BEFORE THE HEARING EXAMINER IN AND FOR THE COUNTY OF THURSTON

Transcription

1 COUNTY COMMISSIONERS Creating Solutions for Our Future Cathy Wolfe District One Sandra Romero District Two Karen Valenzuela District Three HEARING EXAMINER BEFORE THE HEARING EXAMINER IN AND FOR THE COUNTY OF THURSTON In the Matter of the Application of ) ) Project No ) ) Byeng Tae Kim ) Chambers Prairie Market Variance ) ) For a Variance ) FINDINGS, CONCLUSIONS, ) AND DECISION ) SUMMARY OF DECISION The requested variance from zoning standards that only allow two gas dispensing devices serving a maximum of four vehicles at convenience store service stations in the Neighborhood Retail zoning district in the urban growth area outside of Olympia, Washington is DENIED because the application does not demonstrate compliance with the criteria established in the Thurston County Code. SUMMARY OF RECORD Request Byeng Kim (Applicant) requested approval of a variance from the requirements of Thurston County Code S, which restricts convenience store service stations in the Neighborhood Retail to a maximum of two gas dispensing serving a maximum for four vehicles at a time. Hearing Date The conducted an open record public hearing on the request on April 7, The record was held open until April 14, 2014 for the submittal of supplemental briefing by the parties, timely submitted and admitted as Exhibits 9 and 10. Testimony At the open record public hearing, the following individuals presented testimony under oath: 2000 Lakeridge Drive SW, Olympia, Washington (360) /FAX (360)

2 Robert Smith, Senior Planner, Resource Stewardship Department Sara Brallier, Environmental Health Department G. Saxon Rogers, Applicant Attorney Representative 1 Huang Luke, Applicant Representative Byeng Kim, Applicant Exhibits At the open record public hearing, the following exhibits were admitted into the record: EXHIBIT 1 Resource Stewardship Planning & Environmental Section Report including the following attachments: a. Notice of Public Hearing b. Zoning/Site Map c. Master Application, received June 3, 2013 d. Variance Application, received June 3, 2013 e. Supplemental Application Document, Applicant, undated f. Letter from G. Saxon Rodgers, dated February 18, 2014 g. Site Plan, received February 19, 2014 h. Site Survey, received February 19, 2014 i. Estimated Trip Generation and Traffic Impact Report, Dan McKinney, Jr, Transpo Group, dated February 20, 2014 j. Complete Application Letter, Robert Smith, Resource Stewardship Department, October 3, 2013 k. Notice of Application, dated October 3, 2013 l. Comment Memorandum from Brad Sangston, Thurston County Public Health & Social Services Department, dated October 7, 2013 m. Comment Memorandum from Arthur Saint, Thurston County Public Works Department, dated March 18, 2014 n. Comment Letter from the Washington State Department of Ecology, dated October 23, Mr. Rogers both legally represented the Applicant and provided testimony under oath as a person familiar with the business on-site and the history of the property. Chambers Prairie Market Variance No page 2 of 9

3 EXHIBIT 2 Memorandum in Support of Variance Application, submitted by G. Saxon Rogers, including: A. Correspondence: Letter to Mr. Kim from Phillips 66, dated May 1, 2013, and Letter to Mr. Kim from Phillips 66 dated February 12, 2014 B. Thurston County Health Department memo, dated October 7, 2013 C. Correspondence from the Olympia Region Clean Air Agency to: 1. Mr. Kim, dated October 23, Order of Approval and Notice of Construction prepared by ORCAA on October 4, ORCAA Final Determination of Approval D. Thurston County Public Works Development Review memorandum, dated March 18, 2014 E. Transpo Group - Estimated Trip Generation and Traffic Impact Letter, dated February 20, 2014 EXHIBIT 3 Color copy of photograph of posted hearing notice EXHIBIT 4 Thurston County Ordinance 11501, adopted in 1997 EXHIBIT 5 EXHIBIT 6 EXHIBIT 7 EXHIBIT 8 Site Survey by Bracey Thomas Site Plan Color copies of seven photographs of the subject property, taken by the Applicant Color copy of photograph of Chevron station at Boulevard Road and Yelm Highway, taken by the Applicant EXHIBIT 9 Applicant's Supplemental Brief, submitted April 10, 2014 EXHIBIT 10 County's Response Brief, submitted April 14, 2014 Based upon the record developed at the open record hearing, the Examiner enters the following findings and conclusions. FINDINGS Background 1. The Applicant requested approval of a variance from the requirements of Thurston County Code (TCC) S, which restricts convenience store service stations in the Chambers Prairie Market Variance No page 3 of 9

