HomeMy WebLinkAbout08/29/2006 Business Meeting 146
BUSINESS MEETING
AUGUST 29, 2006 — 6:00 P.M.
YAKIMA CONVENTION CENTER, ROOM D
WAL -MART APPEAL HEARING
RESUMPTION OF DELIBERATIONS
1. Roll CaII
•
Present:
Council: Mayor Dave Edler, presiding, Council Members Ron Bonlender,
Micah Cawley, Norm Johnson, Bill Lover, Neil McClure, and Susan
Whitman
Staff: City Manager Zais, City Attorney Paolella and Acting City Clerk
Moore
2. Disclosure of Ex -Parte Communications
Council Member Whitman advised that at the last Airport Board meeting she was out
of the room when the letter was discussed. It was e- mailed to her but she did not
open it. On June 6, 2006 she had a discussion with Cindy Noble about a slightly
related matter. Council Member Cawley said many people have approached him, but
he has not discussed the issue with them. Council Member Johnson said many
people have tried to persuade him, but he feels it will not impact his decisions.
The attorneys claimed they had no concerns with regard to eX -parte disclosures.
3. Oral Argument From Attorneys For Concerned Citizens of Yakima and Wal-
Mart Strictly Limited To Issues On Remand (Ten Minutes Per Side)
Jamie Carmody, - attorney representing the citizens, said he didn't believe ten minutes
is a fair amount of time for their presentations to Council. He described how the
remand hearing went with the Hearing Examiner and, as a result, requested 20
minutes rather than the allotted 10 minutes.
BONLENDER MOVED AND JOHNSON SECONDED TO EXTEND EACH
ATTORNEY'S ALLOTTED PRESENTATION TIME TO TWENTY MINUTES. The -
motion carried by a 4 -3 roll call vote; Cawley, Edler, and Johnson voting nay.
James Carmody's Oral Argument — Representing Concerned Citizens of Yakima
(CCY)
Mr. Carmody distributed a binder (Exhibit 1) he had prepared containing items taken
from Exhibit R -29 that was considered by the Hearing Examiner (contained in the
material previously supplied to Council).
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Points Mr. Carmody made: •
• They are prepared to commit to Council to not appeal the decision if Wal -Mart is
willing to make the same commitment.
• In the five years of discussion and litigation, he has never seen anyone from Wal-
Mart attend a meeting, yet the community shows up every time.
• They are in agreement with what the Hearing Examiner determined on the noise
issues.
• They agree with the Hearing Examiner on the airport safety overlay, that there
are potentially incompatible and uses with regard to public assembly.
• A large amount of information had previously been supplied to the Council on
that incompatibility issue. He contended some information hadn't been given to
the Council and was included in the binder he supplied.
• He detailed the incompatibility issue with the ASO and claimed that is the basis
for denial of this project.
• He outlined additional reasons for denial; no evidence of economic benefit from
this project, no new jobs, no new revenues.
• He claimed that Wal -Mart is asking the taxpayers to subsidize their operation.
• He claimed the Comprehensive Plan is invalid and inconsistent; no transportation
concurrency.
Mr. Carmody advised Council to take a hard look at the record and have the courage
to say, under this set of facts and these rules, "not here, not at this location" as that is
what the law requires and what the community is asking.
Jack McCullough's Oral Argument on behalf of Wal -Mart
Mr. McCullough distributed a copy of a letter dated August 24, 2006 stating the
Airport Board's position on the proposed Wal -Mart Super Center, (Exhibit 2).
City Counsel, Terry Danysh, recommended addressing this issue when it comes up
during deliberation. For efficiency, it would be better to hold the document in
reserve.
Points Mr. McCullough made:
• The noise issue has been successfully concluded
• With respect to the Airport Safety Overlay (ASO) question, the Hearing Examiner
has not denied, but has made a recommendation to Council that the project be
approved with some provisions.
• We agree with the Hearing Examiner but continue to disagree with some of the
ways he got there
• We believe the proposed use of this location is not incompatible.
• There is testimony, including from the Hearing Examiner. that indicated that the
Wal -Mart would not be incompatible and would not present a threat to public
safety.
• The Hearing Examiner makes it clear a Wal -Mart is not a place of public
assembly.
• It is not necessary to treat this as anything other than Class 1, but if the City were
to treat it as a Class 2 decision, the result would be an additional confirmatory
letter required from the Airport Manager, and that is what was supplied to Mr.
Danysh.
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• The Hearing Examiner said this project could be approved if a condition were
provided to insure the provisions of the ordinance are satisfied.
