BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

Transcription

1 COUNTY COMMISSIONERS Cathy Wolfe District One Diane Oberquell District Two Robert N. Macleod District Three HEARING EXAMINER BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of the Application of ) NO ) Chuck Hoeschen ) FINDINGS, CONCLUSIONS, dba BNB Investments ) AND DECISION ) For Approval of a Preliminary Plat ) (French Gardens) ) SUMMARY OF DECISION A Preliminary Plat for the subdivision of three parcels of land into 27 single-family residential lots and five tracts is GRANTED, subject to conditions. The subject property is located within the Olympia Urban Growth Area of Thurston County at the 2000 block of French Road NW, Olympia, Washington. SUMMARY OF RECORD Request Chuck Hoeschen of BNB Investments, through its representative Bill Dunning of PACLAND (Applicant), requested approval of a Preliminary Plat for the division of three parcels of land, totaling approximately 6.57 acres, into 27 single-family lots, three tracts for stormwater drainage, and two tracts for tree retention and critical area protection. Domestic water and sanitary sewer would be provided by the City of Olympia. The subject property is located within Thurston County at the 2000 block of French Road NW, Olympia, Washington. Hearing and Procedural History An open record public hearing was held before the Hearing Examiner for Thurston County on December 4, Lakeridge Drive SW, Olympia, Washington (360) /FAX (360)

2 Testimony At the open record public hearing the following individuals presented testimony under oath: 1. Gayle C. Zeller, Associate Planner, Thurston County 2. Arthur Saint, Thurston County Roads and Transportation Department 3. John Ward, Thurston County Environment Health 4. Alexander Sandy Mackie, Applicant s Attorney 5. Heather Burgess, Applicant s Attorney 6. Mike Beach, PACLAND 7. Jack Darey 8. Flora Leisenring 9. Laurie Meeker 10. Maria Trevizo 11. Eric Zvonchenko 12. Chuck Hoeschen Exhibits At the open record public hearing the following exhibits were admitted as part of the official record: Exhibit 1: Staff Report dated December 4, 2006 Attachment A: Notice of Public Hearing Attachment B: Site Map Attachment C: Zoning Map Attachment D: Preliminary Plat Map, dated September 25, 2006 Attachment E: Preliminary Plat Application, received June 28, 2005 Attachment F: Revised Forest Land Conversion Application, received September 26, 2006 Attachment G: Logging Site Map, dated September 25, 2006 Attachment H: Preliminary Grading, Drainage, & Utility Plan, dated September 2006 Attachment I: Mitigated Determination of Non-Significance, issued October 19, 2006 Attachment J: Thurston County Policy No. ZONE.POL , dated August 30, 2005 Attachment K: Preliminary Landscape Plan, dated September 2006 Attachment L: Agency Comments: Thurston County Public Health & Social Services Preliminary Approval Letter, dated November 14, 2006 Attachment M: and August 30, 2006 Agency Comments: Thurston County Roads & Transportation Services Preliminary Approval Memorandum, dated October 30, 2006 Attachment N: Agency Comments: Olympia School District, dated August 30, 2005 Page 2 of 24

3 Attachment O: Agency Comments: Olympia School District, dated November 9, 2006 Attachment P: Sidewalk Exhibit, dated November 30, 2006 Attachment Q: Agency Comments: City of Olympia, dated August 22, 2006 Attachment R: Public Comment: 56 letters from neighboring property owners and other interested parties Attachment S: Seven (7) Color photographs of site Exhibit 2: Public Comment: Ann Friedman, dated December 1, 2006 Exhibit 3: Public Comment: Fred Tabbut, dated December 1, 2006 Exhibit 4: Public Comment: Thomas Johnston, dated December 1, 2006 Exhibit 5: Enlarged Preliminary Site Plan Exhibit 6: Enlarged Grading and Drainage Plan Exhibit 7: Enlarged Landscape and Irrigation Plan Exhibit 8: Color Photographs (Exhibit 1, Attachment S) Exhibit 9: Color Photographs of Public Notice Posting Exhibit 10: Level 1 Traffic Impact Analysis, revised May 15, 2006 Exhibit 11: Storm Drainage and Erosion Control Plan Report, dated February 1, 2006 Exhibit 12: Tree Protection Plan, dated August 9, 2006 Exhibit 13: Enlarged Tree Protection Plan Map Exhibit 14: Memo to Alexander Mackie from Joseph Rehberger, dated November 30, 2006 Exhibit 15: Color Plan Set (Site Map, Site Plan, etc) Exhibit 16: Public Comment: Written Testimony of Flora Leisenring, dated December 4, 2006 Exhibit 17: Public Comment: Written Testimony of Laurie Meeker and Maria Trevizo, dated December 4, 2006 Exhibit 18: Color photographs of site, submitted by Laurie Meeker Exhibit 19: Integrated Pest Management Plan, dated February 2, 2006 Based upon the record developed at the open record hearing, the following Findings of Fact and Conclusions are entered in support of the decision of the Hearing Examiner: FINDINGS 1. The Applicant requested approval of a Preliminary Plat for the subdivision of three parcels of land (approximately 6.57 acres) into 27 single-family residential lots, two tree/critical area buffer tracts, and three stormwater drainage facility tracts. The resulting subdivision would be known as French Gardens. The subject property is located at the 2000 block of French Road NW, Olympia, Thurston County, Washington. 1 Exhibit 1, Staff Report, pages 1-2; Attachment E, Plat Application; Testimony of Ms. Zeller. 1 The legal description the subject property is: a Portion of Section 4, Township 18 North, Range 2 West and is referenced by Tax Parcel Numbers , , and Page 3 of 24