4 Neighborhood Retail zone to a maximum of two gas dispensing devices serving a maximum for four vehicles at a time. Exhibit 1, Attachments c and d. 2. The application was submitted June 3, 2013 and determined to be complete for review on July 3, Exhibit 1, Attachments j and k. 3. The 0.66-acre subject property, located at 2914 Yelm Highway SE, Olympia, is fully developed with an existing two-story commercial building, two gas pumps and canopy serving up to four cars at once, and asphalt parking and driving lanes. The commercial building contains the Chambers Prairie Market and a beauty salon. The lot is relatively flat and has a few mature trees along the property boundaries. The parcel is not encumbered by critical areas. The existing structure was built approximately 50 years ago. The Applicant purchased the property in 2011, shortly before the Yelm Highway was widened from two lanes to four lanes. Exhibit 1, page 2; Hwang Testimony. 4. The current service station amenities on-site comply with the requirements of TCC S. Exhibit 1, page 3; Smith Testimony; Rogers Testimony. 5. The site is located within the Olympia urban growth area (UGA). Both the Comprehensive Plan designation and zoning district are Neighborhood Retail (NR). In 1996, Thurston County adopted the Thurston County Olympia Urban Growth Area Zoning Ordinance in Ordinance No (Thurston County Code Title 23). The initial ordinance did not specify the number of gas dispensing devices allowed in the NR zone. However, in 1997 the County adopted Ordinance 11501, enacting the current code language restricting the service stations to number of gas dispensing devices in the NR zone. The City of Olympia Zoning Ordinance mirror's the County's limitation on number of convenience store gas dispensing devices in the NR zone to two serving a maximum of four vehicles at once. Exhibit 1, page 2; Olympia Municipal Code (W)(5). 6. Surrounding parcels are developed with: multi-family residential buildings on land zoned single-family residential to the west and north; a commercial/industrial businesses on land zoned single-family residential to the east; and vacant commercially zoned property to the south across Yelm Highway. Exhibit 1, page 2; Exhibit 1, Attachment B. 7. Proposed improvements include the remodel of the existing convenience store, repaving of the lot's paved surface, and construction of a four pump fuel island serving up to eight vehicles at a time. The existing store sells beer, wine, soda, and snacks; no change in products would result from approval. The only potential increase in traffic to or business on-site would be the ability to sell fuel to up to eight vehicles at one time. Exhibit 1, page 2; Exhibit 1, Attachments d, e, f, and g; Hwang Testimony. 8. Thurston County Public Works Development Review section reviewed the Applicant's preliminary site plan and determined that all preliminary requirements of the Thurston County Road Standards and the Drainage and Erosion Control Manual could satisfied by the proposal. Public Works Staff recommended approval subject to condition. Exhibit 1, Attachment m. Chambers Prairie Market Variance No page 4 of 9

