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Hearing Examiner's Decision on Remand

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Hearing Examiner's Decision on Remand Powered By Docstoc
					                         City of Yakima, Washington
                   Hearing Examiner’s Decision on Remand
                                          July 10, 2006


In the Matter of Class (3) Review                  )
Of an Application Submitted by:                    )
                                                   )             UAZO CL (2) #16-04
CLC Associates                                     )               UAZO CAO #6-04
                                                   )                      EC #6-04
For Approval of a Proposed Wal-Mart                )
Superstore Facility with Associated                )
Commercial Uses in the CBDS Zone                   )


Introduction. The Hearing Examiner conducted a public hearing on December 14 and
December 15, 2005. It was announced during the hearing on December 15, 2005 that the
record would be kept open until January 6, 2006 for the limited purpose of allowing any
interested persons to submit comments regarding a supplemental noise study and to
submit responses to specific written questions provided at the hearing by the Examiner.
Such comments and responses were received on January 2 and January 6, 2006. The
original decision was issued within 10 business days after the record was closed. The
staff report presented by Planning Supervisor Bruce Benson recommended approval of
the application subject to conditions. The applicant‟s attorney, Jack McCullough, and the
City‟s attorney, Terry Danysh, submitted considerable documentary evidence and witness
testimony in support of the Planning Division‟s recommendation. Many members of the
public presented considerable documentary evidence and testimony in opposition to the
Planning Division‟s recommendation to approve the application.
                 The Examiner‟s decision dated January 21, 2006 was appealed to the
Yakima City Council which remanded the matter to the Hearing Examiner for the
following purposes set forth in Resolution R-2006-68:


CLC Associates – Wal-Mart Superstore           1
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
                “The Hearing Examiner‟s decision, dated January 21, 2006, is
       hereby remanded to the Hearing Examiner to re-open the open-record
       public hearing on the Wal-Mart application for a superstore at South 64th
       Avenue and West Nob Hill Boulevard solely for the purpose of taking
       public testimony on Condition Nos. 18 and 47 and revising his decision
       accordingly as those conditions relate to (1) what is the appropriate noise
       standard to be applied to the proposed Wal-Mart Superstore and whether
       the proposed mitigation or additional mitigation is required, and (2) is a
       Wal-Mart Superstore at this proposed location a “place of public assembly”
       and/or a threat to public safety, in violation of the City‟s ASO, including,
       but not limited to, fact-finding and inquiry into the decision-making process
       and position of the Airport Board concerning the ASO and the proposed
       Wal-Mart Superstore.
                It is further resolved that the Hearing Examiner will conduct said
       re-opened open-record public hearing on or about Monday, June 19, 2006,
       to be completed by Friday, June 23, 2006.” (Exhibit R-1)

In accordance with the City Council‟s directive, the Hearing Examiner conducted a
public hearing on remand on June 19 and June 20, 2006. Participating in this
hearing were the applicant‟s attorney, Jack McCullough; the attorney for the
Concerned Citizens of Yakima, James Carmody; and the attorney for the City,
Terry Danysh. Substantial additional evidence was submitted at the hearing on
remand. The hearing continued until about 11:30 p.m. on June 20 because the
attorneys desired to complete the hearing that night without a further continuance.
It was announced near the end of the hearing on June 20, 2006 that the record
would be kept open until June 28, 2006 for the limited purposes of allowing any
interested persons to submit responses to two specific questions posed at the
hearing by the Examiner and of allowing David Dietz to provide examples of
ordinances defining the term “places of public assembly” to support his firm‟s
position on the meaning of that term stated in the EIS. (Final EIS, page 147).
Although that timeframe was selected to accommodate personal commitments of
at least one of the attorneys involved, this decision on remand has nevertheless
been issued within 10 business days of June 23, 2006, which was the date which



CLC Associates – Wal-Mart Superstore        2
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
the City Council prescribed for completion of the remand hearing.
         Other than incorporating the minor wording changes in the original decision
which were provided to the Planning Division within ten business days after the original
record was closed on January 6, 2006 and some minor format changes, this decision on
remand changes the original decision only to the extent needed to address the noise and
ASO issues on remand. Addressing those issues has required that additional text be added
to the following sections of the original decision: “Introduction;” “Basis for Decision;”
“V. Notices;” “IX. Airport Safety Overlay Requirements;” “XI. Testimony and Exhibits;”
“XII. Evidentiary Issues;” “XIII. Class (3) Review Criteria -- B. Compliance with the
Standards Established in the Zoning Ordinance ((Subsection 15.15.040 (5)) -- a) Height;”
“XIII. Class (3) Review Criteria -- C. Compliance with the Provisions Established in the
Zoning Ordinance ((Subsection 15.15.040(5)) -- h) Noise Mitigation”; and “XIII. Class
(3) Review Criteria -- D. Compliance and Compatibility with Objectives and
Development Criteria of Yakima Urban Area Comprehensive Plan Subsection
15.04.020(3) and 15.15.040(5) -- c) Compatibility with Adjacent Residences.”
Addressing those issues by considering additional evidence has also resulted in revision
of the wording of conditions 18 and 47.


Summary of Decision. So long as the current commercial (CBDS) zoning designation
for this site remains valid despite pending litigation, the Hearing Examiner approves this
application subject to mitigating conditions of the EIS, the recommended conditions of
the staff report with the Examiner‟s modifications, and additional conditions set forth in
this decision deemed necessary to promote compatibility between different types of uses.


Basis for Decision. Based upon the Hearing Examiner‟s view of the site without
anyone else present on numerous occasions; his consideration of the application, the Final
Environmental Impact Statement (FEIS), the staff report, exhibits, letters, testimony and
other evidence presented at the open record public hearing on December 14 and 15, 2005;

CLC Associates – Wal-Mart Superstore         3
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
his consideration of the documentary evidence submitted on January 2 and January 6,
2006 relative to the supplemental noise report and relative to the Examiner‟s written
questions; his consideration of the exhibits, letters, testimony and other evidence
presented at the open record public hearing on remand on June 19 and 20, 2006; his
consideration of the documentary evidence submitted by June 28, 2006 relative to the
Examiner‟s questions and his request for further information about the ASO issues; and
his review of both the City of Yakima Urban Area Comprehensive Plan and the City of
Yakima Urban Area Zoning Ordinance (UAZO); the Hearing Examiner makes the
following:



                                          FINDINGS

I. Applicant. The applicant is CLC Associates, 12730 Mirabeau Parkway, Suite 100,
Spokane Valley, Washington 99216 on behalf of Wal-Mart Stores, Inc. and landowner
Congdon Development Co., LLC (Ex. H-1). References to the applicant herein shall
mean the party represented by CLC Associates which is responsible for developing the
property in accordance with the application and conditions.


II.    Owner. The owner of the property is Congdon Development Co., LLC,
P.O. Box 2725, Yakima, Washington 98907.


III.   Location. The location is on the southwest corner of West Nob Hill Boulevard
and South 64th Avenue, tax parcel numbers 181329-41401 and 41402. (Ex. F-1).


IV. Application. The main aspects of the application may be summarized in the
following manner:




CLC Associates – Wal-Mart Superstore         4
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
        A. Uses of Site: The proposal consists of a 203,819 square-foot Wal-Mart
supercenter with 1,042 parking spaces, a six-island fueling station and two outlot pads for
future stand-alone buildings with retail tenants. (Exs. F-1 and H-1). By way of
comparison, the testimony at the hearing was that the existing Wal-Mart supercenter
facility on East Chestnut is 200,006 square feet with 965 parking stalls, the Fred Meyers
facility on 40th Avenue is 184,000 square feet with 805 parking stalls and the Home
Depot facility on South 1st Street is 141,000 square feet with 674 parking spaces. The
parcel proposed for the location of these uses is approximately 38.88 acres. About 27.31
acres of the site will be utilized for development. Approximately 7.16 acres will be set
aside for a stream buffer for Wide Hollow Creek. Approximately 0.46 acres will be
dedicated to the City for right-of-way for South 64th Avenue. The remaining 3.95 acres
will be retained by the current owner for future commercial/retail development. (Ex. C-
1). A short plat will be required to reconfigure the proposed site for the configuration of
the two outlots.
        B. Design Features of Wal-Mart Facility: The new Wal-Mart supercenter will
consist of a one-story, slab-on-grade structure. Although the original site development
plans indicated that the new building would be approximately 30 feet in height, the latest
information submitted indicates that the unique design for the building (Ex. C-2 attached
hereto) has two gables which will reach 41.5 feet in height. (Ex. 192, pp. 11-12). The
development will have a total impervious lot coverage of approximately 78%. Two access
points to the facility are proposed from Nob Hill Boulevard and one access point is
proposed from South 64th Avenue. The design perspective for the proposed building
indicates a single-story structure with a facade designed to appear as several independent
structures built with varying setbacks. The roofline similarly reflects separate structures
with alternating flat and pitched roofs. The color scheme incorporates three shades of
earth tone browns, a dark green and a metallic silver. The original proposed design
pictured in the FEIS resembled the design of the existing store on East Chestnut Avenue.
(FEIS p. 103). The design submitted October 7, 2005 that is shown in Exhibit C-2 will be
more aesthetically pleasing than the design pictured in the FEIS.
        C. Proposed Gas Station: A proposed gas station will be located on the north
side of the property adjacent to Nob Hill Boulevard. The gas station will have a minimum
of three pump islands up to a maximum of six pump islands, with a total of no more than
12 individual fueling stations. (Ex. C-1).

V. Notices. Notices for the public hearing were provided in accordance with the
applicable ordinance requirements in the following manner:


       Posting of hearing notice on the property:      February 22, 2002
       Mailing of hearing notice to property owners:         October 21, 2005

CLC Associates – Wal-Mart Superstore        5
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
       Publishing of hearing notice in newspaper:                October 21, 2005

Notices of the re-opened open record public hearing on remand were given by means of
Resolution R-2006-68 of the Yakima City Council (Exhibit R-1) and the Planning
Division‟s Notice of Public Hearing dated May 26, 2006 (Exhibit R-3).


VI. Current Land Uses and Zoning. The subject property is vacant and is currently
planted in alfalfa. The property was a fruit orchard for many years. The current zoning
of the property is not as simple to describe as the current use due to a dispute on that point
that appears in the record. (Testimony of Michael Noble on December 14, 2005 and Terry
Danysh on December 14 and December 15, 2005). The history of the zoning relevant to
this dispute is as follows:
       A. RS Zoning Prior to Effective Date of Ordinance 2002-45: The site was
zoned Rural Suburban (RS) prior to the effective date of City of Yakima Ordinance 2002-
45. That zoning designation did not allow the applicant‟s proposed uses under any
standard of review.
       B. CBDS Rezone Ordinance: The site was rezoned for commercial uses (Central
Business District Support) along with adjoining property to the north and east by City of
Yakima Ordinance No. 2002-45 (Ex. 196). That rezone ordinance was adopted pursuant
to former Hearing Examiner Philip Lamb‟s Revised Recommendation dated July 9, 2002
(Ex. 195). He recommended mitigating conditions to promote the compatibility of
commercial uses allowed outright in the CBDS zoning district with existing residential
uses north of the original proposed site. The original proposed site for this proposal was
directly northwest of the present proposed site. Even though special mitigating conditions
are not commonly recommended for nonproject rezones, the record of this rezone
indicates that the neighbors had anticipated future consideration of compatibility issues
after the Comprehensive Plan had previously been amended to allow for commercial
zoning, and that Mr. Lamb was concerned that the rezone process would probably be the
last opportunity for conditions to be imposed to promote the compatibility of permitted
commercial uses with the adjacent residential area. (Ex. 195, p. 28-29). The City Council
accepted all of Mr. Lamb‟s recommendations except two and in addition accepted the
landowner‟s offer at the City Council level to allow Class (2) review of future Class (1)
uses proposed for this property. As a consequence, this application is now being
considered after a considerable amount of compatibility review and conditioning of the
proposed commercial uses has already taken place at more than one level to make the
proposed commercial uses compatible with existing residential uses in the area.

CLC Associates – Wal-Mart Superstore          6
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
       C. Validity of Rezone Ordinance Still Uncertain: After passage of Ordinance
2002-45 rezoning this property to CBDS, the neighbors contested its validity in Yakima
County Superior Court. The Memorandum Decision of Superior Court Judge Michael
Cooper dated October 26, 2005 held that the rezone ordinance is valid. (Ex. G-4). He
basically held that the Examiner considered all relevant factors and that the City Council
did not err by adopting most of the conditions that he recommended in order to make
future commercial uses on the properties compatible with existing nearby residential uses.
At the hearing on this application, however, one of the neighbors who opposes the
proposal, Michael Noble, promised that Judge Cooper‟s decision would be appealed to a
higher court.
       D. Request for Delay of Class (3) Review: Mr. Noble suggested that this
application should not be further processed until all pending court appeals as to the
validity of the rezone ordinance have been finally concluded. He argued that the CBDS
zoning designation is not yet in place because of Section 5 of Ordinance 2002-45:

       “Section 5. Subject to the foregoing provisions and conditions, this Ordinance
       shall be in full force and effect thirty (30) days after its passage, approval and
       publication as provided by law and by the City charter, and this action shall be
       final and conclusive unless within 21 days from the date this Ordinance is passed
       by the City Council an aggrieved party commences proceedings for review
       pursuant to the provisions of RCW Chapter 36.70C.”

