Opening Statement regarding hearing procedure and ground rules • This is a closed record appeal hearing considering appeals filed by Concerned Citizens of Yakima (CCY) and Wal -Mart Stores • City Council is acting in appellate capacity • No new evidence is allowed. • 60 minutes each allowed for appellant lawyers and non - lawyers affiliated with CCY or Wal -Mart • Recommend taking this argument under advisement for consideration under the deliberation stage Wednesday night. All Council members were in agreement. B. Mayor's request for disclosure of ex -parte contacts Council Member Lover attended the two open- record Hearing Examiner's public meetings while a council - elect. Also received a phone call from Scott Wilson who spoke for two minutes. He did not respond. Council Member Johnson attended the first public hearing at the Harman Center and has read the Yakima Herald article on the airport issue. He received no phone calls and no direct contact. - Mayor Edler had nothing to disclose. 14 APRIL 17, 2006 WAL -MART APPEAL Council Member McClure attended the first night of public hearing. Council Member Bonlender heard general conversation from people on a daily basis but had nothing to disclose. Council Member Cawley attended the first hearing, heard general conversation but gave no responses and has read things in the media. Both attorneys, Jamie Carmody and Jack McCullough, had no objections to Council's disclosures. Upon her arrival Council Member Whitman claimed no ex parte contact. C. Attorney for City Council Statement Terry Danysh, representing the City of Yakima, reiterated that the appeal hearing is about what is in the record and only representatives of the two appellants will be allowed to make argument to the City Council. He noted that state law mandates the guidelines for the hearing. He gave direction with regard to the handling of objections and that no questions by the lawyer or non - lawyer representatives of the appellants will be permitted of the City Council or City Staff. However, the City Council may ask questions of the lawyers. Mr. Carmody disagreed with the limitation of testimony to parties of the appeal. He feels those responding parties of the public who have issues should be allowed to participate whether or not they are affiliated with either group. He also commented that, as far as staff questions, the same rules should apply to city staff and city attorneys and they should not be authorized to provide any new evidence or comment. Materials have been submitted in written form by different parties and he thinks it would be appropriate for those to be identified for the record and handled in the same method as the motion to strike, that they be taken under appeal during deliberations. D. Presentation by Director of Community and Economic Development regarding Hearing Examiner's decision Bill Cook, Director of Community and Economic Development, summarized the Hearing Examiner's decision. An open record public hearing was conducted on December 14 and 15, 2005 at the Harman Center. The record was kept open until Jan 6, 2006. On January 21 the Hearing Examiner issued his - decision. The decision can be divided into three sections; Findings, Conclusions, and Decision. Mr. Cook then gave highlights of each of the three sections. In the third section, the Hearing Examiner described and explained his decision. "This application for a Wal -Mart Supercenter together with a fueling station and outlots within the CBDS zoning district is APPROVED subject to the mitigating conditions of the EIS except as specifically modified 2 15 APRIL 17, 2006 WAL -MART APPEAL herein and the obligations of the applicant to enter into a development agreement with the City, as authorized by RCW 36.70B.170 -120 in order to implement the following conditions." There were 52 conditions identified in the decision and Mr. Cook touched on a few. The decision, in its entirety, was mailed to all 1,440 parties of record on January 25, 2006. E. CCY's Presentation to Council James Carmody, Attorney for the Concerned Citizens of Yakima, referred back to the Comprehensive Plan amendment in October 2001. That amendment made possible a rezone and, ultimately, the application before Council today. The Comprehensive Plan amendment was appealed to the Growth Management Hearings Board who determined it was invalid because the community wasn't allowed the opportunity to participate in the hearing process. That is significant because the reason for today's appeal hearing is an illogical development plan with the placement of a high volume, 24 —hour retail business side by side with existing residential neighborhoods. The Growth Hearings Board said it was invalid and the City was asked to stop the process but they continued to move forward with the rezone. Mr. Carmody suggested that Wal- Mart is asking the citizens of the community to subsidize their venture. Mr. Carmody handed out his interpretation of the Hearing Examiner's summary suggesting it be reviewed against Mr. McCullough's. Mr. Carmody claimed that every one of the requests by Wai -Mart also had been given to the Hearing Examiner and he rejected them. He then continued commentary on the amendments to the conditions submitted by Wal -Mart. Items he addressed were: -No. 7 Lot coverage @ 78% -No. 16 Internal space design for easier conversion to smaller retail - No. 18. Shielding of mechanical equipment - No. 22 Luminaire setbacks - No. 24 Lighting standards - No. 