4 2. Pursuant to the Washington s State Environmental Policy Act (SEPA), RCW 43.21C, the County, acting as lead agency for identification and review of environmental impacts caused by the proposal, issued a Mitigated Determination of Non-Significance (MDNS) on October 19, The MDNS was based on the following documents, site visits, and consultation: Environment Checklist, correspondence from City of Olympia Parks, Arts, & Recreation and the City of Olympia Planning & Development, Washington Forestry Consultants Tree Plan, Transportation Impact Analysis, correspondence from Thurston County Roads & Transportation Services, and correspondence from Olympia School District. The MDNS set forth 21 conditions including mitigation for school, traffic, and park impacts, wetland buffers, and forest land conversion. The deadline for commenting on the MDNS was November 2, 2006 and the appeal period closed on November 9, There was no appeal. All conditions set forth in the MDNS are incorporated as conditions of the preliminary plat approval. Exhibit 1, Staff Report, Page 3; Attachment I, MDNS; Testimony of Ms. Zeller. 3. Neighboring property owners and other interested parties participated in community meetings, submitted written comments, and testified at the December 4, 2006 public hearing in regard to the proposed development. 2 Comments received pertained to the following areas and are addressed throughout this decision: Traffic Impacts (Volume) Traffic Safety (Vehicular and Pedestrian) School Impacts (Student volume and safety) Critical Areas (Wetlands, Aquifer Recharge Areas, etc.) Stormwater and Flooding Private Well Protection Density (Incompatibility with surrounding neighborhood) Quality of Life (Rural Character) Property Values Fish and Wildlife Habitat 4. The subject property, located within the Olympia Urban Growth Area (UGA), is zoned Residential Four to Eight Dwelling Units per Acre (R4-8). 3 The purpose of the R4-8 zone, in addition to providing a substantial residential development pattern for future generations, is to accommodate single-family houses at densities ranging from a minimum of four units per acre to a maximum of eight units per acre; to allow sufficient residential density to facilitate effective mass transit service; and to help maintain the character of established neighborhoods. TCC ; Exhibit 1, Staff Report, Pages 2-3; Testimony of Ms. Zeller. 2 The Applicant s original development proposal was for 41 residential units and was later modified to the 27 residential units that is the subject of the review of this decision. Many of the written comments contained within Attachment R of Exhibit 1 reference the original proposed development of 41 units. 3 The subject property is designated as Residential 4-8 unites per acre on the City s of Olympia s Comprehensive Plan Future Land Use Map. Page 4 of 24

5 5. The R4-8 zone permits a minimum density of four units per acre and a maximum of eight units per acre. The Applicant proposed a density of 5.1 units per net acre. TCC , Table 4.04; Exhibit 1, Staff Report, Page 3; Attachment D, Preliminary Site Plan; Exhibit 5, Enlarged Site Plan. 6. The design standards applicable to single-family development within the R4-8 zone include: Minimum residential lot size 5,000 square feet; Minimum lot width - 50 feet 4 ; Maximum building height - 35 feet; Minimum setbacks - front yard: 20 feet, side yard: five feet, rear yard: 20 feet. Average lot size within the proposed plat would be 7,167 square feet. The smallest proposed lot is 5,402 square feet (Lot 1) and the largest proposed lot is 9,754 square feet (Lot 17). As proposed, the use, density, setback requirements, and lot width of the proposed residential development comply with requirements of TCC TCC ; Exhibit 1, Staff Report, Page 3; Exhibit 5, Enlarged Site Plan; Testimony of Ms. Zeller. 7. Land use of the surrounding area is within the Olympia UGA and is similarly zoned R4-8. The site is bordered by lower density single-family residential development on the north and south, French Road to the east, and undeveloped property and a pond to the west. Exhibit 1, Staff Report, Page 2; Attachments B and C, Zoning and Site Maps; Exhibit 8, Site Area Photographs; Exhibit 11, Drainage Plan. 8. Several comments submitted by the public pertained to the proposed density of the plat. Most comments stated that the density was not appropriate and was not compatible with the surrounding community, which has been developed at a lower density and maintains more of a rural character. Some of the comments questioned the R4-8 zoning designation and contended that the County erred when it designated the site as part of the UGA and assigned the R4-8 zoning district. 5 Exhibit 1, Attachment R, Comments of Johnston, Trevizo, Henry, Daubert, Woodall, Greene, Vu, Daye, Darey, Higa, Scott, Peterson, Stellini-Ging, Saliba, Monda, Priest, Burrell, Tabbutt, Buitenkant, Wolfe, and Hamilton-Noble; Exhibit 2, Comments of Friedman; Exhibit 3, Comments of Tabbutt; Exhibit 16, Comments of Leisenring; Testimony of Mr. Daray; Testimony of Leisenring; Testimony of Meeker; Testimony of Zvonchenko. 9. Thurston County Zoning Policy ZONE.POL , adopted August 30, 2005, requires that if a proposed residential subdivision lot is less than 50 percent of the square footage of existing contiguous residential lots, a site-obscuring screening of at least 20 feet in length must be provided along or near a common property line. Development of the proposed subdivision must comply with this County policy. The Applicant may select from a variety of screening options including fencing, a fence/berm combination 4 The width of lots in new subdivisions within the Olympia UGA of more than 10 lots shall have varied widths to avoid a monotonous development pattern. No more than three consecutive lots shall be the same width and lot widths shall be varied by six-foot increments. TCC (G). 5 The zoning of the area is not an issue before the Hearing Examiner. The zoning designation which the County s Board of Commissioners has assigned to this property is a legislative act for which the Hearing Examiner has no jurisdiction to review. Page 5 of 24