Mr. Danysh expressed the City‟s view that the ordinance is presently effective and that
the City has an obligation to process the applicant‟s permit in the normal course unless
and until the appellants convince a court to stay these proceedings pending their appeal.
       E. Examiner’s Decision re Request to Delay Class (3) Review Process: After
considering both positions in light of the actual wording of Section 5, the Examiner is not
inclined to continue these proceedings until all court appeals are concluded. The
ordinance specifically says that it will be in full force and effect 30 days after August 20,
2002. It does not say that it will be in full force and effect 30 days after its adoption
unless an appeal is sooner filed. Rather it says that the rezone will not be final and
conclusive if there is an appeal. That is obviously the case because the court on appeal
could invalidate the rezone even though it became effective by passage of the 30-day
period following August 20, 2002. Whether the applicant proceeds at its peril in view of
the fact that the former SR zoning does not allow any of the proposed commercial uses
under any standard of review, or instead decides to await the conclusion of all court
appeals, is of course up to the applicant unless a court restrains the applicant from
proceeding further until all appeals are decided. In any event for these purposes, this
Class (3) review process will not be delayed by the Examiner as requested. The following
list contained in the staff report is accepted as an accurate description of the current
zoning of properties adjoining the site on the north, east and south which were also a part


CLC Associates – Wal-Mart Superstore         7
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
of the 2002 rezone process:



       Location                             Zoning                  Existing Land Use
       North                                CBDS                       Agricultural
       East                               CBDS & SCC                   Agricultural
       South                                  R-3                      Agricultural
       West                                   R-1                Single Family Residential

VII. Environmental Review.                There was extensive environmental review of this
proposal by numerous experts in their respective areas of expertise. They recommended
numerous mitigation measures to reduce the identified significant adverse environmental
effects of the proposal to an acceptable, insignificant level. The main points of the
environmental review process for this proposal can be summarized as follows:
       A. The FEIS: In September, 2005, the City of Yakima issued the Final
Environmental Impact Statement for the West Nob Hill Boulevard Commercial Center.
The FEIS was principally drafted for a former Wal-Mart site at South 72nd Avenue and
Nob Hill Boulevard, directly northwest of the current site. The current site was analyzed
as one of the alternative locations for the supercenter. It was referred to in the FEIS as
Alternative Site 3B.
       B. The DS: On November 22, 2005 a Determination of Significance (DS) and
“Notice of Adoption of an Existing Environmental Document” was issued by the City of
Yakima in response to the current application. A SEPA Addendum was issued at the
same time with minor modifications to the FEIS.
       C. The Resulting Mitigating Conditions: These FEIS documents are a part of
the permit record for the current request. They serve as the basis for special mitigation
requirements that are imposed as conditions of this decision where those conditions are
more restrictive than City code requirements.
       D. Examiner’s Role: No one asserted at the hearing that the Examiner has the
authority to question, consider or decide whether the analysis of environmental factors in
the EIS is adequate. The attorneys for the applicant and the City correctly argued that the
law is clear that the issue of the adequacy of the applicant‟s EIS in this case would have
to be raised in a court LUPA (Land Use Petition Act) appeal in conjunction with an
appeal of the underlying action rather than in this Class (3) review process before the
Examiner. WAC 197-11-680(3)(a)(i) requires that any available procedure regarding an
administrative appeal of a final EIS must be specified by a City rule, ordinance or
resolution. The City of Yakima has no rule, ordinance or resolution in effect establishing


CLC Associates – Wal-Mart Superstore            8
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
the procedure for an appeal of a final EIS to either the Hearing Examiner or the City
Council. To the contrary, Subsections 6.88.170(C)(1)(a) and (b) of the City‟s SEPA
ordinance make it clear that administrative appeals to the Hearing Examiner are only
available for Determinations of Nonsignificance and Determinations of Significance.
Here the Determination of Significance issued on November 22, 2005 was not appealed
to the Examiner within the 14-day period required by Subsection 6.88.170(F)(2)a.(1)(b)
of the SEPA ordinance. Therefore, unless a court decides otherwise, the Examiner will
accept the FEIS with its recommended mitigating measures as an adequate evaluation and
mitigation of the identified adverse environmental impacts posed by this project.

VIII. Zoning Classification of Proposed Uses. The answers to two questions
raised in the record are dependent upon a determination of what class of uses is being
requested – i.e., (i) who has the burden of proof to overcome a rebuttable presumption
regarding compatibility issues? and (ii) whether the applicant needs to submit an
application for approval of the uses under the Airport Safety Overlay provisions of
Chapter 15.30 of the UAZO? The resolution of the dispute in the record relative to what
class of uses is being requested involves the following considerations:
       A. Rebuttable Presumption and Burden of Proof: Section 15.02.020 of the
UAZO defines Class (2) uses as those “generally permitted throughout the district” and
Class (3) uses as just the opposite – those “generally incompatible with their neighbors
because of their size, emissions, traffic generation or for other reasons.” The definition of
Class (2) uses creates a rebuttable presumption in their favor which requires persons in
opposition to establish their incompatibility before they can be conditioned or denied.
The definition of Class (3) uses creates a rebuttable presumption against them which
requires applicants to establish their compatibility. The City Council in its legislative
capacity adopted these descriptions of the respective uses and declared what activities are
what classes of use in the respective zoning districts. The Examiner does not have the
authority to change or ignore those legislative determinations. At issue is the meaning of
the definition of Class (1) uses in Section 15.02.020 of the UAZO:

       “Class (1) Uses are those uses set forth and defined in the text and tables of
       Chapter 15.04 of this title and are permitted on any site in the district provided
       district standards are met. The building official shall review Class (1) uses for
       compliance with the provisions and standards of the district. In some cases Class
       (1) uses may require review by the administrative official.”




CLC Associates – Wal-Mart Superstore         9
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
        B. Differing Interpretations. The applicant and the City both argue that the
ordinance has been correctly interpreted for the past many years by former Hearing
Examiner Philip Lamb and more recently by this Examiner to mean that the class of uses
remains unchanged when the class of review changes and that it would be manifestly
unfair to alter this long-standing process at the last minute in this proceeding to the
detriment of this applicant. (Ex.175, pp. 1-2, Ex. 192, pp. 1-4 and Ex. 194. pp. 1-2). On
the other hand, the only neighbor in opposition to the proposal who submitted responses
to the Hearing Examiner‟s written questions in this regard, argued that a Class (1) use by
definition has to change to a Class (2) use when it is subject to Class (2) review because it
no longer meets the Class (1) use definition of a use “permitted on any site in the district
provided district standards are met.” He further argues that if Class (1) uses change to
Class (2) uses when they are subject to Class (2) review, then logically Class (2) uses
must change to Class (3) uses that are declared in the ordinance to be generally
incompatible with their neighbors if they are referred by the Administrative Official for
Class (3) review. (Ex. 191, pp. 1-2).
        C. Wording of the Ordinance. The zoning ordinance consistently refers to
classes of uses as something distinct from classes of review. The class of review is
generally the same as the class of use, but the ordinance provides for a standard of review
that is different from the class of the use in certain enumerated circumstances. The
Examiner is not aware of any provision in the zoning ordinance that states that the class
of a use changes when the way of reviewing it changes. Section 15.02.020 defines “use”
in this context to be the activity for which land or structures are occupied or maintained.
A proposed use as so defined does not in fact change merely because the way of
reviewing it changes. One of the reasons why the Class (1) uses here became subject to
Class (2) review is set forth in Section 15.13.020(1) which refers only to a change in the
method of review, not in the class of use:

        “…Class (1) uses require Class (2) review when:
               1. All or part of the development, except for agricultural buildings and
       single-family dwellings, and duplexes is in the floodplain or greenway overlay
       districts;…”

 The other reason why the proposed uses became subject to Class (2) review, which does
not mention any change in the class of the uses, is stated in the rezone ordinance imposing
that condition when this site was rezoned for commercial uses:

       “… (c) Currently, Class 1 uses in CBDS zones are permitted outright with little or
       no public review process;
           (d) Class (2) review creates a rebuttable presumption of compatibility for
       those same uses, but would ensure substantial additional public participation and
       review of the permitting process with the possibility of appeal;


CLC Associates – Wal-Mart Superstore         10
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
        … Congdon shall duly execute an Agreement that will require Class (2) review of
       any site-specific project on Tracts D and E, …”

The reason why the proposed uses thereafter became subject to Class (3) review is that
many of the neighbors‟ comments during the period allowed for written public comment
requested that the review be elevated to Class (3) review. The Administrative Official
honored that request and elevated the review of this application from the administrative
Class (2) review process under Chapter 15.14 of the UAZO to the Class (3) process
involving a public hearing before the Hearing Examiner under Chapter 15.15 of the
UAZO. In doing so, he exercised the authority granted to him by Subsection
15.14.040(3)(e) of the UAZO which similarly does not provide for a change in the class
of use upon a change in the type of review:

       “3. Administrator‟s Decision. After considering any comments received from
       other agencies, jurisdictions, or adjoining property owners, the administrative
       official shall take one or more of the following actions:
        …
       e. Refer the site plan to the hearing examiner for review, public hearing and
       decision; …”

It would seem logical that if the City Council intended to delegate to the Administrative
Official the legislative function of changing the class of uses from those generally
permitted to those generally incompatible, it would have said so. It is textbook law that
the delegation of legislative duties, particularly duties as important as determining which
uses will generally be compatible in a particular zoning district and which will not, must
be accompanied by specific standards preventing the authority from being exercised
arbitrarily. The fact that no standards or criteria whatsoever are specified in the zoning
ordinance provision allowing the Administrative Official to refer a Class (2) application
for Class (3) review and since the provision does not say that such action will change the
class of use or its presumption of compatibility, it is unlikely that the City Council
intended that result.
        D. Examiner’s Interpretation. An ordinance is to be interpreted by considering
all of its relevant provisions as a whole and by giving effect to all of its words. After
doing so, the Examiner finds that Mr. Noble‟s argument overlooks the intended
significance of the last sentence in the definition of a Class (1) use in Section 15.02.020
of the UAZO to the effect that “[i]n some cases Class (1) uses may require review by the
administrative official” and of the first sentence in Subsection 15.04.020(1) to the effect
that “Class (1) uses not requiring Class (2) review are permitted; provided, that district
standards are met.” The Examiner finds that the City Council intended by the last
sentence of the Class (1) use definition to create a second type of Class (1) use not
defined by the first sentence of the definition and further that the City Council provided
by implication in Subsection 15.04.020(1) that Class (1) uses which do in fact require

CLC Associates – Wal-Mart Superstore        11
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
Class (2) review are generally permitted rather than permitted outright. The proposed
uses set forth in this application are therefore Class (1) uses subject to Class (2) review
that have been referred for Class (3) review. As such, they are the second type of Class
(1) use referred to in the Class (1) use definition and they are generally permitted. The
zoning ordinance therefore puts the burden upon the neighbors and others who oppose
approval of this application to establish that the uses are incompatible on the CBDS-
zoned property included in this application.



IX.    Airport Safety Overlay Requirements.                  A determination of which
requirements set forth in the Airport Safety Overlay (ASO) requirements of Chapter 15.30
of the UAZO are applicable to this application necessitates a consideration of several
factors as follows:
       A. Criteria for Exemption of an Application from ASO Application
Requirements. Since the proposed uses are Class (1) uses even though that is not the
class of their review, the applicant and City correctly argue that the application is not
required to include a statement of compatibility from the Airport Manager relative to the
impact of the use on airport operations and safety (which would otherwise be required
under Subsection 15.30.060(A)(4) of the UAZO) if this application meets criteria of
Section 15.30.040. Even though the record indicates that former Airport Manager Bob
Clem submitted a letter that was admitted into the record of the rezone proceedings in
2002 which indicated that the rezone was consistent with the Airport Safety Overlay
(Ex. 195, p. 14), a statement of compatibility from the Airport Manager relative to the
impact of the uses proposed here on airport operations and safety was not submitted for
inclusion into the record of this proceeding. Such a statement is not required if this
application satisfies the requirements of Section 15.30.040 which reads as follows:

       “(A) The uses listed as Class (1) uses within the underlying zoning district shall be
       subject to the height restrictions listed in Sections [sic.] 15.30.070 or YMC chapter
       15.05, Table 5-1, whichever is the more restrictive. No separate application for a
       Class (1) use in the airport overlay is required, provided the Reviewing Official
       can conclusively determine that the proposed structure or use:
                   (1) Does not constitute a potentially incompatible land use; and
                   (2) Will not exceed 35 feet in height; or, if greater than 35 feet in
                   height, will not penetrate the approach, transitional, horizontal, or
                   conical surface zones of the airport for any existing or planned
                   approaches as defined by FAR, Part 77; and
                   (3) Is not within a designated runway protection area or an identified
                   future 65 DNL aircraft noise impacted area within the airport master


CLC Associates – Wal-Mart Superstore        12
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
                  plan or the FAA approved airport layout plan. Such structures and uses
                  shall in any case be subject to the limitation of Section 15.30.070 and to
                  the recording of an aviation easement.
       (B) Class (1) uses shall be subject to Class (2) application and review procedures
       pursuant to Section 15.30.060 where the use is a potentially incompatible land use,
       or where the Reviewing Official cannot make a conclusive determination as
       required in subsection (1).”

The definition of a “potentially incompatible land use” which is referenced in Subsection
15.30.040(A)(1) above is found in Subsection 15.30.020(G) of the ordinance as follows:

       “(G)     Potentially Incompatible Land Use: Land uses deemed potentially
       incompatible within the airport safety overlay include:
              (1) Those land uses located in the primary airport safety overlay, being an
       area bounded by the limits of the approach surface and the transitional surface
       within the conical surface area, that are of such intensity as to potentially endanger
       public health, safety or welfare. Such uses include manufactured or mobile home
       parks, schools, places of public assembly, and multi-family residential uses;
              (2) Those land uses within the primary or secondary airport safety overlay
       constituting airspace hazards, as determined by the Reviewing Official.”

        B. January 21, 2006 Decision regarding Application of Criteria to this
Application. The applicant and City correctly point out that the second and third
requirements of Section 15.30.040 of the ASO are satisfied here. (Exs. 192, pp. 9-13 and
194, pp. 7-8). The original calculations for this site in the FEIS utilized 11,000 feet rather
than 8,500 feet as the distance from the airport for this site to arrive at a figure of 220 feet
rather than 170 feet above field elevation for the slope approach and to conclude that the
top of the building -- which then was designed to have a maximum height of 35 feet –
would be 118 feet below the bottom of the approach slope. (FEIS, pp. 148-149). The
latest information in the record regarding the height of the building is that it will have two
gable roofs that will reach the height of 41 feet, 6 inches and that, computing the 50:1
approach slope for the correct distance from the airport, the top of the building will
actually be 63 feet rather than 118 feet below the bottom of the approach surface. (Ex.
192, pp. 11-12). That reduced distance between the top of the building and the bottom of
the approach slope still leaves undisputed the evidence in the record comprising the
conclusions of Mead & Hunt, the City‟s airport planning consultant for the EIS (FEIS, pp.
145-150), and of the applicant‟s aviation consultant, David Ketchum (Testimony of David
Ketchum December 14, 2005), that the proposed building and improvements will not
penetrate or be within any of the areas described in Subsections 15.30.040(A)(2) and (3)
of the ASO even though there will be less distance than originally represented between
the top of the building and the bottom of the approach slope. The Hearing Examiner‟s
January 21, 2006 decision held that the applicant and the City also correctly pointed out