34 Wide Hollow Creek stream protection - No. 39 Contribution to road improvements' - No. 40(b) Improvements for traffic signals Mr. Carmody said their appeal addresses four separate areas of concern. First, whether it is a good decision to move forward and make any decision at all. It is his group's request to defer and allow the appeal process to take its course. He then summarized Ordinance 2002 -45 and said we are now in a LUPA situation. The Concerned Citizens went to the City and asked them how they would handle the confusion associated with the multiple appeals and applications. At that time Council Member Mary Place wrote that until that appeal process was completed there would be no actions taken, no building permit will be issued (Exhibit 3). The Hearing Examiner said if the applicant goes forward it's at their risk until all appeals are decided. If an appeal is reversed, everything goes away. Mr. Carmody asked if Wal -Mart is prepared, 3 16 APRIL 17, 2006 WAL -MART APPEAL if the appeal process results in the invalidation of the rezone, to tear the building down, withdraw the application, and go home? He said he is sure the answer is no, that there will be more losses, more litigation, more expense, and more complications. He suggested that the City get the cart back behind the horse, without exposing the City and its constituents to more liabilities. Mr. Carmody read Municipal Code 6.2.020 about the standard difference between use and review. He claimed the Hearing Examiner turned it upside down from what it should be. Mr. Carmody raised the issue of the airport safety overlay (ASO) and a letter from Jim Adams to City Attorney Paolella. Mr. McCullough objected. Mr. Danysh gave his opinion on the letters: because they were not before the Hearing Examiner at the time of the hearing in December, they cannot now come before Council literally as letters. But, Mr. Carmody could speak about the arguments contained in the letter. Mayor Edler said that Council agreed. Mr. Carmody did not agree and ultimately stated that, if for no other reason, this use should be rejected because it is inconsistent with the ASO. The Council members discussed various issues with regard to signals and traffic levels. F. W -M's presentation to Council Jack McCullough, Wal- Mart's attorney, spoke about the original efforts for the store to be located at 72 Avenue and Nob Hill Boulevard. They abandoned the original location as a result of the EIS. He pointed out that there is a favorable decision from the Hearing Examiner accompanied by 52 conditions that are going to apply to this store, if and when it is developed. He said their appeal is more a clarification request on some of the conditions. He then addressed the following conditions; 7, 16, 18, 22(ii), 24, 34, 39, 39(e)(vi), 40(b), 42, 43, 45, 47 and 49. Copies of both Wal- Mart's objections and the Concerned Citizens responses were submitted in writing and are available for review as Exhibits 1 and 2. Mr. McCullough pointed out the site is zoned CBDS which allows a broad range of uses, including the use that Wal -Mart is proposing. The proposed use is a Class 1 use, permitted outright. The legislative decision was made four years ago. The Council is now in a quasi - judicial context, no longer acting as policy makers but as judges deciding if the rules have been followed. The City has a long history of distinguishing between classes of use and classes of review. The two are set up carefully in the zoning code to operate independently of each other in order to mix and match. Compatibility of Class 1 uses is presumed, as in this case. There is an EIS that shows the impacts that have been, or will be, mitigated by the 52 conditions. 4 17 • APRIL 17, 2006 WAL -MART APPEAL Mr. McCullough said we are here within a legal framework abiding by the rules as they are, not by the rules as we might wish them to be. The City must stick to those rules. He then countered expected arguments with regard to the validity of Ordinance No. 2002 -45, that compatibility should not be presumed, that this is not Class 1 but really Class 2 or 3, and that the distinction between use and review should not be paid attention to. He emphasized that the Hearing Examiner found this project to be a Class 1 use. Mr. McCullough also addressed the issue of the airport safety overlay (ASO) pointing out that it also relates to the same issue of use versus review. He referred to definitions in the Yakima Municipal Code Chapter 15.30.020 and how there, as well as in building construction codes, this project is not identified as a place of assembly. The EIS clearly shows in its analysis there is not likely to be any public hazard in the development for this use at this location. He pointed out that no one commented on this or presented evidence at the hearings. Following a short break, Council members asked questions. Council Member Bonlender expressed his concerns about whether the store will be successful and what would happen if it was not. He also asked Mr. McCullough about Item #42, paving Nob Hill from 48 to 64 Avenues and were they not willing to meet Title 12 standards for that area. Mr. McCullough said they felt those sites are going to be developed in the near term. It seemed to them the cost may exceed the impact they were causing. Improvements will be constructed when the lots owned by the Congdon family to the north along Nob Hill frontage are developed. He then suggested there could be a cost