• Part of the process involved Wal -Mart actually switching sites after the EIS.
• It is ironic that the original site at 72 and Nob Hill did not raise any ASO issues.
• Wal -Mart looks forward to working on a development agreement insuring that this
project bears its complete and fair share of mitigation expenses.
Mr. Carmody's rebuttal
• There is no problem with the letter becoming a part of the record and going to
Council.
• He claimed it is the third attempt to get a letter on ASO compatibility, but
document #12 in his binder is the only one in the record and it says it is
incompatible (Letter dated 11/20/03 from Bob Clem to Andrew Warlock)
• Mr. McCullough's letter refers to airport operations, not airport safety.
4. Resumption of Deliberations
City Counsel Danysh supplied a summary of arguments raised on appeal (Exhibit 3)
to be used in deliberations.
BONLENDER MOVED AND CAWLEY SECONDED TO REJECT THE HEARING
EXAMINER'S DECISION. Council Member Bonlender supported his motion by
stating it would not be an economic development but an economic transfer. Exhibit
189 concludes that this 200,000 square foot building will impose unfair competition
on current merchants in town. It is his belief that it will result in boarded -up buildings
and it will lower the income in the city. It is the City Council's responsibility to look at
the long -term effect. Council Member Cawley doesn't believe it is compatible under
the current ASO, nor does he believe the City's current infrastructure would support
the resulting changes on the west side of Yakima. Council Member Lover pointed
out this is a land use issue, not a social decision. He claimed it is wrong to blame
Wal -Mart for all the world's ills; they have reduced retail dependence on
manufacturing and are only guilty of offering goods at rock - bottom prices. Council
Member McClure noted that two companies chose not to come to Yakima because
Wal -Mart was coming, but that is not proof that Wal -Mart was going to put people out
of business. If Wal -Mart had decided against building, two other groceries would
have put the very same pressure on our economy. The strength of our country is free
enterprise. The question was called for a vote on the motion. The motion failed
by a 5 -2 roll call vote; Edler, Johnson, Lover, McClure and'Whitman voting nay.
McCLURE MOVED AND WHITMAN SECONDED TO APPROVE THE HEARING
EXAMINER'S DECISION WITH MODIFICATIONS. Council reviewed the areas of
contention in an attempt to assure compatibility in the neighborhood.
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•
AUGUST 29, 2006
Wal -Mart appeal issues reviewed
Condition #7 — Maximum lot coverage 78% — no change
Condition #16 — Conversion to smaller spaces or bond
BONLENDER MOVED AND JOHNSON SECONDED FOR A THREE -YEAR BOND
PERIOD. Mr. Danysh suggested the three -year bond limitation could be negotiated
as part of the development agreement as it ultimately requires a public hearing. The
motion carried by a 4 -3 roll call vote; Lover, Whitman and Edler voting nay.
Condition #18 — Sound absorption panels - no change, accept as the Hearing
Examiner has now ruled
Condition #21 — Type and quantity of chillers. Council Member McClure suggested
this is redundant to the noise issue. McCLURE MOVED AND LOVER SECONDED
TO STRIKE THIS CONDITION. The motion carried by a 4 -3 roll call vote;
Bonlender, Cawley, and Johnson voting nay.
Condition #22 — No luminaire within 80 feet. McCLURE MOVED TO MODIFY
CONDITION #22 TO SAY THERE WILL BE NO SPILLAGE OF LIGHT INTO
NEIGHBORHOODS. The motion died due to lack of a second.
Condition #24 — Meadowbrook Mall lighting — no change
Condition #28 — "New Source Review" applicability — no change
Condition #34 — 100' buffer from Wide Hollow Creek - No change
Condition #39 — Eastbound right turn lane at west driveway - No change
Condition #40 — bonding and /or installation of traffic lights at 64 /Tieton and
64 (paid by Wal -Mart) if warranted — Wal- Mart's objection was
withdrawn.
