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					                 City of Yakima, Washington
           Hearing Examiner’s Final Revised Decision
                                   March 30, 2005

In the Matter of Class (3) Review )
Of an Application for Two Class(2) )
Uses, for an Unclassified Use      )
And for Environmental Review        )
Submitted by:                       )                       UAZO CL (3) #7-04
                                    )                          INTERP #1-04
Triumph Treatment Services                )                       EC #27-04
                                   )
To Establish a Day Care Center,    )
Group Home and Commercial          )
Kitchen in an Existing Building at )
3300 Roosevelt Avenue, Yakima      )


Introduction.      The Code Administration and Planning Manager referred this
application for two Class (2) uses and for an unclassified use interpretation to the
Hearing Examiner for Class (3) review at an open record public hearing. The
Hearing Examiner conducted a public hearing on December 9, 2004. The staff
report presented by Associate Planner Mary Lovell recommended approval of the
application for a day care center, a group home and a commercial kitchen, subject
to conditions. Many people submitted written comments and provided testimony
relative to this application, some in favor and more in opposition. A decision was
issued on December 23, 2004 which was appealed to the Yakima City Council.
On March 1, 2005 the matter was remanded to the Hearing Examiner for further
proceedings. A hearing on remand was held on March 16, 2005. A “Hearing



Final Revised Decision                   1
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
Examiner‟s Decision on Remand” and this “Hearing Examiner‟s Final Revised
Decision” were issued within 10 business days of said hearing. This Final Revised
Decision contains the revisions to the original decision found to be appropriate by
the Decision on Remand.



Summary of Decision. The Hearing Examiner affirms the mitigated declaration
of non-significance with a modification deleting the use of North 34th Avenue as
secondary access for the public and grants conditional approval of the requested
Class (2) day care center use, Class (2) group home use and unclassified
commercial kitchen use to the extent set forth in this opinion, subject to
compliance with all the conditions recommended by the Planning Division and
subject to additional revised conditions justified by the written comments and the
testimony of residents of the area submitted in opposition to this application.


Basis for Decision. Based upon the Hearing Examiner‟s views of the site
without anyone else present on December 8, 2004, December 9, 2004, March 3,
2005 and March 7, 2005; his consideration of the staff report, application, exhibits,
testimony and other evidence presented at an open record public hearing on
December 9, 2004; his consideration of the arguments presented before and at the
closed record public hearing on appeal before the City Council on February 14,
2005 and March 1, 2005; his consideration of the arguments and evidence
presented at the hearing on remand on March 16, 2005; and his review of both the
Yakima Urban Area Comprehensive Plan and the Yakima Urban Area Zoning
Ordinance; the Hearing Examiner makes the following:




Final Revised Decision                    2
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
                                   FINDINGS


Applicant. The applicant is Triumph Treatment Services, 102 South Naches
Avenue, Yakima, Washington 98901.


Location. The location is 3300 Roosevelt Avenue, Yakima, Washington; parcel
number 181322-11028.


Application. This application requests approval for the establishment of a day
care center, a group home and a commercial kitchen in an existing building in
accordance with the parameters set forth in the application.        The building is
located on a parcel of land that is about 1.42 acres in size formerly used until 2002
for a nursing home.


Notices. The application was received on July 29, 2004. A Determination of
Completeness was issued on August 9, 2004.           A Notice of Application and
Hearing was sent to the applicant and adjoining property owners within 500 feet of
the subject property on August 13, 2004 requesting comments on this proposal.
Staff review determined that additional information was needed to process the
application. The applicant completed a SEPA checklist on September 2, 2004,
and a Notice of Cancelled Hearing was mailed on September 3, 2004. A new
Determination of Completeness was issued on September 10, 2004. A preliminary
SEPA Mitigated Declaration of Non-Significance was issued on October 24, 2004
and the final MDNS was issued on November 18, 2004. It was appealed on



Final Revised Decision                   3
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
December 1, 2004. Notices for the SEPA and public hearing processes were
provided in accordance with the applicable ordinance requirements as follows:

        Mailing of application and hearing notice               August 13, 2004
        Posting of notice on property                           August 19, 2004
        Publishing of hearing notice in newspaper               August 19, 2004
        Mailing of notice of cancelled hearing                  September 3, 2004
        Posting of revised notice on property                   October 4, 2004
        Mailing of application and SEPA review                  October 5, 2004
        Mailing of final MDNS and hearing notice                November 18, 2004
        Publishing of revised hearing notice in newspaper       November 18, 2004
        Mailing of notice of appeal of MDNS                     December 3, 2004


Zoning and Land Uses. The subject property is in the Multi-Family Residential
(R-3) zoning district. Adjacent properties have the following characteristics:
Location                          Existing Zoning                 Existing Land Use
North                       R-3    Multi-Family Residential     Adult Living Facility
South                       R-1    Single-Family Residential                 Church
West                        R-1    Single-Family Residential             Residences
East                        R-1    Single-Family Residential             Residences



Description of Uses Requested. Specific details regarding the uses requested
by this application include the following:
        i) Day Care Center: The applicant proposes to establish a licensed day care
center to serve the children of clients, staff and the staff of other local non-profit
organizations in the Yakima Valley.          Once the target clients are served, the
applicant proposes to open the service to general community clients. The facility
will initially serve 30 to 50 children, with a goal of expanding service to serve up
to 97 children. Initially, the day care center will be open Monday through Friday


Final Revised Decision                     4
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
from 6:30 a.m. to 7:00 p.m. After daytime hours are established and stable, the
applicant hopes to extend childcare service to 12:30 a.m. in order to serve parents
who work swing shifts. Weekend service may be added in the future, based on
demand. Weekend capacity would be on a smaller scale, serving a maximum of
45 children with 5 staff members. The day care center will be located in two areas
in the building (areas A and B) and will utilize the interior courtyard for a
playground area. A van will be used to transport 16 of the children from the Riel
House facility, with transportation scheduled at 8:00 a.m. and returning at 5:00
p.m. It is anticipated that the other children will be dropped off between 7:00 a.m.
to 8:00 a.m. and picked up from 4:00 p.m. to 6:30 p.m. Traffic is expected to be
sporadic when the hours are extended, as shifts will vary from parent to parent.
       ii) Group Home: The applicant proposes to provide housing for 16 to 19
women and their children with one on-site manager. Triumph Treatment Services
has been operating housing programs for individuals in recovery for 13 years. A
total of 23 rooms will be devoted to this program. The women will each have
their own room and additional room(s) depending upon the number of children.
The number of children residing with their mother at the facility at any one time is
estimated to be from 10 to 20. The women will be individuals who are in recovery
from chemical dependency. They will all have completed at least one phase of
treatment and will be seen regularly by a case manager. All of the women will be
working toward becoming independent and self-supporting. The families will
typically live in the low-income housing for up to 18 months.
       iii) Commercial Kitchen: The applicant proposes to operate the existing
commercial kitchen in the facility for several purposes. Meals and snacks will be
prepared for the childcare program as well as the housing program. Additionally,



Final Revised Decision                   5
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
meals will be prepared for the Riel House program, which is located on the EPIC
Place campus. Food will also be prepared for a number of EPIC programs under
contract. A food service manager will supervise the kitchen. Deliveries for the
kitchen will approximate the number required for the prior nursing home
operation. Most of the food will be received in bulk deliveries to minimize the
traffic. Meals will be delivered by van to the EPIC Place campus three times a
day, at 7:00 a.m., 11:00 a.m. and 5:30 p.m.


Transportation Capacity Management Ordinance. Review for compliance
with Traffic Concurrency was conducted and approved on September 14, 2004.
Traffic from the proposed development will not exceed the capacity of the Arterial
Street system, and all impacted Arterial Street segments have sufficient reserve
capacity. The net increase in PM Peak Hour traffic is expected to be 61 additional
trips.


SEPA Environmental Review. A preliminary Mitigated Determination of
Non-Signficance (MDNS) was issued on October 29, 2004. After an additional
14-day comment period, the final Mitigated Determination of Non-Significance
was issued by the City of Yakima on November 18, 2004 pursuant to WAC 197-
11-340(2). The SEPA appeal period ended on December 3, 2004. A SEPA appeal
was timely filed on December 1, 2004 contending that significant adverse
environmental effects regarding storm water control, public safety, refuse and
odors and traffic require preparation of an Environmental Impact Statement (EIS).


