washington state access and utility easement by sburnet2

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									                    BEFORE THE LAND USE HEARINGS EXAMINER
                      OF CITY OF VANCOUVER, WASHINGTON

Regarding an application by Daryn Chapman for approval           ) FINAL ORDER
of a 2-parcel preliminary short plat and shoreline conditional   )   PRJ2004-00522/
use permit in the R-4 zone west of 17th Street, north            )    PLD2004-00035
of the Columbia River in the City of Vancouver, Washington       ) (Chapman Short Plat)

                                          A. SUMMARY

         1. The applicant requests approval to divide the 1.75-acre site into 2 parcels. A
new single-family detached dwelling will be built on each of the proposed parcels. The
proposed parcels will comply with the minimum dimensional standards of the R-4 (Low-
Density Residential, 4-units per acre) zone. The City of Vancouver will provide domestic
water and sanitary sewer service to the site. The applicant will extend a shared driveway
into the site from the west end of 17th Street, an existing private street east of the site.
The applicant will dedicate an access and utility easement across the north boundary of
the site and right of way for a future pedestrian trail across the south portion of the site.
The applicant will collect stormwater runoff from impervious areas of the site and treat it
in a biofiltration swale prior to discharging it to the wetlands in the south of the site. The
site is bisected roughly in half east to west by a 20-foot sanitary sewer easement. There is
a large wetland area on the south half of the site. The applicant proposed to construct
homes on the north end of the site. No development is proposed south of the utility
easement. The applicant also requests approval of a shoreline conditional use permit to
extend utilities onto the site and to develop two single-family residences on the proposed
parcels.

         2. The City issued a Mitigated Determination of Nonsignificance (“MDNS”) for
the subdivision pursuant to the State Environmental Policy Act (“SEPA”). Hearing
Examiner Joe Turner (the “examiner”) conducted a public hearing to receive testimony
and evidence about the application. City staff recommended that the examiner approve
the application subject to conditions. See the Staff Report & Recommendation to the
Hearing Examiner dated February 15, 2005 (the “Staff Report”). The applicant accepted
those findings and conditions as amended without objections or corrections. Two persons
testified at the hearing with objections and questions. Disputed issues or concerns in the
case include the following:

               a. Whether the existing private street easement for 17th Street allows
access to a second home on the site;

               b. Whether the applicant can use 17th Street to deliver fill material to the
site;

              c. The amount of fill required to elevate the buildable area of the site
above the 100-year flood plain; and
                 d. Whether the applicant will dedicate an easement across the north end of
the site.

       3. Based on the findings provided or incorporated herein, the examiner approves
the short plat subject to the conditions at the conclusion of this final order and
recommends approval of the Shoreline Conditional Use permit to the Department of
Ecology.
       .

                               B. HEARING AND RECORD HIGHLIGHTS

        1. The examiner received testimony at a public hearing about this application on
March 3, 2005. That testimony and evidence, including a videotape of the public hearing
and the case file maintained by the City, are included herein as exhibits. A list of the
exhibits is attached to and incorporated into this final order. The exhibits are filed at the
City of Vancouver. The following is a summary by the examiner of selected testimony
and evidence offered at the hearing.

        2. The examiner announced at the beginning of the hearing the rights of persons
with an interest in the matter, including the right to request that the examiner continue the
hearing or hold open the public record, the duty of those persons to testify and to raise all
issues to preserve appeal rights, the manner in which the hearing will be conducted, and
the applicable approval standards. The examiner disclaimed any ex parte contacts, bias or
conflicts of interest. The following is a summary by the examiner of selected testimony
and evidence offered at the public hearing.

        3. City planner Patti McEllrath summarized the Staff Report and the applicable
approval standards. She requested the examiner delete conditions 20 and 21, which relate
to site plan review and are not relevant to this application. She noted that the applicant
proposed to dedicate a 60-foot access easement across the north end of the site.

       4. Engineer Kurt Stonex testified on behalf of the applicant and summarized the
proposed development.

                a. He noted that the site is divided in half, by an existing east-west sewer
line. No development is proposed south of the sewer line. The applicant will place fill on
the north portion of the site to elevate the homes one foot above the 100-year flood plain
elevation as required by the Code. The 100-year flood plain is roughly 29 feet above
mean sea level in this area. The elevation of the site varies between 28 and 31 feet above
mean sea level. Therefore the applicant will need to place one to three feet of fill on the
site to elevate the homes one foot above the flood plain. He noted that there are two or
three drainage pipes that discharge onto the site. The applicant will collect water from
those pipes and convey it through the site.