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that none of the proposed uses are of the type enumerated as potentially incompatible land
uses in Subsection 15.30.020(G)(1) of the ASO. (Exs. 192, pp. 10-11 and 194, pp. 7).
That decision further held that even though the only type of enumerated use that might
apply to this proposal is not defined in the ordinance, it is reasonable to adopt the
approach suggested by the applicant and City of referring to the International Building
Code and the International Fire Code to conclude that places of public “assembly” are
places for public gatherings in enclosed spaces such as auditoriums, gymnasiums,
multipurpose rooms, stadiums, theaters, arenas and schools, while the proposed uses
would fall within a different use category referred to as “mercantile uses.” Relative to the
type of potentially incompatible land use referred to as “airspace hazards” in Subsection
15.30.020(G)(2), the applicant argued that the FAA No Hazard Determination submitted
into the record demonstrated conclusively that the Wal-Mart Project will not be an
airspace hazard. (Ex. 192, p.10). However, the Hearing Examiner‟s January 21 decision
noted that the FAA No Hazard Determination stated on its face that the determination was
made for a height of 35 feet above ground level and 1197 feet above mean sea level and
that “any changes in … heights … will void this determination.” (Ex. G-3).
        C. January 21, 2006 Determination of Examiner. Since the applicant relied on
the FAA No Hazard Determination to demonstrate conclusively that the proposal will not
be an airspace hazard and since that determination on its face was void, the Examiner was
unable to conclusively determine that the proposal will not constitute a potentially
incompatible land use under Subsections 15.30.040(A)(1) and 15.30.020(G)(2) and the
proposed uses therefore required a Class (2) ASO application under Subsection
15.30.040(B) unless the applicant were to submit a valid FAA No Hazard Determination
to the City Director of Community and Economic Development and were to demonstrate
to him full compliance with all applicable ASO requirements prior to issuance of any
permits. In addition to this condition, since the proposed uses are directly in line with the
main runway of the airport, the applicant‟s expert, David Ketchum, recommended a
condition be imposed for the safety of air traffic, and those on the ground alike, to prevent
any future user of any portion of the site from allowing the use of any kind of search light,
blinking light or flashing light for grand openings, special events or any other purpose.
Also the FEIS states that prior approval of the City, the Airport Manager and the FAA
should be required for use of satellite disks for communication on this site. Finally, since
the ASO ordinance states that the conditions enumerated in Subsection 15.30.070(C)
apply to all uses in the airport safety overlay, they will be conditions of this decision even
though the EIS states that none of the prohibited activities listed therein will occur at the
site. That decision held that these limitations on the future use of the property included in
this application will be specific conditions of this decision in addition to demonstrated
compliance with all applicable requirements of the ASO.
        D. July 10, 2006 Decision on Remand as to Whether the Proposed Wal-Mart
Supercenter at this Proposed Location is a “Place of Public Assembly” in Violation
of the City’s ASO Ordinance. The evidence submitted during the original hearing to the
effect that the proposal was not a place of public assembly was from several sources and

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was uncontradicted. This subject is succinctly addressed in the final Environmental
Impact Statement at page 147 as follows:

               “All of these uses are allowed as Class (1) uses within the CBDS zone as
               shown on the Table of Permitted Land Use (YMC 15.04.030). Although
               public assembly is not defined in the ordinance, it typically applies only to
               places where meetings or performances are held (e.g. theaters, auditoriums).
               It is not commonly applied to commercial uses. The occupancy of the
               proposed building is defined as „mercantile‟ by the International Fire Code
               and not „assembly‟. None of the proposed uses fall within the definition of
               „potentially incompatible use‟ as identified above.”

One of the questions distributed to the attorneys and members of the public at the public
hearing on December 15, 2005 for a response by January 6, 2006 was:

               “Has YMC 15.30.060 been complied with, particularly 15.30.060(A)(1) and
               (A)(4), or can same be provided with the City‟s response? Why or why
               not?” (Ex. 173).

Two responses to this question were submitted, one by the applicant and one by the City,
which both relayed the same facts and conclusions that were set forth in the FEIS with
some elaboration. (Ex.192, pages 9-11 and Ex. 194, pages 7-8). No members of the
public submitted any contrary evidence regarding the meaning of the term “places of
public assembly.” The ASO ordinance was rarely mentioned during the course of the
original hearing. When it was mentioned, it was mentioned as a question or one of several
thoughts without any facts or conclusions contrary those contained in the EIS. (Ex. 65, Ex.
106, p.4, Ex. 121 and Ex. 136). The person who submitted the most evidence on the
subject offered no specifics as to any terms in the ordinance and suggested that the
Examiner personally contact potential witnesses by phone outside the hearing process.
(Testimony of Wilma Koski on December 14, 2005; Ex 41, p.2; Ex. 126, p.1; Ex. 188).
Her suggested witnesses have now either testified or have not been found to be helpful to
the position espoused by her group or the position espoused by any of the other attorneys
involved in this proceeding. It would not be proper for the Examiner to contact potential
witnesses outside the public hearing process.
       In contrast, a large part of the 9 ½ - hour remand hearing and of the documentation
submitted during that hearing centered around a dispute as to whether or not the proposed
Wal-Mart supercenter constitutes a “place of public assembly‟ within the intended
meaning of the ASO ordinance. Mr. Carmody on behalf of Concerned Citizens of Yakima
submitted documentary evidence as to the FAA‟s interpretation of that term in an area
closer to the airport than this site called the Runway Protection Zone (RPZ). The
interpretation of the FAA as to “places of public assembly” in areas near airports where it


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has jurisdiction to prohibit uses is found in the FAA‟s Discussion Paper on Runway
Protection Zones dated October 22, 1996 which states on page 2 in bold print:

               “(B) Land uses prohibited from the RPZ are: residences and places of
               public assembly. (Churches, schools, hospitals, office buildings, shopping
               centers, and other uses with similar concentrations of persons typify places
               of public assembly.)”

Evidence as to the interpretation of that term by the agency that assists municipalities with
the drafting of ASO ordinances and offers advice relative to compatibility of land uses in
the vicinity of airports was also presented during this remand hearing. For example, the
Washington State Department of Transportation – Aviation Division (WSDOT) has
indicated that commercial uses such as Wal-Mart which support large concentrations of
people “may” fall within the term:

               “Incompatible uses are defined by the Zoning Code section 15.30.020(G)
               „Potentially incompatible land use‟. According to this section, public
               assembly is considered an incompatible land use. The proposed Wal-Mart
               and associated activities would support large concentrations of people and
               therefore may be deemed as an incompatible development due to the public
               assembly of people….” (Ex. R-29, Vol. 1, #23).

This analysis is not totally correct insofar as it indicates that a “place of public assembly”
is considered an incompatible land use. It is instead considered a “potentially”
incompatible land use which triggers the need for an ASO application for Class (2)
review to determine if it is actually incompatible. The second step of the process does not
involve the definition of “potentially” incompatible land uses. As an example of this two-
step process, the 1st Vice Chairman of the Air Terminal Board testified that he has
personally concluded that the proposed Wal-Mart supercenter is a “potentially”
incompatible use under Subsection 15.30.020(G), which would require Class (2) review,
but has also personally concluded from a review of all the circumstances that it is not in
fact incompatible with airport operations, including safety. (Testimony of James Adams
on June 19, 2006). Any process that would carry the criteria for the first step over into the
final step of the review process would be inconsistent with Subsection 15.03.030(14)(a)
of the Yakima Municipal Code which evidences an intent to allow commercial uses in at
least some locations in the primary safety overlay area. But WSDOT‟s analysis does,
similar to the FAA‟s interpretation of the term in its RPZ, suggest a way of interpreting
the term “places of public assembly” in a different way than set forth in the EIS. This
other possible interpretation has been utilized by aviation agencies in the context of
airport compatibility.



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      Another indication of the meaning ascribed to the term “place of public assembly”
by WSDOT is a supplemental aviation planning document entitled Aviation Land Use
Planning which was submitted as part of Exhibit 24. It states at page 6:

               “2. Land Use Inventory adjacent to the airport: … 2. Documents
               nonresidential intensity, i.e. public assembly (civic centers, malls, office
               building).”

      Section 15.02.020 of the Yakima Municipal Code provides that the meaning of
words that are not defined by ordinance shall be the definition set forth in Webster‟s
Ninth New Collegiate Dictionary, 1983. That dictionary, however, has a definition
supporting each of the two possible interpretations of the term “places of public
assembly”:

               “assembly…1: a company of persons gathered for deliberation and
               legislation, worship, or entertainment…3: ASSEMBLAGE 1, 2 …”

               “assemblage…2: the act of assembling: the state of being assembled…”

               “assemble…1: To bring together (as in a particular place or for a particular
               purpose)…”

The applicant‟s contention that “places of public assembly” is a term of art may be true,
but the evidence leaves room for an interpretation consistent either with local land use
planning terminology or with FAA/WSDOT airport land use terminology. Section
15.30.040 of the ASO ordinance provides that the Reviewing Official must be able to
“conclusively determine” that the proposed use is not, in this context, a “place of public
assembly” in order to preclude the need for Class (2) review. Mr. McCullough‟s post-
hearing Memorandum (R-36) describes the degree of certainty required by the ordinance
to answer the question asked by the City Council as follows at page 4:

               “ There is no legal definition of „conclusively determine‟ within the Yakima
               Code. However, according to West‟s Legal Encyclopedia, „conclusive
               evidence‟ is evidence that is unquestionable because it is clear and
               convincing. Such evidence is „evidence which is weightier and more
               convincing than a preponderance of the evidence, but which need not reach
               the level of „beyond a reasonable doubt.…‟ ”

Mr. Carmody‟s post-hearing Memorandum (Ex. R-39) describes the degree of certainty
required by the ordinance as follows:



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               “ …Webster‟s Ninth New Collegiate Dictionary defines „conclusive‟ as
               …„putting an end to debate or question especially by reason of
               irrefutability.‟ ”

Similar meanings for the word “conclusive” and the phrase “conclusive evidence” can be
found in Black‟s Law Dictionary, 4th Edition, as follows at page 362:

               “CONCLUSIVE. …not admitting of explanation or contradiction;…
               irrefutable;… Beyond question or beyond dispute; …”

               “CONCLUSIVE EVIDENCE. That which is incontrovertible, either
               because the law does not permit it to be contradicted, or because it is so
               strong and convincing as to overbear all proof to the contrary and establish
               the proposition in question beyond any reasonable doubt. [citation
               omitted].”

The response to questions during the remand hearing by the City‟s expert witness
explained part of the difficulty encountered when trying to conclusively determine the
intended meaning of the term “places of public assembly.” He had expressed confusion in
a background memo as to why such disparate uses were lumped together without
mentioning restaurants or other uses that experience higher concentrations of people than
mobile home parks. He observed that there is such a lack of internal amplification on
what the term “places of public assembly” was supposed to encompass that it was hard to
draw any conclusions. It was the lack of any parenthetical remarks on what “places of
public assembly” are that led him to fall back on definitions that came out of land use
planning. In his experience this is a unique debate over language in an ASO ordinance
that may be unique to Yakima. (Testimony of David Dietz on June 20, 2006).
       The Hearing Examiner shares the confusion experienced by Mr. Dietz in trying to
determine what the term “places of public assembly” under the ASO ordinance was
supposed to mean in view of the new evidence in the record regarding the meaning given
the term by FAA and WSDOT in different airport compatibility contexts. It could be that
the ordinance was intending to mix apples and oranges – i.e., uses that are potentially
incompatible because of noise, especially at night, and uses that are potentially
incompatible because of safety concerns, especially highly intensive uses. But the
ordinance does not say that and that supposition does not shed any light upon what the
term “places of public assembly” was intended to encompass in any event. Therefore, the
City Council‟s question whether the proposed Wal-Mart supercenter is a “place of public
assembly” can no longer be “conclusively” determined as required by the ASO ordinance
in view of the hotly contested nature of the debate in that regard during the remand
hearing and the disputed, refuted and contradictory evidence now contained in the record.
       Mr. McCullough argues in his post-hearing Memorandum that even if the Hearing
Examiner cannot determine the meaning of the term as required by the ASO ordinance to

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avoid Class (2) review, the application and statement of compatibility from the airport
complies with the ASO requirements. However, the ordinance requires a statement from
the Airport Manager, not the Air Terminal Board. The current Airport Manager, Buck
Taylor, who has replaced Bob Clem, indicated that he has reviewed correspondence
between Mr. Clem and the City, but did not seem yet to be fully able to formulate his own
position on the matter in view of an apparent difference of opinion among Board
members regarding application of the current ordinance to the proposal. If the ASO
Reviewing Official in the Class (2) administrative process agrees with the applicant‟s
position as to substantial compliance with the requirements, it should not be an undue or
time-consuming burden to complete the requisite review process prior to the issuance of
permits as was required by condition 47 of the original decision. That condition, however,
will be modified to delete the requirement to submit a valid FAA No Hazard
Determination because a copy of same for a structure 42 feet in height was submitted into
the record during the remand hearing. (Ex. R-6, attachment #2).
       The contentions of Mr. Carmody on pages 4 and 5 of his post-hearing
Memorandum (Ex. 39) to the effect that it is too late for the applicant to submit the
required ASO application for Class (2) review with the requisite information because the
record is closed overlooks the fact that many conditions impose an obligation to submit
documents and obtain approvals after the record of a hearing has been closed.
       This disposition of this issue would seem to render moot the contention of
Concerned Citizens of Yakima to the effect that the intent of Section 1, V.D. (2) of
Ordinance No 2002-45 (Ex. 196, p. 12) or of any other document is to require the
proposed use to be subject to the ASO ordinance‟s Class (2) review process.

        E. July 10, 2006 Decision on Remand as to Whether the Proposed Wal-Mart
Supercenter at this Proposed Location is a Threat to Safety in Violation of the City’s
ASO Ordinance. The applicant‟s aviation/airport safety expert provided credible
testimony which established that, from a statistical standpoint at the Yakima Air Terminal
where about 71% of the take-offs and landings involve general aviation aircraft, the risk
to persons on the ground from over-flying general aviation aircraft, although always
present, is nearly immeasurable. Specifically, it would take approximately 2000 years to
arrive at a time when statistically one ground injury should be expected at some place on
or around the airport as a result of general aviation flight operations. He also testified that
statistically it would take over 400 years to arrive at a time when one ground fatality
should be expected at some place on or around the airport as a result of commercial flight
operations at the Yakima Air Terminal. (Testimony of David Ketchum on June 19 and 20,
2006; Ex. R-6). The City‟s expert aviation planner similarly concluded that, from a
statistical standpoint, the risk to persons on the ground at the proposed Wal-Mart site
from over-flying general aviation aircraft is infinitesimally small. Using NTSB statistics,
there is a risk of one off-airport ground fatality somewhere in the 30-square mile airport
influence area every 351 years. Using Yakima Air Terminal actual accident history, the
number would be every 2,700 years. To arrive at the risk for the proposed Wal-Mart

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supercenter site, those numbers would be multiplied by 700. (Testimony of David Dietz on
June 20, 2006).
        Although the statistics in evidence are interesting, they do not answer the City
Council‟s question as to whether the proposed Wal-Mart supercenter would pose a threat
to safety in violation of the ASO ordinance. There is always some potential threat to the
safety of persons on the ground posed by the establishment of any use. The question is not
whether there is any threat or risk to safety posed, but whether the risk to safety is an
acceptable risk. (Testimony of Shane Smith on June 20, 2006; Ex. R-28). More
specifically the question is whether the risk to safety is acceptable in terms of the limits
prescribed by the legislative body in its ASO ordinance.
        Here again, the Examiner is unable to conclusively determine the answer to this
question because the possibility of more than one reasonable interpretation of the criteria
in the ordinance in this regard was also submitted into the record of this matter during the
remand hearing. Prior to the remand hearing, the only interpretation submitted on the
safety issue was in the applicant‟s post-hearing Memorandum to the effect that “the Wal-
Mart Project would only be a potentially incompatible land use if it constituted a „place of
public assembly.‟” (Ex. 192, p. 10). This interpretation and the interpretation set forth in
the EIS are predicated on an interpretation of the list of potentially incompatible land uses
as being the only potentially incompatible land uses. At the remand hearing, there was
expert and lay testimony to the effect that potentially incompatible land uses would
include, but not be limited to, the enumerated uses. (Testimony of David Dietz on June 20,
2006 and Wilma Koski on June 19, 2006). Mr. Dietz indicated under questioning that
“places of public assembly” is a subset of the broader characterization so that the primary
consideration under the ordinance regarding a potential threat to safety is whether the
proposed land use is “of such intensity as to potentially endanger public health, safety or
welfare.” Under that interpretation it would be nearly impossible to “conclusively
determine” that any use more dense or intense than a mobile home park can be ruled out
as a potential threat to public health, safety or welfare. Again, the result is not denial of
the proposed use as incompatible, but rather the need for a Class (2) administrative
review of the proposal to determine, with the aid of the Airport Manager‟s expertise and
technical resources, whether the potentially incompatible land use is in fact incompatible
with airport operations and safety. This is the two-step process which was explained by
the 1st Vice Chairman of the Air Terminal Board at the remand hearing. (Testimony of
James Adams on June 19, 2006).
        Because of the additional possible interpretation submitted at the remand hearing,
the Hearing Examiner cannot conclusively determine whether the proposed use would be
of an intensity that would be a potential threat to public safety, particularly where the
proposed use, according to the testimony, would be more intense than one of the uses
specifically listed as a “potentially” incompatible land use. Therefore, the ASO ordinance
requires the actual compatibility or incompatibility of the proposed use with airport
operations and safety to be determined through the Class (2) review process for this
additional reason.