Public Comments and Testimony. There were a total of 32 comment letters


Final Revised Decision                   6
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
received concerning the application. Of those, 31 were opposed to the proposed
uses and one was not opposed so long as the proposed uses remain as described in
the application. Three petitions which were worded somewhat differently and
which contained more than 100 signatures, some of which appeared on more than
one petition, were submitted against the proposal.       The signers in essence
expressed the view that the proposed uses would negatively impact the
neighborhood and be inconsistent with the neighborhood because of increased
traffic on North 35th Avenue which is not a fully-developed street and on
Roosevelt Avenue which is a dead-end street; because of a threat to community
safety due to the high recidivism rate of chemically dependent persons; because of
increased crime, vandalism and possible injury or loss of life due to an element of
society involved in drug trafficking that would be drawn to the area; because of
noise from increased traffic; because of odor from an increase in garbage; because
of lower property values that would result from all of said negative impacts to the
area; and because of related concerns. Extensive testimony and many written
comments were also submitted relative to the negative stormwater, public safety
and traffic effects that would result from opening North 34th Avenue which was
called Frankland Lane before the City changed the designation of streets within
the City some time ago. An outline relating to the points raised in the SEPA
appeal, together with attachments such as news articles relating to the proposal
and to the problems involving the applicant‟s Yakima Avenue facility where male
residents were substituted for female residents contrary to the wishes of the
neighbors, were submitted at the hearing. One additional letter was submitted at
the hearing. Color photographs of the area around the proposed facility and of
other facilities operated by the applicant were submitted both before and during



Final Revised Decision                   7
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
the hearing. Sworn testimony was presented by 25 people at the hearing. Seven
people testified in favor of approval of the application, 15 people testified against
approval of the application and three people were City staff members who
provided technical information. To detail the testimony presented during the
hearing which lasted more than four hours would unduly protract this already
lengthy opinion. Suffice it to say that the Hearing Examiner studied all of the
written comments and submittals before and during the hearing, listened carefully
to all of the testimony at the hearing, again reviewed the written evidence after the
hearing and reviewed his notes after the hearing before issuing this decision. The
fact that some of the points that were made in the course of this Class (3) hearing
process are not referenced in this decision does not mean that they were not
considered. The persons submitting documents and testimony at the hearing were
most courteous and genuine. It would be preferable to the Hearing Examiner if
everyone‟s wishes could be honored in this process, but unfortunately this process
of necessity involves a balancing of competing interests which invariably leaves
people on one or both sides of an issue dissatisfied.
       The Hearing Examiner‟s Decision was appealed to the City Council which
held a closed record hearing on February 14, 2005 and March 1, 2005.               It
remanded the matter to the Hearing Examiner for further proceedings. A hearing
on remand was held on March 16, 2005 where additional evidence was accepted in
the form of factual statements by the three attorneys who were representing the
parties. This decision is revised to contain the changes that were made in the
original decision as a result of the proceedings on remand. Again, the reasons for
the Hearing Examiner‟s decision will hereafter be explained in detail.




Final Revised Decision                    8
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
SEPA MDNS Appeal Criteria. The Hearing Examiner‟s decision regarding
the appeal of the SEPA Responsible Official‟s Mitigated Determination of Non-
Significance (MDNS) properly involves a consideration of the conditions imposed
upon the applicant by means of the MDNS, the appellant‟s contentions regarding
the inadequacy of the MDNS, the legal principals governing review of an MDNS,
and the application of the pertinent legal principals to the facts involved in this
particular application, which subjects are addressed as follows:


      a) Nature of MDNS Conditions Imposed upon the Applicant: The
MDNS for this application imposes the following six conditions upon the
applicant:

       “A. Dust/Asbestos Control: Prior to any demolition or renovation work, an
       asbestos survey must be conducted in accordance with Yakima Regional
       Clean Air Authority specifications. Asbestos must be removed only if
       renovation work would disturb asbestos. If the project includes any work
       that would disturb soil stability, it is subject to the requirement to submit a
       dust control plan for approval by YRCAA.

       B. Storm Water Control: Washington Department of Ecology shall be
       contacted to schedule a site inspection to determine if a General Stormwater
       Permit is needed. All other applicable local, state, and federal stormwater
       permits and other requirements shall be obtained or met.

       C. Public Safety: The street barricade at the intersection of North 34th and
       Roosevelt Avenues shall be removed and a secondary access for the public,
       and for emergency and street maintenance equipment shall be
       constructed to applicable City of Yakima standards. Once the barricade is
       removed, the applicant shall be responsible for patching of the asphalt and
       repair of any damage to the street surface.




Final Revised Decision                    9
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
       D. Fire Protection. A new public fire hydrant shall be installed to provide
       adequate fire flow to the proposed facility. Placement of the hydrant and
       service lines shall meet design criteria of the Uniform Fire Code and Water
       Division. Mitigation for fire safety shall also include removal of all
       overgrown landscaping on subject property.

       E. Refuse/Odors: View-obscuring screening shall be provided between the
       garbage collection bins and adjacent residential uses. Garbage collection
       area shall be maintained on a regular basis and in such a manner as
       necessary to avoid on- and off-site odors and insect infestation.

       F. Traffic: Review for compliance with Traffic Concurrency was
       completed 9/13/04. A total of 61 PM peak hour trips are expected to be
       generated by this development. Adequate reserve capacity exists on all
       impacted street segments. Traffic from the commercial kitchen shall be
       restricted to normal daytime business hours, no later than 7:00 pm, to limit
       noise and emissions.”



       b) Appellant’s Arguments Regarding Inadequacy of the MDNS: The
appellant‟s “Attachment to Appeal of State Environmental Policy Act (SEPA)
Decision dated 11/18/04” asserts four grounds for appealing the MDNS.
       First, it states in essence that stormwater control will be problemmatic
because there are no curbs or stormwater improvements on North 34th Avenue;
because removal of the barricade and curb on Roosevelt Avenue will cause
substantial additional stormwater and wastewater to be diverted to North 34th
Avenue; because stormwater in the past has entered a residence on the east side of
North 34th Avenue; because there is stormwater runoff on the east and north sides
of the facility that affects North 34th Avenue; and because no study has been made
of the water diversion.
       Second, the attachment to the SEPA appeal states in essence that significant



Final Revised Decision                  10
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
adverse public safety effects will result from the removal of the barricade on North
34th Avenue because it is too narrow to be used for public access, for emergency
vehicles or for commercial vehicles; because there are no sidewalks or curbs on
North 34th Avenue; because the residence on the east side of North 34th Avenue is
not set back enough to meet current codes; and because there is no room for
widening North 34th Avenue.
       Third, the attachment to the appeal states in essence that the proposed
location of the garbage/refuse container adjacent to the front yard and front door
of the residence to the west should be changed to the south or east side of the
building to prevent odors from reaching that residence immediately to the west of
the facility.
       Fourth, the attachment to the appeal states in essence that significant
adverse traffic effects will result from the removal of the barricade on North 34 th
Avenue; that appellant disagrees with the estimate of 61 additional PM peak hour
trips as a result of the proposed uses; that the MDNS does not address traffic
issues on North 34th Avenue; that North 34th Avenue is too narrow to handle
increased traffic that would result from removal of the barricade; that residents
park on North 34th Avenue; that North 34th Avenue has historically been used only
as a marginally sufficient private access for the five homes on that street for over
30 years; that the right of way for North 34th Avenue east of its present location
cannot be used because two existing homes are in the right of way; that since
residents paved North 34th Avenue as a private lane without providing a
compacted gravel base required for normal City streets, it will deteriorate quickly
if subjected to increased traffic; and that the barricade was originally installed by
the City to create a dead-end street for the benefit of the residents who live on



Final Revised Decision                   11
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
North 34th Avenue by eliminating excessive traffic on that street.
       In addition, an attorney who testified in opposition to the application, Mr.
Wiley Hurst, submitted a written outline of the position of the neighbors regarding
the SEPA appeal which reiterates the concerns contained in the attachment to the
appeal and additionally asserts that a traffic study is needed to consider the
adverse effects from opening of North 34th Avenue to through traffic because it
would show that there is no effective way to mitigate the significant adverse
effects of increased traffic over that street; that a Drug Rehabilitation Facility is
not listed as a potential use in Table 4-1 of the zoning ordinance; that Drug
Rehabilitation Facilities such as Sundown M Ranch are located in remote areas
because they are not compatible elsewhere due to walk-offs from the facility and
drugs being brought into neighborhoods; that there is nothing that prevents the
applicant from allowing men to reside at the group home as was done at its
Yakima Avenue facility; and that the applicant‟s track record regarding the lack of
cooperation with its neighbors at its Yakima Avenue facility causes the neighbors
of this facility to question the applicant‟s motives.


      c) Applicable Legal Principals: Washington appellate courts have held
that a Mitigated Declaration of Non-Significance (MDNS) is an effective means of
conditioning proposals to reduce impacts to an acceptable level (Hayden v. City of
Port Townsend, 93 Wn.2d 870, 880, 613 P.2d 1164 (1980)); that SEPA requires
the reduction of adverse environmental impacts to an acceptable level rather than
the elimination of same (Anderson v. Pierce County, 86 Wn.App 290, 936 P.2d
432 (1997)); and that the determination of the SEPA Responsible Official should
be given substantial weight because of his experience and expertise in such



