HomeMy WebLinkAbout02-17-2004 ITEM VIII-B-3CITY OF� l !F¢"T`
,0 WASHINGTON
AGENDA BILL APPROVAL FORM
Agenda Subject Resolution No. 3687 - Hearing Examiner Services
Date:
2/10/2004
Department: Planning
Attachments: Resolution No. 3687,
Budget Impact:
Driscoll and Hunter proposal
Administrative Recommendation:
City Council adopt Resolution No. 3687.
Background Summary:
Auburn has used the services of a Hearings Examiner for approximately the past 15 years. Under City
Code, the Examiner is charged with holding hearings on a variety of actions including variances,
conditional use permits; appeals of code interpretations and rezones.
Since converting to the use of a professional Examiner, Auburn has utilized the services of a single
individual. The City Council asked staff to review the contract and explore the field of available
candidates. We were further asked to make a recommendation to the Council as to which individual or
firm would provide the best service for the City in the future.
Other cities in the region employing contract examiners were contacted and a Request for Proposals was
sent out. Three responses were received including one from our current contractor. All three firms were
invited to an interview conducted by Councilwoman Sue Singer; the City Attorney, Planning and
Community Development Director and the Community Development Administrator.
The interviews produced a unanimous recommendation that the City contract with the firm of Driscoll and
Hunter. This firm is dedicated to only providing Hearing Examiner services. They proposed a highly
proactive approach whereby they would communicate legal and other issues directly to the City Council
and would meet periodically to discuss policies, the decision process and answer questions about cases
that had already been adjudicated. Ted Hunter would be the City's primary Examiner, but his partner will
be available to provide continuity in event an absence is unavoidable.
Reviewed by Council & Committees:
Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES:
❑ Building ❑ M&O
❑ Airport ❑ Finance
❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv.
❑ Finance ❑ Parks
❑ Human Services ❑ Planning & CD
❑ Fire ❑ Planning
❑ Park Board ❑Public Works
® Planning Comm. ❑ Other
❑ Legal ❑ Police
❑ Public Works ❑ Human Resources
Action:
Committee Approval: ❑Yes ❑No
Council Approval: []Yes ❑No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Singer Staff: Krauss
Meeting Date: February 17, 2004 Item Number: VIII.B.3
AUBU N * MOI,E THAN YOU IMAGINED
Agenda Subject Date:
Resolution No. 3687 - Hearinq Examiner Services 2/10/2004
A copy of the Driscoll and Hunter proposal is attached along with a copy of their contract. The fee for
services is $48,000 per year based upon the 2003 case load. This is $8,000 in excess of the 2004
budget allocation; however, since the contract will start in March and there was no February meeting,
these costs can probably be covered without a budget amendment. In addition, Driscoll and Hunter
provide their own meeting minutes so the City will be able to save some money by eliminating or reducing
secretarial overtime.
RECOMMENDATION
Staff recommends that the City Council approve Resolution No. 3687 covering the contract for Hearing
Examiner services with the firm of Driscoll and Hunter.
At their meeting on February 9, 2003, the Planning and Community Development Committee recommend
approval with a few minor revisions to the contract.
PCDC\HEARING EXAMINER RESOLUTION
L0217-6
A4.5.2
Page 2 of 2
RESOLUTION NO. 3 6 8 7
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF AUBURN, WASHINGTON, AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A
CONTRACT WITH DRISCOLL AND HUNTER FOR
HEARING EXAMINER SERVICES
WHEREAS, Auburn City Code (ACC) Section 18.66.030 provides for the creation
of the Office of the Hearing Examiner; and
WHEREAS, ACC Section 18.66.040 provides for the Mayor's appointment of the
Hearing Examiner subject to confirmation by the Auburn City Council; and
WHEREAS, from time to time it is desirable and appropriate to solicit
qualifications from interested parties to serve as the City's Hearing Examiner; and,
WHEREAS, a Request of Proposal for Hearing Examiner services was issued
and a selection process was completed;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, HEREBY RESOLVES as follows:
Section 1. That the Mayor and the City Clerk are authorized to execute an
agreement in substantial conformity with the Agreement attached hereto, marked as
Exhibit "A" and incorporated herein by this reference.