Hearing Examiner Final Order
PRJ2004-00522/PLD2004-00035 (Chapman Short Plat)                                       Page 2
               Runoff from impervious areas of the site will be treated with a biofiltration
swale and discharged to the wetland south of the sewer line easement. He accepted the
findings and conditions of approval in the Staff Report without objections.

                b. He noted that the applicant must obtain Mr. Frank’s approval to modify
the existing access easement to allow construction of a second home on the site.

               c. He testified that the applicant will post a bond to pay for any damage to
17th Street caused by construction related traffic.

        5. Leo Frank testified that he was the principal developer of 17th Street, the
private road serving the site. He noted that the easement agreement imposes strict
limitations on the amount of fill that may be brought onto the site using 17th Street. He
expressed concern that large trucks transporting fill to the site will damage the existing
pavement on 17th Street. In addition, the easement limits development on the site to a
single home. The applicant has not approached him about granting an additional easement
or allowing use of 17th Street to deliver fill to the site. He questioned whether the
applicant will dedicate a 60-foot access easement across the north end of the site to
provide access to the park property west of the site. All of the existing property owners on
17th Street were required to dedicate a similar easement.

         6. John Creedon testified that he lives adjacent to the east boundary of the site. He
testified that 17th Street was not designed to accommodate heavy truck traffic. Large
trucks delivering fill to the site will destroy the existing road. He argued that the applicant
will need to place more than one or two feet of fill on the site. The Columbia River rose
all the way to the berm at the base of the railroad tracks during the 1996 flood.

        7. The examiner closed the record at the end of the hearing and announced his
intention to approve the application subject to the conditions recommended by City staff.

                                         C. DISCUSSION

        1. City staff recommended approval of the preliminary subdivision plat, based on
the affirmative findings and subject to conditions of approval in the Staff Report. The
applicant accepted those findings and conditions, as amended, without exceptions.

       2. The examiner concludes the affirmative findings in the Staff Report show the
proposed preliminary plat does or can comply with the applicable standards of the City
Code and Revised Code of Washington, provided the applicant complies with
recommended conditions of approval as amended. The examiner adopts the affirmative
findings in the Staff Report as his own, except to the extent they are inconsistent with the
findings in this order.




Hearing Examiner Final Order
PRJ2004-00522/PLD2004-00035 (Chapman Short Plat)                                         Page 3
         3. It was alleged that use of 17th Street to access this development will violate the
easement for the private road. The easement is not in the record. However the applicant
conceded that the existing easement limits development on the site to a single home and
restricts heavy truck traffic on the private road. Condition of approval 11 requires that the
applicant demonstrate that legal access is available to both lots via 17th Street. Condition
of approval 28 requires that the applicant place fill on the site or otherwise raise the
elevation of the buildable portion of the site to comply with the flood plain requirements
of the Code. Therefore the applicant must negotiate with the owners of the property(ies)
burdened by the easement. The applicant may be unable to record the final plat for the
proposed development unless the parties reach an agreement regarding modification of
the easement and maintenance and repair of the private road. The examiner does not have
authority to interpret a private contract, and it is not relevant to the applicable approval
standards.

        4. There is a dispute about the amount of fill the applicant must import onto the
site. The majority of the site is located within the 100-year flood plain. The applicant is
required to demonstrate that the lowest floor, including basement, of the homes on the
site are elevated at least 1 foot above Base Flood Elevation (the “BFE”).
VMC 20.730.050.A(1). The applicant proposed to place fill on the site to achieve the
required elevation. The BFE is 29 feet above mean sea level (“msl”) according to the
FEMA map panel 5300240405B. The elevation of the developable portion of the site varies
between 27 and 32 feet msl, based on the applicant’s topographic survey. Therefore the
applicant must place up to three feet of fill on the site to achieve the minimum elevation
required by the Code. The applicant may choose to place additional fill on the site in order
to protect the homes from floodwaters in excess of the 100-year event as occurred in 1996.
But that is not required by the Code.