Final Revised Decision                    12
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
matters. One of the clearest discussions of the relevant principles to be applied to
properly consider and decide an appeal of a SEPA MDNS is found in the
Washington Court of Appeals case of Anderson v. Pierce County, 86 Wn.App.
290, 936 P.2d 432 (1997) which held at pages 303 and 304:
           “The Legislature created the MDNS process to encourage agencies and
       applicants to work together to reduce the impacts of a project below the
       threshold level of significance. WAC 197-11-350. With an MDNS,
       promulgation of an EIS and intense public participation are rendered
       unnecessary because the mitigated project will no longer cause significant
       adverse environmental impacts.
           Use of mitigation to bring projects into compliance with SEPA, without
       promulgation of an EIS, has been viewed favorably by the Washington
       courts. The Washington State Supreme Court deems the MDNS process to
       be „eminently sensible.‟ Hayden v. City of Port Townsend, 93 Wn.2d 870,
       880, 613 P.2d 1164 (1980), overruled on other grounds, SANE v. Seattle,
       101 Wn.2d 280, 676 P.2d 1006 (1984). The Court of Appeals, Division
       One, has held:
                  „SEPA encourages compromise and accommodation by requiring
              that the decisionmaker consider mitigation and state why it is
              inadequate to relieve the adverse impact. When the decisionmaker
              imposes some mitigation measures, this does not necessarily mean
              that unmitigated impacts no longer exist or will be totally eradicated
              by mitigation, but merely that as mitigated, the project as a whole is
              acceptable.‟
       Victoria Tower Partnership v. City of Seattle, 59 Wn.App. 592, 603, 800
       P.2d 380 (1990) (footnote omitted).
           Similarly, the Washington Department of Ecology (DOE) has favorably
       characterized the MDNS process as conducive to efficient, cooperative
       reduction or avoidance of adverse environmental impacts:
                  „The mitigated DNS provision in WAC 197-11-350 is intended
              to encourage applicants and agencies to work together early in the
              SEPA process to modify the project and eliminate significant
              adverse impacts. The mitigated DNS process is not intended to
              reduce the amount of environmental review done on a project, but to
              reduce the paperwork needed to document the process.‟



Final Revised Decision                  13
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
      Richard L. Settle, DOE Interpretations of Determination of Non-Significant
      Provisions, in 1988 SEPA HANDBOOK, G-1 to G-6, app. at 466.
          The propriety of bringing a proposal below the significance threshold by
      informally negotiating project modifications has been embraced by the
      SEPA Rules and reined in by the requirements of WAC 197-11-350.
      RICHARD L. SETTLE, THE WASHINGTON STATE ENVIRONMENTAL POLICY
      ACT – A LEGAL AND POLICY ANALYSIS § 13(d)(vi), at 137-39 (1987). The
      SEPA Rules provide that if in the course of formulating an MDNS, the lead
      agency determines that „a proposal continues to have a probable significant
      adverse environmental impact, even with mitigation measures, an EIS shall
      be prepared.‟ ”

      Furthermore, this State‟s SEPA regulations regarding mitigation measures
found in Subsection 197-11-660(1)(e) of the Washington Administrative Code do
not allow additional mitigation measures to be imposed to mitigate environmental
effects that are mitigated to an acceptable level by compliance with specific local
development standards and with those limited mitigation measures necessary to
fill the gaps in local regulations as to identified impacts. The need to rely on
compliance with specific development requirements to provide SEPA mitigation
measures has been upheld by the recent Court of Appeals case of Moss v. The City
of Bellingham, et al., 109 Wn.App. 6, 31 P.3d 703 (2001) which held at page 22:

         “SEPA officials are authorized to rely as much as possible on existing
      plans, rules and regulations, filling in the gaps where needed by imposing
      mitigation measures under SEPA. It is not an all-or-nothing proposition, as
      characterized by appellants.”



      d) Application of the Legal Principals to the Facts of this Application:
Relative to the significance of adverse impacts that would result from the proposed
group home use here requested, it should first be noted that the summary of



Final Revised Decision                  14
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
additional points in support of the SEPA appeal which was submitted at the
hearing is incorrect in asserting that the applicant‟s proposed group home use is
not listed in Table 4-1 of the UAZO. The applicant indicates that the women who
will be residing at the facility will have already successfully completed an
extensive alcohol and/or drug treatment program elsewhere before being accepted
at the proposed facility. But even if the group home were characterized as a drug
rehabilitation facility, such is within the definition of a group home and such is
designated by Table 4-1 as a Class (2) use in the R-3 zoning district. Subsection
15.04.020(2) of the UAZO states a Class (2) use is “generally permitted.” Section
15.02.020 of the UAZO defines a group home as follows:


       “Group Home means a place for handicapped, physically or
       developmentally disabled adults, or dependent or predelinquent children,
       providing special care in a homelike environment. This definition does not
       include homes of this nature for six or fewer persons, excluding house
       parents.”

       The Washington Supreme Court has limited the type of evidence that can
be considered in determining whether probable significant adverse environmental
effects will result from establishment of a group home. The Court has refused to
allow unsubstantiated subjective fears as to an adverse effect on property values or
the lack of safety to constitute a basis for denial of a special use permit for a group
home for troubled teens. The facts relative to the applicant‟s proposed group
home are similar to the facts analyzed by the Washington Supreme Court in the
case of Sunderland Family Treatment Services v. The City of Pasco, 127 Wn.2d
782, 903 P.2d 986 (1995). The Supreme Court in that case held at pages 794 and
795 that the following findings of the Pasco City Council were only supported by


Final Revised Decision                    15
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
neighbors‟ fears rather than expert testimony or other substantiated objective
evidence to support the finding of adverse impacts on, or incompatibility with, the
neighborhood:

              “Finding of fact 3: Although the location and height of the existing
              structure is consistent with the surrounding neighborhood, the
              operations involved by the proposed use will impair the value of
              adjacent properties by diminishing their desirability as single-family
              residential units due to concerns for the safety of elderly
              homeowners and young families for their children.
          Sunderland and the City agree this finding is based upon fears of
      neighborhood residents rather than more objective evidence, such as real
      estate expert opinion. In the past, this court has acknowledged that
      neighbors‟ fears may reduce property values. See Park v. Stolzheise,
      24 Wn.2d 781, 793-94, 167 P.2d 412 (1946) (location of a sanitarium for
      mental patients). However, there is an important distinction between well
      founded fears and those based on inaccurate stereotypes and popular
      prejudices. See J.W. v. Tacoma, 720 F.2d 1126, 1132 n.7 (9th Cir. 1983).
      Courts have long held the latter cannot justify zoning restrictions.
      E.g., Buchanan v. Warley, 245 U.S. 60, 82, 38 S. Ct. 16, 62 L. Ed. 149
      (1917) (zoning restrictions based on race).
          In this case, there is no evidence the Home would have any effect on the
      safety of the elderly or children in the area. Any reduction in property
      values would be based on unsubstantiated fears with regard to teenagers
      from troubled families. This is not competent nor substantial evidence to
      support the City‟s finding.
              Finding of fact 4: The proposed use will concentrate at a single
              residential site juveniles under the age of eighteen who come from
              troubled families and backgrounds with the high probability of
              bringing more objectionable noise, concerns for security, and other
              nuisance activity to the neighborhood than the existing residential
              family units provide.
          Like finding of fact 3, this finding rests on testimony by neighbors as to
      their fears about the Home. This testimony was countered by testimony
      from Sunderland, specifically stating the Home‟s residents would be
      supervised at all times by at least two trained adults, that drugs and alcohol


Final Revised Decision                  16
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
      would not be tolerated, and friends and relatives would not be allowed to
      visit. Therefore, this finding also rests on unsubstantiated fears rather than
      substantial evidence.
              Finding of fact 5: The proposed use is better located in a
              neighborhood more transitional in nature from residential to
              commerce. This neighborhood is a stable, long-standing residential
              neighborhood.
          The first sentence of this finding is a conclusion rather than a finding of
      fact. There is no evidence in the record with regard to any alternative
      sites.”

      In addition to the Washington Supreme Court‟s requirement of objective,
substantial evidence of the type normally presented by expert witnesses in order to
justify the denial of an application to establish a group home, the applicant‟s
attorney, Mr. James Carmody, also presented evidence concerning a Washington
State statute and a federal court decision bearing upon the type of alleged adverse
effects upon a neighborhood that can properly be considered relative to an
application to establish a group home.         Specifically, this State‟s Growth
Management Act provides as follows in Section 36.70A.410 of the Revised Code
of Washington:

      “No county or city that plans or elects to plan under this chapter may enact
      or maintain an ordinance, development regulation, zoning regulation or
      official control, policy or administrative practice which treats a residential
      structure occupied by persons with handicaps differently than a similar
      residential structure occupied by a family or other unrelated individuals.
      As used in this section, „handicaps‟ are as defined in the federal fair
      housing amendments act of 1988 (42 U.S.C. Sec. 3602).”

