HomeMy WebLinkAboutHE Determination APPL 2023-001 Sickle 2-Lot Short PlatIN THE MATTER OF
APPL 2023-001
Sickle Short Plat Appeal
CITY OF PASCO
LAND USE HEARING EXAMINER
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DECISION ON SHORT PLAT
APPEAL
THIS MA T TER having come on for hearing in front of the City of Pasco Hearing Examiner on July 24,
2024. The Hearing Examiner having taken evidence hereby submits the following Findings of Fact,
Conclusions of Law, and Decision as follows:
I.FINDINGS OF FACT
1.Planning Division staff received a short plat application (SPLAT 2023-002) from applicant/appellant
Wayne Sickle, on March 22, 2023, to subdivide the property at 6205 West Argent Road (Franklin
County Assessor's Parcel 117 440 056) into two lots. Each lot would be 0.56 acres in size.
2.Notification of the Plat application was sent by mail to the owners of the parcels within 300 feet of the
proposed site on March 2, 2023, and published in the Tri-City Herald on March 05, 2023.
3.Findings of Fact and Conditions of Approval were sent to Applicant sometime between April 3, 2023,
and June 12, 2023 (the project lead resigned in April 2023).
4.The Applicant protested the decision on June 16, 2023, and sought a deviation. A deviation request was
denied on June 20, 2023. Applicant subsequently submitted an application for appeal on June 27, 2023.
5.A former City Engineer proposed a negotiation and the appeal was placed on hold on July 5, 2023.
6.On October 2, 2023, the former City Engineer submitted Final Decision on Short Plat Conditions via
email. The Applicant/ Appellant subsequently chose to continue the appeal.
7.Upon review of the short Plat Application, the following Findings of Fact were sent to Applicant:
7 .1. Parks/Open Space/Schools: Pasco Sporting Complex is approximately 2.3 miles from the subject
property which offers space for recreational activities. Park impact fees will be collected at the
time of permitting of each single-family dwelling to be used for park development.
7 .2. Mark Tw ain Elementary School is approximately 1.2 miles from the subject property. The City is
required by RCW 58.17 .110 to make a finding that adequate provisions are being made to
ameliorate the impacts of the proposed subdivision on the School District. At the request of the
School District the City enacted a school impact fee in 2012. The imposition of this impact fee
addresses the requirement to ensure there are adequate provisions for schools. A school impact fee
in the amount of $4,700 will be charged for each new dwelling unit at the time of building permit
issuance.
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7 .3. Safe Travel & Walking Conditions: Pavement sections for improvements of said private street are
subject to approval by the City of Pasco Public Works and Fire Departments. Other right-of-way
improvements, where and when properly required by The City, will be installed and constructed
to current City standards and to the standards of the Americans with Disabilities Act (ADA).
7.4. Proper Access & Travel: The plat will be developed to City standards to assure proper access is
maintained to each lot. Connections to the community will be provided by existing West Argent
Road and Road 68. The short plat site will not be immediately served by Ben Franklin Transit, as
the nearest transit stop is located approximately 1.4 miles north on Road 84 between West Bell
Street and West Argent Road. The short plat was submitted to the Transit Authority for review (the
discussion under "Safe Travel" above applies to this section also).
7 .5. Adequate Provision of Municipal Services: All lots within the plat will be provided with water,
sewer, and other utilities.
7.6. Comprehensive Plan Policies & Maps: The Comprehensive Plan indicates the site is intended for
low-density residential development. According to the Comprehensive Plan, low-density
residential development means 2 to 5 dwelling units per acre. The criteria for allocation under the
future land use section of Volume II of the Comprehensive Plan (Vol. II, page 17) encourages
development oflands designated for low-density residential uses when or where sewer is available,
the location is suitable for home sites, and there is a market demand for new home sites. Policy H-
1-E encourages the advancement of home ownership, and Goal H-2 suggests the City strive to
maintain a variety of housing options for residents of the community. Goal LU-2 encourages the
maintenance of established neighborhoods and the creation of new neighborhoods that are safe
and enjoyable places to live.