        5. The applicant will dedicate a 60-foot-wide easement across the north end of the
site. See Exhibit 7.

                                        D. CONCLUSION

        Based on the above findings and discussion, the examiner concludes that
PRJ2004-00522/PLD2004-00035(Chapman Short Plat) should be approved, because it
does or can comply with the applicable standards of the Vancouver Municipal Code and
the Revised Code of the State of Washington, subject to conditions of approval necessary
to ensure the final plat and resulting development will comply with the Code. The
proposed Shoreline Conditional Use Permit must be reviewed and approved by the proper
state and federal agencies, in this instance, the Washington State Department of Ecology.




Hearing Examiner Final Order
PRJ2004-00522/PLD2004-00035 (Chapman Short Plat)                                        Page 4
                                           E. DECISION

          Based on the foregoing findings and except as conditioned below, the examiner
hereby:

        a. Recommends APPROVAL of the proposed Shoreline Conditional Use permit
to the Department of Ecology subject to the conditions noted below; and

        b. APPROVES File No. PRJ2004-00522/PLD2004-00035(Chapman Short Plat),
subject to the following conditions:

          Prior to Civil Plan Approval
          1.     The applicant shall submit seven full sets of civil engineering plans and
                 profiles, with technical reports as required, for review and approval by the
                 City.
          2.     Sight distance and vision clearance triangles shall be shown on the civil
                 plans at all intersections and access points per VMC 11.90.060 and
                 Standard Plans T4-3 and T4-4.
          3.     Revise plans to show water mains to be constructed within paved public
                 rights-of-way or public easements.
          4.     New public sewers shall be designed by an Engineer licensed in the state
                 of Washington to satisfy the conditions outlined in the pre-application
                 report, this staff report, and current Sanitary Sewer Design and
                 Construction Requirements.
          5.     Provide public sewer service to the site by connecting to the existing
                 manhole west of the project and extend an 8-inch public sewer east to the
                 site.
          6.     Include a complete sanitary sewer design with the civil plans and submit
                 for civil review. Modify the design and details as directed by the City’s
                 review comments.
          7.     Final erosion control and stormwater plans shall be submitted for civil
                 review and approval.

          Prior to Final Plat Approval
          8.     Submittal of four (4) sets of complete site plans revised as indicated. Site
                 plan sets shall include the following: site plan, landscape/tree plan,
                 grading/tree protection/erosion control plan, lighting plan, and
                 architectural elevations.
          9.     To permanently vest the trips for the project, obtain a final plat within 30
                 months from the issuance date of this Certificate of Concurrency per
                 VMC 11.95.120, or an approved developer’s agreement with the City.

Hearing Examiner Final Order
PRJ2004-00522/PLD2004-00035 (Chapman Short Plat)                                       Page 5
        10.      The applicant shall comply with VMC 11.95 and City Ordinances
                 M-3354, M-3538, M-3536 and M-3537 requirements.
        11.      A shared access easement and maintenance agreement shall be provided
                 for the accesses off SE 17th Street. A note shall be added to the plat
                 indicating that both Lots 1 and 2 have access rights and maintenance
                 responsibilities for the proposed shared access.
        12.      The following statement is required on the face of the plat: City of
                 Vancouver has no responsibility to improve or maintain the private
                 street(s) contained within or private street(s) providing access to the
                 property described in this plat.
        13.      A note shall be added to the plat, Structures shall be protected by
                 approved automatic fire sprinkler systems.
        14.      The applicant shall show justification to remove the four 12-inch alders
                 located in the northwest corner of the site or show tree protection
                 surrounding these trees.
        15.      The applicant shall verify if the note regarding existing trees refers to on-
                 site trees or the off-site trees shown on the plat. If the note refers to trees
                 on-site, they are to be shown on the plan. It is acceptable to show as a
                 stand or grouping of trees along with the tree density retained.
        16.      A note shall be added to the final plat which reads: If any cultural or
                 historical resources are discovered in the course of undertaking the
                 development activity, the Office of Archaeology and Historic Preservation
                 (OAHP) in Olympia and City of Vancouver Development Review Services
                 must be notified. Failure to comply with these State requirements may
                 constitute a Class C felony, subject to imprisonment and/or fines.
        17.      A note shall be placed on the final plat which reads: Pursuant to Chapter
                 20.915 of the VMC, the Park, Traffic, and School Impact Fees for each
                 single-family residence in this plat are $2,751 (Park Facility Plan District
                 2), $1,607 (East City Transportation Subarea), and $1,725 (Vancouver
                 School District). Said fees will be recalculated for building permit
                 applications filed more than three years following the date of this
                 preliminary plat approval. These fees do not constitute liens against the
                 lots in this subdivision, but are collected as a condition of initial building
                 permit issuance.
        18.      Final Wetland Permit Approval shall be required.
        19.      The Approval Conditions in VMC 20.775.077, including the Standard
                 Approval Conditions in VMC 20.775.057 shall apply.