      A federal district court in New York invalidated the efforts of the Town of
Babylon to accommodate neighbors residing near a facility named Oxford House
where five to eight men who were recovering from drug and/or alcohol addictions

Final Revised Decision                  17
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
were allowed to reside. When the neighbors complained to the town about the
facility, a town meeting was held where numerous residents voiced their hostility
toward the facility and expressed fears for the safety of children and senior
citizens. They asserted that individuals recovering from addictions engage in
irrational, unpredictable and criminal behaviors that are a threat to the community.
The town council thereafter started an eviction action against the residents to
appease their neighbors. The town‟s basis for the eviction action was that its
zoning ordinance only allowed up to four persons who were neither related by
blood, marriage nor adoption to live in a facility as a family in its residential
zoning districts.The federal court held in the case of Oxford House, Inc. v. Town of
Babylon, 819 F.Supp. 1179 (E.D.N.Y. 1993) that the town‟s eviction action
violated federal law. The court decided that the town‟s attempt to prohibit this
type of resident within its residential districts was discriminatory under the Fair
Housing Act. It found that the town‟s eviction action, if successful, would have a
disparate impact on handicapped persons and that the town was required to make
an exception to its ordinance limiting the number of unrelated persons who could
live together in order to reasonably accommodate handicapped persons.
Specifically, the court‟s reasoning included the following observations:

       “Under the FHA, it is unlawful to discriminate in the sale or rental, or to
       otherwise make unavailable or deny a dwelling to any buyer or renter
       because of a handicap. 42 U.S.C. Sec. 3604(f)(1). A person is
       handicapped if he or she has a mental or physical impairment. 42 U.S.C.
       Sec. 3602(h). It is well established that individuals recovering from drug or
       alcohol addiction are handicapped under the FHA. [citations omitted]. A
       plaintiff can establish a violation under the FHA by proving the disparate
       impact of a practice or policy on a particular group, [citation omitted] or by
       showing that the defendant failed to make reasonable accommodations in
       rules, policies, or practices so as to afford people with disabilities an equal

Final Revised Decision                   18
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
      opportunity to live in a dwelling. 42 U.S.C. Sec. 3604(f)(3)(B). Once an
      FHA violation is established, the plaintiff is entitled to injunctive relief.
      [citation omitted]. [page 1182].
      …
      Recovering alcoholics or drug addicts require a group living arrangement in
      a residential neighborhood for psychological and emotional support during
      the recovery process. … Paul Molloy, a founder of Oxford House, attested
      that recovering alcoholics such as Oxford House residents „have discovered
      that, only by living with other recovering individuals, do the chances of
      staying drug and alcohol free increase greatly. …The supportive
      environment of an Oxford House gives the recovering individual in times
      of stress the opportunity to talk to other recovering persons who understand
      the day to day problems associated with recovery.‟ (Declaration of Paul
      Molloy, paragraph 24) This testimony is unrefuted by defendants.” [page
      1183].
      …
      Even if the Town‟s proposed eviction of plaintiffs does not have a disparate
      impact on handicapped persons, the Court nevertheless finds that
      defendant‟s conduct constituted discrimination as it is defined in 42 U.S.C.
      Sec. 3604(f)(3)(B). Under the FHA, it is a discriminatory practice to refuse
      to make „a reasonable accommodation in rules, policies, practices or
      services when such accommodation may be necessary to afford [a
      handicapped] person equal opportunity to use and enjoy a dwelling.‟ 42
      U.S.C. Sec. 3604(f)(3)(B).         Courts have unanimously applied the
      reasonable accommodations requirement to zoning ordinances and other
      land use regulations and practices. [citations omitted] [page 1185].
      …
      Plaintiffs have demonstrated that as recovering alcoholics and drug addicts,
      they must live in a residential neighborhood because an Oxford House
      „seeks to provide a stable, affordable, and drug-free living situation so as to
      increase the likelihood that a person will stay sober.‟ (Plaintiff‟s statement
      paragraph 6). In Township of Cherry Hill, the court held that the location
      of the houses in a drug-free single family neighborhood played a crucial
      role in the individual‟s recovery by „promoting self-esteem, helping to
      create an incentive not to relapse, and avoiding the temptations that the
      presence of drug trafficking can create.‟ Township of Cherry Hill, 799
      F.Supp. at 450. This Court finds that reasoning persuasive. Because an
      Oxford House cannot exist in a single family, residential district under the

Final Revised Decision                  19
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
       Town Code, a modification of the definition of a „family‟ in plaintiffs‟
       situation is warranted so that they may have the same opportunity to rent a
       house as do persons without handicaps.” [page 1185].

These legal authorities must guide the Examiner‟s consideration of the applicant‟s
request for approval of a group home use. They require the City of Yakima to
reasonably accommodate the applicant‟s proposed group home use. The applicant
does not oppose the mitigating measures imposed by means of the Mitigated
Declaration of Non-Significance, nor for that matter the substantial conditions
recommended as conditions of approval of the applicant‟s proposed Class (2)
group home use.      But the appellant nevertheless advances several reasons in
support of its request to reverse the MDNS and to require the preparation of an
Environment Impact Statement (EIS).
       Taken together with the conditions to be imposed on the Class (2) group
home use, the mitigating conditions of the MDNS reduce the adverse
environmental impacts of the proposed group home in the existing building for up
to 19 adult residents, together with their children, to an acceptable level that is
something less than significantly adverse. There are adverse impacts from nearly
every change in the status quo, but the requisite balancing of the respective
interests necessitates an accommodation of at least a moderate number and degree
of adverse impacts under SEPA. This is especially true here where there is an
affirmative obligation on the part of the City to reasonably accommodate the
establishment of group homes in residential areas in order to facilitate the total and
permanent recovery of the residents of such homes. In view of the reluctance of
the courts to allow land use decisions to be based upon subjective fears or to
condone official governmental decisions that fail to reasonably accommodate the



Final Revised Decision                   20
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
needs of persons recovering from alcohol and/or drug addictions, the MDNS will
be affirmed by the Examiner as it relates to the proposed group home use. The
applicable legal parameters for the Examiner‟s consideration of the proposed
group home use clearly suggest that the SEPA Responsible Official‟s decision
regarding mitigating measures should be given substantial weight because of his
expertise in such matters. The applicable legal principals as applied to the weight
of the evidence presented here lead to the conclusion that the SEPA Responsible
Official‟s mitigating measures are sufficient to reduce the adverse environmental
impacts of the proposed group home to an acceptable level that avoids the need for
preparation of a full-blown Environmental Impact Statement (EIS).                The
neighbors‟ objections to the proposed group home use, being unsupported by any
expert evidence and being countered by the experts in the field of substance abuse
treatment who testified in favor of the application, cannot be the basis for denial of
the residential use of the facility for up to 19 residents, some of whom will have
their children residing with them, who have already undergone extensive treatment
elsewhere and who have been screened as to their likely disposition to abstain
from all alcohol, drugs and criminal conduct while they are residing at the facility.
       As to the adequacy of the mitigating measures imposed upon the applicant
by the MDNS relative to the proposed commercial kitchen, no written comments
or testimony persuasively contended that the proposed commercial kitchen use
would result in any probable significant adverse environmental impacts. The use
would be conducted within an existing kitchen that is well-adapted for the
proposed use. The traffic created by the proposed use would be minimal. In short,
there is no need to belabor the reasons for the Hearing Examiner‟s decision to
affirm the MDNS conditions as adequate to mitigate to an acceptable level any



Final Revised Decision                   21
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
probable adverse environmental effects resulting from the applicant‟s proposed
commercial kitchen use.
       The final and most difficult issue presented in this SEPA appeal is whether
the probable adverse environmental effects of the applicant‟s proposed day care
center use are reduced to an acceptable level so as to dispense with the need for
preparation of an EIS for that use.
       In regard to the adverse environmental effects caused by lack of an
adequate stormwater system to protect the residents along North 34 th Avenue and
east of the facility from stormwater, such a protective stormwater system will be
required of the applicant as a condition of approval of the Class (2) use. The issue
of stormwater control is addressed in the MDNS in part by requiring compliance
with other local stormwater requirements. A common local requirement is that
stormwater has to be either retained on the site or diverted to a stormwater system
that will prevent it from flowing onto neighbors. That will be imposed as a
specific condition of approval of the Class (2) uses as a specific method of
implementing the more general MDNS condition to comply with all local
stormwater requirements. That requirement will also apply to North 34th Avenue
insofar as the applicant will be required to design and install stormwater
improvements which will perform the same stormwater control functions after the
existing barricade and curb are removed from North 34th Avenue that the barricade
and curb themselves now perform. The stormwater improvement at the south end
of North 34th Avenue will have to be designed and installed to prevent any water
in addition to what flows onto North 34th Avenue with the barricade and curb in
place from flowing onto North 34th Avenue after same are removed. This will
require a stormwater plan, engineered drawings and/or other documentation