8.To approve the short plat, Planning staff issued Findings of Fact from which to draw its conclusion
therefrom as to whether or not:
8.1. Adequate provisions are made for the public health, safety, and general welfare and for open
spaces, drainage ways, streets, alleys, other public ways, water supplies, sanitary wastes, parks,
playgrounds, transit stops, schools and school grounds, sidewalks for safe walking conditions for
students and other public needs;
8:.1.1.StaffFinding: The proposed short plat will be required to develop under the standards of the
Pasco Municipal Code and the standard specifications of the City Engineering Division.
These standards for streets, sidewalks, and other infrastructure improvements were designed
to ensure the public health, safety, and general welfare of the community. These standards
include provisions for streets, drainage, water and sewer service and the provision for
dedication of right-of-way. The short plat was forwarded to the PUD, the Pasco School
District, Cascade Gas, Charter Cable, Franklin County Irrigation District, and Ben-Franklin
Transit Authority for review and comment.
8.1.2.Staff Finding: Based on the School District's Capital Facilities Plan the City collects school
mitigation fees for each new dwelling unit. The fee is paid at the time of building permit
issuance. The school impact fee addresses the requirements of RCW 58.17.110. All new
developments participate in establishing parks through the payment of park fees at the time
of permitting.
8.2. The proposed Short Plat conforms to the general purposes of any applicable policies or plans which
have been adopted by the City Council;
8.2.1.StaffFinding: Development plans and policies have been adopted by the City Council in the
form of the Comprehensive Plan. The proposed subdivision conforms to the policies, maps,
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and narrative text of the Plan. The Comprehensive Plan land use map designates the site for
low-density residential development, which is described as 2 to 5 dwelling units per acre. The
plat indicates the density to be 4.2 units per acre. The Housing Element of the Plan encourages
the promotion of a variety of residential densities and suggests the community should support
the advancement of programs encouraging home ownership. The Plan also encourages the
interconnection of local streets for inter-neighborhood travel for public safety as well as
providing for traffic disbursement.
8.3. The public use and interest will be served by approval of the proposed subdivision.
8.3.1.StaffFinding: The proposed plat, if approved, will be developed in accordance with all City
standards designed to ensure the health, safety and general welfare of the community are met.
The Comprehensive Plan will be implemented through development of this plat. These factors
will ensure the public use and interest are served.
9.In its decision approving the short plat, the staff set the following plat conditions and corrections:
9.1. Planning Division
9 .1.1.Include site addresses on the face of the plat
9 .1.1.1. Lot 1 6205 W Argent Road
9.1.1.2. Lot 2 6111 W Argent Road
9.1.2.Water & Sewer connection will be required on Lot 2 upon development.
9 .2. Engineering Division
9.2.1.Infrastructure improvements are required prior to subdivision. Civil plans will need to be
submitted for review and approval for construction.
9.2.2.Water & Sewer connection will be required on Lot 2 upon development.
9.2.3.On the face of the plat, it shall say: "At the time lots are developed all abutting streets and
utilities shall be improved"
9 .2.4. The face of the plat shall include this statement: "As a condition of approval of this short plat
the owner has waived the right to protest the formation of a Local Improvement District for
right-of-way and utility improvements to the full extent as permitted by RCW 35.43.182."
9.2.5.All fee payments for bonding of ROW improvements and Water Rights must be paid at the
time of Final Plat being submitted for signatures.
9.2.6.All frontage improvements associated with this project are to be made in accordance with
City of Pasco Design and Construction Standards and Specifications for Public Works
Improvements and Municipal Codes.
9.2.7.All stormwater is required to be maintained and treated on site in accordance with Washington
State Department of Ecology and City of Pasco Standards.
9.2.8.Civil plans submitted for City approval must be designed and stamped by a Washington State
Licensed Civil Engineer.
9.2.9.Sewer will need to be considered, the subdivision ofland does trigger concurrency standards,
therefore sewer will need to be extended to-and-through the property to serve the new lot.