        Prior to Issuance of any Development Permits
        20.      Prior to the issuance of any building permits, all applicable fees shall be paid
                 to the City of Vancouver, including Transportation Impact Fees.

Hearing Examiner Final Order
PRJ2004-00522/PLD2004-00035 (Chapman Short Plat)                                          Page 6
        21.      Plan approvals, related plan submittals, and Notification of Civil Plan
                 approval for water, sewer and storm and a pre-construction conference are
                 all required prior to beginning work.

        During Construction
        22.      Fire apparatus access roads for emergency response shall be installed and
                 made serviceable.
        23.      Obtain an approved Traffic Control Plan and a right-of-way permit for all
                 work to take place within the City of Vancouver or Clark City right-of-
                 way prior to the start of construction.
        24.      Construct a new public sanitary sewer as shown on the approved civil
                 plans and as directed by the City’s construction inspectors. Satisfy all of
                 the related construction, inspection, testing and submittal requirements
                 outlined at the preconstruction conference and as directed by the
                 construction inspectors.
        Prior to Issuance of Occupancy Permit
        25.      Addresses shall be plainly visible and legible from the street or road
                 fronting the property for emergency vehicle response.
        26.      An elevation certificate shall be provided to the City of Vancouver
                 indicating compliance with 20.730.050.
        27.      Secure final engineering project acceptance for constructed public water
                 and sewer utilities prior to receiving service connection permits.
        28.      Pay all applicable connection fees including System Development Charges
                 (SDCs), reimbursements/latecomers, and application fees. Secure a
                 sanitary sewer connection permit, connect to the public sanitary sewer, and
                 satisfy plumbing inspections.

                                                   DATED this 11th day of March 2005.




                                                   Joe Turner, AICP
                                                   City of Vancouver Hearing Examiner

NOTE:            Only the decision and the condition of approval are binding on the
                 applicant as a result of this order. Other parts of the final order are
                 explanatory, illustrative and/or descriptive. They may be requirements of
                 local, state, or federal law, or requirements which reflect the intent of the
                 applicant, the city staff, or the examiner, but they are not binding on the
                 applicant as a result of the final order unless included as a condition.


Hearing Examiner Final Order
PRJ2004-00522/PLD2004-00035 (Chapman Short Plat)                                        Page 7
APPEAL:          Decisions of the Hearing Examiner are appealable to the City Council
                 within 10 working days after the Hearing Examiner decision. Appeals
                 must be made in writing to the Manager of Development Review Services
                 and must contain the following information:
                 A.       The case number(s) designated by the City and the name of the
                          applicant;

                 B.       The name and signature of each petitioner and a statement showing
                          that each petitioner is entitled to file the appeal under this Chapter.
                          If multiple parties file a single petition for review, the petition shall
                          designate one party as the contact representative for all contact
                          with the Director. All contact with the Director regarding the
                          petition, including notice, shall be with this contact representative;

                 C.       The specific aspect(s) of the decision and/or SEPA issue being
                          appealed, the reasons why each aspect is in error as a matter of fact
                          or law, and the evidence relied on to prove the error; and

                 D.       The appeal fee adopted by the City Council ($2,000); provided, the
                          fee shall be refunded if the appellant files with the Director at least
                          fifteen (15) calendar days before the appeal hearing a written
                          statement withdrawing the appeal.

                 Submit the appeal request and fee to the address below:
                       Manager
                       Development Review Services
                       City of Vancouver
                       PO Box 1995
                       Vancouver, WA 98668-1995

                 In the absence of a valid appeal within the timelines specified above, the
                 Hearing Examiner’s decision shall become final and conclusive.




Hearing Examiner Final Order
PRJ2004-00522/PLD2004-00035 (Chapman Short Plat)                                            Page 8

								
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