HomeMy WebLinkAboutHE Determination APPL 2023-002 Sandhu 2-Lot Short PlatIN THE MATTER OF
APPL 2023-002
Sandhu Short Plat Appeal
CITY OF PASCO
LAND USE HEARING EXAMINER
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DECISION ON SHORT PLAT
APPEAL
THIS MA TIER 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 2023-005) from applicant Rajbir
Sandhu on June 16, 2023, to subdivide the property at 5617 West Argent Road (Franklin County
Assessor's Parcel 117470069) into two lots. Each lot would be .46 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 and published in the Tri-City Herald on June 23, 2023.
3.Findings of Fact and Conditions of Approval were sent to Applicant on or around July 14, 2023.
4.Applicant protested the decision and submitted an Application for hearing Examiner Review (APPL
2023-002) on July 19, 2023, including a letter ofappeal.
5.The Appeal process was placed on hold as another nearly identical appeal (APPL 2023-001) for a
similar Short Plat (Sickle Short Pat -SPLAT 2023-002) was in negotiations with the former City
Engineer, based on the same legal precedents.
6.On October 2, 2023, the former City Engineer submitted Final Decision on the above cited Short Plat
2023-002 Conditions via email; Applicant subsequently chose to continue the appeal for both the Sickle
and Sandhu Short Plats.
7.The decision to involve the City Attorney was contemplated by Staff due to the content of the appeal,
namely citing court cases Nollan 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 .
8.Upon review of the Short Plat Application, the following Findings of Fact were sent to Applicant:
8.1. Parks/Open Space/Schools: Palomino Park is approximately 0.5 miles from the subject property
which offers space for recreational activities. Park impact fees will be collected at the time of
permitting of each dwelling unit to be used for park development.
8.2. Chiawana High School is approximately 1.6 miles from the subject property. The City is required
by RCW 5 8.17 .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
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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.
8.3. Safe Travel & Walking Conditions: The short plat's purpose is to facilitate financing. However,
proper right-of-way improvements, if they do not already exist, must be installed as a condition of
short plat approval. Full right-of-way improvements will be installed and constructed to current City standards and to the standards of the Americans with Disabilities Act (ADA). Such
improvements include curb, gutter, sidewalk, streetlights, street striping, etc. which promote safe
travel.
8.4. 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. The short plat site will be immediately served by Ben-Franklin Transit, as the nearest transit
stop is located approximately 350 ft east on 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).
8.5. Adequate Provision of Municipal Services: All lots within the plat will be provided with water,
sewer, and other utilities.
8.6. 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 a variety of residential housing at a density of3 to 6 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 of lands 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. Goal H-1 encourages housing for all economic
segments of the city's population consistent with the local and regional market, and Goal H-2
preserves and maintains the existing housing stock for present and future residents. Goal LU-2
plans for a variety of compatible land uses within the UGA.
9.Before approving or denying of the proposed short plat, Planning staff must develop Findings of Fact
from which to draw its conclusion therefrom as to whether or not:
9 .1. Adequate provisions are made for the public health, safety, and general welfare and for open
spaces, drainage ways, streets, alleys, other public wtzys, water supplies, sanitary wastes, parks,
playgrounds, transit stops, schools and school grounds, sidewalks for safe walking conditions
for students and other public needs;
9.1.1.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.
9.1.2.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.
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9.2. The proposed Short Plat conforms to the general purposes of any applicable policies or plans which have been adopted by the City Council; 9.2.1.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, and narrative text of the Plan. The Comprehensive Plan land use map designates the site for low-density residential development, which is described as 3 to 6 dwelling units per acre. The plat indicates the density to be 2 units per acre with the feasibility of 1 accessory dwelling unit for each. Re-zoning would not be feasible to require more units. 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. 9 .3. The public use and interest will he served by approval of the proposed subdivision. 9.3.1.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. 10.The Staff set the following plat conditions and corrections:10.1. Planning Division 10. 1. 1. Please include site addresses on the face of the plat 10 .1.1.1. Lot 1: 5 61 7 W Argent Rd 10.1.1.2. Lot 2: 5611 W Argent Rd 10.1.2. Minimum frontage of90' required. 10.1.3. PMC 21.20.070 (1) (a) 20% lot size reduction can apply to one lot. 10 .1.4. On the face of the plat: 10.1.4.1. This subdivision includes lots created utilizing the lot size averaging under PMC 21.20.070. The site area of any lot in excess of the required minimum lot size shall not be used to increase the overall density of further divisions of land, unless consistent with existing zoning or as may be amended. 10.1.4.2. Please remove Big Bend Electrical Co Op signature block and add Franklin PUD signature block. 10.1.4.3. Please remove Benton Franklin Health District signature block. 10.2. Engineering Division 10.2.1. Additional Right of Way dedication required for Arterial width. 10.2.2. Infrastructure improvements are required prior to subdivision. Civil plans will need to be submitted for review and approval for construction. 10.2.3. On the face of the plat: 10.2.3.1. "At the time lots are developed all abutting streets and utilities shall be improved" APPL 2023-002
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10.2.4. 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."