6 supplemented with evergreen vegetation, or a 15 foot wide vegetated (enhanced natural or newly planted) buffer. Exhibit 1, Staff Report, Page 5; Attachment J, ZONE.POL ; Testimony of Ms. Zeller. 10. Two single-family dwellings and several outbuildings are located on the eastern portion of the site near proposed Lots 1, 2, 3, 4, and 5. All of these structures would be removed to accommodate the development. Exhibit 1, Staff Report, Page 2; Exhibit 5, Preliminary Plat Map. 11. The topography of the site is generally level with a gentle slope on the northwest portion of the site. Soils are mapped as Alderwood Gravelly Sandy Loam. Exhibit 1, Staff Report, Page 2; Attachment L, Thurston County Public Health Comments; Exhibit 8, Site Area Photographs. 12. Pursuant to Thurston County Code (TCC) 17.25, the Applicant submitted a Class IV Forest Land Conversion Application to Thurston County for the harvesting of timber as part of residential development and road construction. A Class IV Forest Land Conversion Application is an administrative action and is not part of the Hearing Examiner s review. Exhibit 1, Staff Report, Pages 2 and 4; Attachment F, Application; Attachment G, Logging Site Map; Attachment I, MDNS. 13. The public voiced concern in regard to the harvesting of timber and the loss of fish and wildlife habitat. Oral and written comments submitted that the loss of vegetation would threaten the hydrology of the area and result in loss of habitat for various wildlife species including eagles, fox, pileated woodpecker, osprey, deer, and many other species of bird, mammals, amphibians, and fish. Exhibit 1, Staff Report, Attachment R Public Comments of Hamilton, Trevizo, Russell, Connell, Greene, Meeker-Trevizo, Mason, Higa, Scott, Lundberg, Stellini-Ging, Saliba, Guilford, Green, Reiley, Daye, Johnston, Priest, Parr, Swartout, Burrell, Anderson, Wright, Buitenkant, and Hamilton-Noble; Exhibit 17, Meeker-Trevizo Comments; Testimony of Ms. Meeker. 14. TCC (D)(5)(a) requires at least five percent of the total site area being subdivided is to be preserved or planted with new trees and dedicated as a separate tract(s). The Applicant proposed two areas, totaling approximately 24,544 square feet or 8.5 percent of the site, to be the Tree Tracts - Tract D (21,264 sq feet) along the site s southwestern edge and Tract E (3,280 sq feet) along the site s northwestern edge. TCC (D) also requires the Applicant to prepare a Tree Preservation Plan (Tree Plan) and the Applicant retained Washington Forest Consultants Inc. (WFC) for this purpose. WFC noted that the site contains a partially logged second-growth stand of conifer and deciduous trees species with an understory of Salal, Oregon Grape, Western Hazelnut, and various grasses. Conifer species include Douglas Fir, Western Red Cedar, Western Hemlock, and Pacific Yew. Deciduous species include Red Alder and Big Leaf Maple. The trees range in size from 6 to 60 inches diameter at breast height (DBH) with over 200 trees larger than 10 inches DBH. WFC concluded that there were a number of trees eligible for salvage and that due to the fact that the trees on the site have been previously Page 6 of 24

7 thinned; it is likely exposure to winds has improved their rooting and retention potential. However, WFC only evaluated the trees which the Applicant identified on the site plan as trees eligible for salvage. Of the 125 trees evaluated, 24 were recommended for removal due to poor health conditions. WCF marked all trees proposed to be saved with blue paint and recommend that during construction trees be protected by a temporary orange mesh fence located at the edge of the root protection zone. Exhibit 1, Staff Report, Page 5; Exhibit 1, Attachment I, Note 2; Exhibit 5, Enlarged Site Plan; Exhibit 12, Tree Plan; Testimony of Ms. Zeller. 15. TCC (D)(5)(g) requires the retention of existing trees or the planting of new trees on individual residential lots at a rate of one tree for every 4,000 square feet of lot area. Applying this standard to the proposed project 47 trees must be planted or retained for the proposed 27 lots. The Applicant submitted a landscape plan that depicts the retention or new planting of trees at the rate required by TCC (D)(5)(g). Fiftyeight existing trees, or 1.35 trees per 4,000 square feet, would be retained on individual lots with no new trees proposed for planting on these lots. The internal road would be lined with street trees. A total of 44 existing trees would be protected on the Tree Tracts with an additional 29 trees planted within the Tree Tracts. In addition, conditions set forth in the MDNS require financial security to ensure successful establishment of newly planted trees. Exhibit 1, Staff Report, Page 5; Exhibit 1, Attachment I, MDNS; Exhibit 1, Attachment I, Note 2; Exhibit 7, Enlarged Landscape Plan; Exhibit 12, Tree Plan. 16. The portion of the TCC that addressed the Olympia UGA (TCC Title 23) does not require a developer to provide parkland within the development. The Applicant is responsible for mitigation for impacts to existing parks and the City of Olympia park system. Pursuant to SEPA and the comprehensive plan for the Thurston-Olympia UGA, the City of Olympia requested payment of $2, per single family unit as mitigation for the increasing demands upon the City s existing parks, recreation, and open space facilities. The City s request was Condition 5 of the MDNS. Exhibit 1, Attachment Q City of Olympia Comments; Attachment I, MDNS. 17. Thurston County Public Health and Social Services Department (Public Health) reviewed the proposal. 6 Public Health identified two existing wells and a septic system located on the site. The wells must be decommissioned pursuant to Washington Department of Ecology requirements; and the septic system must be abandoned pursuant to Article IV of the Thurston County Sanitary Code. Public Health determined that ground and surface waters are not expected to be impacted by the proposed subdivision. This conclusion was base on the water and sewer being provided to the site by the City of Olympia, and the information of Integrated Pest Management Plan (IPMP) for the project. Public Health recommended preliminary approval subject to several conditions which have been 6 At the time of submittal, the proposal was for 41 single-family residential lots. Subsequent to the initial review, the Applicant reduced the number of lots to 27. On November 14, 2006, Public Health issued a memorandum noting that their recommended approval of the original submittal remained as issued and all conditions/requirements applied to the Applicant s revised proposal. Page 7 of 24