Final Revised Decision                  22
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
showing stormwater improvements as may be specified by the Planning Division
and other appropriate City departments or divisions to be submitted for approval
and thereafter constructed to City standards by the applicant. In regard to the
adverse effect on traffic safety on North 34th Avenue, the mitigating condition of
the SEPA MDNS requiring permanent removal of the existing barricade so as to
allow secondary public access to the applicant‟s facility and to the neighborhood
over that street will be modified by this decision so as to require the barricade to
be replaced by a break away gate or other similar device approved by the City to
allow access only by emergency and street maintenance vehicles.
       In regard to the adverse effect upon the neighbor to the west that could be
caused by odors from the garbage container, it is not clear from the evidence that
the garbage and refuse from the proposed uses will cause any more odor than the
garbage and refuse from the previous nursing home use caused. The testimony is
that the existing garbage container is actually a trash compactor that is not prone to
odors. The conditions imposed by the MDNS should likely solve that problem by
the requirement for screening of the garbage container(s) from adjacent residential
uses and the requirement to schedule collection of the garbage in such a manner as
to avoid on- and off-site odors. If for some reason collection cannot be arranged
often enough to avoid an odor problem, a condition will be added to the effect that
the applicant will comply with any future directive of the Planning Division to
relocate the garbage container(s) if odor becomes a problem for the residence
immediately west of the facility.
       In regard to adverse effects from increased traffic over affected streets, the
61 PM peak hour determination cannot effectively be questioned without offering
a different PM peak hour figure for consideration, which was not done at the



Final Revised Decision                   23
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
hearing or in the written comments or materials that were submitted. It is true that
the City‟s traffic concurrency review only addresses arterial streets, but the
mitigating factors described above relative to public safety concerns will be
recommended to be undertaken as needed to avoid a significant traffic problem.
But relative to the future effect of increased traffic that can be known at this time,
the testimony at the original hearing was to the effect that the barricade does in
fact need to be removed in order to allow adequate ingress to and egress from the
area by the public, emergency vehicles, street cleaning equipment and snow
removal equipment. The additional testimony as a result of the remand of the
matter by the City Council for a further hearing was to the effect that the barricade
can be replaced by a break away gate, breakaway barricade or other approved
device so as to prohibit public access without compromising the effectiveness of
emergency services or street maintenance functions. Since the evidence has been
supplemented to establish that a break away gate or similar device that will
comply with the International Fire Code can be utilized without impairing
emergency services or street maintenance functions, it will not be necessary to
leave North 34th Avenue open to public travel. To the extent that the proposed
uses, particularly without the benefit of a secondary access over North 34th
Avenue, will result in increased noise from increased traffic on Roosevelt Avenue,
mitigating measures such as signage, enforcement efforts and other conditions
regulating the extent and duration of traffic on Roosevelt Avenue attributable to
the applicant‟s day care use will be imposed as conditions in this Class (3) review
process to promote compatibility with the area. The additional conditions will
essentially include important details that are either contained in the applicant‟s
description of the proposed uses in its application or in its testimony at the public



Final Revised Decision                   24
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
hearing or details that are justified by the written comments, submittals and
testimony of residents of the neighborhood at the hearing. They are not necessary
to prevent the proposed uses from having probable significant adverse
environment effects, but are imposed under the Examiner‟s authority to impose
conditions on Class (2) uses to promote compliance, compatibility and consistency
with the Comprehensive Plan and zoning ordinance provisions. That authority is
set forth in Subsections 15.04.020(2), 15.14.040(4), 15.14.040(5), 15.15.040(4)
and 15.15.040(5) of the UAZO relative to the Examiner‟s authority to condition
Class (2) uses that are reviewed under the Class (3) public hearing process. With
one change in the SEPA MDNS that will require installation of a break away gate
or similar device to prevent public access to the applicant‟s facility or to the
neighborhood over North 34th Avenue in order to preserve the status quo for the
residents on that street, the Examiner is of the opinion that the SEPA Responsible
Official‟s mitigating measures are entitled to substantial weight and are adequate
to mitigate all probable adverse effects of the proposed uses to an acceptable level
without requiring the applicant to prepare a full-blown EIS for the proposed uses.


Class (3) Review Criteria. This application has been referred to the Hearing
Examiner for review of two proposed Class (2) uses and one unclassified use
through the Class (3) public hearing process as authorized by Subsection
15.14.040(3)(e) of the UAZO which allows the administrative official to refer an
application “to the Hearing Examiner for review, public hearing and decision.” As
such, the Examiner‟s findings and conclusions are required to set forth specific
reasons and ordinance provisions demonstrating that the decision satisfies the
following criteria in Subsections 15.04.020(3) and 15.15.040(5) of the UAZO.


Final Revised Decision                  25
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
       1.     Compliance and Compatibility with the Objectives and
Development Criteria of the Comprehensive Plan. The proposed use satisfies
this requirement. The Future Land Use Map (map III-3) of the 1997 Yakima
Urban Area Comprehensive Plan designates the subject property as suitable for
high-density residential development. The requested uses are residential uses in
the sense that adults will be living with their children in the facility, children will
be cared for in the facility and meals will be cooked in the facility. The proposed
uses are compliant and compatible with objective G1 which is to encourage the
physical development of the Yakima Urban Area in a manner that enhances its
image as the cultural and business center; Objective S1 which is to encourage the
location of public and semi-public facilities in a manner consistent with the sector
of the community which they are intended to serve; Goal H1 which is to
encourage diverse and affordable housing choices; and Policy H1.6.2 which is to
encourage compatible infill of existing neighborhoods to encourage the
distribution of various housing types and development densities in the community.
       2. Compliance and Compatibility with the Intent and Character of the
Multi-Family Residential (R-3) Zoning District. The Multi-Family Residential
(R-3) zoning district fully implements the Comprehensive Plan‟s designation for
high-density residential development. Table 4-1 in Chapter 15.04 of the Urban
Area Zoning Ordinance (UAZO) indicates that day care centers and group homes
are Class (2) uses within the R-3 zoning district.          Subsection 15.04.020(2)
provides that “Class (2) uses are generally permitted in the district,” but that
“occasionally a Class (2) use may be incompatible at a particular location” so that
review is required “in order to promote compatibility with the intent and character
of the district and the objectives and development criteria of the Yakima Urban



Final Revised Decision                    26
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
Area Comprehensive Plan.” Section 15.04.040 of the UAZO provides that any
use not listed in Table 4-1 of the UAZO is an unclassified use permitted only as a
Class (2) or Class (3) use in those districts designated by the Hearing Examiner
after following the provisions of Chapter 15.22 of the UAZO to determine which
districts are appropriate for a particular unclassified use.    Section 15.22.040
provides that the Hearing Examiner shall clearly state the analysis and reasons
upon which any interpretation is based and, in the case of a use interpretation, how
the interpretation is consistent with the specific conditions established in Section
15.22.050 of the UAZO. Section 15.22.050 of the UAZO provides that no use
interpretation shall vary the location or review requirements for any use that is
listed in Table 4-1 or any home occupation listed in Table 4-2, and that no use
interpretation shall permit any use in any zoning district unless evidence is
presented which demonstrates that it will comply with the intent and development
standards of the particular district.    The requested Class (2) uses and the
unclassified use interpretation are being reviewed through the Class (3) review
process which additionally requires under Subsection 15.15.040(5) of the UAZO
that the final decision must also state the specific reasons upon which the decision
to approve, approve with conditions, or deny is based and demonstrate how the
decision complies with the provisions and standards that are established in the
UAZO.

       Subsections 15.03.030(4)(a) and (b) of the UAZO state that the Multi-
Family Residential (R-3) zoning district is intended for high-density residential
development and for only those other uses that are compatible with residential
uses. The proposed uses are compatible with residential uses in the sense that they
involve the types of activities characteristically associated with residential uses.


Final Revised Decision                  27
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
Living in a building as a residence where child care and where cooking occur are
types of activities characteristic of residential uses. The existing building has been
used for many years until recently for a nursing home, which also involved
activities characteristic of residential uses. The testimony indicated that the type
of residential activities that took place in the building for many years until 2002
were in fact compatible with the neighborhood.

       Relative to the proposed commercial kitchen use, there was no persuasive
evidence presented establishing any degree of incompatibility with the R-3 district
where it would be located. Commercial kitchens are not mentioned as a use in
Table 4-1 of the UAZO. But Table 4-2 of the UAZO permits “Food Preparation”
outright as a Class (1) home occupation use in the Multi-Family Residential (R-3)
zoning district and designates a “Catering Service” as a Class (2) home occupation
use in the Multi-Family Residential (R-3) zoning district. Although a “Catering
Service” is not specifically defined, Section 15.02.020 of the UAZO defines “Food
Preparation” as “a business, service or facility dealing with the preparation of food
items for off-site consumption” which includes “confectionaries, catering services,
preparation of food items for wholesale.” The proposed commercial kitchen use
would fall within the definition of a use permitted outright in this zoning district if
it were conducted within a home. The minimal number of trips to and from the
facility that will be involved in connection with the proposed commercial kitchen
use would have an impact outside the walls of the facility similar to that of a food
preparation use conducted within a residence. The proposed commercial cooking
would be conducted entirely within an existing building which, according to the
testimony, already has excellent kitchen facilities. A consideration of all the
circumstances presented here leads the Examiner to the conclusion that the


Final Revised Decision                    28
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
proposed commercial kitchen will be an appropriate use in this facility in the
Multi-Family Residential (R-3) zoning district so long as it is operated in
compliance with the limitations detailed in the application and in compliance with
the Class (3) conditions imposed by this decision.