5 9. Thurston County Environmental Health Division Staff submitted comments indicating that if an abandoned septic tank is discovered in the course of the proposed repaving, it would need to be properly removed consistent with County and State sanitary regulations. Health Department Staff recommended project approval subject to condition. Exhibit 1, Attachment l. 10. Washington State Department of Ecology submitted comments regarding erosion control, prevention of discharge of sediment laden waters to waters of the state, clean up of any soil contamination discovered during construction, and compliance with State underground storage tank requirements. Exhibit 1, Attachment n. 11. The Applicant submitted a professionally prepared estimated trip generation and traffic impact letter that evaluated the impacts of two new fuel dispensing devices (four total new fueling positions). The traffic letter projected 290 total average new daily vehicle trips, with 16 in the AM peak hour and 24 in the PM peak hour. The traffic letter concluded that Yelm Highway has adequate capacity to absorb the new trips without impacts to service levels. County Public Works Development Review Staff accepted the letter as adequate study of the proposal's traffic impacts. Exhibit 1, Attachments i and m. 12. The Applicant argued that the NR zoning designation is "antiquated" and fails to "realistically characterize the actual" level of development along Yelm Highway, which changed recently as a result of the Yelm Highway road widening project. Exhibit 2; Rogers Argument. 13. The Applicant contended that other gas stations along the corridor with more fueling stations have and will continue to outcompete the subject gas station as a result of being newer and having the ability to serve more vehicles. Specifically, there is a Standard station approximately one third of a mile to the east at the intersection of Boulevard Road and Yelm Highway with five gas pumps and a Chevron station with convenience store at the intersection of Ruddell Road and Yelm Highway with six gas pumps. These, in combination with other commercial development in the area, including a Lowe's home improvement store, QFC and Safeway grocery stores, Rite Aid, McDonald's, and other smaller businesses, have altered the vicinity of the subject property such that restriction to two fuel dispensing devices constitutes unfair economic hardship for the Applicant. Exhibit 2; Hwang Testimony; Rogers Argument and Testimony. 14. The primary motivation for the requested variance is the Applicant's need to obtain financing to remodel the existing commercial building on-site, which had fallen into a state of disrepair as a result of deferred maintenance before the Applicant's purchase of the property. The exterior of the structure needs to have the siding and fascia replaced and the paving also needs to be removed and replaced. The required improvements are considered cosmetic, not structural. According to testimony, the Applicant is unable to finance these repairs, projected to cost approximately $375,000.00, with a commercial loan. In seeking assistance, the Applicant has negotiated a branded reseller agreement with Phillips 66 (Union 76) in which the gasoline manufacturer would pay for the Chambers Prairie Market Variance No page 5 of 9

6 remodeling work on condition that two new fueling stations are added and specific property enhancements are completed. The existing offer for branded reseller agreement expires in May 2014 unless permits are obtained to undertake the improvements required by the agreement, including: rebuilding the forecourt with four new fuel islands (eight fueling positions), installing a new canopy over the fueling area and an LED price sign, and remodeling the exterior of the building. Exhibit 2.A; Exhibit 2; Rogers Testimony; Hwang Testimony. 15. The Applicant argues that without the financial assistance of Phillips 66 to remodel and upgrade the existing gas station, the Chambers Prairie Market will likely go out of business. Additionally, the Applicant contended that approval would have no detrimental impacts on surrounding development, as evidenced by the County Public Works and Health Departments' recommendations for approval, and that from the Olympic Region Clean Air Agency. Exhibit 2; Rogers Testimony and Argument; Hwang Testimony; Exhibit 2.c; Exhibit 1, Attachments L and M. 16. Of the surrounding gas stations in the vicinity with more than two fuel dispensing devices, only the Chevron station at Boulevard Road and Yelm Highway is located in the Olympia UGA and the NR zone. County Planning Staff noted that permit applications for the Chevron station were submitted in March 1996, prior to the 1997 zoning amendment creating a restriction in the number of fuel dispending devices. The 1997 zoning changes made the Chevron a legally nonconforming land use. The Standard station referenced at Ruddell Road is located within the City of Lacey and is subject to Lacey zoning requirements. Exhibit 1, pages The purpose of the Neighborhood Retail District is to: a. Permit small retail establishments which offer a limited range of goods within a residential neighborhood; b. Protect existing neighborhood retail districts and permit new establishments where local economic demand and appropriate design can assure compatibility with the neighborhood; c. Be located not less than one-half mile from another neighborhood retail district or any other commercial district providing similar services or facilities; d. Have a maximum size for a neighborhood retail district of not more than one acre; e. Limit the size, scale and expansion of such establishments in order to minimize traffic volumes and congestion, and other adverse impacts on the neighborhoods in which such establishments are located; f. Ensure that development in this district is characterized by small buildings, low traffic generation, considerable walk-in trade, quiet operations and little or no night activity. TCC (B)(4). Planning Staff submitted the opinion that the NR zone's intent to minimize traffic volumes and congestion, together with the express restriction to two Chambers Prairie Market Variance No page 6 of 9