8 incorporated as conditions of approval. Attachment L, Public Health Comments of August 30, 2006 and November 14, 2006; Testimony of Mr. Ward. 18. Public comments were submitted in regard to private wells and the protection of both the wellhead and the 100-foot sanitary control area. Public Health determined that the sanitary control area near proposed Lots 10, 11, and 12 encroached onto the subject property. No other wells were identified as encroaching or being impacted. Pursuant to the Department of Ecology s regulations as set forth in WAC , Thurston County required, as a condition of approval, a Restrictive Covenant for Non-Public Water Sources be recorded against properties which contain a portion of the SCA. Exhibit 1, Staff Report, Page 4; Exhibit 1, Attachment L, Public Health Comments; Exhibit 14, Memo from Rehberger with Restrictive Covenant; Exhibit 1, Attachment R Public Comments of Meeker-Trevizo, Leisenring, Russell, and Dennee-Lee; Testimony of Mr. Ward; Testimony of Leisenring. 19. Public comment on the potential for the proposed development to impact the hydrology of the area (stormwater runoff, flooding, etc.) was received. Neighboring property owners stated that the area has a history of drainage issues due to the concrete soils and that the area has flooding issues. According to the testimony the removal of vegetation and the addition of impervious surfaces would exacerbate this problem and increase pollution runoff into the groundwater and Budd Inlet. Exhibit 1, Attachment R, Public Comments of Meeker-Trevizo, Leisenring, Trevizo, Connell, Henry, Woodall, Vu, Kimes, Weed, Mason, Daray, Higa, Redburn, Peterson, Stellini-Ging, Saliba, Green, Johnston, Kashmar, Monda, Parr, Anderson, Burrell, and Wright; Testimony of Mr. Daray; Testimony of Ms. Leisenring; Testimony of Meeker; Testimony of Trevizo. 20. The Applicant retained PACLAND to prepare a Storm Drainage and Erosion Control Plan (Exhibit 11 Drainage Plan). Based on the Plan storm drainage for the site would be treated and detained in a stormwater pond or released via a flow dispersion trench. Three tracts Tract A (5,946 sq feet), Tract B (22,232 sq feet), and Tract C (1,795 sq feet) would be used as part of the storm drainage system. The stormwater pond would be sized for flows from a 2-year and 100-year storm event. Stormwater runoff would be collected by a series of catch basins and conveyed via underground piping for treatment and detention. The treatment device would be sized to treat runoff from the postdeveloped 6-month storm including flows from roof drains. The device is to be placed in an off-line configuration with piping sized to handle the 100-year 24-hour storm event. No stormwater infiltration is proposed. Run-off from both ponds would be conveyed via a new underground pipe along the west side of French Road and continue south to an existing culvert for furtherance into two swales bordering the eastern side of French Road and an outfall point into Budd Inlet. Exhibit 1, Staff Report, Page 4; Exhibit 1, Attachment H; Exhibit 6, Grading & Drainage Plan; Exhibit 11, Drainage Plan. 21. TCC (J)(1) requires that stormwater drainage ponds be attractively landscaped and integrated into the site design. With the exception of Tract C where it fronts French Road, the Applicant has not proposed landscaping of the stormwater tracts. In order to Page 8 of 24

9 comply with the standard a condition requiring such landscaping has been imposed. Exhibit 1, Staff Report, Page 11 (Condition GG); Exhibit 1, Attachment K; Exhibit 7, Landscape and Irrigation Plan; Exhibit 15, Landscape Plan. 22. An undelineated Category III wetland is located offsite but adjacent to the southwest property line of the subject property. The wetland s classification was confirmed in the field by Thurston County Staff and the wetland s edge identified based on the presence of hydrology, wetland vegetation, and hydric soils. A Category III wetland is a wetland with a habitat value of 21 points or less; less than one to two acres in size; hydrologically isolated; and comprised of one dominated vegetation class. Thurston County s Critical Areas Ordinance (CAO) recognizes that wetlands and the associated buffers are vital to providing wildlife habitat, pollution control, groundwater recharge, and floodwater storage. In order to protect the wetland, a 100 foot vegetative buffer is required for a Category III wetland to protect its functions and values from adjacent high intensity uses. 7 TCC ; ; (C); TCC 17.15, Table 10; Exhibit 1, Staff Report, Page 6; Exhibit 1, Attachment I, MDNS; Exhibit 3, Tabbutt Comments; Exhibit 8, Photograph 4; Testimony of Ms. Zeller. 23. The Applicant s preliminary site plan denotes that the required wetland buffer is incorporated in Tract D in conjunction with the Tree Tract. To prevent encroachment into the sensitive areas wetland and wetland buffer Condition 8 of the MDNS requires that the edge of the wetland buffer be permanently fenced and signed prior to any construction activity. In addition, Condition 9 and Condition 11 of the MDNS require that a statement noting both the importance of wetlands/wetland buffers and restricted activities shall be placed on the survey/recording document and a note notifying future property owners of lots adjacent to the wetland buffer that they are responsible for the maintenance and protection of the critical area. Exhibit 1, Attachment I, MDNS; Exhibit 5, Preliminary Site Plan 24. The Integrated Pest Management Plan (IPMP) requires limitations of the use of fertilizers, pesticides, herbicides and other landscaping maintenance chemicals. Such limitation would protect the underlying groundwater. Public Health reviewed and approved the IPMP subject to an approved method of IPMP distribution to future homeowners. Exhibit 1, Staff Report, Page 4; Attachment L, Public Health Comments; Exhibit 19, IPMP. 25. Public comments were received in regard to roads within the area, including French Road NW which would provide primary access to the proposed plat. Comments noted that French Road is a narrow and windy road with no shoulders. In some places the Road is too narrow to safely accommodate both cars and pedestrians. The witnesses voiced concern that the additional vehicles and pedestrians generated by the plat would exacerbate this already dangerous situation. Special concern was voiced for schoolchildren walking to and from LB Brown Elementary, Exhibit 1, Staff Report, 7 For residential uses, high intensity uses are defined as a density of greater than 1 unit per 5 acres. TCC 17.15, Table 10. Page 9 of 24