       Insofar as the requested day care center and group home uses are
concerned, the neighbors‟ present fears that those proposed types of uses would
not be compatible with the neighborhood appear to be based partly on the type of
resident involved, rather than the type of residential use involved, and partly on
fear of adverse effects on the neighborhood even though the intensity of the
residential use in the existing building would in some respects be decreased.

       Opposition based on the type of resident includes opposition based on a
perceived threat to community safety due to a perceived high recidivism rate of
chemically dependent people and a perceived threat of crime, vandalism and
possible injury or loss of life due to perceived character traits of the perceived type
of people who may visit chemically dependent people. This type of opposition
relates primarily to the proposed group home use and is essentially stereotypical.
The Supreme Court of this State has been very protective of group home uses
because they potentially could not be located anywhere if community opposition
were a permissible basis for denying the use on incompatibility grounds and
because the evidence submitted in support of denying the use is often subjective
and based on stereotypical assumptions and unsubstantiated fears. This type of
opposition is too often based on subjective fears about worst-case scenarios that
could occur in the future rather than the opinion of experts as to what will
probably result in the future. And as explained above, this type of opposition
cannot legitimately be the basis for denying a group home use of the nature


Final Revised Decision                    29
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
proposed by the applicant without running afoul of State and federal laws against
discrimination on the basis of handicap.

       The intent of the R-3 district expressed in Subsection 15.03.030(4)(d) of the
UAZO is to “locate high-density residential development so that traffic generated
by the development does not pass through lower-density residential areas.” To
some extent, choices are limited in this regard because Roosevelt Avenue is not a
through street and the use of North 34th Avenue as a secondary public access will
not be allowed due to new evidence submitted on remand to the effect that traffic
impacts on North 34th Avenue can be mitigated by the installation of a break away
gate or similar device without impairing emergency and street maintenance
services. The resulting increased traffic noise concerns on Roosevelt Avenue can
be somewhat ameliorated by signage and enforcement efforts, as well as by the
applicant‟s efforts to use the parking area leased from the Seventh Day Adventist
Church for some of the day care center traffic. In addition, since the potential
traffic noise concerns for residents on Roosevelt Avenue will be most pronounced
during evening hours, the initial hours of operation of the day care center will be
limited to daytime hours, with a provision for the applicant to be able to apply for
extended hours of operation under the Class (2) review process after at least six
months of operation have indicated the extent of any noise concerns. That way
any actual, objective noise issues shown by actual operations can be more
effectively quantified and addressed, as needed, through the City‟s Class (2)
review process if the applicant seeks approval of extended day care center hours.

       Any deviation from the intent expressed in Subsection 15.03.030(4)(d)
already has occurred when the building was apparently constructed many years
ago and when a number of people thereafter decided to build or buy homes near


Final Revised Decision                     30
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
the facility which has been operated as a nursing home until 2002. While land use
regulations were different when the building was constructed in that area, the
people who thereafter built or purchased residences near that building were
subjected from the outset to a certain amount of traffic at all hours of the day and
night traveling to and from that building. This application would involve different
practical considerations if the proposal were to build a new structure to
accommodate the applicant‟s proposed uses rather than utilize an existing structure
that has already been utilized for many years up until 2002 as a nursing home.
The fact is that this is an application to utilize an existing building for legal uses
that benefit the community and involve the same type of activities characteristic of
a residential use that have already been conducted on the site for many years until
recently. The proposed change in the use of the existing building is in some ways
of less intensity than its use up until 2002. There will only be at most 19 full-time
residents of the building, together with perhaps 10 to 20 children, occupying
perhaps 23 rooms in a facility that used to house more than 50 full-time residents.
The new residents will be screened and their visitors will be screened for past
criminal conduct. There will be at most 97 children at the daycare center on
weekdays and at most 45 children there on weekends who will be allowed outside
the facility in an internal play area only and who will be delivered and picked up
by persons who will have to obey rules as to the type of driving and the extent of
noise allowed by State law on Roosevelt Avenue and on North 35th Avenue as a
condition of continued access to the facility. There will be staff working at the
facility and delivery vehicles providing supplies to the facility who will also have
to obey the same rules as a condition of their continued employment at the facility
and their continued deliveries to the facility.      The traffic generated by the



Final Revised Decision                   31
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
commercial kitchen use will be minimal. Although the written comments and the
testimony established the fact that the proposed uses will result in more traffic
through a single family residential district than was true of the former nursing
home use, the City‟s traffic study indicated that the proposed uses will not create
traffic on arterial streets beyond that allowed by its concurrency standards. The
adverse effects of increased traffic upon local access streets will be minimized by
the revised MDNS and Class (2) use conditions. Although opposition on the basis
of increased traffic is understandable, it does not, on balance, justify a request to
leave a building particularly adapted to the proposed uses vacant or available only
for uses generating the amount of traffic a nursing home would generate. Traffic
to some extent at all hours of the day and night has been characteristic of the
former use for many years until 2002.          Mitigating conditions will promote
compatibility with the neighborhood.

       Although the traffic concerns will probably not be reduced to a level
acceptable to some of the residents west of the facility, they will be reduced to a
level that can be reasonably expected to be generated by uses that the existing
building has been especially designed to accommodate. The proposed uses satisfy
objective traffic concurrency standards even though the City standards relate only
to arterial streets.   Objective standards adopted by the City properly guide
discretionary determinations as to the compatibility of particular uses on a case-
by-case basis. Increased traffic is rarely desirable, but it can be, as here, a normal
and expected result of change and growth adjacent to a low-density residential
neighborhood.

       Opposition based on odor concerns is not justified because the past and
proposed uses could both produce comparable odors absent requirements to screen


Final Revised Decision                   32
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
and remove garbage from the facility in a way that avoids odors which will be
imposed as a condition of approval of the proposed uses.

       Opposition based on potential stormwater problems is not justified where a
requirement to improve the existing stormwater system in a manner necessary to
prevent stormwater from running onto adjoining properties as it has been prone to
do in the past will be imposed as a condition of approval of the proposed uses.

       Opposition from owners of property adjacent to the west, northwest and
east boundaries of the applicant‟s parcel based on potential site screening issues is
not justified where the obligation to improve the existing site screening in a
manner acceptable to those neighbors, if possible, and otherwise in a manner
acceptable to the Planning Division, will be imposed upon the applicant.

       The conditions imposed by this decision will be continuing obligations
which will be enforceable in the manner prescribed by the UAZO. Although there
were comments and some testimony to the effect that the applicant has not been a
good neighbor at a different facility on Yakima Avenue, there was also testimony
that there was no intent to violate any of the City‟s conditions regarding that
operation and that the applicant is committed to working with the residents to
resolve stormwater problems and site screening issues, which will be conditions of
this decision. All the conditions of this decision are enforceable under Subsection
15.24.020(2) of the UAZO which provides that the applicant‟s permit for the uses
here approved can be revoked or modified if used contrary to the conditions of
approval or in violation of any statute, ordinance or law and if administrative
efforts by the Planning Division and/or building official have been ineffective.
Section 15.24.060 of the UAZO provides that other administrative or judicial



Final Revised Decision                   33
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
action may also be taken for a violation of any of the conditions of approval.
Section 15.24.080 of the UAZO provides that continued use or occupancy of land
or structures after revocation of an approval with knowledge of its revocation
constitutes a special violation of the UAZO punishable under Subsection
15.25.020(B) of the UAZO. Subsection 15.25.020(B) of the UAZO provides that
any person who continues to use or occupy land or structures with knowledge that
a permit or approval has been revoked under Chapter 15.24 of the UAZO shall,
upon conviction, be punished for each offense by a fine of not less than $250 nor
more than $500, or by imprisonment for not more than 90 days, or by both such
fine and imprisonment. It further provides that the minimum fine specified by that
subsection shall not be suspended or deferred.

      3. Compliance with the Provisions and Standards Established in the
Zoning Ordinance. Applicable provisions and standards in the zoning ordinance
include:

           a)   Standards noted as a result of the Development Services Team
meeting held for this project on August 25, 2004 are summarized as follows:
                i) Code Administration: Our records indicate that this building
already has fire sprinklers and the system has been serviced this year. There is a
question of enough sprinkler coverage in the basement, which was addressed in a
letter to the applicant in January of 2004. Scaled floor plans depicting the use of
each area are required upon approval of this application for review for necessary
exiting, exit signs, fire extinguisher locations, required bathrooms, accessibility
and fire alarm issues. Permits and inspection will be required before occupancy.




