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					                                             Last Date to Appeal: Friday, April 28, 2006

                BEFORE THE LAND USE HEARINGS EXAMINER
                     CITY OF VANCOUVER, WASHINGTON
REGARDING THE APPLICATION FOR A                    )               FINAL ORDER
CONDITIONAL USE FOR A DOG DAY CARE                 )
FACILITY, TO CONTINUE TO OPERATE AT THE            )           HAPPY PUPPY PARK
CURRENT SITE IN THE R-18 ZONING DISTRICT           )        PRJ2005-01435/CUP2005-
(HIGHER     DENSITY    RESIDENTIAL)   IN
                                                   )   00006/PSR2005-00085/SEP2005-00076
VANCOUVER, WA.


                              APPROVED WITH CONDITIONS

                                      INTRODUCTION
The applicants/owners are requesting a conditional use permit to allow a dog day care facility
in an R-18 (Higher Density Residential) zoning district. The owners have operated a dog day
care business from their place of residence since 1998. In December of 2000 the Vancouver
City Council defined Dog day care for the very first time as a facility where dogs may be
groomed, trained, exercised and socialized, but not kept or boarded overnight, bred or sold.
While other code requirements have been met, the facility does not have the necessary
conditional use permit to operate a dog day care facility in the R-18 district. Adjacent land
uses on the north and east are a manufactured home park, on the south by SR-14 and on the
west by a single-family residence. All surrounding zoning is R-18.
The only issue in contention in this case is the dispute over traffic impact fees (TIF). The City
Staff seeks to charge a proposed TIF of $8,094 for an existing business that day cares 22-25
dogs (up to 30 permitted under the Code). The applicant claims that this would drive her out of
business and seeks a rate grandfathered to when she started or to when the City recognized dog
day care as a permitted land use and to reduce the number of trips attributable to her business.

Location                      4217 SE 171st Avenue. Tax Assessor Serial Numbers 126735-
                              000 and 126702-000
Applicant/Owner               Brenda Anderson and Robin Curry
                              4217 SE 171st Avenue
                              Vancouver, WA 98683

Zoning / Comp Plan            R-18 / Higher Density Residential
SEPA                          A DNS was issued by the City February 7, 2006

REGULATIONS                   Vancouver Municipal Code - Title 20 (Land Use and
                              Development Code). VMC Title 8 (Public Peace and Safety),
                              VMC Title 11 (Streets and Sidewalks), and VMC Title 14
                              (Water and Sewer). SEPA (State Environmental Policy Act
                              Regulations, Chapter 20.790).
                               HEARING AND RECORD
The Public Hearing on this matter was held on April 6, 2006 and the record was closed at the
end of the hearing. Exhibits and testimony received into the record are filed at the City of
Vancouver Development Review Services.
AGENCY AND PUBLIC COMMENTS
City received many public comments from individuals in support of the conditional use
request. Several of the writers testified at the hearing -See Exhibit 8.

HEARING:
Azam Babar, the lead City Planner on this application introduced the site, summarized key
issues in the Staff Report and recommended approval. He made the following corrections to
the Staff Report - on page 11 of the staff report, under item 1, it states that Happy Puppy Park
shall be subject to the zoning provisions... that should read “30 dogs at one time,” not “30
days.” Also, with respect to exhibit 7, the certificate of concurrency, states on page 2 that
additional transportation improvements are required; that is standard language that the
Transportation Department includes, and is not a required condition of approval.

The owners have operated a dog day care facility at this site for about eight years; this
application is for a conditional use permit to allow its continued operation. Prior to the Code
amendment in 2000 the facility was considered a kennel; at the time it was established, there
wasn’t even a dog day care designation. In 2000, City Council adopted an ordinance allowing
the operation of dog day care facilities as a conditional use. Tonight’s hearing is intended to
close the loop, and bring some closure to this case.

Staff has received no complaints from the neighbors; in fact, Staff has received many letters of
support for this facility. The facility is well-maintained and has passed all Animal Control
inspections. Staff is fully supportive of this use. However, the conditional use application is
still out there. Staff recommends approval of this application, subject to the conditions of
approval contained in the staff report.

Mike Wynn, the attorney for the applicant, stated that this application dates back to 1998 and
submitted a memorandum of his testimony (Exhibit 9). He stated that the applicant has met all
relevant standards; the limitation to no more than 30 dogs is no problem. No overnight
boarding is permitted; the hours of operation are acceptable. He asked that the hearings
examiner look at the transportation impact fee, because it may be a little excessive, given the
fact that the applicant is only talking about 22 dogs, some of which “car pool” to the facility
and some of the dogs are walked to the site. At the very least he requested an extended
payment period of 180 days.

Examiner (HE) explained that the way to challenge the amount is to challenge the number of
trips, by providing probative evidence as to the actual number of trips.

Brenda Anderson testified that she owns Happy Puppy Park. When she opened it in 1998, it
was meant to be a good thing, but she found out she didn’t know much about City government.
The fees have gone up every year, and her clientele has gone up as well. Staff dropped the ball
somewhat back in 2000, and if they hadn’t, things would have been different.



FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 2 of 22
There is no traffic impact because of my business; the road dead-ends. She does not
understand why this wasn’t taken care of in 2000. She paid for a conditional use permit last
spring and she does not get why it took the City a year to come up with a condition that says
that the count is 20 cars and the charge is $8,000.

Mr. Wynn clarified that there is a written statement in his submittals, saying that the actual
trips per day are 40-50 percent less than what the City has estimated. Some dogs do car pool;
others are walked to the site.

HE explained that he has no real issues with this application; the only real issue is the number
of trips. Does transportation want to say anything about that?