10.On June 27, 2023 Applicant David P. Baalman, of Rogers Surveying on behalf of Owner Wayne Sickle
submitted an Application (APPL 2023-001) appealing the conditions of the Short Plat as follows:
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10.1. "My clients, Wayne & .Sandra Sickle, and my firm, Rogers Surveying Inc., P.S., are in
receipt of the city's findings of fact & conditions regarding the above-named short plat, dated April
5, 2023. My clients wish to appeal the conditions of approval described therein. We recognize that
we are well beyond the 10 working-day time limit for appeals permitted in the Pasco Municipal
code, however as outlined in the attached email chain, the findings & conditions document was
not received until June 12, 2023: We therefore request that date be utilized as the start of the appeal
period.
10.2. The specific reasoning for this appeal is outlined as follows:
10.3. Planning Division condition 2:
10.3.1. "Water & Se:wer connection will be required on Lot 2 upon development."
10.3.2. Our concern on this item is the lack of specificity in the word "development". This word is
not defined in the Pasco Municipal Code nor the International Building Code, and there are
multiple definitions in Webster's and Black's Law Dictionaries. If the city's intent is that lot 2
be provided a sewer connection at the time of construction of a new house or other building,
then we have no concern and ask only that this be clarified.
10.3 .3. If, however the city's intent is that a sewer connection be provided now, with no knowledge
of what a future owner may intend to build nor where they may intend to build it upon the
lot, then we object. The mere existence of a new lot does not create the need for a sewer
service to the lot.
10.3.4. Please note also that-there is already a water service upon Lot 2, and we have a similar
concern regarding the water portion of this condition. If the city's comment regarding water
is that a future house must utilize said water service, we have no objection. If the city's
comment is that some further construction must happen as a part of this short plat we object
for the same reasons described herein regarding sewer."
10.3.5. Staff responded as follows: Staff recommends that Applicant be required to obtain City
water & sewer services to the lots upon submittal of a building permit (i.e. "development").
10.4. Engineering Division Condition 1:
10.4.1. "Infrastructure improvements are required prior to subdivision. Civil plans will
need to be submitted for review and approval for construction. "
10.4.2. We read this comment in light of Pasco Municipal Code §21.15.030, which
requires construction of curb, gutter, sidewalk, illumination, traffic control devices,
drainage control, engineered road bases, asphalt driving and parking lanes, and
monumentation.
10.4.3. We object given that this comment is contrary to well settled matters of statutory
and case law on the state and federal level, which make clear the principal that for
exactions ofright of way or construction of improvements the city must demonstrate
(1)that the exactions are reasonably necessary as a direct result of the proposed
development, and (2) that the conditions don't require a developer to contribute more
than their fair share of the costs.
10.4.4. The city has made no argument in the findings and conditions document that this
particular development creates a need for said improvements. We'll also note a few
data points regarding improvements on Argent Road. The nearest curb, gutter,
sidewalk, and other full improvement of Argent to the west is approximately one mile
away at the intersection of Road 71 st place. Easterly there is curb and gutter
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approximately ½ mile east of the project site at the beginning of the curve of the road
to pass under Interstate 182, however there is no sidewalk nor is there room for a
sidewalk at the underpass. We don't believe there is a reasonable argument that adding
one lot on this road (upon which hundreds of lots already front) would create a need
for such improvements, especially given that there are no other similar improvements
in the area. This would literally be a 400' long sidewalk to nowhere. Further the city
has made no attempt to fulfill its burden of proof providing a rational nexus
connecting the requirements to this development. We cite RCW 58.17 .110(2), Nolf an
v.California Costa/ Commission, Dolan v. City of Tigard, Benchmark Land Co. v.
City of Battleground, Koontz v. St. John's River Water Management District, Cobb v.
Snohomish County, Luxembourg v. Snohomish County, Unlimited v. Kitsap County,
Burton v. Clark County, United Development Corp. v. City of Mill Creek, and Church
of the Divine Earth v. City of Tacoma in drawing these conclusions.
10.4.5. Staff responded as follows: Staff is not required to make an "argument in the findings and
conditions document that this particular development creates a need for said improvements,"
as this is already clearly spelled out in Pasco Municipal Code (PMC) 21.15.030, as follows:
10.4.5.1. Adequate and proper right-of-way improvements shall be required at the time
adjoining property is developed and shall be required on all property. As a minimum a
three-quarter street standard will be required if the property being developed only fronts
on one side of the street.