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        F. July 10, 2006 Fact-Finding as to the Decision-Making Process and Position
of the Airport Board Concerning the ASO Ordinance and the Proposed Wal-Mart
Superstore. There was conflicting evidence at the hearing as to the former Airport
Manager‟s position relative to proposed development in the primary airport safety overlay
area. Congdon‟s attorney cited positive statements and the Concerned Citizens of
Yakima‟s attorney cited negative statements. (Testimony of Michael Shinn and Ex. R-4;
Testimony of James Carmody and Exhibit R-29, Vol. I).
        Mr. Danysh submitted evidence of the details of 12 notices sent to the Airport
Manager between November 13, 2002 and May 26, 2006 that requested comments
regarding a proposed Wal-Mart supercenter in the West Valley area and 7 notices of
meetings or hearings where comments could have been provided to the City regarding
this application. (Ex. R-23). There was no evidence of any written comments to the City
in response to those notices, though the City was in communication with various
representatives of the Airport Board and/or staff regarding the ongoing effort to update
the current ASO ordinance.
        The first written comment known to be submitted by a representative or staff
member of the Airport Board regarding the proposed Wal-Mart supercenter appears to be
a letter dated March 29, 2006 to the Yakima City Council signed by Douglas C. Hahn,
Chairman of the Yakima Airport Board of Directors. (Ex. R-25).
        Copies of a series of e-mails between Jerry Kilpatrick, the Assistant Manager of
the Air Terminal, and Mr. Hahn commencing on January 26, 2006 speak for themselves
regarding discussions which led to the submission of the letter at the request of Wilma
Koski on behalf of the Concerned Citizens of Yakima. (Ex. R-26). Mr. Hahn declined
Mrs. Koski‟s request of him to attend the City Council‟s appeal hearing and her request of
him to call Mr. Carmody.
        At the Yakima Air Terminal Board meeting of May 25, 2006, 1st Vice Chairman
James Adams mentioned this Examiner‟s inquiry as to who would be present at the
remand hearing. Mr. Adams encouraged representatives of the Board to be present to
express an opinion to the effect that the proposed Wal-Mart supercenter in its present
location and design is not incompatible with airport operations. (Ex. R-4, exhibit 3). The
motion was passed unanimously after a question was asked about whether that opinion is
intended to apply under the current ASO ordinance or the proposed ASO ordinance.
        Mr. Adams, Mr. Berndt, Mr. Taylor and Mr. Kilpatrick attended the June 19
remand hearing and answered questions from the attorneys, members of the public and
the Examiner. Some disagreement was expressed with Mr. Adams‟ view that the proposal
is not incompatible with airport operations, including safety, under the current ASO
ordinance. Mr. Berndt and Mr. Kilpatrick expressed the view that the proposal is not
incompatible under the proposed ASO ordinance, but is either incompatible or
inconsistent with the requirements of the current ASO ordinance. During questioning as
to whether a difference in ordinances would have any effect on the existence of
compatibility, it seemed as though the basis for this difference of opinion was possibly

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that some were led to believe that the term “potentially incompatible land uses” also
applies to the ultimate compatibility determination in the Class (2) administrative review
process. All four representatives were quite certain that the approval of the proposal
would not have any effect upon the finances of the Air Terminal. Their motion was
couched in the terminology of Airport Assurance No. 21 that is a condition of continued
federal funding. The Airport Manager, Mr. Taylor, indicated a willingness to work in a
positive fashion to address ASO issues. Mr. Kilpatrick indicated under questioning his
role in the preparation of Mr. Hahn‟s letter and indicated that the letter was not reviewed
nor approved by the entire Board. The Examiner expressed his sincere appreciation to all
four gentlemen for attending the hearing and answering the questions of the attorneys, the
members of the public and the Examiner.

X. Critical Areas Ordinance. There is a dispute in the record as to whether a
development permit is required for the proposed development under the City‟s Critical
Areas Ordinance set forth in Chapter 15.27 of the UAZO. The relative positions can be
summarized as follows:
       A. Description of Respective Positions. Mr. McCullough‟s position is that the
applicant is not required to obtain a critical areas development permit because the
applicant will comply with the 100-foot critical areas buffer requirement for Wide
Hollow Creek which is a Type II stream. (Ex. 192, pp. 12-15). The applicant‟s argument
is based on Section 15.27.500 of the CAO which states that “[a] critical area development
permit shall be obtained before construction or development begins within any critical
areas.” While Mr. Danysh concedes that the FEIS satisfies the special report requirement
for a CAO permit under Section 15.27.510 of the CAO, he indicates that a new Joint
Aquatics Resource Permit may have to be required in addition to a supplemental Stream
Impact Report if, as discussed at the hearing, the applicant plans to enlarge Yakima
County DID #38 improvements that presently convey stormwater drainage water into
Wide Hollow Creek. (Ex. 194, p. 8). The Planning Division did not recede from its
position that a CAO development permit is required.
       B. Examiner’s Determination. It is somewhat of a novel argument to say that
the applicant is exempt from ordinance requirements because the applicant will comply
with them. Even though the wording of the ordinance does allow for that argument, it
appears possible, if not probable, from the record of this hearing that the applicant will be
performing some form of development activities within 100 feet of the creek either in the
form of upgrading the County DID #38 pipe and/or associated with mitigation measures
to improve 64th Avenue from Nob Hill Boulevard south to the bridge. Even if that will
not be the case, the land abutting the creek is being developed despite the fact that there
are assurances that the applicant will comply with the buffer requirements. The permit is
the device by which the promised compliance is monitored and enforced. From an


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environmental standpoint, the effectiveness of the stormwater drainage system and habitat
mitigation measures required by the FEIS and this decision are essential. Even if the
wording of Section 15.27.500 of the CAO was intended to exclude from permit
requirements any development abutting a stream if there is assurance of compliance with
the ordinance buffer requirements, which the Examiner has a hard time believing, in order
to insure the water quality and habitat of Wide Hollow Creek, the Examiner would be
justified in this respect to exercise the authority in Section 15.10.030 of the UAZO to
increase development standards and/or the authority in Subsection 15.04.020(3) of the
UAZO to promote compatibility with the district. Specifically, in order to promote
compatibility of the proposed development activity that will be taking place on this
property within 120 feet of the stream, and potentially even closer in connection with
stormwater drainage and/or street upgrades, a CAO development permit will be required
in addition to compliance with the 100-foot buffer requirement for Wide Hollow Creek.
The City is correct that no CAO findings are required of the Examiner. Section 15.27.560
requires the Director of Community and Economic Development to administer and
implement the CAO provisions and there has been no appeal of his decisions or requests
for variances to be heard by the Examiner under Section 15.27.600 of the CAO.


XI.    Testimony and Exhibits. The following 19 members of the public testified at
the December 14, 2005, hearing on Wednesday night and some of them submitted letters,
studies or other written materials contained in the exhibit(s) after their respective names:
       Anne Bringloe (Ex. 124); August Kroll; Doris Ayyoub (Ex. 125); Glen Weaver;
       Michael Noble (Exs. 64, 165, 190 and 191); Tyler Schultz; Wilma Koski (Exs. 41,
       126 and 188); Freya Burgstaller; Char Caprile; Rudy Kezele; Christine Clark; Bill
       Carnahan; Gerry Russell; Scott Wilson; Ron Voris; Roy Bates; Daniel Stobie;
       Sandy Lloyd; and Alfred Carlson. Mr. Bates was the only one who spoke in favor
       of the proposal.

       The City Planning Division‟s staff report recommending approval of the proposal
with conditions was then presented by Planning Supervisor Bruce Benson.
       Wal-Mart‟s attorney Jack McCullough then called the following nine witnesses
who were instrumental in the preparation of the EIS for the proposal:
       Dean Logsdon (Ex. 149); Peggy Williamson; Kathryn Jerkovich (Ex. 150);
       Kerrie Standlee (Ex. 151); William Shiels (Ex. 148); Mark Krigbaum (Ex. 152);
       David Ketchum; Richard Steffel (Ex. 153) and Kevin Picanco (Ex. 154). All
       testified as to the insignificance of environmental impacts that would result from
       imposition of the proposed mitigating conditions on this proposal.


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       The following 24 members of the public testified at the December 15, 2005,
hearing on Thursday night and some of them also submitted evidence contained in the
exhibit(s) listed after their names:
       Joel Hubble (Exs. 100 and 156); Tony Weld (Ex. 157); Steve Kuper;
       Norma Howell; Scott Wilson, Michael Harves; Susan Martinez (Ex. 159);
       Robert Lounsbury; George Ferrari; Sharon Chard; Gary Willis; Ann Roy (Ex. 136);
       Debra Boyle; Manual Figueroa; Bob Whitney (Exs. 111 and 163 – same letter);
       Sandy Hyde; Sue Carlson; Lorene Thaxton-Burton; George McClaine; Barbara
       Smith-Gilbert (Ex. 138); Michael Noble (Exs. 64, 165, 190 and 191); Bob Brown
       (Ex. 167); Ron Martin; and Todd Lyons. All of these residents testified in
       opposition to the proposal.

       The City‟s attorney Terry Danysh called the following four witnesses who
explained details and peer review findings:
       Doug Maples; Julia Kuhn-Butorac (Ex. 168); Kristy Hendrickson (Ex. 169); and
       Reid Shockey (Ex. 172).

       In all, 42 witnesses testified against the proposal and 17 witnesses, including the
applicant‟s and City‟s representatives and consultants, testified in favor of the proposal.
In all, 222 members of the public signed in prior to the hearing held in the evening of
December 14th and 43 members of the public signed in prior to the hearing held in the
evening of December 15th. There were a considerable number of people present both
nights who did not sign in or testify.
       Prior to the conclusion of the hearing on December 15th, Mr. McCullough called
witnesses to address questions submitted by members of the public, evidence was
presented regarding traffic concurrency issues and the record was closed except for
inclusion of an economic impact analysis referenced in the EIS requested by the
Examiner (Ex. 189), comments regarding the supplemental noise study (Ex. 151) and
responses to the Examiner‟s list of questions (Ex. 173) by January 6, 2006. The economic
impact analysis was provided (Ex. 189). On or before January 6, 2006, three letters were
received regarding the supplemental noise study. (Ex. 188, the last five pages of Ex. 191


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and Ex. 193); and three letters were received responding to the Examiner‟s questions. (the
first 11 pages of Ex. 191, Ex. 192 and Exs. 194 – 196). The record was closed on January
6, 2006.
       Relative to the remand hearing, the exhibits were distinguished from those
submitted at the original hearing by designating them as “Ex. R-1” and so on. The
following representatives of the Yakima Air Terminal Board and staff testified on June
19, 2006:
               James Adams, 1st Vice Chairman; Greg Berndt, Treasurer; Buck Taylor,
               Airport Manager; and Jerry Kilpatrick, Assistant Manager.

       Wal-Mart‟s attorney Jack McCullough called the following witnesses on June 19
and June 20, 2006 who submitted evidence contained in exhibit(s) listed after their
names:
               Kerrie Standlee, expert re noise (Ex. 151 previously submitted at original
               hearing); Michael Shinn, Congdon Development Company, LLC‟s attorney
               (Ex. R-4); and David Ketchum, an aviation expert (Ex. R-6).

       The City of Yakima‟s attorney Terry Danysh called David Dietz as a witness on
June 20, 2006. He is an airport planning consultant and senior aviation planner with the
firm of Mead and Hunt who was instrumental in preparing the “Airport” section of the
SEPA Environmental Impact Statement. (FEIS pgs. 145-150; Ex. R-18).
       Several members of the public, including members of Concerned Citizens of
Yakima represented by attorney James Carmody, testified on June 19 and June 20, 2006:


               Tyler Schultz; Wilma Koski (Ex. R-7); Shane Smith (Ex. R-28); Cecile
               Shoot; and June Busch.

       In all, 13 witnesses testified and others asked questions of the expert witnesses.
The expert witnesses answered the questions from members of the public. Attorneys Jack
McCullough, James Carmody and Terry Danysh examined and cross-examined some of
the expert witnesses at length and adamantly argued the respective positions of their


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respective clients.