Matt Edwards PE, the City’s Engineering representative on this application explained that as
far as the trip calculation goes, that was based on counts provided by the applicant - five-day
counts over a four-week period. He based the calculation on the average of the weeks
submitted, which showed 32 trips per day. The three-day highest average was 40 trips. He ran
it again for the mid-week and it came to 38 trips. He believes that the City has been pretty
compassionate about the fees; if the City had used trip generation based on ITE which doesn’t
have a land-use code for a doggy day care and had imposed the normal fees, based on a day
care facility, the fee would be closer to $18,000.

HE asked whether the sheet attached to the certificate of concurrency is based on the
applicant’s counts.

Mr. Edwards replied, correct, and that he used the lowest average he could based on the
applicant’s counts. He added that the city standards require that any street over 150 feet with
more than four dwellings would require a half-width improvement, as well as numerous other
concurrency analyses. The city’s pre-app comments, dated August 29, asked for a road
modification to be submitted but no road modification was submitted. In conclusion, he thinks
the Transportation staff has been pretty lenient here.

Nancy Menefee testified that she has been a customer at the dog day care for a number of
years and it seems to her that most of the approach to this place is on private property and that
there probably would not have been an ordinance governing dog day cares had it not been for
Brenda Anderson’s ownership of this property. She retained a lawyer and got this ordinance
created. To wait for 8 years, then suddenly decide she has to pay $8,000 - that’s just not fair, 8
years later. It just doesn’t seem right.

Chuck Dezort had a number of questions questioning the integrity and common sense of
everyone involved in determining the TIF amount. His main point was that the applicant
should have been grandfathered under some unspecified theory, presumably as a pre-existing
use dating back to 1998.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                         Page 3 of 22
Kristen Price testified that with respect to the trip counting methodology, the figures that were
submitted were from an unusual month, which contained Thanksgiving. This month was not
typical. The more accurate figures would be less than 14 or 15 trips per day - again, some dogs
walk there with their owners and others car-pool. I would suggest that the applicant be asked
to provide more realistic figures.

Arthur Olson testified that he lives in the back of the facility in the trailer park. There is
nothing at all going on that is inappropriate. What is the $8,000 for? “You may call it a fee, but
it is a tax and I do have a problem with taxes.”

Terri Bechtel explained that there are situations like hers where her dog only goes to day care
two days a week. Not all 22 dogs go every day of the week. She thought that the City appears
to be developing their policy as they go along. “We shouldn’t punish people for trying to work
with the City to find a way to operate their business.”

Rosalyn Rice just wanted to say that Happy Puppy Park is the crème de la crème of dog parks.
Brenda is a superb dog care provider and her clients don’t want her to be hurt - she does a
superb job of taking care of their pets; she argued that these fees are intended to be put in place
at the time a building is built.

Tracy Woods opined that impact fee is just a fancy word for taxes. Her clients don’t want to
see Brenda pushed out of business by the City.

Don Bonstein thought that HE has heard enough testimony about the quality of care. This case
comes down to two points, the first of which is money. The applicant is being charged from
the point where the road enters private property, out a certain distance?

HE explained that she is being charged because she is attracting cars that come in to drop off
their pets. The City has a policy that it raises some funds for roads by charging new permits for
the trips they will generate on city streets.

Mr. Bonstein continued that the map showed a vacant piece of property nearby; that is going to
become a park. That will generate traffic as well - wouldn’t that reduce the amount she would
have to pay?

HE explained that every new development, except schools, is subject to a charge for the new
trips they will be adding.

On staff rebuttal Mr. Edwards offered that there may be a little confusion here. The City didn’t
generate these traffic numbers - those were provided by the applicant. The City didn’t ask her
to count traffic in November. These counts should be viewed in relationship to the fact that she
can have up to 30 dogs; the actual numbers may be a little lower.

HE: Since the applicant was de facto permitted to operate consistent with the code as currently
adopted, even without a permit, is there an argument that she should pay the fees that were in
place at the time?




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                          Page 4 of 22
James McNamara, the City’s Attorney representative provided an emphatic No - she was in
fact operating illegally. The City was working with her to make her business legal, but we
have no authority to waive the traffic impact fee or making it retroactive.

HE: So the only remaining issue is time of payment?

Mr. McNamara offered that there is no such leeway - normally, the fee is payable on the day
the permit is issued. Staff has offered to give her 30 days and that’s unusual and excessively
generous. Any applicant can argue that the impact fees impose undue hardship; it is just
prudent business planning to pay appropriate fees when they come due.

On rebuttal Mr. Wynn offered that the City did acquiesce to this use during the time that they
were pursuing the zoning change. Staff was amenable to payment 30 days after the application
is approved; we would request four or five months to pay.

HE: What was the east city TIF in 1999?

Mr. Edwards: I don’t know, but it was $137 in 2001, rather than the $208 it is now.

                                             FINDINGS
The Hearing Examiner adopts as his own and incorporates by reference the findings and
conclusions contained in the STAFF REPORT AND RECOMMENDATION (dated March 24,
2006), except to the extent expressly modified or supplemented herein. Only the issues and the
approval criteria raised in the course of the application, at the hearing or before the close of the
record, are discussed in this section. Any standard that might be deemed to be an applicable
approval criteria but which was not raised by staff, the applicant or a party to the proceeding
has been waived as a contested issue, and no argument with regard to any such issue or
criterion can be raised in any subsequent appeal. Criteria not discussed specifically in these
findings below are deemed to be met. The following findings support this decision and are
related to the issues that were raised during these proceedings:

Examiner’s Overview:
This is a somewhat unusual case given the long history involved, which includes remarkable
patience of the City in guiding the applicant to a permit without, apparently, a more strict code
enforcement approach. According to the City that is because no one complained. This case
may present an exhibit for a legislative policy choice for City Council about imposing full
impact fees on businesses, which may be in reality a variation on home occupations, which
while generating trips, may or may not represent a revenue stream that may support such costs.
The Examiner only notes that this is essentially the thrust of the many citizens supporting this
application.