10.4.5.2. Adequate and proper right-of-way improvements shall include curb, gutter,
sidewalk, illumination, traffic control devices, drainage control, engineered road bases,
asphalt driving and parking lanes, and monumentation. All such improvements shall be
approved by the City prior to construction and acceptance. The three-quarter street
standard shall include curb, gutter and sidewalk on the developed side and a minimum
of two complete traffic lanes.
10.4.5.3. The developer of real property shall be responsible for installing the required
improvements within the respective half of right-of-way width abutting the real
property being developed, provided such improvements consist of at least two traffic
lanes.
10.4.5.4. Minimum sidewalk widths, not including the six-inch curb, shall not be less than the minimum dimension for sidewalks as follows:
10.4.5.5. Residential zones: four and one-half feet;
10.4.5.6. Applicant has argued that "the conditions don't require a developer to contribute
more than their fair share of the costs." Staff points out that the provision by developers
of standard improvements on all street frontages adjacent any proposed subdivision
development was decided legislatively by City Council to be the developer's "fair
share" via the Pasco Municipal Code.
10.5. Engineering Division Condition 2:
10.5.1. "Water & sewer connection will be required on Lot 2 upon development."
10.5.2. This condition is identical to planning division's comment 2, and our objections
are therefore identical.
10.5.3. Staff responded as follows: Staff recommends that Applicant be required to obtain City
water & sewer services to the lots upon submittal of a building permit (i.e., "development").
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10.6. Engineering Division Condition 3:
10.6.1. "On the face of the plat, it shall scry [sic]: 'At the time lots are developed all
abutting streets and utilities shall be improved. "'
10.6.2. We object to this condition first in that it seems to be contradictory to Engineering
Division comment 1 with regard to timing, which continues to lead us to question the
city's definition of the words "development" and "developed".
10.6.3. Secondly, we object under the same principals cited above that the city has failed
to provide any findings that state that this particular development creates a 'need for
any right of way improvements. Requiring construction of roadway improvements
by a future owner of any lot in this short plat at time of future building construction
significantly affects the value of the lot, which is an unconstitutional taking of the
landowner's rights. Timing does not matter in this regard, the requirement for
construction of improvements does not meet the tests outlined above.
10.6.4. Staff responded as follows: Per Pasco Municipal Code cited above, the requirement for site
improvements, including streets and utilities, is connected to the subdivision of land,
including Short Plats, and as such, is lawful.
10.7. Engineering Division Condition 5:
10.7.1. "Al/fee pcrymentsfor bonding of ROW improvements and Water Rights must be
paid at the time of Final Plat being submitted for signatures. "
10.7.2. We object to the requirement for bonding of right of way improvements on the
same grounds outlined above.
10.7.3. Staff responded as follows: Per Pasco Municipal Code cited above, the requirement for site
improvements, including ROW improvements and Water Rights, is connected to the
subdivision of land, including Short Plats, and as such, is lawful. Bonding is simply an
instrument guaranteeing the required development of said improvements to City standard.
10.8. Engineering Division Condition 6:
10.8.1. ''All frontage improvements associated with this project are to be made in
accordance with City of Pasco Design and Construction Standards and Specification
for Public Works Improvements and Municipal Codes. "
10.8.2. We object to the requirement for frontage improvements on the grounds outlined
above and feel that any mention of the city's standards for said improvements become
moot once the underlying improvement is dropped from the conditions as outlined
above.
10.8.3. Staff responded as follows: Per Pasco Municipal Code cited above, the requirement for site
improvements, including frontage improvements, is connected to the subdivision of land,
including Short Plats, and as such, is lawful.
10.9. Engineering Division Condition 7:
10. 9 .1. "All stor mwater is required to be maintained and treated on site in accordance
with Washington State Department of Ecology and City of Pasco Standards. "
10.9.2. We object to the requirement given that it seems to be leading to the city's
requirements for storm drain system construction, to which we object on the grounds
outlined above.
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10.9.3. Staff responded as follows: Per PMC 13.70.210 Storm water, well water and all other
unpolluted drainage shall be contained on the property ... in accordance with Chapter 13.80.
10.9.4. Furthermore, per PMC 13.80.090(4)(a) [storm runofl] occurring on all lots or division of
land subject to development by the construction of structures, improvements and the
installation of impervious surfaces shall be retained and disposed of on-site with no storm
runoff occurring thereon permitted to enter the public right-of-way or public storm drainage
system.