XII. Evidentiary Issues. The sheer volume of information submitted in this matter by
way of documents and testimony makes it impracticable to discuss the relevance or lack
of relevance of each document or each person‟s testimony to the issues before the
Examiner.     There are, however, a limited number of documents that should not be
considered because they are clearly beyond the scope of the purposes for which the record
was kept open from December 15, 2005 until January 6, 2006. An explanation of this
fairly technical detail is as follows:
        A. Announced Purpose for Keeping the Record Open. During the hearing on
December 15th, a member of the public, Michael Noble, requested time to review and
comment on a supplemental noise study submitted by the applicant on December 14th.
After everyone who wished to testify had a chance to do so, there was discussion about
how long the record should be kept open and there was a consensus that it should be kept
open until January 6, 2006 for the sole purpose of including the following additional
information: (i) the economic impact study requested by the Examiner which is included
in the record as Exhibit 189; (ii) comments regarding the supplemental noise study
submitted December 14, 2005 (Ex. 151) which are included as Exhibit 188, the last five
pages of Exhibit 191 and Exhibit 193; and (iii) responses to the Examiner‟s written
questions (Ex. 173) which are included as the first 10 pages of Exhibit 191, Exhibit 192
and Exhibits 194 through 196.
        B. Exhibits Not Addressing the Subjects for which the Record was Kept
Open. Exhibits 180 through 187, 189 and 190 do not address the topics for which the
record was kept open and in any event restate opinions or facts that were submitted by
others before the record was closed.
        C. Remaining Exhibits and Testimony not Discussed Separately. Of the
remaining 186 exhibits submitted for the record, some of them pertain to issues which are
beyond the Hearing Examiner‟s authority to decide, or contain information or opinions
that are partially relevant and partially irrelevant to the issues before the Examiner. The
same is true of some of the testimony submitted at the hearing. For example, many
members of the public felt that we do not need another Wal-Mart. But the need for
certain types of uses is considered during the rezone process under the rezone criterion in
Subsection 15.23.030(E)(7), and it is not applied so as to exclude businesses from having
two locations. Some thought the Examiner should require a more remote site for the
facility away from any residences, which is not one of the options available to the
Examiner. Some thought their views were being ignored or that the matter should be put
to a vote, but in this state permits cannot be denied solely on the basis of community

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displeasure with the applicant. ((Marantha Mining, Inc., v. Pierce County, 59 Wn. App.
795, 801 P.2d 985 (1990)). But rather than address the relevance of all the statements in
each exhibit and in each person‟s testimony, which would unnecessarily complicate and
protract this decision, the Examiner will in the course of this decision refer to some of the
exhibits that illustrate the information being discussed. Because of the number of issues
to be resolved by this decision and the statutory time deadline for completion of this
decision, it is impossible to specifically reference most of the exhibits and testimony.
Mentioning some of the experts, such as those who testified, would be a disservice to
those who did not. They were all candid and professional and thorough in the
documentation they submitted for the record.              Statements of their respective
qualifications are included in the exhibits and testimony. Here the Examiner did read
and/or listen to and did consider all of the evidence submitted, whether particularly
relevant to the issues before him or not. The relevance or lack of relevance of exhibits
and testimony which are not referenced in this decision will become apparent as the
issues presented by this application are separately addressed in this decision.
       D. Announced Purpose for Keeping the Record of the Remand Hearing
Open. In regard to the remand hearing, a great volume of information was again
submitted. The record was kept open from June 20, 2006 until June 28, 2006 for any
interested party to submit a Memorandum of not more than five pages and not less than
12-point typeface in answer to the following questions read into the record by the
Examiner:

       1)    Can I “conclusively” determine the intended meaning of the phrase “places
       of public assembly” if it is ambiguous – i.e. susceptible of more than one
       reasonable interpretation?
       2)    If I cannot “conclusively” determine the intended meaning of that phrase,
       what options or alternatives do I have?

Mr. Dietz was also asked to submit examples of ordinances by that date which support his
interpretation of the term “places of public assembly” contained in the final SEPA EIS.
On June 28, 2006, Mr. McCullough submitted a five-page Memorandum (Ex. R-36), Mr.
Carmody submitted a five-page Memorandum with illustrative attachments (Ex. R-39)
and Mr. Dietz submitted four examples of how the term “places of public assembly” has
been defined in four other contexts (Ex. R-38).
       E. Objections to Mr. McCullough’s Remand Hearing Submittal. On June 29,
2006, Mr. Carmody submitted a letter requesting that Mr. McCullough‟s Memorandum be
stricken because it was single-spaced and utilized Garamond typeface so as to effectively
double its length. (Ex. 40). The Examiner did not require pleading format and left the
details up to the parties as long as the submittal did not exceed five pages utilizing 12-
point or larger typeface. Since Mr. McCullough used the same format and Garamond
typeface, which his response indicates is routinely used by his firm, for his January 6,
2006 post-hearing Memorandum (Ex. 192) without any comment from the Examiner, he

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reasonably concluded that it would again be acceptable. Mr. Carmody is not prejudiced
because his submittal, with the attachments that illustrate his points, is 19 pages.
       F. Exhibits Not Addressing Subjects for which the Remand Hearing Record
was Kept Open. Mr. Danysh‟s January 28, 2006 submittal (Ex. R-37) was a six-page
response to Mr. Carmody‟s Memorandum dated June 20, 2006 alleging conflict of
interest and appearance of fairness issues related to Mr. Danysh‟s participation in the
remand hearing process. (Ex. R-10). Mr. Carmody‟s letter of June 29, 2006 also requested
that Mr. Danysh‟s letter be stricken from the record. Mr. Danysh submitted a response
dated June 29, 2006 opposing that request for several reasons. (Ex. 41). If Mr. Carmody
had not submitted a written Memorandum or had submitted it before the last night of the
hearing, his request could have merit because Mr. Danysh‟s submittal clearly does not
address the subjects for which the record was kept open. But it is not unfair to allow a
written response to Mr. Carmody‟s Memorandum because it was impossible for Mr.
Danysh to provide same on the last night of the hearing when the Memorandum was
submitted; because anyone reviewing the record without watching the 9 ½ - hour video
tape might otherwise be misled into believing that there was no defense or response to the
claims; and because this is a subject which all attorneys agreed was beyond the
Examiner‟s jurisdiction to address in any event. Mr. Carmody‟s Memorandum was
allowed into the record for possible review of those collateral issues at a higher level.
Consequently, Mr. Danysh‟s arguments should in fairness be included in the record in
written form as well as in the video tape in order to facilitate full and convenient
consideration of those issues during any future review of this record.
       G. Exhibits Submitted and Accepted Only for a Limited Purpose at the
Remand Hearing. Compact discs and numerous copies of documents contained in a box
admitted as Exhibit 24 were entered into the record at the City‟s request for the main
purpose of establishing compliance with four public disclosure requests submitted to the
City by the Concerned Citizens of Yakima. The attorneys had been afforded the
opportunity to review those documents prior to the hearing, including numerous
documents downloaded onto compact discs from several computers, and to submit the
ones that they believed were relevant to the issues on remand without the Hearing
Examiner having to study them. The Examiner reviewed copies of documents, but the
remainder of that exhibit was admitted into the record solely for the limited purpose of
confirming compliance with the PDA request and is not otherwise part of the record to be
considered relative to the issues on remand.
       H. Remand Hearing Exhibits Submitted after the June 28, 2006 Deadline.
The June 29, 2006 letter from Mr. Carmody requesting that the June 28, 2006 submittals
from Mr. McCullough and Mr. Danysh be stricken (Ex. R-40), the response of Mr.
Danysh thereto (Ex. R-41) and the response of Mr. McCullough thereto (Ex. R-42) have
served their purpose of obtaining a discretionary evidentiary ruling and, together with the
public comments received July 7, 2006 (Ex. R-43) and July 10, 2006 (Ex. R-44), deserve
no further consideration on review since they were submitted after the record was closed.


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XIII. Class (3) Review Criteria. The Hearing Examiner‟s findings and conclusions
are required to set forth specific reasons and ordinance provisions demonstrating that the
decision satisfies the following requirements set forth in Subsections 15.04.020(3) and
15.15.040(5) of the UAZO:

      A. Compliance and Compatibility with the Intent and Character of the
Central Business District Support (CBDS) Zoning District ((Subsections 15.04.020(3)
and 15.15.040(5)). This application proposes to establish uses subject to conditions that
comply with the intent and character of the zoning district in which they would be located
because they are all declared by Table 4-1 of the UAZO to be permitted uses in a CBDS
zoning district and because they would be similar in character to the other types of uses
that are permitted in that zoning district. Section 15.03.030 of the UAZO states that the
purpose of the CBDS zoning district is:
       “…to accommodate wholesale and retail activities with some high-density
       residential development. This district is primarily located near the central business
       district and along the major arterials leading to the central business district. Like
       the CBD district, a variety of land uses are permitted. However, the intensity of
       development is intended to be less than in the CBD district.”

There was testimony suggesting that this site is not located near the Central Business
District or along the major arterials leading to the Central Business District. Although not
in an absolutely straight line, Nob Hill Boulevard is a major arterial leading to the Central
Business District, which is one of the alternatives listed in that section. And the section
does say “primarily.”       But more importantly, that testimony misses the point that
compliance with that requirement was already determined at the rezone stage and is at this
point no longer a relevant consideration for this application. The property is zoned CBDS
regardless of that argument, unless and until a court were to rule otherwise.
      B.    Compliance with the Standards Established in the Zoning Ordinance
((Subsection 15.15.040(5)). There are objective standards established in the zoning

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ordinance applicable to this application. Section 15.05.010 states that the site design
standards in Chapter 15.05 of the UAZO were adopted specifically “to assure land use
compatibility and promote the public health, safety and welfare.”         This application
conforms with the requirements of the site design standards specified in Chapter 15.05 in
the following ways:
           a) Height: Table 5-1 of the UAZO shows that the maximum height of
           structures in the CBDS zoning district is 50 feet. More restrictive height
           requirements were imposed on the property abutting the R-1 zone on the west
           which will be complied with as follows: starting at 35 feet from the property
           line adjacent to R-1 zoning, 20 feet above grade, graduating uniformly to
           30 feet above grade at 75 feet from the property line, to 35 feet above grade at
           90 feet from the property line, and beyond 90 feet from the property line,
           building height shall be that permitted in the CBDS zone or the Airport Safety
           Overlay, whichever is stricter. The proposed maximum height of 41 feet, 6
           inches more than 90 feet from the property line is permitted by the zoning
           ordinance and the conditions of the rezone and an FAA No Hazard
           Determination for a height of 42 feet that was submitted into the record at the
           remand hearing.
           b) Setbacks: The proposal complies with the minimum respective setbacks
           required in the CBDS zoning district.
           c) Parking: The proposal complies with the minimum parking space
           requirements of the CBDS zoning district by providing nearly twice the
           required 554 spaces.
           d) Lot Coverage: The 78% lot coverage shown on the site plan is well below
           the permitted 100% allowed in the CBDS zoning district.
           e) Signs: The sign dimensions will meet the zoning ordinance standards. They
           will be internally lit to prevent glare. Freestanding signs will be located as
           shown on the site plan. There will be no illuminated signage on the westerly
           portion of the building facing the existing residential area.
           f) Site screening: The Site screening requirements vary depending on the
           intensity of both the proposed use and its neighbors. The proposed uses will
           exceed the required standard in the following ways:
                1. Standards:     Three different standards have been established in
           Section 15.05.040 of the UAZO to accommodate a range of site screening
           needs:
                       Standard A -- A ten-foot-wide landscaped planting strip with trees
              on 20-foot to 30-foot centers, shrubs and groundcover.
                       Standard B -- A three-foot-wide planting strip that will create a
              living evergreen screen at least six feet in height within three years.


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                       Standard C -- A six-foot-high, view-obscuring fence, made of wood,
              masonry block or slatted chain link. A three-foot-wide planting strip
              landscaped with a combination of trees, shrubs and groundcover along the
              outside of the fence is also required when the fence is adjacent to streets,
              alleys and pedestrian ways.
                   2. Compliance with Standard: Which standard applies is dependent on
              the adjoining land use(s). Based upon the nature of the existing adjacent
              land uses and the nature of the applicant‟s proposed uses in this situation, site
              screening standard “C” is required along the west and south property lines.
              Special screening requirements exceeding this standard, including an eight-
              foot-high sound wall atop a six-foot-high landscaped berm, will be
              constructed west of the Wal-Mart superstore and its parking lot to mitigate
              adverse environmental impacts and to promote compatibility with the existing
              single-family residential uses abutting the west side of the site. A sound wall
              will be constructed south of the store no later than when construction of
              residences on the remainder of the site south of the store commences. This
              decision requires sound walls to be constructed in a manner and of a type
              necessary to achieve strict compliance with all applicable State of
              Washington Administrative Code noise regulations and local City of Yakima
              noise regulations.

       C. Compliance with the Provisions Established in the Zoning Ordinance
((Subsection 15.15.040(5)). Subsections 15.04.020(3), 15.15.040(5) and 15.10.030(A)
are provisions that allow reasonable conditions to be imposed on projects to promote their
compatibility when foreseeable impacts of the following types will result from the
proposal:
            g) Blight Prevention: There was considerable testimony at the hearing and
            documentary evidence submitted into the record about residents‟ fear that Wal-
            Mart will harm local businesses and perhaps put some of them out of business.
            The evidence indicated that grocery businesses are the most vulnerable to that
            possibility. There was criticism of the wages and health care benefits provided
            to employees and various aspects of its operations which allow Wal-Mart to
            charge less. Many economic studies, articles, letters and testimony critical of
            the business practices of the company were presented, but the applicant did not
            engage the debate. The applicant rather took the position that the socio-
            economic claims of those opposed to Wal-Mart for reasons other than land use
            considerations were irrelevant. It is true that under the provisions of
            RCW 36.70B the analysis of economic impacts is not a required element of the
            permit review process. Socio-economic issues have broad implications that are

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           best debated in the public forums of federal, state and local legislative bodies in
           a uniform and meaningful way. Hearing Examiners do not have the authority,
           expertise or type of record before them to resolve far-reaching social and
           economic issues in a land use hearing. Hearing Examiners are not at liberty to
           penalize a business for alleged unfair business practices by denying a land use
           permit or to treat one business differently than others when reviewing land use
           applications. There are courts and administrative agencies that specialize in
           such matters. The applicant and the City agree that economic evidence is only
           relevant if it establishes the probability that blight will occur as a result of the
           increased competition with local businesses. (West 514, Inc. v.
           Spokane County, 53 Wn. App. 838, 770 P.2d 1065 (1989)). Here the
           overwhelming majority of those who commented in writing and testified were
           very supportive of the local West Valley businesses because of the good
           service and friendly atmosphere they provide. Residents indicated that they
           would not patronize the new Wal-Mart store. They indicated they are willing
           to spend a little more to support local businesses. If enough people in the area
           feel that way, the closure of local businesses is not a foregone conclusion.
           Studies in the record illustrate how businesses can adjust to this type of
           competition. One letter in the record indicated that a grocery store in
           Bellingham could not stay open for long because of public opposition to its
           locating where it did. The record is not clear whether the public opposition to
           the proposed supercenter in West Valley is so great that it will coexist with
           local business or fail to survive. Even assuming the closure of one or more
           local businesses due to Wal-Mart‟s pricing structure were probable, it would be
           speculation to conclude that the building(s) would thereafter remain vacant and
           deteriorate over a long period of time. The rationale set forth in the economic
           analysis of this proposal by Huckell-Weinermann Associates and Northern
           Economics, Inc. applies to this situation:

                   “… [t]here is always a theoretical possibility that … a chain of events
                   (competition generated by the supercenter leading to business failures
                   and closures of retail businesses leading to vacancies, causing blight,
                   creating negative impacts on neighborhoods) could possibly occur; it is
                   impossible to prove that it could not theoretically happen. But a
                   theoretical possibility does not indicate a probable significant impact.
                   Economic analysis indicates that there would be local competition,
                   particularly in the supermarket sector. But competition alone, even if it
                   indirectly results in closure of a business or abandonment of a nearby
                   proposal, does not probably or directly cause blight. The link between
                   competition and blight is uncertain in terms of causality, timing and
                   extent. While blight is possible, its causal link to competition generated
                   by a single development project is indirect, attenuated and theoretical.