In terms of this case itself, it presents many twists and terms that are unusual and may present
different approaches to the impact fee presented which were not neither fully explored nor
briefed. The two key factors in the Examiner’s mind is that the record before him supports the
conclusion that from the time the applicant applied for a City Business License on May 20,
1998 the business began its existence in the present form - and whether it was legal or illegal it
was a new development only then.



FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                           Page 5 of 22
The second factor is the applicant’s procedural choice not to appeal or argue the City’s initial
determinations that the business could not have applied for a conditional use permit before
December 4, 2000 and so could not have become legally vested before then. Now the TIFs are
not vested at the time of the application, but are calculated at the time of the building permit or
a change in use.1 The use to dog day care was changed in 1998 and in the procedural posture
of this case that change could have been legalized, practically speaking, only sometime in
2001. The record does not indicate building permits at issue with this use. The Previous
Actions section below explains what happened and the TIF discussion explains the Examiner’s
conclusions.

Previous Actions
■ May 20, 1998: Brenda Anderson and Robin Curry (owners) applied for a City Business
License to operate a business relating to behavior training for problem dogs and some day
care for dogs. The site was being used as a residence and as a dog day care facility at the time
of business license application. Although a business license was granted on May 27, 1998,
issuance of a business license was not indicative of zoning compliance. Owners were required
to secure appropriate zoning approvals prior to conducting a business in the City.

Note: In 1998, the City did not have any regulations pertaining to “dog day care” facilities.
“Kennels” were considered to be the most similar use; however, kennels were prohibited in
the residential zoning districts. KENNEL: “Shall mean any premises on which four or more
dogs, which are 5 months old or older, are kept, excluding veterinary clinics and animal
hospitals”. (1998 Zoning Ordinance Section 20.02.232)

One could theoretically argue that since “dog day care” was not defined as it became
subsequently defined in 2000, it was allowed prior to that date. Had it been allowed it could
have been considered a prior non-conforming use and to the extent that it has not significantly
changed or enlarged since May 20, 1998 as a non-conforming use it does not require a
conditional use permit or a TIF fee. The record supports, which to say there is no information
to the contrary in the Examiner’s record, that this business was fully established in its present
form on May 20, 1998 - when it might have been a new development or a new use. In this
construct, the application for a conditional use is not a new development application, but a
legalizing procedure made necessary by City’s subsequent actions.

In any event since the issue of whether this may be a non-conforming use is not developed by
the parties, including the applicant, here are some of the considerations:




1
   In 1990, the legislature adopted RCW 82.02.050 as part of the Growth Management Act. RCW
82.02.050 authorizes cities to impose impact fees on those involved in development activities. RCW
82.02.090(1) defines '{d}development activity' as 'any construction or expansion of a building, structure,
or use, any change in use of a building or structure, or any changes in the use of land, that creates
additional demand and need for public facilities.'




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                                Page 6 of 22
       Section 20.930.010 Purpose.

       It is the purpose and intent of this Chapter to permit legal nonconforming lots,
       structures and uses to continue but to prohibit or limit the enlargement, expansion
       or extension of such uses. (Is it legal if it is not specifically prohibited?)

       B. Nonconforming development. Where a lawful structure and/or improvement
       exists at the effective date of this chapter that could not be built under the terms of
       this title, such structure and/or improvement may be continued so long as it
       remains otherwise lawful, subject to the following provisions:

For the applicant, the problem with such valid nonconforming use status is three fold. On the
date of the business license the use seemed to fit the land use definition of a “kennel” -
however vague - so that if the use was permitted but the owners did not apply for “kennel”
conditional use - the use was not legal. Kennels were not permitted in the applicant’s zoning
district (see below). The “kennel” argument hinges on the meaning of the word “kept” in the
definition of the kennel. All that is required is five or more dogs of a certain age that are “kept”
on premises. These dogs were kept during the day. There is nothing in Webster’s definition of
“keep” that suggests a time element. The relevant Webster’s definition of “kept” is “to watch
over and defend” or “to restrain from departure”. In any event the applicant appears not to
have gone down the nonconforming use route, see below; thus, no record was submitted that
this determination of the use as a “kennel” was appealed and no one has raised this issue. See
May 20 and June 7, 1999 entries below.

■ September 11, 1998: The owners submitted an application for a home occupation permit to
allow them to operate the dog day care business. The request was denied by the City because
the owners did not meet the home occupation permit requirements.

■ March 24, 1999: The owners then submitted a pre-application request for a dog day care and
training facility with no overnight boarding. Hours of operation proposed were 7 a.m. to 6 p.m.
on weekdays. Existing residence was to be used primarily as a residence.

■ May 20, 1999: At the pre-application conference, the owners were informed that the facility
is considered a “kennel” for land use purposes; that kennels are not permitted in the R-18
zoning district; that the business does not meet the standards to be considered or permitted as a
home occupation; that the business must be closed; and that she had the right to appeal. On
May 24, 1999, a formal letter was mailed advising the owners that the use was not allowed in
R-18 zoning district.

■ June 7, 1999: In a follow-up letter, the City informed the owners of some available options
including, one, appealing the determination that her business constitutes a kennel; two,
pursuing a “similar use” determination that a dog day care facility is similar to a child care as
the property owner had asserted; or three, pursuing a text amendment to define and allow dog
day care facilities in the City’s residential zones. No appeal was filed as the owners chose to
pursue the text amendment option.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                           Page 7 of 22
■ July 28, 1999: The City received a request for a zoning code text amendment. A closure
order had been issued, but was stayed pending the result of the text amendment request. The
owners were allowed to continue to operate their business at this site.

■ December, 4, 2000: City Council adopted new zoning regulations relating to dog day care
facilities. Dog day care was allowed as a conditional use in the higher density residential
districts. To bring closure to the process, owners were instructed to apply for a conditional use
permit.

The record seems to indicate that the applicants were in fact in compliance with the ordinance
on the date it was adopted, but were asked to go through the review. Judging by this record
only, the purpose of having the applicant go through a conditional use review seems two-fold
– (1) to issue a permit which would repeat the ordinance requirements in the body of the
permit and (2) to charge impact fees.