10.9.5. In other words, it is a Washington State Department of Ecology requirement as well as a
City requirement that storm runoff may not leave a private property and enter into the City
stormwater system.
10.10. Engineering Division Condition 8:
10.10.1."Civil plans submitted for City approval must be designed and stamped by a
Washington State Licensed Civil Engineer."
10.10.2.We object to the requirement for frontage improvements on the grounds outlined
above and feel that any mention of the city's standards for said improvements
(including their design requirements) become moot once the underlying
improvement is dropped from the conditions as outlined above.
10.10.3.Staff responded as follows: Per Pasco Municipal Code cited above, the requirement for site
improvements, including frontage improvements, is connected to the subdivision of land,
including Short Plats, and as such, is lawful.
10.11. Engineering Division Condition 9:
10.11.1."Sewer will need to be considered; the subdivision of land does trigger
concurrency standards; therefore sewer will need to be extended to-and-through the
property to serve the new lot. 11
10.11.2. We object to the requirement for construction of a sewer service to either lot at this
time, as outlined above. We believe this condition is referring to Pasco Municipal
Code § 12.36.050(2), which requires improvements at time of development, including
extending utility lines "through the length of the property being developed". We again
first question the city's definition of "development" and "developed". We further note
that a sewer main already exists in Argent Road, and therefore believe the city's
(albeit unconstitutional) requirements are already met with regard to this condition
and therefore consider it moot. We request this condition be dropped in the interest
of clarity.
10.11.3. Staff responded as follows: Per Pasco Municipal Code cited above, the requirement for site
improvements, including the extension of sewer services, is connected to the subdivision of
land, including Short Plats, and as such, is lawful.
10 .11.4. Staff submits the definition of "development" as the moment of building permit submittal.
As such, the requirement may be interpreted as follows: "At the time lots are developed [with
submittal for building permits for one or more structures of any kind requiring building
permits] all abutting streets and utilities shall be improved [in conjunction with said
structures]."
10.12. On the grounds herein outlined we object to the conditions of approval of said short
plat 2023-002 and request a hearing with the Hearing Examiner on the next available date.
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10.13. Staff responded as follows: Per Pasco Municipal Code 25.195.020, Appeals may be heard
by the examiner, where it is alleged by the applicant that there is error in any order, requirement,
permit, decision or determination made by the City Planner in the administration or enforcement
of this title.
10.13.1.Applicant is requesting approval of a Short Plat which does not conform to the City of
Pasco Municipal Code. Applicant has failed to produce sufficient evidence that there [was)
error in any order, requirement, permit, decision or determination made by the City Planner
in the administration or enforcement of this title.
11.Proper public notice for this appeal hearing was posted in the Tri-City Herald and sent to property
owners within 300 feet on July 2, 2024.
12.The State of Washington authorizes Cities broad powers to legislate and govern pursuant to the
provisions of RCW 3 5 .21; as such, Staff cites City of Pasco Subdivision regulations as the guiding
principles for evaluating subdivision applications, and confines its arguments to same, as follows:
13.Per Pasco Municipal Code (PMC) 21.05.020, "The purpose of this title is to regulate the division of
land within the Pasco Urban Area. This title is to also further the purpose of promoting the health,
safety, convenience, comfort, prosperity and general welfare of the present and future inhabitants of the
Pasco Urban Area, and to:
13.1. Prevent the overcrowding of land;
13.2. Lessen congestion and promote safe and convenient travel by the public on streets and
highways;
13.3. Promote the effective use ofland;
13.4. Provide for adequate light and air;
13.5. Facilitate adequate provision for water, sewerage, drainage, parks and recreational areas,
and other public requirements;
13.6. Provide for proper ingress and egress;
13.7. Provide for the expeditious review and approval of proposed land divisions which comply
with this title, the Pasco Urban Area Zoning Ordinance, other City Plans, policies and land use
controls, and Chapter 58.17 RCW;
13.8. Adequately provide for the housing, commercial and industrial needs of the citizens of the
state and City;
13.9. Require uniform monumenting of land divisions and conveyance by accurate legal
descriptions;