10.2.5. All fee payments for bonding of ROW improvements and Water Rights must be paid at the
time of Final Plat being submitted for signatures.
10.2.6. 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.
10.2.7. All stormwater is required to be maintained and treated on site in accordance with
Washington State Department of Ecology and City of Pasco Standards.
10.2.8. Civil plans submitted for City approval must be designed and stamped by a Washington
State Licensed Civil Engineer.
10.2.9. 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 lots.
10.3. Franklin County Irrigation District
10.3 .1. The parcel is currently served and assessed by Franklin County Irrigation District# 1. The
irrigation service line is currently directly to the FCID canal. The service line location as to
where it enters the property is unknown. The location will need to be verified. A separate
valve(s) will need to be installed so that each of the new lots will have access to the irrigation
water, if it is located within an area that each property has equal access to the water. If not
FCID will need to relocate the line within the FCID canal right of way to a point near the
northeast corner of the proposed lot 1, where the two new valves will be installed. The owner
shall be charged for one of new connection points at the existing installation rate at the time
of connection application.
10.3.2. All FCID easements and other rights granted to FCID #1 shall remain in effect.
10.3.3. Questions regarding FCID service please contact the FCID office at (509) 547-3831.
10.3.4. On the face of the plat:
10.3.4.1. FCID signature block needs to be added. 11.On July 19, 2023 Applicant David P. Baalman, of Rogers Surveying on behalf of Owner Raj Sandhu
submitted an Application (APPL 2023-002) appealing the conditions of the Short Plat as follows:
11.1. "My client, Rajbir Sandhu, 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 July 13, 2023. My
client wishes to appeal the conditions of approval described therein.
11.2. ·The specific reasoning for this appeal is outlined as follows:
11.3. Engineering Division condition 1:
11.3.1. "Additional Right of Way dedication required for Arterial width." We object given that this
comment is contrary to well settled matters of statutory and case law on the state and federal
level. As described in the cases cited below, the city cannot condition approval of a short plat
on dedication of right of way unless the city demonstrates ( 1) that the exaction of said right
of way is reasonably necessary as a direct result of the proposed short plat, and (2) that the
dedication does not require the landowner to contribute more than their fair share. The city's
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findings of fact and conclusions described in the approval letter make no statements
describing how right of way dedication is necessitated by the short plat at hand. Given that
the short plat fronts on a street which is many miles long and has hundreds oflots which front
upon it, it's clear that the addition of one lot to this situation will not cross any reasonable
threshold necessitating additional right of way. Further the subject property is one lot in a
group of 8 parcels immediately adjacent which all have the same 25' right of way width. This
would therefore be an isolated right of way dedication with the width remaining the same on
the adjacent lots. It's difficult to see how one landowner being required to dedicate additional
right of way while adjoiners are not could be classified as contributing their fair share. In
reaching these conclusions we cite RCW 58.17.110(2), Nol/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 Ta coma.
11.3 .2. Staff responded as follows: Applicant has argued that "the city cannot condition approval
of a short plat on dedication of right of way unless the city demonstrates (1) that the exaction
of said right of way is reasonably necessary as a direct result of the proposed short plat, and
(2)that the dedication does not require the landowner to contribute more than their fair share."
Staff points out that 1) Applicant proposes to convert (partially) vacant land to residential
uses via a residential short plat; 2) that platting ofland requires dedication of street rights-of
way; 3) that the proposed lot is adjacent a designated arterial street; 4) that rights-of-way
along arterial streets are required to be between 80 and 100 feet wide per Pasco Municipal
Code; 5) that the provision by developers of standard improvements on all street frontages
adjacent any proposed subdivision or development was decided legislatively by City Council
via the Pasco Municipal Code to be the developer's "fair share;" 6) any future subdivision
along said arterial street will likewise be required to dedicate a "fair share" of street ROW.
11 .4. Engineering Division Condition 2:
11.4.1. "Infrastructure improvements are required prior to subdivision. Civil plans will need to be
submitted for review and approval for construction." 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. Similar to condition 1 above, we object given that this comment is contrary to the same statutory and case law cited above. I 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 0.8 miles away at the intersection of Road 71st place. Easterly there is
curb and gutter approximately 0.4 miles to the 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 oflots 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 180' 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 the same cases as condition 1 above in drawing these conclusions.
11.4.2. Staff responded as follows: As noted by Applicant, Pasco Municipal Code 21.15.030
"requires construction of curb, gutter, sidewalk, illumination, traffic control devices, drainage
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control, engineered road bases, asphalt driving and parking lanes, and monumentation" for
all subdivisions of land in the city of Pasco. Staff is not under obligation to justify Pasco
Municipal code for any "particular" subdivision. That any particular parcel adjacent has not
yet been subdivided/developed is immaterial, as future subdivision and development on any
lot adjacent will require similar improvements. Whether the street and frontage improvements
are financed by subdivider piecemeal or all at once via local improvement district (LID), the
financial obligation for street and frontage improvements still devolves upon the owner
adjacent the ROW.