The clients and neighbors at the hearing have suggested “grandfathering” - a business in
existence since 1998 with cooperation from the City - should be grandfathered to the fee
standards then in existence. No authority is cited for this “grandfathering” proposition and no
prior non-conforming use argument is made. The City Attorney representative argues ex
cathedra that there is no authority for grandfathering, citing no legal argument or authority.
Whatever equitable argument may have been made - the applicant exercised certain procedural
choices to arrive at this juncture.

■ August 15, 2005: Owners eventually submitted a request for a conditional use permit to
operate a dog day care facility in the R-18 District. Note: Staff reports that during the
intervening years, the owners have continued to operate their business at the site without the
required conditional use permit. However, the facility has operated within the scope of the
adopted zoning regulations. Development Review Services has not received any known
complaints on the subject site during its operation. The Staff waived Site Plan review and
seems to have waived a formal road modification request - given all that, the main thing the
review accomplished is the imposition of the Traffic Impact Fee.

COMPREHENSIVE PLAN POLICIES
Comprehensive Plan policies and findings are discussed in the Staff Report.

VANCOUVER MUNICIPAL CODE.
Compliance with Applicable Land Use and Development Code Standards (VMC Title 20)
Decision-Making Procedures (VMC Chapter 20.210) – The application is being processed
as a Type III procedure as per VMC 20.210. Conditional use requests are heard by the
Hearings Examiner. A pre-application conference is required for all Type III applications,
unless waived under Section 20.210.080 by the Planning Official.
The Planning Official determined that there is sufficient history and information available with
regard to the proposal, that a pre-application conference was unnecessary. Happy Puppy Park
has operated at that site since June of 1998. However, the facility requires a conditional use
permit to allow the owners to continue their business operations.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                        Page 8 of 22
Conditional Use Permits (VMC Chapter 20.245) - Dog day care facilities are permitted as a
conditional use in the R-18 zoning district. The Hearings Examiner shall approve, approve
with conditions, or deny an application for a conditional use or to enlarge or alter a conditional
use based on findings of fact with respect to each of the following criteria:
The site size and dimensions provide adequate area for the needs of the proposed use.
The property is approximately an acre in size. The property is enclosed with fencing, keeping
the dogs confined to the yard. There are several areas for the dogs to play, including indoor
areas. The number of dogs is limited to 30 as per the City’s existing dog day care standards.

The impacts of the proposed use of the site can be accommodated considering size, shape,
location, topography and natural features.
Impacts are minimized due to the location of the site and the surrounding uses. The site is
bordered on the south by SR-14, on the east and north by a manufactured home park, and the
west by applicant-owned property. The location’s abutting the freeway makes it ideal for this
kind of facility in terms of minimizing or camouflaging any impacts.

All required public facilities have adequate capacity to serve the proposed development.
All public facilities, water, sewer, police and fire have adequate capacity to serve the proposed
development. A change in use or expansion of use may necessitate a new utility review.

The applicable requirements of the zoning district, comprehensive plan, and other applicable
documents are met except as amended by the conditional use permit.
The use is consistent with all applicable comprehensive plan policies, zoning regulations, and
other related development codes.

Identified impacts on adjacent properties, surrounding uses and public facilities have been
adequately mitigated.
The property abuts SR-14. Adjacent uses include a manufactured home park to the east and the
north. The subject site and neighboring properties are zoned for higher density residential
development. Owners have added additional outbuildings and waste disposal facilities to
lessen odor. Noise from barking dogs has been adequately addressed. The site includes sight-
obscuring fencing for on-site outdoor recreation areas. The fence provides full containment for
the dogs.

Site Plan Review (VMC Chapter 20.270) - VMC 20.270 establishes procedures to ensure that
the design of site improvements and building improvements are consistent with applicable
standards, minimize adverse impacts on surrounding land uses, and allow for and encourage
flexibility in the design and layout of site improvements and buildings, and innovation in design
and construction.

Exemptions (Section 20.270.020B): Notwithstanding the other provisions of VMC 20.270, the
Planning Official may find any development exempt because it does not result in a substantive
increase in land use activity or intensity or in any adverse off-site impact. Submission
requirements may be waived in advance by the Planning Official.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                         Page 9 of 22
The Planning Official finds that the dog day care facility does not result in a substantive
increase in land use intensity or result in any adverse off-site impacts. The current use and
improvements to the site have existed since 1998. With the exception of transportation, water
and sewer engineering comments, staff has not received any recommendations for
improvements or modifications to the current site. A change in use or a substantive increase in
land use activity/intensity in the future may result in a site plan review.

Dog Day Care (VMC Chapter 20.850) - All Dog Day Care facilities regardless of the zoning
district in which they are located shall comply with the following general and specific
standards:
General Standards (VMC Section 20.850.030)
The hours of operation shall be limited daily from 6:00 a.m. to 9:00 p.m. in the higher density
residential districts and 6:00 a.m. to 10:00 p.m. in the commercial and industrial districts.
The hours of operation are from 7 a.m. to 6 p.m., which complies with the hours of operation
limitation for higher density residential districts.

The dogs may be groomed, trained, exercised and socialized, but not kept or boarded
overnight, bred, sold, or let for hire.
As described the dogs are trained, groomed, exercised and socialized, but not boarded, sold, or
bred.

Provide off-street parking and loading as required in VMC 20.945 Parking and Loading.
The parking and loading requirements adequately serve the needs of the existing business and
are consistent with Transportation planning recommendations. Parking and loading
requirements may change with change in use or if the use expands.

Walls, partitions and floor/ceiling assemblies separating dog day care facilities from
residential uses shall have a sound transmission class (STC) as required by the City Adopted
Building Code.
All structures have a sound transmission class as required by the City’s adopted building code.