10 Page 6; Exhibit 1, Attachment R Public Comments of Parry, Cortmason, Wright, Anderson, Burrell, Parr-Threapleton, Priest, Monda, Kashmar, Johnston, Reiley, Green, Saliba, Stellini-Ging, Peterson, Higa, Daye, Leisenring, Hamilton-Noble, Dennee-Lee, Guilford, Lundberg, Kim, Hamilton, Trevizo, Connell, Henry, Daubert, Woodall, Daray, Scott, and Mason; Exhibit 2, Comments of Friedman; Exhibit 8, Site Area Photographs; Exhibit 17, Comments of Meeker-Trevizo, Exhibit 18, Site Area Photographs; Testimony of Mr. Daray; Testimony of Ms. Leisenring; Testimony of Ms. Meeker; Testimony of Ms. Trevizo. 26. Thurston County Roads & Transportation (Roads & Transportation) reviewed the proposal and determined that, based on the Applicant s Drainage Plan & Report (Exhibits 6 and 11), Revised Preliminary Site Plan (Exhibit 5), and Level 1 Traffic Impact Analysis (Exhibit 10), all of the preliminary requirements outlined in Thurston County Road Standards and Drainage and Erosion Control Manual were satisfied. Roads & Transportation recommended several conditions including those pertaining to road standards, utilities, grading, financial security, stormwater design, and traffic mitigation. In addition to the plat conditions, condition 2 of the MDNS provided that the Applicant contribute $2, in traffic mitigation to the City of Olympia. No traffic mitigation was identified d by the County and no traffic mitigation was included in the MDNS. Exhibit 1, Staff Report, Pages 4, 6; Attachment M, Roads & Transportation Comments; Attachment I, MDNS; Attachment Q,, City of Olympia Comments; Testimony of Mr. Saint. 27. Thurston County Road Standards, Chapter 5, Section 5.03 requires that a Level 1 Traffic Impact Analysis (TIA) be prepared if a project generates 25 or more PM peak hour trips. The proposed plat required such a report and the Applicant retained PACLAND to prepare the TIA. Due to the proximity of LB Brown Elementary School (French Road and 26 th Avenue NW) and an expectation of traffic for the morning work commute, two analyses were considered as part of the TIA a weekday, peak hour 7-9 AM analysis and a weekday, peak hour 4-6 PM analysis. Under the AM analysis, it was projected that trips generated by the proposed development would be 21 trips, resulting in five vehicles entering and 16 vehicles exiting the development. Under the PM analysis, it was project that trips generated by the proposed development would be 28 trips, resulting in 18 vehicles entering and 10 vehicles exiting the development. The TIA also conducted a capacity analysis to determine the Level of Service (LOS) 8 for the roadways impacted by the proposed development and concluded that the service level is LOS A for all roadways. Exhibit 10, Level 1 TIA; Thurston County Road Standards (Jan. 1999). 28. Access to the site is constrained by Budd Bay Inlet, which is located north and east of the subject property. Cooper Point Drive NW, a major north-south arterial, is west of the site with access via several east-west local roadways. Direct access to the proposed plat 8 LOS is a qualitative term describing operating conditions a driver would experience while traveling on a particular roadway during a specific time period. LOS standards range from A (very little delay) to F (long delays and congestion). Page 10 of 24

11 would be from French Road SW. All residential lots would be accessed via a new internal road system. No lot would have direct access from French Road SW. The new internal road, designed in conformance with the Olympia UGA Standards, would extend west from French Road SW terminating in a cul-de-sac. Olympia UGA Local Access Road Standards include sidewalks, curbs, and gutters; illumination, landscaped planting strips, and a parking lane. Exhibit 1, Staff Report, Pages 4, 6; Attachment M, Roads & Transportation Comments; Exhibit 10, TIA; Testimony of Mr. Saint. 29. The Applicant must install frontage improvements along French Road SW. These improvements would conform to City of Olympia Neighborhood Collector Standards and include sidewalks, curbs, illumination, landscaped planting strips and swale, and parking lanes. Exhibit 1, Staff Report, Pages 4, 9 (Condition N); Exhibit 5, Preliminary Plat Map; Exhibit Testimony of Mr. Saint. 30. Public concern was raised in regard to limited sight distance at the intersection of 26 th Avenue NW, French Road NW, and Crestline Drive NW. To alleviate this problem and ensure pedestrian safety at the intersection, Roads & Transportation recommended that the Applicant remove vegetation from the area and regrade the slope located within the County right-of-way to the south/southeast of the intersection along Crestline Drive NW. The Applicant submitted plans denoting that vegetation would be cleared to provide sight distance to 255 feet. Roads & Transportation s recommendations were made Condition 3 of the MDNS. Exhibit 1, Staff Report, Page 6; Exhibit 1, Attachment I, MDNS; Exhibit 15, Site Distance; Testimony of Mr. Daray; Testimony of Ms. Meeker; Testimony of Ms. Trevizo. 31. The proposal is consistent with the Land Use, Housing, and Natural Environment chapters of the Thurston County-Olympia Joint Plan and the Thurston County Comprehensive Plan. Provisions of the Thurston County Plan which support the proposal include, but are not limited to, the following: Chapter 2-Land Use, Goal 2, Objective A(11) and Objective C(6) - provide variety of housing/density; Goal 3 - provide for the public health, safety, welfare; Chapter 4-Housing, Goal 1 - provide affordable housing; Goal 2, Objective A - provide housing near employment, transportation, shopping; Chapter 9 - Natural Environment, Section C, Goal: Surface Water Protection. Provisions of the Olympia Comprehensive Plan 9 which support the proposal include, but are not limited to: Chapter 7, Housing, Policy H.1.6: infill development; Policy H.2.1: mixture of housing types; Chapter 2, Environment, Goal ENV3: Protect surface/groundwater; Policy ENV 5.2: critical area buffers; Chapter 1, Land Use Design, Policy LU1.1: focus growth; Policy LU1.3: density; Goal LU4: range of housing types and density. Thurston County Staff determined that the proposed plat, as conditioned, is consistent with the Thurston County Comprehensive Plan. Thurston County Comprehensive Plan; City of Olympia Comprehensive Plan. 9 Provisions of the City s Comprehensive Plan have been adopted by Thurston County as the joint plan with the City of Olympia for the unincorporated part of the Olympia UGA. Page 11 of 24

