HomeMy WebLinkAboutHE Determination APPL 2019-002 Appeal Swafford and McMullen Short Plat, Director's Letter CITY OF PASCO HEARING EXAMINER
FINDINGS OF FACT, CONCLUSIONS OF LAW,AND DECISION
Swafford/McMullen Short Plat
Director's Letter Appeal
APPL 2019-002
November 27, 2019
1. FINDINGS OF FACT
1.1 Background. The City of Pasco Community Development Department issued a
letter decision addressing short plat conditions.' The applicants appealed.2
1.2 Parties. The City of Pasco Community Development Department, represented
by Mr. White. The Appellants, Tasha Swafford and Ryan McMullen, represented by Mark E.
Fickes, of Halverson Northwest Law Group.
1.3 Evidence Reviewed. The Department submitted a memo with Exhibits 1-6. The
Appellant submitted Exhibit 7, consisting of a cover letter and legal memorandum, with Exhibits
A-C. At the hearing, Appellants submitted Exhibit 8, a plat map. Without objection, the
documents were admitted.
1.4 Hearing. A hearing was held on November 13, 2019. Oral argument was
presented by Mr. Fickes, with Mr. White resting on the record and code requirements. The
Appellants' surveyor, Mr. Baalman,briefly testified. No other witnesses were called.
1.5 Issues. The appeal challenged half street improvement requirements, but also
included a sewer availability comment. At the hearing, the Examiner confirmed with
Appellants' counsel that only the road improvement issue was before the Examiner.3
1.6 Plat Lay-Out. The two conditions appealed were prepared for a two lot short
plat. The conditions were designed to provide for adequate vehicular access, as the project will
generate trips to and from the site. This was not disputed.4 To address its transportation impacts,
the adjacent four-lot plat installed half street improvements along its frontage.5 The half street
improvements include a short linear access street along the property line with a partially installed
turn around bulb at the end. The Department anticipated that when the Appellants'property was
1 Exhibit 4,addressing Engineering Division Review Item#6 and Planning Division Review Item#1.
2 Exhibit 5.
3 A sidewalk concern was briefly referenced,but as it was not in the appeal,it is not before the Examiner.
4 Traffic impact analysis for plats commonly use about ten trip per day for residences,but the Examiner makes no
assumptions as to the actual figure,as estimated figures for this project were not provided.
5 Exhibit 3,referencing Short Plat 2016-22,adjoining to the south.
City of Pasco Hearing Examiner Page 1 of 5
Decision, Director's Letter Appeal,APPL 2019-002
built out, the property owner would complete the half street improvements on their side of the
street. This was a logical assumption. But, instead of building to allowed densities, the
Appellants seek a short plat which adds just one lot. The dispute over these conditions resulted:
Right-of-way dedication to complete the cul-de-sac adjacent to the southern
property line....
The northern half of Castle Holly Ct and the cul-de-sac must be dedicated and
improved to City standard as stated in the Engineering Department's comments
above
As the plat is for one additional lot, with the existing lot not now fronting the existing
half street improvements, the Appellants prefer to utilize their existing driveway as access.
With the Department's conditions, Appellants are concerned they will need to remove two
outbuildings, remove the existing driveway, the existing house will be "very close" to the
required setback, and expenditures for the unneeded access road will be made.$ However, the
Appellants understand that future development could occur on the larger of the two lots, and did
not object to condition imposition then.
In our phone conversation you stated that one of the reasons for requiring this
right of way is that lot 1 could be further subdivided in future. I agree this is a
possibility, but it is not guaranteed. If my client or a future landowner wish to
further subdivide lot 1 the requirement to build sufficient road to access those
future lots would be appropriate at the time of application for that future
subdivision, not now.9
During argument, the Examiner confirmed the Appellants did not object to the
improvements with denser redevelopment,just to condition imposition now. Given the potential
for future development, a key concern is how to avoid precluding the half street improvements,
particularly if the lots transfer to new owners. The Examiner asked about the prospect of piece-
meal development being proposed to subvert platting requirements. The Appellants
acknowledged the concern. Their objection was not to improvements at full build out, but to
making the improvements now.
6 Exhibit 3,contesting Engineering Division Review Item#6 and Planning Division Review Item#1;Exhibit 5
(appeal).
Access is presently off Road 56. The standards to which the driveway would be improved were not detailed.
8 Exhibit 3.
9 Exhibit 3.
City of Pasco Hearing Examiner Page 2 of 5
Decision, Director's Letter Appeal,APPL 2019-002
2. CONCLUSIONS
2.1 Jurisdiction. No final short plat decision has issued. The decision which issued
was a letter decision on plat conditions. The code does allow for an appeal of this letter decision.
However, that appeal is to the Director.