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                   Blight is not a probable effect or impact of increased competition.”
                   (FEIS, App. K).

           On the other hand, uncertainty as to the effect that significant public opposition
           to this facility may have on its continued success warrants the recommended
           design of the store so as to allow it to easily be partitioned into smaller spaces.
           Insofar as the applicant indicated that that is expensive and not practical
           because a store of this size is normally removed if it closes, the Examiner
           allows the Director of Community and Economic Development to instead
           accept a bond or other form of security to insure that the City will have funds to
           have the structure removed if it remains vacant for an unreasonable period of
           time after it closes. A fear of blight is not justified regarding the existing Wal-
           Mart facility because the testimony was that the existing supercenter will not
           close on account of this new supercenter.

           h) Noise Mitigation: Potential noise pollution was a major concern of many
           of the residents who testified. The noise tests conducted by the applicant‟s
           expert to prepare the supplemental noise report (Ex. 151) for this proposal are
           questioned by West Valley residents Wilma Koski and Michael Noble who
           were the only members of the public to comment on the study. (Exs. 188 and
           last 5 pages of 191). Mrs. Koski criticized the timing of the submittal and
           indicated that it should be mailed to people for comments as per the SEPA EIS
           procedure. Mr. Noble raised several concerns about the methodology used,
           including his claim that actual daytime ambient readings should have been
           taken along the west boundary of this site rather than assuming that the ambient
           readings for a nearby site would be the same during the day. The noise expert‟s
           testimony as to the validity of his findings was credible at the hearing and
           credible in the opinion of a second noise expert who did the City‟s peer review
           for the supplemental report. (Ex. 193). Nevertheless, the Examiner sees some
           value in having actual test results of the actual daytime ambient noise levels
           prior to commencement of construction of the facility to compare with
           comparable tests taken after the store is in operation to see if additional
           shielding or other steps will be required to actually accomplish the favorable
           results predicted in the study. This will be a condition of this decision unless
           the Director of Community and Economic Development finds such requirement
           to be unduly burdensome or unnecessary in view of other information that
           becomes available to him in the future. Another condition of this decision is
           that the newest type of condensers in production be used for the two chiller
           units to be utilized for this facility that will be quieter than the older type and
           will be comparable to the equipment presently being used at the Wal-Mart
           facility in Lebanon, Oregon.


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                   Additional testimony and evidence was presented at the hearing on
           remand regarding the appropriate noise standard to be applied to the proposed
           Wal-Mart superstore and whether the proposed mitigation or additional
           mitigation is required. The applicant‟s expert, Kerrie Stanlee, was very helpful
           in formulating a specific maximum increase in the daytime and nighttime
           ambient level of 5 decibels to be confirmed after the facility is fully operational.
           The applicant was helpful in agreeing to waive the exemption for sounds
           created by lawfully established commercial uses set forth in Subsection
           6.04.180(F)(16) of the Yakima Municipal Code which would otherwise render
           ineffective any reference to City standards in the conditions. Except for the fact
           that neighbors prefer no increase in noise, the standards set forth in condition
           18 as modified by this decision on remand are probably as definite, enforceable
           and protective of residents in the vicinity as any such noise mitigation measures
           can be. Condition 18 did need to be clarified and refined to require compliance
           with whatever of three limitations on the amount of noise are most restrictive
           under the circumstances. Those three noise mitigation measures are now clearly
           set forth. Any other mitigation measures required by the EIS are also required
           by the first sentence in the “Decision” section of this decision.

           i) Lighting: Lighting concerns were a common concern of residents,
           particularly residents to the west and north of the proposed use. The type of
           lighting used for the parking lot and gas station will make a big difference in
           the impact it will have upon residences, the traveling public and air traffic that
           will have a view of the facility during nighttime hours. According to
           Section 15.06.100 of the UAZO, lighting must be provided to illuminate any
           off-street parking or loading space used at night. When provided, lighting shall
           be directed to reflect away from adjacent properties and the creek. In addition,
           the conditions imposed as a condition of the rezone by Ordinance 2002-45 will
           be required. Finally, a condition is imposed aimed at preserving as much as
           possible the character of the area by imposing a maximum limit on the
           brightness of the parking lot lighting to prohibit unnecessarily bright lighting
           from being utilized solely for advertising the fact that the facility is open all
           night long, while still allowing sufficient brightness for safety and security.
           The City Council previously rejected a recommendation for a maximum limit
           on the brightness of lighting in part because there was no specific proposal
           involved. Rather than impose a specific brightness limit, a condition will be
           added to allow the Director of Community and Economic Development, in
           consultation with the Yakima Police Department, to require the brightness of
           the lighting at the facility to be reduced after it is in operation to a level that is
           roughly comparable to the Meadowbrook Mall lighting if because of
           complaints or other data he finds the lighting to be inconsistent with the rural
           character or residential nature of the property around the proposed uses.

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SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
           j) Hazardous Materials: Participation in the State Department of Ecology‟s
           Voluntary Clean-Up Program and submittal of an effective stormwater drainage
           plan will be required.

           k) Air Quality: Some residents were concerned about air quality issues that
           would result from the construction phase. The applicant will have to obtain a
           Master Dust Control Plan and submit to a New Source Review administered by
           the Yakima Regional Clean Air Authority.

           l) Water Quality/Stormwater Drainage: Considerable concern appears in
           the record about Wide Hollow Creek, a Type II stream. Since it crosses the
           southeasterly portion of this site, a Critical Area Development Permit is
           required prior to commencement of construction. This proposed development
           is in compliance with the applicable critical area requirements. All proposed
           construction will comply with the City‟s Critical Area Ordinance and will be
           outside of the 100-foot natural buffer and 20-foot building setback, which are
           established from the ordinary high water mark of the creek.

           m) Habitat: The applicant will have to present proof to the City of application
           for any requisite permits, including the need for, or lack of need for, permits
           issued under the Endangered Species Act relative to fish habitat in Wide
           Hollow Creek.

           n) Construction Management: A construction management plan will be
           required of the applicant showing that precautions will be taken during
           construction to avoid erosion, dust and transport of hazardous substances as
           well as to provide flaggers for trucks entering Nob Hill Boulevard or South 64th
           Avenue.

           o) Street Improvements: The following City ordinance provisions specify
           what street improvements necessitated by the proposal are required to be paid
           for by the applicant rather than the public:
                1. General Basis for Imposing: The extent of the street segment and
           intersection improvements to be required of the applicant are determined by an
           objective analysis conducted by traffic engineers to determine how much
           impact the proposal will have. A legislative policy determination has been
           made by the City Council as to the acceptable and unacceptable Level of
           Service for arterial streets within the City. If a proposed development will
           cause the Level of Service to drop below acceptable levels because of traffic


CLC Associates – Wal-Mart Superstore        35
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
           congestion during the busiest hour of the day, then the applicant is required to
           install off-site improvements. The costs will be borne completely by the
           applicant or will be shared proportionately between the applicant and the public
           depending upon the impact and LOS level involved.
                 2. Transportation Concurrency Study: A detailed traffic study was
           undertaken and peer reviewed by experts in this field who determined what
           improvements could be required of the applicant as a result of the increased
           traffic that would result. The Examiner finds the following facts and
           projections to be the best information in the record that is available to evaluate
           the traffic impacts resulting from this particular proposal and the recommended
           conditions in the staff report to mitigate those impacts at the applicant‟s
           expense rather than the public‟s expense to be warranted except for the
           segment of South 64th Avenue between Wide Hollow Creek and Washington
           Avenue.
                 3. Expected Additional Trips: Expected traffic generation from the
           proposed 203,819 square-foot superstore and gas station with 10 fueling
           positions on 27 acres was included in the “West Nob Hill Commercial Center
           Final EIS” for site “3B” which is on the southwest corner of South 64th Avenue
           and Nob Hill Boulevard. The Phase 1 and 2 uses for Site 3B are expected to
           generate 1,450 trips during the PM peak hour; 260 shared, 130 pass-by trips,
           and 1,060 new trips. Of these new trips, there will be 520 entering and 540
           exiting. The expected average daily traffic (ADT) volume is 15,162, with half
           entering and half exiting the site for ingress and egress to the Wal-Mart site
           only.
                 4. Volume to Capacity (v/c) Ratio: This review for Transportation
           Concurrency is designed to measure the impact of new development on the
           capacity of city arterial street segments by calculating the approximate increase
           in traffic generated by the new use. The analysis is based on a calculation of
           volume-to-capacity (v/c) ratios for Arterial Street segments. The v/c ratio is
           determined by dividing the number of vehicles on a road segment per peak hour
           per lane by a capacity of 800 vehicles per hour per lane and is shown in the
           following table for the locations that would be most affected by the proposal:

          Concurrency Review Table 1: Existing and Projected Street Segment Capacity:


                                          Existing 2005 Conditions With Development/Building
          Segment         Direction       Volume Lanes v/c LOS Volume Lanes v/c LOS


        72nd Ave           Northbound      544        2   0.34   A    646      2   0.40   A



CLC Associates – Wal-Mart Superstore             36
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
        (Summitview
         to Tieton)        Southbound     673        2    0.42   A    783   2   0.49   A


        72nd Ave           Northbound     502        2    0.31   A    649   2   0.41   A
        (Tieton to Nob
         Hill Blvd)        Southbound     534        2    0.33   A    682   2   0.43   A


        72nd Ave           Northbound     299        2    0.19   A    377   2   0.24   A
        (Nob Hill Blvd
         to Zier)          Southbound     410        2    0.26   A    498   2   0.31   A


        Nob Hill Blvd       Eastbound     246        1    0.31   A   279    1   0.35   A
        (72nd Ave to
         80th)             Westbound      387        1    0.49   A    431   1   0.54   A


        Nob Hill Blvd      Eastbound      303        1   0.38    A    516   1   0.64   B


                                                                            2* 0.32    A
         (64th Ave to
         72nd Ave)         Westbound      517        1   0.65    B    736   1   0.92   E


                                                                            2* 0.46    A


        Nob Hill Blvd     Eastbound       349        1   0.44    A    570   1   0.71   C


                                                                            2* 0.36    A
           th
        (48 Ave to
         64th Ave)         Westbound      622        1   0.78    C    852   1   1.07   F


                                                                            2* 0.53    A


        64th Ave           Northbound     182        1   0.23    A    255   1   0.32   A




CLC Associates – Wal-Mart Superstore            37
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
        (Tieton to Nob
         Hill Blvd)        Southbound       207        1   0.26    A        279       1    0.35   A


        64th Ave           Northbound       205        1   0.26    A        259       1    0.32   A
        (Nob Hill Blvd
         to Washington)    Southbound      212         1   0.26     A     266         1    0.33   A
          Mitigation proposed by the applicant will add additional travel lanes on Nob Hill Boulevard


           5. Level of Service Projections (LOS): Under the City of Yakima‟s
           concurrency ordinance (YMC 12.08), LOS D represents the minimum
           acceptable LOS for arterial roadways. When the LOS drops to “D”, road
           improvements for street segments are required. The table above summarizes the
           data from the “West Nob Hill Commercial Center Final EIS” (Tables 17,
           page 115 and Table 27, page 130 of the EIS) regarding existing street capacity
           and expected impact of the proposed Wal-Mart superstore at site “3B”, the SW
           corner of 64th Avenue and Nob Hill Boulevard.

           p) Pedestrian Improvements: Several residents in the Borley Lane area
           spoke in opposition to the condition that a trail be constructed from
           Borley Lane to South 64th Avenue. If the trail is improved or patrolled, that
           might alleviate fears of residents. It is in the best interest of both the applicant
           and the City to promote access to the facility on foot or by bicycle rather than
           by motor vehicle. The requirement to construct a trail would promote the
           proposal‟s compatibility with the air by addressing air quality and traffic
           concerns and the trail might be designed to complement future residential
           development south of the supercenter. The applicant‟s preference to build the
           trail from the southwest corner of the property along the west property line or in
           any location that is closer to existing residential uses than what the City is
           requesting would be problematic in view of the concerns expressed by the
           residents about having teenagers or others using the trail near their homes for
           drinking late at night. The same concerns lead the Examiner to impose the
           parking lot restriction against its overnight use by motor homes, campers, travel
           trailers or other recreational vehicles which the applicant enforces if the
           municipality so conditions its approval.

           q) Public Transportation Improvements: The bus pullout and shelters on
           both sides of the street will have to be on Nob Hill Boulevard or on South 64th
           Avenue depending upon bus routes to be determined by the City.


CLC Associates – Wal-Mart Superstore              38
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
           r) Utilities: The applicant will have to complete such sewer line upgrades on
           Nob Hill Boulevard as may be specified by the City of Yakima Wastewater
           division and the applicant must provide the City with a 16-foot-wide utility
           easement for the sewer line serving this property.

           s) Outlet Parcels: A short plat showing the configuration of the outlots of
           record is needed prior to issuance of building permits for the outlot structures.

           t) Enforcement: The City may require the applicant to modify lighting, abate
           litter problems, correct erosion control problems, extend noise walls adjacent to
           truck loading areas, add additional shielding to the HVAC roof units, test
           adjacent residential areas for compliance with the predictions of the noise study
           and require bonds to be posted in the event of repeated complaints that will
           allow the City to take corrective action if the applicant fails to timely do so.