7 fueling devices serving four total cars at once, demonstrate the intent of the legislative body to keep NR-zoned service stations small for the purpose of protecting the neighborhood. Staff contended that a variance based on the presence of legally nonconforming uses nearby would be at odds with both the intent and use restrictions applicable in the zoning district. Smith Testimony. 18. Notice of the public hearing was sent to all property owners within 300 feet of the site and published in The Olympian on March 28, Notice was posted on-site on March 27, No public comment was submitted. Exhibit 1, page 2; Exhibit 1, Attachment A ; Exhibit 3; Smith Testimony. 19. Considering the evidence and legal argument submitted by the Applicant before and after the hearing, County Staff recommended denial of the requested variance. Exhibit 1, page 6; Exhibit 10. CONCLUSIONS Jurisdiction The Hearing Examiner has jurisdiction to decide the instant variance application under Sections , , , and of the Thurston County Code, and Section of the Revised Code of Washington. Criteria for Review Pursuant to TCC , within the Olympia Urban Growth Area if, because of special circumstances applicable to subject property due to size, shape, topography, location, or surroundings, the strict application of this title is found to deprive subject property of rights and privileges enjoyed by other properties in the vicinity and under identical zone classification, the hearing examiner may grant a variance in accordance with the provisions for variances in Chapter of the Thurston County Code and the application and review procedures in Chapter Pursuant to TCC , before any variance can be granted, the hearing examiner shall make findings of fact setting forth and showing that the following circumstances exist: 1. That special conditions and circumstances exist which are peculiar to the land, such as size, shape, topography or location, not applicable to other lands in the same district and that literal interpretation of the provisions of this title would deprive the property owner of rights commonly enjoyed by other properties similarly situated in the same district under the terms of this title; 2. That the special conditions and circumstances are not the result of the actions of the applicant; 3. That granting of the variance requested will not confer a special privilege to the property that is denied other lands in the same district; Chambers Prairie Market Variance No page 7 of 9

8 4. That the granting of the variance will not be materially detrimental to the public welfare or injurious to other land or improvements in the vicinity and district in which the property is situated; 5. That the reasons set forth in the application justify the granting of the variance, and that the variance, if granted, would be the minimum variance that will make possible the reasonable use of the land; and 6. That the granting of the variance will be in harmony with the general purpose and intent of this title and will not be injurious to the neighborhood or otherwise detrimental to the public welfare. Applicable Provisions TCC S states (in pertinent part):... b. No more than two gas dispensing devices serving a maximum of four vehicles at one time are permitted at convenience stores in the NR district. Conclusions Based on Findings 1. The record presented is primarily based on the assertion that the proximity of other gas stations with more than two fuel dispensing devices constitutes a "special condition or circumstance" that renders strict application of the zoning code's limit to two devices an unfair deprivation of the Applicant's rights. Pursuant to TCC , the code grants relief for special circumstances only if those circumstances are not applicable to other lands in the same district. All parcels in the vicinity of the subject property are within approximately half a mile of multiple gas stations with more than two fuel dispensing devices. 2 Because the "special circumstance" applies equally to all properties in the vicinity, the presence of the Chevron station cannot satisfy the first variance criterion. Findings 5, 13, 14, 15, and Further, the Chevron station at Boulevard Road and Yelm Highway is a legally nonconforming use that vested prior to adoption of the 1997 ordinance restricting NRzoned gas stations to two fuel dispensing devices. In post-hearing briefing, the Applicant asserted that Washington courts recognized legally nonconforming uses on surrounding parcels as justification for variance approval in the case Sherwood v. Grant County, 40 Wn. App. 496 (1985). However, the Examiner agrees with the County that Sherwood is distinguishable on its facts and is no longer valid. Sherwood was criticized by the Division 1 Court of Appeals, which said, "... granting a variance based on proximity of similar but nonconforming uses could prove destructive of the zoning objectives...". St. Clair v. Skagit County, 43 Wn. App. 122, 127 (1986). The Washington Supreme Court subsequently cited St. Clair expressly for this criticism, endorsing the St. Clair court's 2 The Examiner concurs with Planning Staff that of the comparison properties forwarded by the Applicant, only the Chevron at Boulevard Road is also in the NR zone and it alone is properly included within a comparison group among gas stations in the record. Chambers Prairie Market Variance No page 8 of 9