Provide sight-obscuring fencing for all on-site outdoor recreation areas. The fence shall
provide full containment for the dogs. The fence structure shall be deep enough and secured to
the ground to prevent escape and high enough to prevent dogs from jumping or climbing over.
The Fence shall be subject to VMC 20.912 Fences and Walls.
The site includes sight-obscuring fencing for on-site outdoor recreation areas. The fence
provides full containment for the dogs.

Specific Standards (VMC Section 20.850.030)
A minimum lot size of one acre with a maximum of 30 dogs on the premises.
The lot size is approximately 1 acre in size and applicant will not exceed thirty (30) dogs.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 10 of 22
Outdoor areas where dogs will be allowed must be a minimum of 50 feet from any property
line. The setback requirements of this section do not apply if all activity is contained indoors.
Outdoor areas are a minimum of 50 feet from the property line.

All existing and additional structures shall maintain a residential character. Dog Day Care
shall be accessory to the residential use of the site.
All existing structures maintain a residential character. The owners live on the property.

Transportation Impact Fee (VMC Chapter 20.915)
Section 20.915.010 Purpose.
Reasons for impact fees. It is the purpose of this Chapter to ensure that adequate facilities are
available to serve new growth and development, and to promote orderly growth and
development by requiring that new development2 pay a proportionate share of the cost of new
facilities needed to serve growth. In addition, it is also the purpose of this Chapter to ensure
that impact fees are imposed through established procedures and criteria so that specific
developments do not pay arbitrary fees or duplicate fees for the same impact. (emphasis
provided).

The applicant argues (Exhibit 9 - starting on page 6 of 13) that this development is not new in
that it is an established business. The business was established at least since May 20, 1998 –
the date of obtaining a business license, issued by the City apparently without regard to the
absence of proper land use permit and there is nothing in the record to show that the change in
use required a building permit in May 20, 1998 or since. The property owner has made all
improvements and paving to and from the site and the access road to Happy Puppy Park which
has been exempted by the Planning Official from site plan review because “the dog care
facility does not result in a substantive increase in land use intensity or result in any adverse
off-site impacts.”

The section of 171st leading to Happy Puppy Park dead ends at Happy Puppy Park and can go
no further because of the barrier at SR-14.

Given that business is not new and there is no evidence in the record that it has not been
expanded and that it is already established and exempt from site plan review. For that reason,
based on the unambiguous language of the TIF ordinance and the definition of “development”
the TIF assessed against it can only be those in existence on May 20, 1998 when in theory the
business became a new use.



2
   Development. Any human made change to improved or unimproved real estate including but not
limited to: mining, dredging, filling, grading, paving, or excavation; any subdivision or short platting of
land; the construction or re-construction of residential, commercial, industrial, public or any other
building or building space. Development also includes the change in use of a building or land if
approval is required pursuant to the Vancouver Municipal Code, Title 17 (Building Code). As related to
the Tree Conservation Ordinance, development shall mean the division of a parcel of land into two or
more parcels; the construction, reconstruction, conversion, structural alteration, relocation, or
enlargement of any structure; any mining, excavation, landfill, clearing or land disturbance.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                               Page 11 of 22
Section 20.915.020 Applicability.

A. Uniform applicability. This Chapter shall be uniformly applicable to development that
    occurs within a designated service area or overlay service areas.

No new development has occurred to impact the service area or overlay service area.

B.      For pre-development permit issuance. No building permit shall be issued for a
development in a designated service area or overlay service area as defined in this Chapter
unless the impact fee is calculated and imposed pursuant to this Chapter.

The site was already developed in 1998.

E.     For development not requiring a building permit. For development not requiring a
building permit, the impact fee shall be calculated and imposed at the time of site plan
approval.

The project, so long as it remains unchanged, is exempt from site plan approval. Staff has
waived site plan review for this application; however, treating the waiver of site plan review as
equivalent to site plan approval, in the procedural posture of this case, because the use became
legally permitted in this zoning district and on this site only in December of 2000, the waiver
of review (or approval) for something that has not changed since 1998 has to relate to the time
it became legal to do so - December 4, 2000.

Section 20.915.030 Establishment of Development Service Areas.

A. General. Service areas, which may vary by type of public facility, are established as shown
on the Clark County Parks Impact Fee Program and Vancouver Transportation Impact Fees
Program, which are incorporated herein by reference.

The applicant argues that this area is a dead end street terminating at the boundary of SR-14
preventing further development at this site. The applicant misconstrues the meaning of the area
- the area is defined as East City TIF subarea and Mill Plain/I-205 TIF Overlay. A traffic study
might have argued about the applicability of one of those fees - but given that several
customers testified that they came from Camas, it is safe to assume that trips to and from the
facility use the road systems covered by these fees.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 12 of 22
B. Service areas and fees. Such areas will provide a nexus between those paying the fees and
receiving the benefits to ensure that those developments paying impact fees receive substantial
benefits.

The applicant argues that the owners of Happy Puppy Park have performed all improvements
to the access street and parking areas. No improvements, such as paving, have been performed
by the City. Therefore, there is no nexus between Happy Puppy Park paying the fees and
receiving any benefits.3 This argument is not fully developed, but the purpose of TIFs is to
provide system improvements for the areas caused by increasing traffic demand. The nexus is
created by establishing sub-areas - so that the improvements paid are in the general area
impacted and impacting the development.

D. Factors affecting service areas. Additional or revised service areas may be designated by
the City Council through amendment to the facilities plan upon consideration of the following
factors:
        1. The Comprehensive Plan;
        2. Standards for adequate public facilities incorporated in the capital facilities plan;
        3. The projections for full development as permitted by land use ordinances and timing
        of development;
        4. The need for and cost of un-programmed capital improvements necessary to support
        projected development; and
        5. Such other factors as the City Council may deem relevant.

