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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). 147 WAL -MART APPEAL HEARING RESUMPTION OF DELIBERATIONS AUGUST 29, 2006 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. 2 148 WAL -MART APPEAL HEARING RESUMPTION OF DELIBERATIONS AUGUST 29, 2006 • 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. 3 • 0. 149 WAL -MART APPEAL HEARING RESUMPTION OF DELIBERATIONS • 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 4 150 WAL -MART APPEAL HEARING RESUMPTION OF DELIBERATIONS AUGUST 29, 2006 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 5 151 WAL -MART APPEAL HEARING RESUMPTION OF DELIBERATIONS AUGUST 29, 2006, 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. 6 152 WAL -MART APPEAL HEARING RESUMPTION OF DELIBERATIONS AUGUST 29, 2006 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. 7 153 , WAL -MART APPEAL HEARING RESUMPTION OF DELIBERATIONS AUGUST 29, 2006 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 ( l i tt& - &- l ar , OVP COUNCIL MEMBER J DATE ATTEST: 4.--btru01))40tyl_m__, A 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 8