Final Revised Decision                  34
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
             ii) Fire Department: The following items relate to Fire Department
access and operations:
                    1) Overgrown landscaping presents access hindrance and an
exposure problem that would allow fire to spread quickly to structures and
improvements in proximity to this site.
                    2) Two hydrants are within usable proximity to this site. The
first hydrant is located at North 35th Avenue which requires a supply line of
approximately 400 feet. While acceptable, care needs to be used while laying the
supply line so that Roosevelt Avenue access is not blocked. The second hydrant is
a red Kennedy brand hydrant located across Roosevelt Avenue just off the
northwest corner of the site. There is a possibility that this is a private hydrant and
its flow characteristics are unknown. Besides that potential problem, use of this
hydrant would effectively cut off access for additional fire apparatus movement
and operation on the north and east sides of the site.
                    3) Removing the barricade at the south end of North 34th
Avenue would enhance access for both emergency and routine services. This
would also allow an additional hydrant to be accessed, not only for the applicant‟s
facility, but also for Fire Department access to the Ponderosa Retirement Center
located at 3300 Englewood Avenue.
                     4) The building should be equipped with a Knox Box for Fire
Department access unless the facility will be attended 24 hours per day.
             iii)   Engineering Division:      This is a pre-existing facility that is
connected to sewer and water. The existing right of way for North 34th Avenue is
25 feet dedicated by the plat of Dietz Addition in 1956. No further right of way
has been dedicated or deeded to increase the total to the normal 50 feet the City



Final Revised Decision                    35
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
currently expects in residential neighborhoods. Development in the neighborhood
prevents obtaining further right of way for this roadway. The roadway has a
paved surface, but no curb and gutter. The street is currently barricaded at the
Roosevelt Avenue end preventing through travel between Englewood and
Roosevelt Avenue. The date of installation and purpose of the barricade are
unknown. The City of Yakima Fire Dept. has indicated that the subject proposal
does not provide an adequate area to permit emergency vehicles and equipment to
maneuver during a fire or other emergency. It would like to have the barricade
removed to mitigate the access situation. The evidence on remand indicated that
the barricade can be replaced by a break away gate, break away barricade or other
device without impairing the provision of emergency and street maintenance
services. That will dispense with the need to keep 34th Avenue open for public
access.
             iv) Water Division: There are existing water mains in Roosevelt
Avenue and North 34th Avenue. A new public fire hydrant is needed in a location
to be determined by the City Code Administration Division. The nursing home
had a sprinkler system off the private line from the Ponderosa Retirement Center.
This project is required to provide a separate fire sprinkler service from a public
main to the facility. A new double check assembly is required for the requisite fire
sprinkler service if none currently exists.
             v) Traffic Engineering: The review for compliance with the Traffic
Concurrency Ordinance in Chapter 12.08 of the Yakima Municipal Code was
completed on September 13, 2004. A total of 61 PM Peak Hour trips are expected
to be generated by this development. Adequate reserve capacity exists on all
impacted street segments. The Yakima Fire Department recommends that North



Final Revised Decision                    36
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
34th Avenue be re-opened to allow for a secondary public access to this proposed
development. This recommendation was revised on remand to recommend a break
away gate or similar device be installed. Traffic Engineering concurs since the
proposed daycare facility will generate more traffic than the previous nursing
home use, but also changed its recommendation on remand in favor of a break
away gate or similar device. A quick review of public records indicates that North
34th Avenue was dedicated to public use as a street in 1956 as part of the Dietz
Addition Plat. Only 25 feet of width were dedicated for this narrow street and
there is no record to indicate the vacation of this street from public use. Once the
barricade is removed, the applicant should be responsible for patching of the
asphalt to repair damage to the street surface that has occurred over the years that
the street has been blocked off. Evidence submitted on remand confirmed that the
barricade can be replaced with a break away gate, break away barricade or other
device without impairing emergency and street maintenance services.
              vi) Wastewater: This facility will be placed on the Pretreatment
Program and charged a “SPT” sewer pretreatment charge on its bi-monthly sewer
bill. A sampling port will need to be installed in order for Pretreatment to obtain
representative samples of their wastewater discharge. A grease trap needs to be
installed if one is not already in the kitchen.
          b) Zoning ordinance provisions applicable to the proposed changes set
forth in Chapter 15.05 of the UAZO include the following:
              i) Setbacks: The existing structure complies with structure setbacks
that are required by Table 5-1 in Chapter 15.05 of the UAZO.
              ii) Parking: Table 6-1 in Chapter 15.06 of the UAZO establishes the
following off-street parking requirements for the proposed uses:



Final Revised Decision                     37
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
                  1) Day Care Center: One space for each employee and one
space for each six children.       At maximum capacity, 15 parking spaces for
employees and 17 parking spaces for children will be required.
                  2) Group Home: The off-street parking requirement is one
space for each two beds. The applicant estimates a total of 40 beds, one for the
resident manager and 39 for the women and their children. This requires a total of
20 parking spaces.
                  3) Commercial Kitchen: A parking standard has not been
established since Commercial Kitchens are not listed in the UAZO. The applicant
proposes to provide one parking space for the transport van, and three parking
spaces for the maximum of three cooks who would be on site at any given time. A
total of four parking spaces will be provided for the Commercial Kitchen.
                  4) A total of 41 parking spaces are currently available on the
subject property. The applicant has negotiated a shared parking agreement with
the Seventh Day Adventist Church located at 507 North 35th Avenue to meet the
off-street parking requirement for the proposed uses at this facility. The Church
has agreed to permit parking for 15 Triumph Treatment staff members as long as
the applicant adheres to the proposals contained in their original application.
             iii) Signage: A sign plan was not disclosed with this application.
Any proposed signage shall conform to sign standards as set forth in Chapter15.08
of the UAZO.
             iv) Site screening: Chapter 15.07 of the UAZO establishes site
screening standards to provide a visual buffer between uses of different intensity
and streets and structures, to reduce erosion and storm water runoff, to protect
property values and to eliminate potential land use conflicts by mitigating adverse



Final Revised Decision                   38
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
impacts from dust, odor, litter, noise, glare, lights, signs, building areas or parking
areas. Site screening requirements vary depending on the intensity of both the
proposed use and the uses in the neighborhood. After a site visit and review of
Table 7-l of the UAZO, it has been determined that this project will require site
screening meeting Standard “C” on the east and west property lines which consists
of a six-foot-high view obscuring fence made of wood, masonry block or slatted
chain link with, under certain circumstances, a planting strip outside the fence.
The exact location and type of screening shall be determined, if possible, by
agreement of the adjoining owner and applicant, and otherwise by the Planning
Division if agreement cannot be reached within a reasonable period of time. If
applicant‟s uses cause a problem of headlight glare or trespassing for the residence
north of the Church parking area, the Planning Division may need to require the
applicant to provide additional site screening north of its leased parking spaces.


Consistency of the Proposed Uses with Development Regulations and
the Comprehensive Plan under the Criteria Required by YMC
16.06.020B is determined by consideration of the following factors:
       a) The types of land uses permitted at the site include the proposed day
care center use and the proposed group home use which are allowed as Class (2)
uses in the R-3 zoning district and the proposed commercial kitchen use which is
allowed as an unclassified use in said zoning district so long as it is determined
through the Class (3) public hearing process that all the criteria for approval of
said uses are satisfied.
       b) The density of residential development and the level of development,
such as units per acre or other measures of density, as limited by the application


Final Revised Decision                    39
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
and the conditions of this decision, will be consistent with limitations of the
zoning ordinance relative to the high-density residential Multi-Family Residential
(R-3) zoning district.
       c) The availability and adequacy of infrastructure and public facilities
is not an issue here. Adequate public water and sanitary sewer services currently
serve the facility. Traffic from the proposed development will not exceed the
capacity of the arterial street system and all impacted arterial streets have
sufficient reserve capacity. The existing barricade on North 34th Avenue will be
removed and will be replaced by a break away gate, break away barricade or other
similar device approved by the City which will improve emergency and street
maintenance services. An additional fire hydrant and additional storm drainage
improvements will be required to be installed by the applicant to improve the
public fire suppression capabilities in the neighborhood and to help prevent
surface water from flowing from Roosevelt Avenue and from applicant‟s property
onto adjoining properties.
       d) The characteristics of the development, as discussed in detail above,
are consistent with applicable City development regulations and comprehensive
plan considerations.


                               CONCLUSIONS

   1. The Hearing Examiner has jurisdiction to approve applications for Class (2)
uses and unclassified uses pursuant to the Class (3) public hearing process under
the circumstances prescribed by the zoning ordinance, which circumstances here
warrant approval of this application, subject to conditions.


Final Revised Decision                   40
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
   2. Public notice requirements have been satisfied.
   3. The SEPA Mitigated Declaration of Non-Significance should be affirmed
with the revision that a break away gate or other similar device approved by the
City must be installed by the applicant which will prevent secondary public access
to the facility or neighborhood by way of North 34th Avenue.
   4. The evidence presented at the original open record public hearing and at the
subsequent hearing on remand indicates that, as conditioned herein, the proposed
day care center use, group home use and commercial kitchen use will be
compliant, compatible and consistent with the objectives and criteria 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.
   5. This decision entitles the applicant to a certificate of zoning review which is
valid for one year from the date of issuance of the certificate and which may be
extended one time only for up to one additional year by application prior to the
termination date in accordance with Section 15.12.060 of the UAZO.
   6. This Decision may be appealed to the Yakima City Council within the time
and in the manner required by applicable City ordinances.