The applicant agues that under projections for full development - this area is fully developed
barring a change in use within the surrounding housing areas and complete redevelopment.
However, the TIF amount is developed by dividing the number of projected future trips from
new development by the amount needed for capital improvements to accommodate them. It is
unclear whether the applicant is discussing the immediate area or the area defined as East City.
The choice of new projects is a City Council decision and cannot be attacked collaterally in the
context of a land use case as the applicant seems to be doing.




3
   A city can only impose impact fees collected under RCW 82.020.050 on system improvements that
are reasonably related to new development. RCW 82.02.050(3) (a). The fees shall not exceed a
'proportionate share' of the costs of system improvements reasonably related to the new development.
RCW 82.02.050(3) (b); City of Olympia v. Drebick, 119 Wn. App. 774, 83 P.3d 443 (2004). And finally,
the fees shall be used for system improvements that will reasonably benefit the new development.
RCW 82.02.050(3) (c). A '{p}roportionate share' is that portion of the cost of public facility
improvements that are reasonably related to the service demands and needs of new development.
RCW 82.02.090(5). Pavlina v Vancouver 122 Wn. App. 520 (7/13/2004)



FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                         Page 13 of 22
Section 20.915.040 Traffic Impact Fee.

A. Formula. The impact fee component for roads shall be calculated using the following
formula:
TIF = FxTxA
“TIF” means the traffic impact component of the total development impact fee.

“F” means the traffic impact fee rate per vehicle trip in dollar amounts, for each service area.
Such rate shall be established in the Traffic Impact Fee Program Technical Document,
incorporated herein by this reference, for each service area by estimating the cost of
anticipated growth-related roadway projects divided by the projected number of growth-
related trips within that service area. Between major program updates, the calculated per trip
fee will be adjusted annually to account for inflation using the Engineering News Record
Construction Cost Index for Seattle, and as outlined in the Traffic Impact Fee Program
Technical Document.

“T” means the trips generated by a proposed development and calculated according to the
Traffic Impact Fee Program Technical Document. The calculation of “T” described in the
Traffic Impact Fee Program Technical Document includes, for some retail commercial land
uses, a “business enhancement factor (BEF)” adjustment based on policy considerations. In
the absence of a land use code precisely fitting the development proposal, the director of
public works or designee shall select the most similar code and may make appropriate
adjustments to the trip equation applicable thereto. In selecting the appropriate land use code
and in making adjustments thereto, the Transportation Manager shall be guided by the most
recent edition of the Trip Generation Manual, Institute of Transportation Engineers.

“A” means an adjustment for the portion of anticipated additional tax revenues resulting from
a development which is prorated to system improvements contained in the capital facilities
plan. Such adjustment for traffic impacts is determined to be 15%, so that “A” equals 85%.

Applicant argues that the fees should be based on the following factors:
   Number of cars per day 12x2= roundtrips = 24
   TIF = $137 the impact fee in 2001 (the applicant argues for 2000 – but the record shows
   only 2001 fee and as a practical matter, the site plan could not have been reviewed and
   permitted before 2001)
   A = 15%

Therefore, per applicant’s attorney’s conclusion, the fee would be 24x137x0.85 = $ 2,794.80
at the very most, not the proposed $8,094.

The applicant has not established how he came up with 24 trips, instead of 38 provided by the
applicant. Now a traffic consultant might argue that trips to doggy day care, like the trips to
child care or 7/11 may not be just destination trips (primary) but pass-by linked trips (trips
already on the road, and therefore not new trips). A typical pass-by linked trip may involve
dropping a child to school, dropping the dog to day care and mom or dad get to work. As was
argued in the Alliance TIF appeal APL2002-00012 and -00011 B the key to assessing the
overlay district TIFs is the determination of new traffic brought into the sub-area from external
origins. New trip ends are also known as “primary trips”.


FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 14 of 22
This is because they have the particular site as a primary destination. It is the “new trip end”,
the “primary trip” that is used for assessing TIFs per the Trip Generation Handbook, an ITE
Proposed Recommended Practice, dated October 1998 and adopted by the City of Vancouver
at one point.

There is no evidence in the record and the issue was not raised about which trips of 38 daily
trips would be end primary and which would be linked pass-by. The point was argued that
some people bring more than one dog per car and some people walk their dog and finally that
November is not typical. That seems irrelevant when the applicant herself came out with the
car count in her parking lot and chose the month; however, a survey of the clients would reveal
the number of primary trips that ought to be counted for TIF. Some would definitely be
destination trips. So people who live and work and drop their dog within East City Subarea
should probably not be counted for trip end purposes. People moving in and out of East City
Subarea to drop their dog should be counted. For example the dog owners from Camas would
be counted. If the applicant wished to reduce the number of trips counted she must submit a
survey showing where the trips originate and where they end. She should ask all of her
customers that question and submit the results to the Concurrency Staff for review and final
calculation.

Section 20.915.070 Calculation of Impact Fee.

C. Criteria to reduce or eliminate impact fees. The development approval authority setting
   the impact fee, upon application by the developer supported by studies and data, may
   reduce or eliminate such fee if it is shown that:

1. The formulae contained in Sections 20.915.040, 20.915.050 or 20.915.060 VMC do not
   accurately reflect traffic, park, or school impacts, respectively; or

2. Due to unusual circumstances:

a. Facility improvements identified for the applicable service area are not reasonably related
to the proposed development; or

b. Such facility improvements will not reasonably benefit the proposed development.

The applicant argues that sections 1 and 2, a. and b. apply here based upon the traffic analysis
submitted by the Owner and the specific vehicular trips and impacts created by the customers
of Happy Puppy Park and the fees should be reduced or eliminated. The applicant also argues
that the proposed fees do not accurately reflect traffic impacts due to the fact that the location
of the Property is on a dead-end street and there is a limited number of vehicle trips. There are
no planned facility improvements within the area of the Property, or if any such facility
improvements are planned for, then such improvements would not reasonably benefit the
Property.