Condition #42 — Curbs, Gutters, and Sidewalks required along (new) westbound
lane on Nob Hill , or Bond. Council Member Johnson expressed concern about
where Nob Hill Blvd. narrows from four to two lanes and is considering the need of
a condition to widen Nob Hill to four lanes with curbs, gutters, and sidewalks. Julia
Kuhns, Kittelson & Associates, said that the City of Yakima has a standard that
states a certain number of vehicles can travel past before transportation
improvements are required. When they looked at eastbound traffic, it appeared to
be within acceptable range with the concurrency ordinance. She also said that
when looking at the intersection level of service along Nob Hill, each one functions
acceptably and there is no evidence on record suggesting that the eastbound turn
lane should be the responsibility of Wal -Mart. JOHNSON MOVED AND
McCLURE SECONDED THAT NOB HILL BOULEVARD, FROM
APPROXIMATELY 48 AVENUE TO 72 AVENUE, BE WIDENED TO FOUR
LANES AND THAT SIDEWALKS, CURBS, AND GUTTERS BE INCLUDED AND
ALSO A LATECOMERS AGREEMENT BE TIED TO THAT IMPROVEMENT.
• Council Member McClure said he would vote against it because five lanes are
needed and he thinks it would be irresponsible to burden one developer to fix our
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west side traffic problems. Mr. Danysh asked Mr. Johnson to please clarify his
intent. Does he want Wal -Mart to widen Nob Hill Boulevard or is this at the City's
expense? Council Member Johnson responded it should be Wal -Mart and a
latecomer agreement would take care of their concerns. This resulted in very
detailed discussion. Mr. Danysh wanted to be sure that Council understands that
the testimony from Ms. Kuhn was that there is no evidence in the record to support
imposition of this condition, and there will be legal exposure to the City in
implementing it. Defense of this position without adequate record to support the
requirement will be a challenge. Council Member McClure withdrew his
second. Mr. Carmody spoke in disagreement with Mr. Danysh's assessment.
Council Member Johnson withdrew his motion. JOHNSON MOVED AND
McCLURE SECONDED THAT THE ROAD BE UP TO TITLE 12 STANDARDS
AND INCLUDE THE LATECOMER AGREEMENT. Council Member Lover asked
for clarification on the latecomer agreement. Mr. Danysh pointed out that this kind
of issue can be worked out in a development agreement, but, basically, if a
developer pays the cost of a significant public utility and other users come along
later, they contribute their pro rata share back to that developer. Mayor Edler
voiced concern about the level of detail being discussed, suggesting it would be
better done with longer deliberations when designing the development agreement.
His concern was with the potential liability created by making decisions quickly.
The question was called for a vote on the motion. The motion carried by a 6 -1
roll call vote; Edler voting nay.
Following a short break, the meeting resumed at 7:50 p.m.
Condition #43 — 7' pedestrian /bicycle access to Borley Lane - no change
Condition #45 —16' wide utility easement - no change
Condition #47 — ASO — Discussion postponed to follow the last item.
Condition #49 — Satellite dishes require approval of FAA, etc.
LOVER MOVED AND JOHNSON SECONDED TO STRIKE THIS CONDITION. The
motion failed by a 1 -6 roll call vote; all but Lover voting nay.
Concerned Citizens of Yakima appeal issues
It was noted by Mr. Danysh that Wal -Mart is proceeding at their own risk and if the
Court of Appeals reverses their decision to indicate the rezone is invalid, Wal -Mart
would not be able to proceed.
1) Defer decision until rezone appeal resolved
CAWLEY MOVED AND McCLURE SECONDED THAT COUNCIL'S DECISION
GO INTO EFFECT AFTER THE REZONE APPEAL IS RESOLVED.
Mr. Danysh clarified that this motion suggests that if the Council does approve
Wal -Mart with these agreed upon modifications, and, if the decision on the
appeal is to overturn the rezone, then the decision made tonight would be void; if
the appeal is approved, the Council's decision would be allowed to go forward.
He noted a potential complication; the possibility of an appeal from the Court of
Appeals to the Supreme Court by any parties involved. Without further
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clarification of this motion, there might be more time involved if any parties are •
dissatisfied. CAWLEY MODIFIED HIS MOTION TO READ THAT COUNCIL'S
DECISION GO INTO EFFECT AFTER THE APPEALS COURT HAS RULED.
The motion failed by a 5 -2 roll call vote; Bonlender, Edler, Johnson, Lover and
Whitman voting nay.
2) Improper standard of review
No motions made
3) ASO improperly applied
Discussion delayed untillater.