13.10. Implement the goals, objectives, and policies of the Pasco Comprehensive Plan.
14.Furthermore, and per PMC 21.40.080, [t]he Community and Economic Development Director or
designee shall, after conferring with appropriate officials, determine whether:
14.1. Adequate provisions are made for the public health, safety, and general welfare
and for open spaces, drainage ways, streets, alleys, other public ways, water supplies,
sanitary wastes, parks, playgrounds, transit stops, schools and school grounds, sidewalks
and other planning features that assure safe walking conditions for students;
14.2. The proposed short plat contributes to the orderly development and land use
patterns in the area;
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14.3. The proposed short plat conforms to the policies, maps and narrative text of the
Comprehensive Plan;
14.4. The proposed short plat conforms to the general purposes of applicable policies or
regulations adopted by the City Council;
14.5. The proposed short plat conforms to the general purposes of this title;
14.6. The public use and interest will be served by permitting the proposed division of the land.
15.Per PMC 21.40.090(1) If the foregoing requirements are met, the short plat will be approved and
transmitted to the applicant.
16.A short Plat may not be approved unless it conforms to the above criteria. Applicant is requesting
approval of a Short Plat which does not conform to the above criteria and has not presented adequate
justification to deviate therefrom. As such, Staff recommends denial of the appeal.
17.An open record public hearing after due legal notice was held on July 24, 2024.
18.The following documents were admitted into the file.
18.1. City Staff Report on this matter.
18.2. All documents contained in Pasco Planning Division File SPLAT 2023-002, including the
decision on this short plat,
18.3. All appeal documents submitted by the Appellant, including the July 2, 2024
"Memorandum of Applicant Appealing Short Plat Conditions."
19.Appearing and arguing on behalf of the Applicant/Appellant was Julian Harlington, attorney at law.
The Appellant's arguments were consistent with the written materials and may be summarized as
follows:
19 .1. The Appellant's primary argument was that the Conditions of Approval challenged by the
Appellant represent a constitutional takings issue. The Appellant argues that the City has not
provided evidence that the Conditions of Approval challenged by the Appellant are proportionate
to the development being proposed by the Appellant.
19 .2. The Hearing Examiner noted that although the Appellant is only proposing to create two lots, each of those lots may have multiple dwelling units on them. 20.Appearing on behalf of the City of Pasco was Aziza Foster, attorney for the City. Ms. Foster provided
argument that may be summarized as follows:
20.1. The City argued that the Hearing Examiner only had as much authority as has been granted
by the City of Pasco, and that the City of Pasco only has as much authority as has been granted to
it by the State of Washington. Neither the City of Pasco nor the Hearing Examiner have been
granted authority to render decisions on constitutional issues.
20.2. The City of Pasco is following its own code as the Pasco Municipal Code requires
improvements as set forth in the Short Plat decision.
20.3. There is no taking if a development regulation is required by the Applicant/Appellant's
desire to create lots that are served by frontage improvements. Frontage improvements are only
needed because of the Appellant/Applicant's desire to subdivide his lot.
20.4. The City argues that the City is only requiring frontage improvements and is not requiring
any kind of dedication to the City.
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II.CONCLUSIONS OF LAW
1.The Hearing Examiner has been granted the authority to render this decision.
2.The City of Pasco decision on the Sickle Short Plat application SPLAT2023-002 was consistent with
the Pasco Comprehensive Plan and Pasco Municipal Code.
3.Staff findings as set forth herein are supported by substantial evidence.
4.The Hearing Examiner only has as much authority as has been granted by the City of Pasco. The City
of Pasco has not granted the Hearing Examiner authority to rule on constitutional issues.
ill.DECISION
Based on the above Findings of Fact and Conclusions of Law, the Hearing Examiner hereby AFFIRMS,
in all respects, the City of Pasco decision, including all Conditions of Approval, approving application
SPLA T 2023-002.
Dated this _£ day of August, 2024
Andrew L. Kottkamp
Absent a timely appeal, this Decision is final1 1 See Ch. 36.70C RCW (establishing a 21 day appeal period to superior court, and setting forth necessary review
contents, along with filing and service requirements). APPL 2023-001
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