11.5. Engineering Division Condition 3, part 1:
11.5 .1. "On the face of the plat: At the time lots are developed all abutting streets and utilities shall
be improved." We object to the requirement for street and utility improvements on the same
grounds outlined in conditions 1 and 2 above.
11.5.2. 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.
11.6. Engineering Division Condition 3, part 3:
11.6.1. "All fee payments for bonding of ROW improvements and Water Rights must be paid at
the time of Final Plat being submitted for signatures." We object to the requirement for
bonding of right of way improvements on the same grounds outlined in conditions 1 and 2
above.
11.6.2. 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.
11. 7.Engineering Division Condition 3, part 4:
11. 7 .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." We object to the requirement for frontage
improvements on the grounds outlined in conditions 1 and 2 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.
11. 7 .2. 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.
11.8. Engineering Division Condition 3, part 5:
11.8.1. "All stormwater is required to be maintained and treated on site in accordance with
Washington State Department of Ecology and City of Pasco Standards." 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 in conditions 1 and 2 above.
11.8.2. Staff responded as follows: 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.
11.8.3. 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
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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.
11.8.4. 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.
11.9. Engineering Division Condition 3, part 6:
11.9 .1. "Civil plans submitted for City approval must be designed and stamped by a Washington
State Licensed Civil Engineer." We object to the requirement for frontage improvements on
the grounds outlined in conditions 1 and 2 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.
11.9.2. 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.
11.10. Engineering Division Condition 3, part 7:
11.10 .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." We object to the requirement for construction of a sewer service to either lot at this
time. We assert that the correct time to require construction of a sewer service is at the time
of approval of a building permit on the lot, as that is the time when the correct location will
be known for the service, and more importantly that is the time when the service becomes
necessary. 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.
11.10.2.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.
11.10.2.1. 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 one or more structures of any kind requiring building permits] all
abutting streets and utilities shall be improved [in conjunction with said structures]."
11.10.3.City of Pasco Code Requirement for Appeals:
11.10.3.1. 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.
11.10.4.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]
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error in any order, requirement, permit, decision, or determination made by the City Planner
in the administration or enforcement of this title.
12.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.
13.The State of Washington authorizes Cities broad powers to legislate and govern pursuant to the
provisions of RCW 35.21; 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:
14.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:
14.1. Prevent the overcrowding of land;
14.2. Lessen congestion and promote safe and convenient travel by the public on streets and
highways;
14.3. Promote the effective use of land;
14.4. Provide for adequate light and air;
14.5. Facilitate adequate provision for water, sewerage, drainage, parks and recreational areas,
and other public requirements;
14.6. Provide for proper ingress and egress;
14.7. 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;
14.8. Adequately provide for the housing, commercial and industrial needs of the citizens of the
state and City;
14.9. Require uniform monumenting of land divisions and conveyance by accurate legal
descriptions;
14.10. Implement the goals, objectives, and policies of the Pasco Comprehensive Plan.
15.Furthermore, and per PMC 21.40.080, [t]he Community and Economic Development Director or
designee shall, after conferring with appropriate officials, determine whether:
15.1. 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;
15.2. The proposed short plat contributes to the orderly development and land use
patterns in the area;
15.3. The proposed short plat conforms to the policies, maps and narrative text of the
Comprehensive Plan;
15.4. The proposed short plat conforms to the general purposes of applicable policies or
regulations adopted by the City Council;
15.5. The proposed short plat conforms to the general purposes of this title;
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15.6. The public use and interest will be served by permitting the proposed division of the land.
16.Per PMC 21.40.090(1) If the foregoing requirements are met, the short plat will be approved and
transmitted to the applicant.
17.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. As such, Staff recommends denial
of the appeal.
18.An open record public hearing after due legal notice was held on July 24, 2024.
19.The following documents were admitted into the file.
19 .1. City Staff Report on this matter.
19.2. All documents contained in Pasco Planning Division File SPLAT 2023-005, including the decision on this short plat,
19.3. All appeal documents submitted by the Appellant, including the July 2, 2024
"Memorandum of Applicant Appealing Short Plat Conditions."
20.Appearing and arguing on behalf of the Applicant/Appellant was Julian Harlington, attorney at law.
The Hearing Examiner incorporated into the record at this hearing all argument provided by the
Applicant/ Appellant for the hearing on AAPL 2023-001.
21.Appearing on behalf of the city of Pasco was Aziza Foster, attorney for the City. The Hearing Examiner
incorporated into the record at this hearing, all argument provided by the Applicant/ Appellant for the
hearing on AAPL 2023-001.
IT. 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 SPLAT2023-005 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, in approving application
SPLAT 2023-005.
Dated this _:{;._ day of August, 2024
Andrew L. Kortkamp
Absent a timely appeal, this Decision is final 1 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).
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