4) Transportation mitigation
Mr. Carmody noted that items a) and b) have been resolved.
c) WaI -Mart's mitigation of intersection impacts at 65 and
64 should not be conditional •
CAWLEY MOVED AND JOHNSON SECONDED TO IMPOSE THE •
TRAFFIC SIGNAL REQUIREMENT ON 64 AND TIETON AND 64 AND
WASHINGTON IMMEDIATELY WITH WAL -MART FORCED TO PAY OVER
THREE YEARS. Council Member Lover argued that, if at the end of a three -
year monitoring period, the engineering studies show the signal is not
warranted, the bond shall be released to the applicant. Julia Kuhn agreed
that the studies would be conducted once a year for three years. In the
current traffic impact study, the signals are not warranted at those locations
but there is a feeling that there might be an increase in traffic beyond what
has been studied. Mr. Danysh advised Council to take note of the statement.
made by the City's expert that there was no evidence in the record to support
these signals, but enough concern to require Wal-Mart, as a matter of law, to
conduct the studies in order to determine if they were warranted. The
question was called for a vote on the motion. The motion failed by a 5 -2
roll call vote; Bonlender, Edler, Lover, McClure, and Whitman voting nay.
d) Wal -Mart should be required to improve 64 south of Wide Hollow
Creek bridge - No change
Condition #47 was read into the record:
ASO
Wal -Mart's argument
a) The Wal -Mart is not a place of public assembly because:
i) No "construction" of the Yakima code permits this conclusion.
ii) The only appropriate references to outside codes, e:g., International Building
Code, International Fire Code, Washington Administrative Code, confirm Wal-
Mart's position.
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b) A letter of compatibility from the YAT Manager is not necessary because:
i) Statistically, Wal -Mart does not pose a threat to public safety, and therefore is
compatible with the YAT.
ii) The YAT Board's vote on May 25, 2006 is the ultimate expression of the
YAT's authority in this matter, superseding any position the YAT Manager
could take.
CCY `s argument
a) Wal -Mart is a "place of public assembly ", as defined by the FAA and the
Washington State Department of Transportation's Aviation Division.
b) Class 2 use requires "statement of compatibility" from the airport manager under
the Yakima code, and because Wal -Mart has failed to procure such a letter, the
application should be denied.
McCLURE MOVED AND CAWLEY SECONDED TO APPROVE CONDITION 47 AS
SUBMITTED BY THE HEARING EXAMINER. After clarification from Counsel that
the Hearing Examiner's condition was not being modified, The motion and second
were withdrawn.
Council Member Bonlender referenced a New York Times article about Wal -Mart
with regard to their recognizing the impact on the community and offering competing
businesses money and education. He suggested that become a condition. Mr.
Danysh suggested the issue be addressed when the development agreement is
negotiated.
McCLURE AMENDED HIS MOTION, AND JOHNSON SECONDED THE
AMENDMENT, TO READ TO PUT A 10' WIDE PAVED PATHWAY ON THE WEST
SIDE OF 64 AVENUE FROM TIETON TO NOB HILL AND DETERMINE
WHETHER A PEDESTRIAN ACTIVATED LIGHT AT THE GOLF COURSE
CROSSING SHOULD BE INCLUDED AS PART OF THE THREE -YEAR STUDY.
The motion carried by a 4 -3 roll call vote; Lover, Bonlender, and Edler voting nay.
McCLURE MOVED AND BONLENDER SECONDED TO INCLUDE IN THE
DEVELOPMENT AGREEMENT INCREASING LANDSCAPING TO PLANTING A
TREE EVERY 14 SPACES OR AS SHOWN TO BE SUCCESSFUL IN OTHER
AREAS. The motion carried by a 4 -3 roll call vote; Lover, Edler, and Johnson voting
nay.
Mr. Danysh responded to a question about latecomer agreements noting they will be
sought with regard to utilities and conditions being imposed and they will be
articulated during the development process.
The question was called on the original motion (MOVED BY McCLURE AND
SECONDED BY WHITMAN TO ACCEPT THE HEARING EXAMINER'S DECISION
WITH MODIFICATIONS). The motion carried by a 5 -2 vote; Bonlender and Cawley
voting nay.
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5. Adjournment
JOHNSON MOVED AND McCLURE SECONDED TO ADJOURN TO AUGUST 31,
2006 AT 7 :00 P.M. AT THE MORNING STAR CHURCH, 510 NORTH NACHES
AVENUE, FOR A PUBLIC FORUM ON "YAKIMA'S SAFE COMMUNITY ACTION
PLAN ". The motion carried by unanimous voice vote. •
The meeting adjourned at 9:05 p.m.
READ AND CERTIFIED ACCURATE BY e
C NCIL MEMBER DATE
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COUNCIL MEMBER J DATE
ATTEST:
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CITY CLERK / DAVID EDLER, MAYOR.
Minutes prepared by Linda Watkins. An audio and video tape of this meeting are available in the City
Clerk's Office
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