In transmitting the proposed short plat to the parties referenced above, the
Community and Economic Development Director or designee shall solicit their
comments and recommendations.... The Community and Economic Development
Director or designee shall respond in writing to any property owner comments
received within five working days of receipt of the comments. The respondent
shall then have seven days to file an appeal with the Community and
Economic Development Director.10
This was the code language relied on, as the decision appealed is the type referenced
above. However, the code generally provides for the Examiner to hear appeals of "an
administrative decision relating to a short plat."11 If the appeal provisions are read together, they
are reasonably construed to provide the Examiner with jurisdiction to entertain a letter appeal,
even when initially filed with the Director. However, as there is no final short plat decision, that
decision is not before the Examiner. All that is before the Examiner is the letter decision.12
2.2 Review Standard. The code does not establish the review standard, but as the
appellant raises and must establish error, the appellant bears the initial burden of supporting its
appeal, which the defending party may then rebut.
2.3 Road Improvement Requirements and Timing. The Director cannot issue a
short plat decision unless:
(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;
(2) The proposed short plat contributes to the orderly development and land use
patterns in the area;
(3) The proposed short plat conforms to the policies, maps and narrative text of
the Comprehensive Plan;
10 PMC 21.40.070,emphasis added.
11 PMC 21.40.100.
12 Neither party objected to the procedures being used or to Examiner jurisdiction. Presumably,the letter appeal
mechanism is provided,and was utilized,to efficiently resolve the matter.
City of Pasco Hearing Examiner Page 3 of 5
Decision, Director's Letter Appeal,APPL 2019-002
(4) The proposed short plat conforms to the general purposes of applicable
policies or regulations adopted by the City Council;
(5) The proposed short plat conforms to the general purposes of this title;
(6) The public use and interest will be served by permitting the proposed division
of the land.13
Also, access and road improvements must meet engineering requirements, including
these prohibitions on half streets and unfinished or illogical street patterns:
Continuation of Existing Streets. Streets shall normally continue as an extension
of existing streets unless good planning dictates a different solution. Street
patterns shall take into consideration access needed to develop adjacent
properties. Sketches of a proposed street system to serve adjoining properties may
be required if it is owned by the subdivider. ...
Half Streets. Half streets shall be prohibited except that the City may permit their
inclusion in cases where a normal alignment of a present or future planned street
will fall half on an adjoining ownership.14
Given this language, along with the half street improvements next door, completing the
infrastructure now is the logical approach. However, the requirements must be considered in
conjunction with project impacts. While the Examiner lacks jurisdiction over constitutional
matters,15 consistent with case law, the basic requirements are reflected in code.16
With a larger plat, these need for these types of frontage improvements is typically
readily established. The challenge here is that just one lot is being added, with no facts
contesting the Appellants' assertion that the existing driveway can serve the existing residence
and new lot.17 Based on this record, installing the infrastructure needed to serve a larger plat, at
least at this stage, should not be required.
The larger lot retains additional development potential so platting could occur in a
piecemeal fashion and subvert platting requirements. The Appellants' intent, as expressed at the
hearing by counsel, was not to use the platting process in this manner, and is not to preclude
necessary future improvements.
13 PMC 21.40.080.
14 PMC 21.15.010(1)and(3).
15 See e.g., Chaussee v. Snohomish County Council,38 Wn.App.630,636,689 P.2d 1084(1984).
16 See Appellant's briefing. After the hearing,two cases issued which update Washington takings analysis. Chong v.
City of Seattle, Wn.2d (November 14,2019). They have the same case title and issue date,but with one
involving a federal court certification to state court.
17 Whether the existing driveway,a new driveway,or alternate access would be used has not been finally
determined.
City of Pasco Hearing Examiner Page 4 of 5
Decision, Director's Letter Appeal,APPL 2019-002
The Examiner lacks authority to design alternative conditions, as the Director makes the
short plat decision. However, presumably the parties will consider the problem of ownership
changing hands with no easement reservation or other mechanism in place to avoid the plat
having a preclusive effect on improvements necessary to serve future development. Conditions
should be designed to ensure access is ultimately developed which complies with City road and
engineering requirements, once the property is fully developed. While the improvements would
not be completed now,this plat should not create code compliance issues for future development.
Piecemealed projects designed to avoid requirements are not consistent with code.
DECISION
The appealed conditions as written are stricken. (Engineering Division Review Item 6;
Planning Division Review Item 1). This Decision does not foreclose these conditions from be
rewritten to ensure the short plat does not preclude the identified improvements from being made
once the property is developed to its code potential. While conditions must address impacts, the
plat should not impede code compliance for the cumulative development anticipated at this site.
Absent a timely appeal,this Decision is final.18
DECISIQN entered ember 19.
City of Pasco Hearing Examiner
Susan Elizabeth Drummond
�a See Ch. 36.70C RCW(establishing 21 day appeal period to superior court).
City of Pasco Hearing Examiner Page 5 of 5
Decision,Director's Letter Appeal,APPL 2019-002