12 32. Transit service is currently not available. Transit service is available approximately 0.5 miles southwest of the site at the northeast corner of Division Street NW and 26 th Avenue NW. Exhibit 1, Staff Report, Page 7; Exhibit 10, TIA, Page The proposed development would be connected to City of Olympia public sanitary sewer and water utilities. 10 Limited public comment was received in regard to the proposed plat s impact on the existing public water and sewer system. The City of Olympia reviewed the Applicant s revised proposal and concluded it has capacity to provide water and sanitary sewer to the French Gardens project. The City requires that all water system improvements must conform to Department of Health, the Coordinated Water System Plan, the City s Water Comprehensive (Master) Plan, and the requirements of the Olympia Fire Department. In addition, the City requires that all sewer system improvements conform to the City s current Comprehensive (Master) Sanitary Sewer Plan and to the requirements of Thurston County DOH and the Washington State Departments of Health and of Ecology. The Applicant is required install all necessary water main loopings and connections and is required to add a wet well at the Old Port II lift station to assist in peak flow capacity. Exhibit 1, Staff Report, Page 3; Attachment Q, City of Olympia; Exhibit 15, Preliminary Water and Sewer Main Plan; Exhibit 1, Attachment R Public Comment of Scott, Redburn, Mason, Daray, Henry, Connell, and Russell. 34. Public comment alleged that the subject property was located within an Aquifer Recharge Area (ARA). 11 This allegation was not supported by Thurston County property records or Public Health. Although restrictions may apply, the County s CAO does not prohibit residential development which is serviced by a public sewer system within an ARA. TCC 17.15, Part 500; TCC 17.15, Table 2; Exhibit 1, Attachment R Public Comments of Meeker-Trevizo, and Henry; Testimony of Ms. Meeker; Testimony of Ms. Trevizo. 35. The project is within the Olympia School District. In Washington State, ample provision for the education of children is a paramount duty of the state. 12 This requirement is further stated in the laws of the State and Thurston County. RCW requires that subdivisions make appropriate provisions for the general welfare of the community, including provisions for schools and for safe walking conditions for students. RCW 36.70A.020(12) states that when a County is plans for growth, it is to ensure that public services, such as schools, that are necessary to support development are adequate to serve the development. TCC states that a subdivision must make adequate provisions for the general welfare of the community, including schools and safe-walking conditions for school-aged children. The proposed plat would be served by LP Brown 10 Correspondence submitted by the City states that the City has sanitary sewer capacity for the proposed Country Club Villas project. The Hearing Examiner assumes that this is a typographical error on the part of the City since the subject header notes French Gardens Land Use Case # Attachment Q. 11 Aquifer recharge areas are those areas which have an aquifer under them and which allow water to enter the soil and geological materials in ways and in quantities that replenish natural groundwater systems and aquifers. TCC Washington State Constitution, Art. 9, 1 Page 12 of 24

13 Elementary and Jefferson Middle School, both of which are near capacity, and Capital High School, which is over permanent capacity. The School District requested that in order to mitigate the direct impact that the proposal would have on school facilities, a requirement for school mitigation fees in the amount of $4, per single family lot prior by required. Condition No. 1 of the MDNS provides that mitigation must be negotiated between the Applicant and the School District and that the County must receive a letter from the School District stating that the Mitigation Agreement has been completed prior to final plat approved and issuance of individual building permits. Exhibit 1, Staff Report, Page 5; Attachment I, MDNS; Attachment N, School District Comments; Testimony of Ms. Leisenring; Testimony of Mr. Daray. 36. Concerns were raised through public comment in regard to the safety of school children attending LB Brown Elementary School. The school is located approximately onequarter mile south of the subject property at the intersection of French Road NW and 26 th Avenue NW. Currently, there are no shoulders or sidewalks available for children attending LB Brown Elementary to safely walk to and from the proposed development. The Applicant proposed to provide a five-foot wide concrete sidewalk with a four to six foot separation from the paved roadway extending from the proposed plat to the elementary school in order to provide safe walking conditions. The Olympia School District submitted that this would meet the District s needs. Exhibit 1, Attachment I, MDNS (Condition 4); Attachment O, School District Comments; Attachment P, Preliminary Sidewalk Exhibit; Exhibit 1, Attachment R Public Comments (See generally Finding of Fact No. 25 as most traffic related comments pertained to pedestrian safety); Testimony of Ms. Leisenring; Testimony of Mr. Daray; Testimony of Ms. Meeker. 37. Public comments from neighboring property owners claimed that the property the Applicant depicted on the Off-Site Improvements Sidewalk Exhibit (Exhibit 1, Attachment P; Exhibit 15) is not owned by the Applicant. The improvements (five-foot wide sidewalk, supra at Finding No. 35) would extend from the proposed plat southward along French Road NW with a crosswalk to be provided at 28 th Avenue NW. County Staff testified that the entire sidewalk would be constructed within the County right-ofway. Attachment P, Sidewalk Exhibit; Attachment R Public Comments of Hidell-Dick, Trevizo, and Russell; Exhibit 15, Sidewalk Exhibit; Testimony of Ms. Zeller; Testimony of Mr. Saint; Testimony of Ms. Trevizo; Testimony of Mr. Daray. 38. Public comments were received in regard to Thurston County s moratorium on residential subdivision development. In response to a July 20, 2005 ruling by the Western Washington Growth Management Hearings Board, on August 1, 2005 (Ordinance 13405), the Thurston County Board of County Commissioners placed a moratorium on residential subdivisions throughout the County. Ordinance was renewed on January 31, 2006 (Ordinance 13518) and, on May 1, 2006, (Ordinance 13565) released certain lands from the moratorium. The subject property remains encumbered by the moratorium. The Applicant submitted the application for a preliminary plat on June 28, 2005, one month prior to the effective date of the Page 13 of 24