The Examiner finds that there are a number of unusual circumstances in this case. The use was
new in 1998 - but could have applied for a conditional use permit and site plan review for the
first time in December 2000, unless the applicant had chosen a different route offered by the
City in their June 7, 1999 letter.


FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 15 of 22
Since the TIFs do not vest at the time of the application but are assessed when the building
permit and site plan permit is granted the fees can only go back to the first half of 2001. This
conclusion is based on the fact that the use was fully developed and improved at the time of
the business license in 1998 and that nothing has changed.
The concurrency ordinance relates specifically by its language, and the language is not
ambiguous, to new developments and not site plan permits. So practically speaking the TIF
assessment should be the amount in effect on or prior to June 30, 2001, which would have
been the earliest time the City could have legally waived the site plan review. It should also be
based on primary trips, as discussed above. Some reasonable adjustment should be made for
the trips counted in the formula on that basis.

D. Request for impact fee determination. Prior to making an application for a building
permit, an applicant upon payment of the applicable fee may request an impact fee
determination from either the Parks or Transportation department, which determination shall
be based upon information supplied by the applicant sufficient to permit calculation of the
impact fee. The impact fee determination shall be binding upon the city for a period of one (1)
year unless there is a material change in the development proposal, the capital facilities plan
or this chapter.
The applicant argues that prior to making an application the applicant asked for the assistance
of the City and was never given a valid evaluation as to exactly what, how much and to whom
such fees should apply. In any event this review should result in a revised formula.

Section 20.915.100 Other provisions.

A. Process for revision of impact fees. Impact fee rates shall be adjusted periodically to
reflect changes in costs of land acquisition and construction, facility plan projects and
anticipated growth. Such adjustments shall only become effective upon adoption by the City
Council of a modification to the Capital Facilities Plan. However, this is provided that the
Capital Facilities Plan may contain provision for automatic revision of an impact fee rate no
more than once annually to reflect the change in a generally recognized and applicable
inflation/deflation index.
The City staff determined this TIF based on the trip generation report submitted with the
application and using unadjusted trip figures submitted by the applicant determined a fee of
$8,094. See Transportation Concurrency section in the Staff Report for details.

As the Washington Court of Appeals found in Pavlina v Vancouver, 7/13/20044:
       “The intent of the legislature and the City of Vancouver was to impose fees on
       new growth and development. A preliminary approval is not new growth and
       development. Growth and development occur when the approved project is under
       construction. There is no reason to collect impact fees on a preliminary approval.
       Thus, impact fees are collected at the time an applicant applies for a building
       permit. VMC 20.97.060(B) and (C)5. That is when the proposed project begins to
       affect the public facilities of a city and not at the preliminary approval phase.”

4
    122 Wn. App. 520
5
    Now 20.915.020



FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 16 of 22
The fees in this shall be revised consistent with the findings above to reflect the fees in effect
when the development may have been new, to wit June 30, 2001 and to reflect a trip count
adjusted for primary trips only. The applicant shall have 42 days (6 weeks) from when this
decision becomes final to submit a survey of all its current customers to determine the number
of primary trips and 30 days from when the fee amount set by the City becomes final to pay set
fee.

ADDITIONAL DEVELOPMENT STANDARDS
Clark County Animal Control Requirements (VMC Title 8) - VMC Section 8.24.490 is
administered by Clark County Animal Control. Animal shelters, kennels, pet shops, and dog
day care shall meet the following general conditions:
Animal housing facilities shall be structurally sound, shall be maintained in good repair, and
shall be designed so as to protect the animals from injury and restrict the entrance of other
animals.
All the outbuildings and facilities on the site are structurally sound, maintained and in good
repair and designed to protect animals from injury.

Each animal shall be provided with adequate floor space to allow such animal to turn about
freely and to easily stand, sit and lie in a comfortable normal position.
The dogs are provided more than adequate space for moving around freely and sitting and
lying in a comfortable normal position.

Any electrical power shall be supplied in conformance with applicable electrical codes
adequate to supply heating and lighting as may be required by this chapter.
All electrical power is in conformance with applicable electrical codes. Applicant recently
passed an inspection with no deficiencies noted.

Water shall be supplied at sufficient pressure and quantity to clean indoor housing facilities
and enclosures of debris and excreta.
All plumbing conforms to code. Applicant recently passed an inspection with no deficiencies
noted.

Suitable food and bedding shall be provided and stored in facilities adequate to provide
protection against infestation or contamination by insects or rodents. Refrigeration shall be
provided for the protection of perishable foods.
The facilities meet these standards.

Provision shall be made for the removal and disposal of animal and food wastes, bedding,
dead animals and debris. Disposal facilities shall be so provided and operated as to minimize
vermin infestation, odors and disease hazards.
Applicant has developed a system of disposal and has mitigated to lessen odor.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                        Page 17 of 22
Washroom facilities, including sinks and toilets, with hot and cold water, shall be conveniently
available to maintain cleanliness among animal caretakers and for the purpose of washing
utensils and equipment.
The facilities meet this standard.

Sick, diseased or injured animals shall be separated from those appearing healthy and normal
and if for sale, shall be removed from display and sale or adoption and kept in isolation
quarters with adequate ventilation to keep from contaminating well animals.
Applicant provides an isolation area for sick or injured dogs; however, applicant does not
allow dogs with contagious diseases to stay at Happy Puppy Park.

There shall be an employee or keeper on duty at all times during hours any establishment is
open whose responsibility shall be the care and supervision of the animals in that shop or
department held for sale, adoption or display.
Applicant has a full-time keeper on duty at all times during working hours and has a part-time
employee to help out when she has to be away.

An employee, keeper or owner shall make provision to feed, water and do the necessary
cleaning of animals. Puppies and kittens shall be fed and watered no less than twice every
twelve hours and adult dogs and cats shall be fed and watered no less than twice every twenty-
four hours.
Applicant or applicant’s part-time employee is available to provide for the animals per the
provision above.