9 position that to base variance approval on surrounding legally nonconforming uses would improperly erode local government's zoning authority, which exists to protect the public interest. Beuchel v. Dept. of Ecology, 125 Wn. 2d 196, Footnote 43, at 211 (1994); Exhibits 9 and 10; Finding It is understandable and laudable that the Applicant strongly desires to remodel the existing facilities in order to keep the business afloat in a competitive market. However, the variance criteria do not include provisions that exempt development from zoning standards based on financial hardship. An individual's financial hardship cannot by itself constitute grounds for variance without conferring special privilege to that individual. Washington courts have held that "[r]easons for a variance must be reasons pertaining to the property itself which prevent full use of the property to the extent other properties in the vicinity and under the same zoning can be used.... Evidence of hardship or difficulty that will support a variance must relate to the land itself and not to the owner-applicant. St. Clair v. Skagit County, 43 Wn. App. 122, (1986);Findings 13, 14, 15, and The record does not support the assertion that a variance is necessary "to make possible reasonable use of the land". The property is already developed with a commercial use that includes a gas station that complies with the restrictions of the zoning code. No variance is needed to allow the owner of the parcel the same rights as other similarly situated parcels in the NR zone. Findings 3 and The Applicant argues that the recently increased capacity of Yelm Highway as a result of road widening and the presence of other commercial activities, especially including gas stations with five or six fuel dispensing devices able to serve ten to twelve vehicles at a time, have rendered the 1997 ordinance outdated. Hearing Examiners do not have authority to hear challenges to adopted zoning ordinances, but rather are "creatures of the legislature without inherent or common-law powers and may exercise only those powers conferred either expressly or by necessary implication." Chaussee v. Snohomish County, 8 Wn. App. 630, 636 (1984). The variance process is not the proper forum for challenges to adopted codes. Findings 5, 12, and 13. DECISION Based on the preceding findings and conclusions, the record fails to demonstrate compliance with the necessary criteria established in the Thurston County Code to allow a variance from zoning standards that only allow two gas dispensing devices as part of a service station in the Neighborhood Retail zoning district in the Olympia urban growth area. The variance must therefore be DENIED. DECIDED this 22nd day of April Sharon A. Rice Chambers Prairie Market Variance No page 9 of 9