     D. Compliance and Compatibility with Objectives and Development Criteria of
the Yakima Urban Area Comprehensive Plan Subsections 15.04.020(3) and
15.15.040(5). There is a dispute in the record as to the extent to which this criterion may
be utilized. The disagreement may be explained and addressed as follows:
          a) Nature of Dispute. The specific disagreement in the record is centered
around whether this criterion is intended or legally permitted to elevate general planning
policies and goals which the zoning ordinance provisions are intended to implement to
the level of regulatory mandates themselves on equal footing with the zoning ordinance
mandates. More specifically, the issue ultimately becomes whether these references to
the Comprehensive Plan in the zoning ordinance specify regulatory standards upon which
the denial of an application could be predicated for lack of compatibility between uses
allowed in different adjoining zoning districts or whether they are only intended to add
regulatory flexibility in the formulation of conditions to promote compatibility with the
intent and character of the district under Subsection 15.04.020(3).
           b) Relative Positions.         West Valley residents Michael Harves and
Michael Noble advanced the position that policies of the Comprehensive Plan should be
utilized to require compatibility with adjacent residential uses even though
Subsections 15.04.020(3) and 15.15.040(5) only refer to compatibility with the intent and
character of the zoning district and to objectives and development criteria of the
Comprehensive Plan. They both referred to Policy G2.2 which states a policy to protect
existing neighborhoods from excessive commercial and industrial encroachments through
the establishment of definite neighborhood boundaries and implementation of zoning
standards which minimize the impact on adjacent properties and Policy C3.1 which states


CLC Associates – Wal-Mart Superstore         39
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
a policy that regional shopping centers should be located at the intersection of two
arterials (referencing the current design of South 64th Avenue) where no vehicular access
is through residential areas and adequate buffering is provided between adjacent
residential areas (referencing the need for adequate buffering). Mr. Harves also referred
to Policy G4.2 which states that new urban development should be encouraged to be
contiguous to existing development to avoid the inefficient “leap-frog” pattern of growth
and Policy T2.7 which states a policy to exercise regulatory control over development that
may negatively impact the airport and future road alignments. (Testimony of
Michael Harves, December 15, 2005). Michael Noble included in his response to the
Examiner‟s questions references to Policy G9.3 which states a policy to encourage infill
development with new construction that is compatible with the scale and density of the
surrounding housing; Policy L.1.1 which states a policy to promote a diversity of land
uses by forming appropriate transitions between land uses by means of techniques such as
landscape buffering and step down zoning; Policy H1.6.1 which states a policy to review
existing zoning regulations and consider innovative standards; Policy H1.6.2 which states
a policy to encourage compatible infill of existing neighborhoods to promote lower land
development [costs] and costs of facilities; Policy H.3.9 which states a policy to
encourage housing design and siting to be compatible with surrounding neighborhoods;
Policy C2.3 which states a policy to work with neighborhood residents to determine
appropriate areas for small scale mixed-use developments; text on page III-9 referencing
the need for an adequate and affordable supply of housing and to make opportunities
available for compatible new development while also balancing the need to preserve
existing neighborhoods and the need to infill or redevelop some areas; text on page III-10
indicating that within existing neighborhoods there is greater emphasis by residents for
neighborhood preservation; and text on page III-13 indicating that new retail centers
intended to serve new neighborhoods must be supported by the residents rather than
justified from a regional perspective and that compatible infill of existing neighborhoods
to promote lower land development costs should be encouraged. (Ex. 191, pp. 3-8). On
the other hand, Mr. McCullough on behalf of the applicant argued that compatibility is
not a factor to be considered regarding the proposed uses because they are Class (1) uses,
or at the very most that the zoning ordinance only requires uses to be compatible with the
uses in the zoning district in which they are located. (Ex. 192, pp. 5-8). Mr. Danysh on
behalf of the City referred to the criteria specified for a rezone in Subsection
15.23.030(E)(6):

       “… the examiner shall issue a written recommendation to approve, approve with
       conditions or deny the proposed rezone. The recommendation shall include the
       following considerations:
        …
       6. The compatibility of the proposed zone change and associated uses with
       neighboring land uses; …”


CLC Associates – Wal-Mart Superstore       40
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
With reference to this specific rezone criteria in the UAZO, Mr. Danysh argued that,
unless shown otherwise, it must be assumed that the City Council approved the CBDS
zoning on the proposed site with full knowledge of its relationship to the residential area
to the west and that the zoning was adopted pursuant to policies in the Comprehensive
Plan. He therefore concluded that CBDS development on the rezoned property is, by
definition, compatible with the adjacent residential areas.
            c) Compatibility with Adjacent Residences. Compatibility is defined in
Section 15.02.020 as follows:

       “Compatibility means the characteristics of different uses or development that
       permit them to be located near each other in harmony.”

In this situation, the proposed Wal-Mart supercenter and associated uses will abut no
existing uses on three sides. The property is zoned for commercial uses on two sides and
multi-family residential uses on the south side. There are five modest single-story single-
family homes located on the east side of South 68th Avenue between Nob Hill Boulevard
and Prasch Avenue which would be the closest residences to the proposed uses. None of
the homes directly face the site. Three of them face the opposite direction to the west.
Three of the five owners of the residences closest to the proposed site testified and
submitted letters. Tony Weld owns the house at the corner of Nob Hill Boulevard and
South 68th Avenue. He mainly expressed noise and light concerns and is disappointed
that the berm and wall does not extend north to the requisite setback distance from
Nob Hill Boulevard because his home will have no benefit at all from the berm and wall.
The applicant‟s expert who performed ambient noise tests for the applicant testified that
Mr. Weld‟s home would not benefit from extending the berm and wall further north
because the home is only about 50 feet from Nob Hill Boulevard and the ambient noise
levels tested 75 feet from Nob Hill were much higher than what will come from the
facility. It will be a condition of this decision that daytime ambient noise levels be taken
at some time prior to commencement of construction at the site to determine actual rather
than estimated daytime levels at the receptor locations that have already been tested for
ambient noise during evening hours, and further that those tests be repeated again after
the facility is operational to confirm that the expert‟s prediction of a barely noticeable
increase in the L25 ambient noise levels from 0 to 5 decibels and compliance with WAC
noise limits actually turns out to be accurate. Further shielding of HVAC equipment and
other sources of noise will be necessary to correct any noise problem after the facility
opens. Susan Martinez who has lived for 29 years in the home on Prasch Avenue which
abuts the site testified. The east side of her home faces the proposed site. The front of
her home faces a relatively large two-story structure that has four garage doors.
Ms. Martinez is not happy about the prospect of looking out to the right of that storage
structure to the landscaped 6-foot-high berm and 8-foot-high wall. She also owns two
acres abutting the site to the south of her home and opposes the proposed trail behind her
house that would extend from Borley Lane to South 64th Avenue. Even if it is lighted and

CLC Associates – Wal-Mart Superstore        41
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
improved, she fears that teenagers would gather there for drinking in the middle of the
night. She shared the same concerns about the water quality of Wide Hollow Creek that
many residents expressed and also expressed concern about wells in the area serving
homes that are not hooked up to City water. There are several vacant lots and large trees
south of her home down to and past Wide Hollow Creek. Ann Roy who has lived for 32
years at the home north of the storage building referenced above is not at all pleased
about the prospect of having a berm near her small back yard that will block her view
from her kitchen window. It was already a difficult change for her when the orchard
was removed from the site. Even though these residents abutting the proposed site
are displeased to see what was referred to as Yakima‟s “Central Park” in one of the
letters disappear and take with it a quality of rural living that they will genuinely miss, the
reality is that the land has not been dedicated or purchased for park purposes in perpetuity
and is for several reasons what former Hearing Examiner Philip Lamb referred to as
“exceptionally suitable for any type of urban use.” (Ex. 195, p. 14). The proposed
development with the imposed conditions has the potential of being more compatible to
these neighbors than other commercial or even multi-family residential development next
to them. South 67th Avenue will not be running north and south next to their backyards.
Prasch Avenue will not be running east and west between South 64th and South 72nd
Avenues. Traffic will not be routed through their residential area via Prasch Avenue. The
privacy of a berm and wall for the residents next to the site will have its advantages over
other possible development scenarios for the property. Even so, the residents‟ frustrations
and fears are understandable. The proposed changes that inevitably will occur over time
in what some residents referred to as a valley within a valley will be difficult to accept. It
may be of some slight consolation that considerable thought and effort now and in the
past has been devoted to an effort to formulate these specific mitigation measures and
conditions to promote compatibility.
        In conclusion, in this situation where no one submitted evidence of any
Comprehensive Plan objectives that address the issue of compatibility in this context or of
any specific Comprehensive Plan development criteria that apply to this proposal ((which
are the only criteria specified relative to the Comprehensive Plan in the Class (3) review
criteria)); where the application is for approval of Class (1) uses that are generally
permitted; where the persons opposing the application have not overcome the rebuttable
presumption of compatibility and have not by the weight of evidence established that the
proposed uses will in fact turn out to be incompatible with the existing residential
neighborhood to the west; where former Hearing Examiner Philip Lamb considered in
great detail many compatibility issues submitted again in this proceeding; where the
Examiner recommended innovative and, according to experts involved in the EIS process,
effective conditions to promote the compatibility of the proposed uses with the adjoining
residential neighborhoods on the assumption that it would probably be the “last
significant opportunity to visit the compatibility issue” (Ex. 195, p. 29); where a Final
Environmental Impact Statement containing voluminous factual detail about the proposal
has been prepared by a significant number of experts with an impressive amount of

CLC Associates – Wal-Mart Superstore          42
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
experience, training and expertise who have recommended a great number of significant
mitigating measures with the assurance that imposition of those measures will reduce all
probable significant adverse environmental impacts of the proposal to an acceptable,
insignificant level; and, to repeat, in this situation and this situation alone, the Examiner
adopts the position advanced by the City. As conditioned by the imposition of the
Planning Division‟s recommendations with certain modifications, the mitigating measures
recommended in the EIS except as specifically indicated otherwise in this decision and
the additional conditions to promote compatibility set forth in this decision, the proposal
will satisfy all the criteria in Subsections 15.04.020(3) and 15.15.040(5) required for
approval of the Class (1) uses here subject to Class (3) review.

XIV. Consistency of the Proposed Use With Development Regulations and
the Comprehensive Plan under the Criteria Required by YMC 16.06.020B:
Consistency in this context is determined by consideration of the following factors:
        A. The Type of Land Uses Permitted at the Site: As previously discussed, the
applicant is applying for permission to place the type of uses on the site that would
normally be permitted outright without discretionary review by the Administrative
Official or the Hearing Examiner. Due to the circumstances, they have become types of
uses generally permitted at the site and may be located pursuant to Class (2) or Class (3)
review thereof.
        B. The Density of Residential Development or the Level of Development Such
as Units per Acre or other Measures of Density Permitted: The proposed lot coverage
of the uses shown on the site plan is 78% in a zone that allows 100% lot coverage.
        C. Availability and Adequacy of Infrastructure and Public Facilities:
Infrastructure improvements such as frontage streets, curbs, gutters, sidewalks,
streetlights, traffic lights, pedestrian ways, transit shelters and off-site street and
intersection improvements shown to be needed as a result of the City‟s Traffic
Concurrency analysis will be constructed at the expense of the applicant where the City
LOS requirements dictate that result and will otherwise be proportionally shared by the
applicant to the extent of the project‟s impacts. Public water and sewer are available to
the site. Nob Hill Water Company provides drinking water at this location. The Company
has indicated that it has sufficient capacity to provide water for irrigation, drinking and
fire flow. New service lines will need to be installed to do this. The applicant must
arrange with Nob Hill Water Association the manner of providing the requisite amount of
water for fire flow to the facility.
        D. Consistency of the Development with Development Regulations: The
proposal is consistent with the applicable development regulations as discussed above.

                                     CONCLUSIONS


CLC Associates – Wal-Mart Superstore         43
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
    1. The Hearing Examiner has jurisdiction to approve Class (1) or Class (2) uses
pursuant to Class (3) review procedures under the circumstances prescribed by the zoning
ordinance.
    2. Public notice requirements have been completed as required.
    3. The mitigating conditions of the EIS prepared for this proposal are necessary to
reduce adverse environmental impacts to an acceptable insignificant level and to promote
the proposal‟s compatibility with the surrounding environment.
    4. The applicant‟s construction of street improvements shown to be warranted by the
Transportation Capacity review conducted for the proposal is also necessary to reduce the
proposal‟s adverse environmental impacts and promote compatibility.
    5. This application can be adequately conditioned by the conditions set forth below so
as to accomplish compliance and consistency with the objectives and standards of the
Comprehensive Plan and with the intent, the character, the provisions and the
development standards of the zoning district and of the zoning ordinance.
    6. This decision may be appealed to the City Council of the City of Yakima within the
time and in the manner required by applicable City ordinances.

                                          DECISION

    This application for a Wal-Mart supercenter together with a fueling station and
outlots within the CBDS zoning district is APPROVED subject to the mitigating
conditions of the EIS except as specifically modified herein and the obligation of the
applicant to enter into a development agreement with the City, as authorized by
RCW 36.70B.170-210, in order to implement the following conditions.


     1. The site plan dated October 7, 2005 (Ex. C-1) and the perspective and elevation
drawings dated November 29, 2005 (Ex. C-2) shall be the official site plan, building
perspective, building elevation and color scheme. A final official site plan will be filed
showing any changes or conditions that might be required by the hearing examiner.
Building, grading, driveway and other permits submitted for construction on this site shall
be in substantial conformance with the plan.

     2. Minor modifications to the site plan, building perspective, building elevation and
color scheme may be approved by the Director of Community and Economic
Development. Minor modifications are those that, in the Director‟s opinion, pose no
greater external impact on the road system, Wide Hollow Creek buffers, adjacent
residential areas, lighting or other features for which conditions have been imposed, than
those caused by the site plan as approved. Major modifications will require additional
analysis by the owner and will be heard by the Hearing Examiner who may approve,
modify or deny such modifications.


CLC Associates – Wal-Mart Superstore         44
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
The following specific measures are conditions of development imposed upon the
proposed Class (1) uses through the Class (3) review process.

a) Height
   3. The highest portion of the proposed improvements will be two gable roofs
extending to a height of 41 feet, six inches. The parking lot lights will not be higher than
35 feet. The applicant will comply with the special height restrictions on the property
imposed as a result of the rezone of the property to CBDS and required by the airport
safety overlay zone.

b) Setbacks
   4. The minimum setbacks for the CBDS zoning district will be provided.

c) Parking
   5. The site plan shows 1,042 parking spaces, exclusive of the outlots, and 554 parking
spaces are the minimum number required. None of these parking spaces or other areas on
the site shall be made available for overnight or extended parking of motor homes,
campers, travel trailers or other recreational vehicles unless they are involved in the
business being conducted on the site.
   6. Landscaping of parking areas will be substantially as shown on the approved site
plan. Interior landscape islands provided within the parking areas will be a minimum of
200 square feet in size and will be planted with trees and shrubs.

d) Lot Coverage
   7. The lot coverage will not exceed the 78% shown on the site plan even though 100%
is the maximum allowed in the CBDS zoning district.

e) Signs
   8. Sign dimensions shall meet the size requirements of Chapter 15.08 of the UAZO.
   9.Signs will be internally lit to eliminate light glare, and there will be no illuminated
signage on the westerly portion of the building facing the existing residential area.
   10. Freestanding signs shall be placed as shown on the siteplan.

f) Site screening
   11. Except as otherwise provided in these conditions, site buffering and screening will
adhere to Standard C improvements as described in Section 15.05.040 of the UAZO.