No person shall misrepresent an animal to a consumer in any way.
Applicant is an animal-friendly individual and would never harm her clients in any way.

No person shall knowingly give for adoption or sell a sick or injured animal without disclosing
the sickness or injury to the adopter or purchaser.
Applicant does not practice in the adoption or the sale of animals.

Animals which are caged, closely confined or restrained shall be permitted daily exercise for
an appropriate length of time, as determined by their size, age and species, in a yard or area
suitable for that purpose.
The animals at Happy Puppy Park receive more than adequate amounts of exercise time.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                      Page 18 of 22
TRANSPORTATION CONCURRENCY (VMC TITLE 11) - The purpose of VMC
Chapter 11.95 is to implement the requirements in RCW 36.70A.070 that cities establish level
of service standards for arterial and transit routes and ensure that such standards are met or
reasonably funded before new development is approved.

The TIF amount was set by the Concurrency Certificate dated February 13, 2006 (Exhibit 7),
which the applicant did not appeal, apparently until the hearing on April 6, 2006. While there’s
a 10 day period in which to appeal the TIF determination, City Staff with their attorney present
allowed the applicant, their lawyer and the neighbors to argue about the validity of the TIF
without objection, therefore waiving any objection to the timeliness of the appeal.

Transportation impact fees will be required as they existed on June 30, 2001. The site is now
located within the East City Subarea. Site is also within the Mill Plain / I-205 Traffic Overlay.

The following Average Daily Trips (ADT) and AM and PM peak hour vehicular trips are
based on vehicle counts submitted by the applicant. The highest 3-day trip counts were used to
derive the average daily trips. PM Peak was generated by using 10 percent of the ADT, and
AM Peak using 70 percent of PM Peak. A 36 percent pass-by rate has been applied to account
for the existing trips within the neighborhood:
      Time Period         Entering      Exiting     Total New Trips
                          Trips         Trips
      ADT                 19            19          38
      AM Peak Hour        1             2           3
      PM Peak Hour        3             1           4

However as has been discussed a survey is required to determine which trips are primary and
which are linked pass-by trips within the sub-area. Additional transportation improvements
may be required in the future as per the City of Vancouver’s Street Standards, including but
not limited to VMC 11.90.020 (Abutting street - Frontage improvements - Traffic Signal
Participation), VMC 11.90.060 (Sight Distances), and VMC 11.90.083 (Arterial-Residential
Street Intersections) due to a change in use, expansion of use, or for other reasons determined
to be consistent with City policies.

Water, Sanitary Sewer, and Stormwater (VMC Title 14) - Title 14 of the Vancouver
Municipal Code contains Water and Sewer Use Regulations and Service Connections, Erosion
Control and Stormwater Control. In order to be approved, the proposal must meet the
requirements of Title 14.

Water - VMC 14.04
The site is within the City of Vancouver water service area and the applicant is connected to
City water.

Sanitary Sewer - VMC 14.04
There are no substantive issues with respect to sanitary sewers at this time. The City may
require a connection in the future if there is a change in use, the use expands, or for other
reasons determined to be consistent with City policies. The site is currently on a septic system.


FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 19 of 22
There is a 10-inch sewer adjacent to the south side of the parcel in the state right-of-way. A
Utility Review prepared in 1999 for the site indicates that sewer is available and provides
general connection requirements. The application does not request a new connection at this
time. In the event the parcel is connected to public sewer, the owners must show the
approximate location of existing sanitary sewer connections and related piping on the site plan.
Additional pre-treatment related conditions may be required in the future. As an alternative,
the owners may be required to note and/or show the location of the existing septic and drain
field systems.

Storm Sewer - VMC 14.25
Stormwater plan or any stormwater improvements at this time. Stormwater improvements may
be necessary in the future if there is a change in use; the use expands, or for other reasons
determined to be consistent with City policies.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                      Page 20 of 22
                                         DECISION
The proposal is in compliance with the City’s Comprehensive Plan Policies and meets the
applicable standards of the Vancouver Municipal Code and is hereby APPROVED subject to
the conditions enumerated below.

Conditions of Approval
1. Happy Puppy Park dog day care facility shall be subject to the zoning provisions as
   contained in VMC Chapter 20.850 – Dog Day Care, including no more than 30 dogs at any
   time.
2. No overnight boarding of dogs is permitted.
3. Happy Puppy Park shall be subject to all rules, pertaining to Dog Day Care facilities under
   VMC Chapter 8.24 Animals, as administered by the Clark County Animal Control office.
4. The owners/applicants of Happy Puppy Park business shall pay a total Transportation
   Impact Fee based on the fees in effect on June 30, 2001 and to reflect a trip count adjusted
   for primary trips only (or excluding linked by-pass trips within the subarea). The applicant
   shall have 42 days (6 weeks) from when this decision becomes final to submit a survey of
   its customers for review by the Concurrency Staff to determine the number of primary trips
   and pay said fee thirty (30) days from when the fee amount set by the City becomes final.
5. The Hearings Examiner may revoke the conditional use permit for noncompliance with
   conditions imposed in the granting of the permit after first holding a public hearing and
   giving notice of such hearing as provided in Chapter 20.210.120. Any increase in the scope
   of the approved use may trigger additional City requirements.

Dated this 14th day of April 2006


                                             ____________________________________
                                                   J. Richard Forester
                                                   Vancouver Hearing Examiner

NOTE:           Only the decision and the conditions 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.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                       Page 21 of 22
APPEAL:        Decisions of the Hearings Examiner are appealable to the City Council within
14 days after written notice of the Hearings Examiner decision is mailed. 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 ($1,000.00); provided, the fee shall
               be refunded if the appellant files with the Director at least fourteen (14)
               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 Hearings Examiner’s
decision shall become final and conclusive.




FINAL ORDER _ PRJ2005-01435 Happy Puppy Park                                          Page 22 of 22

				
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