sharing agreement or a development agreement to deal with some of these issues. Council Member McClure questioned Condition #18 regarding noise issues. He raised concern about whether the City's standards are high enough. G. Non - Attorney Representatives of Appellants Doris Ayyoub, 7221 Summitview, expressed concern about the choice of venue. She felt it had limited access for elderly people. She also had a number of negative comments about Wal -Mart and the project but was directed to only address the items in the appeal. Her concerns were traffic, safety, and noise. Wilma Koski, CCY, also expressed concern about traffic and safety and • street maintenance with the increased traffic. She also spoke about the airport safety overlay and noise. Shane V. Smith spoke about the definition of places of assembly with regard to the airport safety overlay. Joe Hubble, 807 S. 68 Avenue, focused on the compatibility issue. He doesn't feel the measures will successfully mitigate the problem. 5 18 APRIL 17, 2006 WAL -MART APPEAL Dr. Mike Noble with the Concerned Citizens of Yakima, addressed the class of use versus class of review issue. June Busch, 506 Pickens Road, commented that we have an invalid comprehensive plan. This whole issue should have been stopped by it and the zoning change should never have been made. Scott Wilson, 2410 S 66 Avenue, spoke about problems at a Wal -Mart in Cathedral City, California. Larry C. Shoot, 1424 S. 67 Avenue, spoke against the fencing design saying it will not block light, smells, noise, truck traffic, and tire store operation. He also questioned whether the streets will be able to handle the additional traffic. Chris Brown, CCY, also addressed the traffic issue, as well as the airport safety overlay and noise. He said those issues are not being properly reviewed. H. Attorney for City Council Statement regarding next steps in the Hearing process. Terry Danysh, counsel for the City, explained what happens, next. The Council will reconvene on Wednesday, April 19 and will hear from the appellants' lawyers. Following that, the Council will begin public deliberations. Staff will respond to questions asked of them. Following that, the City Council will proceed with deliberations and once they have reached a • decision, they will prepare findings and conclusions. It will be the City's final decision subject to remand and appeal. Wal -Mart Rebuttal Jack McCullough commented that there has been a strong theme through Mr., Carmody's presentation that Wal- Mart's appeal is an exercise intending to avoid paying their fair share or to foist additional expenses on the City of Yakima. He said nothing is further from the truth. He then countered many details Mr. Carmody had brought up during his presentation, e.g. the berm issue, traffic and road improvements, and whether the ordinance was in effect. He noted that the new site has a different comprehensive plan designation than the original one at 72 Avenue. The 64 Avenue site has always been designated for commercial uses that can be consistent with CBDS. He also addressed the ASO issue noting that during the research, the public hearings, and in the EIS, it was determined that this site is compatible with no public safety impact. The Airport Board was nowhere to be seen during this review. They included no comments in the EIS. State law, under SEPA regulations, states if an agency does not respond in the time period, the lead agency must assume the agency has no information and the lack of objection shall be construed as a lack of objection to the proposal. Now, in the very last proceeding, we see letters from the Airport Board suggesting they want to comment. Mr. McCullough claimed that the EIS is clear, the record is clear, the 6 19 APRIL 17, 2006 WAL -MART APPEAL • interpretation of the ordinance is clear, and that this project is consistent with the ASO. CCY Rebuttal Mr. Carmody countered that the Comprehensive Plan that existed before the "invalid" Comprehensive Plan, identified this area as neighborhood commercial, which is different than CBDS. He spoke about the various classes and how it was an amendment in 2002 that changed the class for this property. He emphasized how Larry Mattson's comments, when he was on Council, were valid as he was a land use planner and knew exactly what it was and how he intended to change the standard of review from Class 1 to Class 2. He then addressed the ASO issue of putting people in harm's way. He urged the Council to read the appeal comment from the Airport Board and hear what Doug Hahn and Jim Adams have to say. He also stated that Wal- Mart's benevolence wasn't because they are "good guys ", but they're doing it because the EIS tells them they have to. He said they should be doing Title 12 the whole way, not just one way on Nob Hill Boulevard. Mr. Carmody noted that the citizens' appeal comments have been the same all along and the community has remained active in trying to communicate with the Council. 3. Adjournment McCLURE MOVED AND CAWLEY SECONDED TO CONTINUE THE CLOSED RECORD APPEAL HEARING UNTIL APRIL 19 AT 6 P.M. AT THE SEASONS. The motion carried by unanimous voice vote: The meeting adjourned at 9:40 p.m. READ AND CERTIFIED ACCURATE BY , _ — G�- - • UNCIL MEMBER DATE akt-A COUNCIL MEMBER DATE ATTEST: CITY CLERK Q/ DAVID EDLER, MAYOR Minutes prepared by Linda Watkins. An audio and video tape of this meeting are available in the City Clerk's Office • 7 4852-0659-2513\1 7/31/2006 3 33Ytit