CLC Associates – Wal-Mart Superstore        45
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
    12. On the westerly property line, the required standard for landscape and screening
improvements will be an eight-foot high wall atop a six-foot high berm and “densely
planted landscaping” adjoining the wall and berm. Landscaping will be a mixture of fast
growing deciduous and evergreen trees, shrubs and groundcover. The applicant will
provide irrigation and maintenance for the landscaping on both sides of the masonry wall.
    13. On the southerly property line, this same standard will be applied to those areas
not abutting Wide Hollow Creek or its buffer area, and a sound wall will be constructed
south of the store no later than when construction of residences on the remainder of the
site south of the store commences.
    14. All other perimeter landscape areas will be a minimum of 10 feet wide and will be
planted with a mixture of deciduous and evergreen trees, shrubs and ground cover.
    15. Outdoor displays and storage areas shall be screened from residents to the west
and south and all fertilizers and other potential pollutants shall be displayed on racks off
the ground and served by an effective drainage system to contain spills.

g) Blight Prevention
     16. Internal spaces will be structurally designed to allow conversion to smaller retail
spaces meeting IBC requirements, in the event of supercenter closure, unless the Director
of Community and Economic Development allows the applicant to instead post a bond or
deposit funds sufficient to pay for the cost of removal of the building if it deteriorates or
if it remains vacant for a specified period of time after closure.
     17. In the event of a closure of the Wal-Mart facility on the subject property, all
signage will be removed from the store and property within six months of closure and
Wal-Mart will continue routine upkeep and maintenance so that the property remains in
an attractive and marketable condition.

h) Noise Mitigation
   18. Shielding of rooftop and ground level mechanical equipment will be provided with
sound absorption panels to the extent necessary to reduce the noise created by the Wal-
Mart superstore and fueling station on the westerly and southerly property lines to a level
which complies with the strictest of the following standards:

           (1) The Washington State noise standards presently specified in Chapter 173-60
               of the Washington Administrative Code, together with such amendments
               thereto that may be adopted in the future; and
           (2) The favorable results predicted in the applicant‟s noise study of not more
               than a five-decibel increase on the westerly and southerly property lines in
               the L25 ambient noise level for noises that are emitted for at least 15
               minutes of each hour during both daytime and nighttime hours to be
               confirmed promptly after commencement of full operations. Testing of the


CLC Associates – Wal-Mart Superstore         46
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
               increase in ambient levels shall be in accordance with the requirements of
               condition 20. Subsequent testing will not be required unless the facilities
               are changed in some manner so as to create additional noise after the initial
               testing is completed; and
           (3) The City of Yakima‟s public disturbance noise regulations set forth in
               Section 6.04.180 of the Yakima Municipal Code, except for the exemption
               for sounds created by lawfully established commercial uses in Subsection
               6.04.180(F)(16) thereof which applicant has agreed to waive and to refrain
               from asserting as a defense to an enforcement action thereunder, and
               together with any future amendments thereto.

 The owner will provide documentation as to the ability of said panels to achieve levels
consistent with the above three noise standards. If said documentation is unavailable, and
the ability of the panels to achieve such levels cannot be otherwise verified, mechanical
equipment will be located on the ground.
    19. Truck docks will be partially enclosed with masonry screen walls.
    20. The applicant shall procure test results of the actual daytime ambient noise levels
at the locations previously tested on the west side of the site during nighttime hours prior
to commencement of construction of the facility in order to be able to compare the test
results with comparable tests taken after the store is in operation to see if additional
shielding or other steps will be required to actually accomplish the favorable results
predicted in the study. This will be a condition of this decision unless the Director of
Community and Economic Development finds such requirement to be unduly
burdensome or unnecessary in view of other information that becomes available to him in
the future.
    21. The newest and quietest type of condensers in production like the type used in the
Lebanon, Oregon Wal-Mart facility shall be used for the two chillers for this facility.

i) Lighting
   22. Outdoor lighting proposed within the project actions boundaries will comply with
the lighting conditions set forth in the Conditions of Approval adopted by the City
Council for the Congdon Rezone. A lighting plan will be submitted that substantially
matches the plan for the original Wal-Mart site on North 72nd Avenue. Elements of that
plan include:
       i) Luminaries on poles not exceeding 35 feet in height.
       ii) No luminaire within 80 feet of an adjoining residential property.
       iii) Each luminaire equipped with low-pressure sodium lights with cut off fixtures.
       iv) Down-shielding to minimize glare, night-sky illumination and to achieve zero
            light candle illumination on any adjoining residential property.




CLC Associates – Wal-Mart Superstore         47
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
        v) Canopy lighting from the proposed gas/fueling station to be fully shielded so
            that no light rays are emitted by the installed fixture at angles above the
            horizontal plane.
        vi) Luminaries certified by a photometric test report to minimize up-light light
            pollution to adjoining property and night sky.
        vii) No illuminated signage placed on the westerly portion of the building facing
            the residential area.
    23. Wall signs shall be internally lit to eliminate light glare.
    24. The Director of Community and Economic Development, in consultation with the
Yakima Police Department, may require the brightness of the lighting at the applicant‟s
facility to be reduced to a level that is roughly comparable to the Meadowbrook Mall
lighting if he determines from experience, citizens‟ complaints or other data that the
lighting of the facility is inconsistent or incompatible with the rural character or
residential nature of the property in the immediate vicinity.

j) Hazardous Materials
    25. The owner will present evidence of its participation in the State Department of
Ecology Voluntary Clean-up Program. Prior to issuance of a Certificate of Occupancy, a
certification of program completion from WSDOE will be presented to the City.
    26. The owner will incorporate measures into a stormwater drainage plan to protect
the water quality of Wide Hollow Creek from surface or subsurface lead and arsenic
contamination.

k) Air Quality
   27. The owner will file a Master Construction Dust Control Plan with the Yakima
Regional Clean Air Authority.
   28. The owner will submit to a New Source Review (NSR) under Section 4.02 of
YRCAA Regulation 1. This project will be required to go through NSR to determine
applicability and thresholds.

l) Water Quality/Stormwater Drainage
   29. The project will comply with State regulations affecting underground fuel storage
and delivery systems.
   30. Underground vaults will encase fuel storage tanks.
   31. A drainage plan meeting the requirements and standards of the Storm Water
Management Manual for Eastern Washington produced by the Washington Department of
Ecology will be approved by the City Engineer prior to commencement of construction.
   32. The drainage plan will include a Storm Water Pollution Prevention Plan.


CLC Associates – Wal-Mart Superstore       48
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
    33. The storm drainage system will be designed to discharge all storm water within
five days of storm events.
    34. The 100-foot setback buffer between Wide Hollow Creek and the development
will be recorded as a “Native Growth Protection Easement”, with provisions that no
development activity or active public access will occur within the area.
    35. Engineered erosion control measures will be installed during construction to
prevent storm water runoff from carrying sediments and potential contaminants into the
creek.

m) Habitat
    36. Evidence of the owner‟s application for any required Corps of Engineers, State or
other non-local permits will be presented to the City prior to issuance of building permits.
Where said permits affect grading, erosion control or other elements of construction,
evidence of those permits having been issued will be presented prior to commencement of
site development activity.
    37. Specifically, the owner will present evidence of the need for, or lack of need for,
permits issued under the Endangered Species Act as it relates to fish habitat in Wide
Hollow Creek.

n. Construction Management
    38. A construction management plan will be prepared by the owner to include the
following elements:
       a) That erosion control measures will be monitored during construction;
       b) That during site development and construction, no un-drained low spots are
created within parking area or storm water detention areas;
       c) That construction areas will be watered as necessary to minimize blown dust;
       d) That vehicles leaving the site are washed down to minimize the transport of
potentially hazardous materials away from the site; and
       e) That truck traffic entering and leaving the site will be monitored by flaggers to
ensure the safety of traffic on Nob Hill Boulevard and South 64th Avenue.

o) Street Improvements
    39. The applicant at its expense shall construct the following street improvements,
including the cost of necessary rights-of-way on properties not owned by the applicant
which the City will assist in procuring at the applicant‟s expense with the cost of
acquisition paid by the proponent.


       a) Nob Hill Boulevard:

CLC Associates – Wal-Mart Superstore        49
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
             i) Construct an additional westbound lane from South 48th to South 72nd
       Avenues.
             ii) Construct a center turn lane from South 64th to South 72nd Avenues.
             iii) Grade the entire width of the Nob Hill Boulevard improvement in
       compliance with City of Yakima design standards for a full-width, 5-lane arterial
       improvement (YMC 12.06.030).

       b) South 64th Avenue
               i) Construct improvements on South 64th Ave. from Nob Hill Boulevard
       and south to the Wide Hollow Creek bridge according to City of Yakima design
       standards.
               ii) Construct a left turn lane to service the South 64th Avenue entrance to
       the site.



       c) North 72nd Avenue and Summitview Avenue Intersection
             i) Restripe and modify detection on the westbound through lane of
       Summitview Avenue to accommodate a shared left and through lane.
             ii) Upgrade traffic signal to convert east-west phasing to split phasing.
             iii) Undertake and complete all such additional construction as may be
       necessary to accommodate the through-lane improvements.

       d) South 64th Avenue and Nob Hill Boulevard Intersection
              i) Upgrade traffic signal system to install protected/permissive left turns for
       all approaches.

       e) All driveways
             i) Restrict all driveway access to the outlots to the supercenter property with
       no direct connections to adjacent public streets.
             ii) Obtain the City Engineer‟s approval of all driveway locations.
             iii) Restrict the east driveway to right-in-right-out only.
             iv) Construct a traffic signal at the west driveway and provide interconnect
       between South 64th Avenue and South 72nd Avenue.
             v) To maximize the spacing between the new signal at the west driveway and
       the signal at South 64th Avenue and Nob Hill Boulevard, the driveway will be
       located as close to the west property line as possible, in accordance with City
       driveway width and curb return standards.
             vi) Construct an eastbound right-turn lane at the west driveway.

  40. South 64th Avenue and Tieton Drive Intersection and South 64th Avenue and West
Washington Avenue Intersection:

CLC Associates – Wal-Mart Superstore         50
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
        a) The applicant shall participate with the City of Yakima in the purchase of right-
of-way and intersection improvements. The purpose of the improvements to the
intersection at South 64th Avenue and Tieton Drive is to improve sight distance and add a
left turn lane for westbound traffic on Tieton Drive to reduce conflict with the through
movements. The purpose of the improvements to the intersection at South 64th Avenue
and West Washington Avenue is to widen the northbound and southbound approaches of
South 64th Avenue to include a separate left-turn and shared through/right lane. The
proponent‟s contribution toward both of these improvements would be on a pro rata basis
according to traffic volumes generated as a percentage of intersection capacity.
        b) Prior to occupancy of Phase I, applicant shall bond for the full cost of a traffic
signal installation at each of these two intersections (construction cost estimated at
$200,000 for the intersection at South 64th Avenue and Tieton Drive and $265,000 for the
intersection at South 64th Avenue and West Washington Avenue). Applicant shall also
pay the City of Yakima for the cost of administering engineering studies to be conducted
once a year for three years at the intersections. The engineering studies shall assess
whether traffic signal warrants are met at the subject intersections. If the engineering
studies deem that a signal is warranted, the bond shall be used by the City of Yakima to
install a signal at the intersection(s). If, at the end of the three-year monitoring period, the
engineering studies deem that a traffic signal is not warranted, the bond shall be released
to the applicant.

p) Pedestrian Improvements
    41. Provide sidewalks, curb, gutter, streetlights and drainage along all property
frontages.
    42. Provide sidewalks, curb, gutter, streetlights and drainage along the westbound lane
improvements. The proponent‟s contribution would be on a pro rata basis according to
traffic volumes generated as a percentage of road capacity. The improvement must be
completed prior to occupancy of Phase 1 unless right-of-way acquisition problems delay
completion through no fault of applicant, in which case the applicant must provide a bond
to insure prompt completion.
    43. Construct and provide a pedestrian/bicycle access to the supercenter from the
adjacent residential neighborhood located to the west. The applicant shall construct a
seven-foot-wide sidewalk located parallel to and immediately adjacent to the south parcel
boundary line. The sidewalk will stretch from the eastern property boundary of the Wal-
Mart site to the western property boundary and will connect to the northerly portion of
Borley Lane. The Director of Community and Economic Development may accept a
bond or cash deposit to insure completion if the preference is to make the improvements
at a later time.

q) Public Transportation Improvements


CLC Associates – Wal-Mart Superstore          51
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
    44. Provide a bus pullout and shelter on both sides of either Nob Hill Boulevard or
South 64th Avenue to be determined by the City Director of Community and Economic
Development by considering transit routes, ridership characteristics and other pertinent
factors.

r) Utilities
   45. The applicant shall complete such sewer line upgrades on Nob Hill Boulevard as
may be specified by the City of Yakima Wastewater division and the applicant must
provide the City with a 16-foot-wide utility easement for the sewer line serving this
property.




s) Outlet Parcels
    46. A short plat will be required to reconfigure the proposed site for the proposed
outlot configuration. The short plat must be concluded and recorded prior to issuance of
building permits for outlot structures.

t) Air Traffic Safety and Public Safety
     47. The applicant shall demonstrate to the Director of Community and Economic
Development full compliance with all applicable ASO ordinance requirements prior to
issuance of any permits.
    48. No future user of any portion of the property included within this application shall
at any time in the future use or allow the use of any kind of search light, blinking light or
flashing light for grand openings, special events or any other purpose whatsoever.
    49. No future user of any portion of the property included within this application shall
at any time in the future use or allow the use of any kind of satellite disk(s) or other type
of similar equipment for communication purposes without the prior approval of the City,
the Airport Manager and the FAA.
    50. No use or activity shall take place within the airport safety overlay in such a
manner as to make it difficult for pilots to distinguish between airport light and others;
create electrical interference with navigational signals or radio communication between
the airport and aircraft; result in glare in the eyes of pilots using the airport and aircraft;
impair visibility in the vicinity of the airport; create birds-strike hazards; or otherwise
create a hazard which may in any way endanger the landing, takeoff, or maneuvering of
aircraft intending to use the airport.
    51. The applicant shall insure that conditions 47 through 50 set forth above in this
section are disclosed to and complied with by future owners, lessees and other users of

CLC Associates – Wal-Mart Superstore          52
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04
any part of the property included in this application by the most effective means possible,
including without limitation the inclusion of the conditions in covenants recorded against
the property and in sale, lease or other conveyance documents.

u) Enforcement
    52. The Applicant acknowledges the authority of the City to require the following
measures as necessary to ensure compliance with the conditions of the Class (3) approval:
        a) Modifications to lighting improvements where necessary to eliminate foot
candle exposure on adjoining residential properties or as necessary to comply with other
lighting conditions;
        b) Abatement of a litter problem at the owner‟s expense, where a litter nuisance is
documented, after notification to the owner and a reasonable period – no longer than one
week – for the owner to clear the problem. (Recurring incidents will cause the City to
abate the nuisance immediately at the owner‟s expense. Litter covered under this
provision includes materials around trash compactors, used tires, food materials attracting
vermin, odor causing materials and blown paper);
        c) Correction of erosion control problems where siltation or other impacts to Wide
Hollow Creek are suspected;
        d) Extension of noise walls adjacent to truck loading areas if the noise level is
identified to be higher than appropriate;
        e) Addition of more shielding to the HVAC roof units and procure and provide to
the City additional noise test results as to actual ambient noise levels in adjacent
residential areas in order to determine and enforce compliance with the predictions of the
noise study; and
        f) Require bond(s) to be posted in the event of repeated complaints that will allow
the City to take corrective action if the applicant fails to timely do so.


DATED this 10th day of July, 2006.


                                                 __________________________________
                                                 Gary M. Cuillier, Hearing Examiner




CLC Associates – Wal-Mart Superstore        53
SW Corner Nob Hill Blvd. & S. 64th Ave.
UAZO CL (2) #16-05; CAO 6-05; EC 6-04

				
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