                                   DECISION


   The SEPA Mitigated Determination of Non-Significance issued for EC #27-04
is affirmed with the revision that a break away gate, break away barricade or other
device approved by the City must be installed by the applicant in place of the
existing barricade which will continue to prevent secondary public access by way
of North 34th Avenue. The application for a Class (2) day care center use, a Class

Final Revised Decision                   41
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
(2) group home use and an unclassified commercial kitchen use as described in the
application and documentation related to UAZO CL(3) #7-04, INTERP #1-04 and
EC #27-04 is APPROVED, subject to the following conditions:


1. The applicant shall comply with all building and fire code requirements. All
   proposed construction is subject to plan review and building permits.


2. A new public fire hydrant shall be installed to provide adequate fire flow to
   the proposed facility. Placement of the hydrant and service lines shall meet
   design criteria of the Uniform Fire Code and Water Division. The applicant
   shall provide a separate fire sprinkler service from a public main to the
   facility.   A new double-check assembly is required for the fire sprinkler
   service if none currently exists.


3. The applicant shall install a sampling port and a grease trap to meet testing
   requirements of the City of Yakima Wastewater Division.


4. The applicant shall provide a Knox Box for Fire Department access unless the
   facility will be attended 24 hours per day.


5. Site screening meeting Standard „C‟ shall be provided on the west and east
   property lines in a manner agreeable with the neighbors adjoining said
   property lines. If agreement of the neighbors cannot be accomplished within a
   reasonable period of time, the Planning Division shall prescribe the exact
   details of said site screening to be provided by the applicant. If the applicant‟s



Final Revised Decision                  42
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
   use of parking spaces leased from the Seventh Day Adventist Church is such
   as to cause glare from headlights or trespassing on the property north of the
   Church lot and west of the applicant‟s facility, the Planning Division may
   require the applicant to install appropriate site screening to mitigate such
   problems.


6. Overgrown landscaping shall be removed prior to occupancy of the building.


7. The hours of operation of the commercial kitchen set forth in the application
   shall be observed. The hours of operation of the day care center will be from
   6:30 a.m. to 7:00 p.m. until such time as the applicant, after at least six months
   of operation, shows that objective noise regulations specified by State law
   under the Washington Administrative Code, which applicant has agreed to
   enforce even though City ordinances exempt commercial activities, can be
   enforced for the benefit of the neighborhood and that the other criteria for
   approval of Class (2) uses are satisfied. The group home use will be limited to
   not more than 19 full-time adult residents of the building, together with their
   children, and will not be subject to any gender-specific limitation or condition
   as a result of this decision. The residents and their visitors will be screened to
   minimize the risk of criminal conduct on their part while they are at the
   facility and they will be subject to the applicant‟s internal rules as a condition
   of continued residence.     The details of construction and operation of the
   respective uses shall be in accordance with the respective descriptions set forth
   in the application, the SEPA checklist, the site plan and other documents
   submitted with the application except as modified by this decision.



Final Revised Decision                  43
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
8. Any proposed signage shall conform to sign standards as set forth in Chapter
   15.08 of the Yakima Urban Area Zoning Ordinance.


9. Scaled floor plans depicting the use of each area are required upon approval of
   this application for review for necessary exiting, exit signs, fire extinguisher
   locations, required bathrooms, accessibility and fire alarm issues.


10. At all times, the applicant shall maintain adequate off-street parking to meet
   the requirements of Table 6-1 in Chapter 15.06 of the Yakima Urban Area
   Zoning Ordinance. If the agreement for use of parking spaces at the Church to
   the south is terminated or modified, the applicant shall immediately reduce the
   nature and intensity of its use in order to comply with all applicable parking
   requirements. The applicant‟s staff and employees shall be required to use
   only the parking area leased from the Church that is located on the Church
   property south of and adjacent to the applicant‟s facility. The applicant will
   also use its best efforts to utilize the parking area leased from the Church for
   its van and some of the traffic to and from its day care center.


11. Prior to any demolition or renovation work, an asbestos survey must be
   conducted in accordance with Yakima Regional Clean Air Authority
   specifications. Asbestos must be removed only if renovation work would
   disturb asbestos.    If the project includes any work that would disturb soil
   stability, it is subject to the requirement to submit a dust control plan for
   approval by YRCAA.



Final Revised Decision                  44
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
12. Washington Department of Ecology shall be contacted to schedule a site
   inspection to determine if a General Stormwater Permit is needed. All other
   applicable local, state, and federal stormwater permits or other requirements
   shall be obtained or met. Either a stormwater study prepared by a licensed
   engineer or other information acceptable to the Planning Division and other
   applicable City departments or divisions shall be submitted and approved
   which detail the steps the applicant will take west of the facility immediately
   after removal of the barricade and curb on North 34th Avenue and the steps it
   will take along the east property line of the parcel within a reasonable time to
   be established by the Planning Division. Said stormwater improvements shall
   be designed and completed so as to insure that the removal of the barricade and
   curb on Roosevelt Avenue does not thereafter in any way increase the amount
   of stormwater or wastewater flowing down North 34th Avenue from Roosevelt
   Avenue. Said stormwater improvements shall also be designed and completed
   along the east property line of the facility to correct any and all existing
   stormwater problems experienced by property owner(s) east of the applicant‟s
   property in a way that effectively prevents the flow of stormwater and
   wastewater over the applicant‟s property from entering onto any of the
   properties to the east of the applicant‟s property.


13. The street barricade at the intersection of North 34th and Roosevelt Avenues
   shall at the applicant‟s expense be removed and replaced by a break away gate,
   a break away barricade or other similar device approved by the City accessible
   only by emergency and street maintenance vehicles. Once the barricade is



Final Revised Decision                    45
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
   removed, the applicant shall be responsible for patching of the asphalt and
   repair of any damage to the street surface in accordance with City of Yakima
   construction standards. The applicant shall take necessary steps to require its
   clients, their visitors, its staff and employees and those responsible for
   deliveries to the facility to avoid any and all reckless, careless, noisy or
   otherwise illegal operation of their vehicles at least on Roosevelt and North
   35th Avenues.     The objective State standards for excessive noise under
   applicable Washington Administrative Code provisions shall be utilized to
   gauge the noisy operation of vehicles pursuant to the express agreement of the
   applicant in these proceedings even though the City‟s noise ordinance excludes
   commercial activities. Necessary steps shall include precluding such persons
   from future use of or access to the facility.          The Hearing Examiner
   recommends to the appropriate City departments or divisions that installation
   of speed bumps and/or of signage for local traffic only, for a dead end street
   and/or for a reduced speed limit be considered by the appropriate City
   decisionmakers for placement on Roosevelt Avenue, North 35th Avenue and/or
   North 34th Avenue.       The Hearing Examiner also recommends to the
   appropriate decisionmakers that a No Parking zone be established on both
   sides of Roosevelt Avenue extending 30 feet east and 30 feet west of the
   intersection with North 34th Avenue.


14. View-obscuring screening shall be provided between the garbage collection
   bins and adjacent residential uses. The garbage collection area shall be
   maintained on a regular basis and in such manner as necessary to avoid on- and
   off-site odors and insect infestation. If a garbage collection schedule cannot be



Final Revised Decision                    46
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
   arranged often enough to avoid an odor problem for the residence to the west
   of the facility, the applicant shall comply with any future directive from the
   Planning Division to relocate the garbage container(s) to eliminate such future
   odor problem that would otherwise exist for the residence immediately west of
   the facility.


15. A final site plan, which includes the items shown on the original site plan, the
   additions and modifications required by the Hearing Examiner‟s decision, and
   demonstrating compliance with the Urban Area Zoning Ordinance shall be
   submitted to the Planning Division prior to the issuance of a Certificate of
   Zoning Review or building permit, pursuant to Section 15.12.050 of the
   Yakima Municipal Code. The Planning Division requires submittal of a final
   site plan within 30 days of the Hearing Examiner‟s decision or as otherwise
   arranged with the Planning Division.


16. All of the conditions of this decision shall be enforceable in the manners
   prescribed by Subsection 15.24.020(2), Section 15.24.060, Section 15.24.080
   and Subsection 15.25.020(B) of the Yakima Urban Area Zoning Ordinance.


17. The decision by the Hearing Examiner entitles the applicant to a Certificate of
   Zoning Review, which is valid for one year from the date of issuance of the
   certificate. The Certificate may be extended one time only for up to one
   additional year by application prior to the termination date, all as set forth in
   Section 15.12.060 of the Yakima Municipal Code.




Final Revised Decision                    47
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04
      DATED this 30th day of March, 2005.


                                    _________________________________
                                    Gary M. Cuillier, Hearing Examiner




Final Revised Decision              48
Triumph Treatment Services
Day Care Center, Group Home
&Commercial Kitchen at 3300
Roosevelt Ave., No. 181322-11028
CL(3)#7-04;INTERP#1-04;EC#27-04

				
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