14 moratorium. Exhibit 1, Attachment E, Plat Application; Exhibit 1, Attachment R Public Comments of Mason, Tabbutt, Leisenring; Exhibit 3, Comments of Tabbutt; Thurston County Subdivision Moratorium 13 ; Testimony of Ms. Meeker; Testimony of Ms. Trevizo. 39. The Washington State Department of Ecology (Ecology), based on review of the Applicant s Environmental Checklist, submitted comments on the proposed plat. Ecology s comments pertained to the application of best management practices (BMPs) for the maintenance of air and water quality and toxic cleanup. Exhibit 1, Staff Report, Attachment R(2), Ecology Comments. 40. Written notice of the public hearing was mailed to all property owners within 300 feet and other interested parties on November 21, Notice of the public hearing was posted on the site on November 22, Notice of the public hearing was published in The Olympian on November 24, Exhibit 1, Staff Report, page 3; Attachment A, Public Notice; Exhibit 9, Photograph of Posting. CONCLUSIONS Jurisdiction: The Hearing Examiner is granted jurisdiction to hear and decide applications for preliminary plats pursuant to RCW , TCC , and TCC Criteria for Review: Preliminary Plats To approve a preliminary plat, the Hearing Examiner must find that the following criteria for review set forth in Thurston County Code are satisfied: 1. Appropriate provisions are made for the public health, safety, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools and school grounds and all other relevant facts, including sidewalks and other planning features that assure safe walking conditions for students who only walk to and from school; and 2. The public use and interest would be served by the platting of such subdivision and dedication. Conclusions Based on Findings 1. Vested Rights for Residential Subdivision Development. Pursuant to Washington's vested rights doctrine, Applicants who file a timely and complete permit application obtain a vested right to have their application processed 13 Page 14 of 24

15 according to the zoning and building ordinances in effect at the time of the application. 14 See Rhod-A-Zalea & 35 th Inc v. Snohomish County, 136 Wn.2d 1, 16(1998); West Main Assocs. v. City of Bellevue, 106 Wash.2d 47, 51 (1986). The purpose of the vested rights doctrine is to determine or fix the rules that will govern land development with reasonable certainty and thus, a permit is considered under the rules in effect at the time of permit application. Rhod-A-Zalea at 16. The Applicant filed the application for Preliminary Plat approval on June 28, The County s subdivision moratorium did not become effective until August 1, While the concerns of the neighboring property owners and other interested parties are legitimate and have been given full consideration, pursuant to Washington s Vested Rights Doctrine, the Applicant is entitled to develop the property under the laws in effect as of June 28, Findings of Fact Nos. 4, 5, and With conditions of approval, appropriate provision would be made for the public health, safety, and welfare. As proposed, the plat satisfies the density and dimensional criteria of the R4-8 zoning district. The 27 new single-family residential lots would be connected to City of Olympia sanitary sewer and water. The Applicant would provide screening of the site from adjacent residences development at lower density consistent with County policy. Each lot will have access from a public road. The internal road would end in a cul-de-sac and be designed and constructed to City of Olympia Local Access Road standards to ensure emergency access, a pedestrian friendly streetscape, and safewalking for schoolaged children. Off-site traffic impacts would be mitigated through the payment of fees to the City of Olympia ad provisions for sight-distance improvements. The plat would set have identified tree tracts and a 100-foot wetland buffer, thereby satisfying County requirements for open space and the protection of trees and critical areas. A five-foot wide sidewalk separated from French Road NW will extend the full length of French Road from the plat s entrance and connect to 26 th Avenue SW in order to provide a safewalking area for students of LB Brown Elementary School. Stormwater runoff would will be collected by a series of catch basins and conveyed via underground piping for treatment and detention. Prior to issuance of individual building permits, the Applicant must enter into a Mitigation Agreement with the Olympia School District to account for the direct impact of the subdivision on area schools. Payment of a SEPA-based mitigation fee for impacts due to the increasing demand for parks, recreation facilities, open space, and traffic will be paid to the City of Olympia. As proposed, the plat is in 14 The vested rights doctrine only protects a permit applicant from regulations enacted after a permit application has been completed and filed and only serves to fix the rules that will govern a particular land use permit application. Rhod-A-Zalea at 16.; See also, West Main Assocs. at 51. Once the development is established, it must then comply with later enacted regulations. Page 15 of 24