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11 THURSTON COUNTY PROCEDURE FOR RECONSIDERATION AND APPEAL OF HEARING EXAMINER DECISION TO THE BOARD NOTE: THERE MAY BE NO EX PARTE (ONE-SIDED) CONTACT OUTSIDE A PUBLIC HEARING WITH EITHER THE HEARING EXAMINER OR WITH THE BOARD OF THURSTON COUNTY COMMISSIONERS ON APPEALS (Thurston County Code, Section ). If you do not agree with the decision of the Hearing Examiner, there are two (2) ways to seek review of the decision. They are described in A and B below. Unless reconsidered or appealed, decisions of the Hearing Examiner become final on the 15th day after the date of the decision.* The Hearing Examiner renders decisions within five (5) working days following a Request for Reconsideration unless a longer period is mutually agreed to by the Hearing Examiner, applicant, and requester. The decision of the Hearing Examiner on an appeal of a SEPA threshold determination for a project action is final. The Hearing Examiner shall not entertain motions for reconsideration for such decisions. The decision of the Hearing Examiner regarding a SEPA threshold determination may only be appealed to Superior Court in conjunction with an appeal of the underlying action in accordance with RCW 43.21C.075 and TCC TCC (K). A. RECONSIDERATION BY THE HEARING EXAMINER (Not permitted for a decision on a SEPA threshold determination) 1. Any aggrieved person or agency that disagrees with the decision of the Examiner may request Reconsideration. All Reconsideration requests must include a legal citation and reason for the request. The Examiner shall have the discretion to either deny the motion without comment or to provide additional Findings and Conclusions based on the record. 2. Written Request for Reconsideration and the appropriate fee must be filed with the Resource Stewardship Department within ten (10) days of the written decision. The form is provided for this purpose on the opposite side of this notification. B. APPEAL TO THE BOARD OF THURSTON COUNTY COMMISSIONERS (Not permitted for a decision on a SEPA threshold determination for a project action) 1. Appeals may be filed by any aggrieved person or agency directly affected by the Examiner's decision. The form is provided for this purpose on the opposite side of this notification. 2. Written notice of Appeal and the appropriate fee must be filed with the Resource Stewardship Department within fourteen (14) days of the date of the Examiner's written decision. The form is provided for this purpose on the opposite side of this notification. 3. An Appeal filed within the specified time period will stay the effective date of the Examiner's decision until it is adjudicated by the Board of Thurston County Commissioners or is withdrawn. 4. The notice of Appeal shall concisely specify the error or issue which the Board is asked to consider on Appeal, and shall cite by reference to section, paragraph and page, the provisions of law which are alleged to have been violated. The Board need not consider issues, which are not so identified. A written memorandum that the appellant may wish considered by the Board may accompany the notice. The memorandum shall not include the presentation of new evidence and shall be based only upon facts presented to the Examiner. 5. Notices of the Appeal hearing will be mailed to all parties of record who legibly provided a mailing address. This would include all persons who (a) gave oral or written comments to the Examiner or (b) listed their name as a person wishing to receive a copy of the decision on a sign-up sheet made available during the Examiner's hearing. 6. Unless all parties of record are given notice of a trip by the Board of Thurston County Commissioners to view the subject site, no one other than County staff may accompany the Board members during the site visit. C. STANDING All Reconsideration and Appeal requests must clearly state why the appellant is an "aggrieved" party and demonstrate that standing in the Reconsideration or Appeal should be granted. D. FILING FEES AND DEADLINE If you wish to file a Request for Reconsideration or Appeal of this determination, please do so in writing on the back of this form, accompanied by a nonrefundable fee of $ for a Request for Reconsideration or $ an Appeal. Any Request for Reconsideration or Appeal must be received in the Permit Assistance Center on the second floor of Building #1 in the Thurston County Courthouse complex no later than 4:00 p.m. per the requirements specified in A2 and B2 above. Postmarks are not acceptable. If your application fee and completed application form is not timely filed, you will be unable to request Reconsideration or Appeal this determination. The deadline will not be extended. * Shoreline Permit decisions are not final until a 21-day appeal period to the state has elapsed following the date the County decision becomes final.

12 Project No. Appeal Sequence No.: Check here for: RECONSIDERATION OF HEARING EXAMINER DECISION THE APPELLANT, after review of the terms and conditions of the Hearing Examiner's decision hereby requests that the Hearing Examiner take the following information into consideration and further review under the provisions of Chapter of the Thurston County Code: Check here for: (If more space is required, please attach additional sheet.) APPEAL OF HEARING EXAMINER DECISION TO THE BOARD OF THURSTON COUNTY COMMISSIONERS COMES NOW on this day of 20, as an APPELLANT in the matter of a Hearing Examiner's decision rendered on, 20, by relating to THE APPELLANT, after review and consideration of the reasons given by the Hearing Examiner for his decision, does now, under the provisions of Chapter of the Thurston County Code, give written notice of APPEAL to the Board of Thurston County Commissioners of said decision and alleges the following errors in said Hearing Examiner decision: Specific section, paragraph and page of regulation allegedly interpreted erroneously by Hearing Examiner: 1. Zoning Ordinance 2. Platting and Subdivision Ordinance 3. Comprehensive Plan 4. Critical Areas Ordinance 5. Shoreline Master Program 6. Other: (If more space is required, please attach additional sheet.) AND FURTHERMORE, requests that the Board of Thurston County Commissioners, having responsibility for final review of such decisions will upon review of the record of the matters and the allegations contained in this appeal, find in favor of the appellant and reverse the Hearing Examiner decision. STANDING On a separate sheet, explain why the appellant should be considered an aggrieved party and why standing should be granted to the appellant. This is required for both Reconsiderations and Appeals. Signature required for both Reconsideration and Appeal Requests APPELLANT NAME PRINTED SIGNATURE OF APPELLANT Address Phone Please do not write below - for Staff Use Only: Fee of $ for Reconsideration or $ for Appeal. Received (check box): Initial Receipt No. Filed with the Resource Stewardship Department this day of 20. Q:\Planning\Forms\Current Appeal Forms\2014.Appeal-Recon-form.he.doc