16 substantial compliance with Thurston County Code and consistent with the Thurston County-Olympia Joint Comprehensive Plan. Findings of Fact Nos. 5, 6, 8, 9, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 39, and As conditioned, the public use and interest will be served by approval of the subdivision. The proposed plat will contain tree tracts and stormwater drainage facilities which would provide both open space and wildlife habitat. The Category III wetland located south of the site will be adequately protected with a 100-foot buffer which would be delineated by a fence with signage that will discourage encroached by the public, thereby protecting the area. Title notices to future property owners of lots abutting the wetland buffer will provide further protection. Private wells and sanitary control areas would be protected with a Restrictive Covenant placed on affected lots. The proposed tree tracts and tree replacement plan satisfy the requirements of the Forest Land Conversion Ordinance. The proposed plat was reviewed for probable significant adverse environmental impacts and an MDNS was issued. Roads would be constructed so as to provide a pedestrianfriendly streetscape and safewalking. Special consideration has been given to sight distance restrictions on French Road NW. Potable water and sanitary sewer is available. Public transit is available within 0.5 miles of the site. Findings of Facts Nos. 9, 14, 15, 16, 17, 18, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 39, 40. DECISION Based upon the preceding Findings and Conclusions, the request for approval of a preliminary plat to subdivide 6.57 acres of land into 27 single family residential lots and five tracts for stormwater control and tree preservation on property located within the Olympia Urban Growth Area of Thurston County at the 2000 block of French Road SW, Olympia, Washington is GRANTED, subject to the following conditions: Prior to final plat submittal, the following Roads and Transportation Department related conditions shall be met: A. The design of the proposed roadway shall conform to the 1999 Thurston County Road Standards and development guidelines. B. Pursuant to Title 18.24, Thurston County Code, the Applicant shall execute an agreement and provide a financial security to assure successful operation of the required improvements ( roads, sidewalks, illumination and landscaping) prior to final plat submittal. Improvements not covered by this agreement are water, sewer, and Page 16 of 24

17 stormwater facilities. These are addressed either by separate county ordinance or, in the case of the water and sewer utilities, by the utility purveyor. C. The stormwater management system shall conform to the 1994 Thurston County Drainage Design and Erosion Control Manual (DDECM) and Title 15.05, Thurston County Code. D. A two-year operation and maintenance agreement and financial security shall be executed prior to final plat submittal. E. Prior to final plat submittal, the Maintenance Agreement, as drafted in Appendix K of the DDECM, shall be executed and agreed to by the Applicant. F. A property owners/homeowners association (HOA) shall be formed. The document creating the HOA shall include the following requirements: 1. Members of the HOA shall be responsible for maintenance of storm drainage facilities as described in the Maintenance Plan (Sec. 3.3, DDECM). 2. Inclusion by reference of the maintenance manual prepared by the Project Engineer in accordance with Sec. 3.3, DDECM. 3. Power to assess fees to maintain storm drainage facilities and sanctions in the event that jurisdiction takes action to maintain facilities. Refer to Appendix E, Section E.2, DDECM for sample language. G. Proposed utility work within Thurston County right-of-ways shall conform to the 1999 Thurston County Road Standards and Title 13.56, Thurston County Code. These standards do not address specific City design requirements, but rather items such as restoration of Thurston County right-of-way and traffic control. H. Placement of utilities within the Thurston County right-of-way will require a Franchise Agreement with Thurston County pursuant to Title 13.56, Thurston County Code. This agreement shall be executed with Thurston County. I. All utilities must be placed parallel to and within the pavement structure. The Applicant or its agent is required to rebuild a minimum of half the road, including grinding and replacement of a minimum.20 asphalt concrete pavement. J. The proposed water and sewer system shall be designed in accordance with the standards and specification of the respective utility purveyor. All water and sewer plans are subject to review and acceptance by the respective utility purveyor. Page 17 of 24

18 K. The proposed grading or site work shall comply with Appendix J of the International Building Code, Title of the Thurston County Code, and the 1994 Drainage Design and Erosion Control Manual. L. Permanent survey control needs shall be placed to establish all public street centerlines, intersections, angle points, curves, subdivision boundaries and other points of control. M. Approval of the preliminary plat does not relieve the Applicant from compliance with all other local, state and/or federal approvals, permits, and/or laws necessary to conduct the development activity for which this permit is issued. Any additional permits and/or approvals shall be the responsibility of the applicant. N. Construction of frontage improvements on French Road NW is required. Frontage improvements shall include sidewalk, planter strips, illumination, and lane widening or restoration per TCC , Development Standards for the Olympia Urban Growth Area of Thurston County. The construction of frontage improvements may require overlaying the pavement or reconstruction to the centerline of the roadway. O. The project contains offsite utility improvements. Any damage within Thurston County right-of-way shall be restored per Chapter of the Thurston County Code. P. Payment of the off-site traffic mitigation required in the October 19, 2006 Mitigated Determination of Nonsignificance is required prior to final plat submittal in accordance with Section 2.13 of the Thurston County Road Standards. Timing of such payments to the other jurisdictions may be altered upon agreement with respective jurisdiction and Thurston County. Q. Prior to construction, a complete set of construction drawings and the final drainage and erosion control report shall be submitted to Thurston County Roads and Transportation Services Department for review and acceptance. R. Prior to construction, a pre-construction conference shall be scheduled with the Thurston County Roads and Transportation Services Department. Prior to final plat submittal, the following Health Code related conditions shall be met: S. A non-public restrictive covenant must be granted by the subject property owner for the portion of the 100-foot sanitary control area of the neighboring well which encroaches on lots 10, 11 and 12 of the subject property. This covenant must be recorded with the Thurston County Auditor s Office and a copy of the recorded document submitted to our office for review. The City of Olympia water and sewer utilities must be extended to and through this subdivision. Written confirmation of final water and sewer extension approval from the City of Olympia must be provided to our office. Page 18 of 24