Section 2. That the Mayor is authorized to implement such administrative
procedures as may be necessary to carry out the directives of this legislation.
Section 3. That this Resolution shall take effect and be in full force upon
passage and signatures hereon.
Resolution 3687
February 11, 2004
Page 1
Dated and Signed this day of , 2004.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
City Attorney
Resolution 3687
February 11, 2004
Page 2
EXHIBIT "A"
PROFESSIONAL SERVICES AGREEMENT
FOR HEARINGS EXAMINER
FOR CITY OF AUBURN
THIS AGREEMENT, entered into this 1st day of February March 2004 by and
between the City of Auburn (City), a municipal corporation under the laws of the State of
Washington, and the firm of Driscoll & Hunter (Hearings Examiner), Suite 607, 101 Yesler
Way, Seattle, Washington 98104:
WITNESSETH:
WHEREAS, among the responsibilities with which the City is charges are matters
for which quasi-judicial hearings are occasionally needed; and
WHEREAS, in order to address these matters, it is advantageous for the City to
provide for the services of person(s) or firm(s) to perform the hearings examiner functions
for the City; and
WHEREAS, the Hearings Examiner has extensive experience in providing such
hearings examiner services, and is qualified to provide such services for the City; and
WHEREAS, after investigating and reviewing the proposals of persons and firms
interested in providing such services, it was determined to be in the best interests of the
City to negotiate an agreement with the Hearings Examiner for such services.
NOW, THEREFORE, the City and the Hearings Examiner mutually agree as
follows:
The duties of the Hearings Examiner shall be:
1. (a) To conduct land use, code enforcement hearings and business/regulatory
license revocation hearings for the City. Included in this duty shall be the review
of materials provided by the City staff prior to hearing; research of legal issues
anticipated at the hearing; holding pre -hearing conferences on certain cases;
the conduct of hearings, including issuances of oaths; description of the land
use Hearings Examiner system to those in attendance at the hearing; the
receipt of testimony and evidence at the public hearing; creating a clear and
understandable record of the proceedings; and making decisions on post
hearing motions. Hearings shall be held not more than twice per month, every
month unless a sooner hearing date is required to meet the requirements of the
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 1 of 7
Auburn Municipal Code. Those hearing days in excess of two per month shall
be considered extraordinary hearings.
(b) To draft Findings of Fact and Conclusions of Law to support decisions or
recommendations made for each case.
(c) To draft and periodically upgrade Rules of Procedure of Hearings Examiner for
use in the City. Conduct a "You be the judge" session for the Council and
Planning Commission to help insure coordination between those bodies.
(d) To stay current on all land use legislation in Washington and all Washington
Appellate Court decisions regarding land use and procedural issues.
(e) To have a regular conference on at least a quarterly basis, with the Planning
Director and staff to inform them of the changes in land use law in Washington.
(f) To meet yearly with the City Council to discuss the state of the Hearings
Examiner system and recommend changes to it, if needed, and to provide
training in decision-making processes to help reduce liability exposure.
(g) To provide annual statistical data on the cases heard by the Hearings Examiner
office.
(h) To be available for extraordinary hearings (which include multi -day hearings and
those days of hearings that exceed two per month) when scheduled by the City.
2. Compensation for the Hearings Examiner for tasks 1(a) through 1(g) shall be at a
fixed monthly rate of Four Thousand Dollars ($4,000). Compensation for task 1(h)
shall be at an hourly rate agreed to by and between the parties.
3. The Hearings Examiner shall provide its own secretarial services. The City shall
provide the room for the hearings and equipment, including working recording
equipment. The City shall be responsible for all notice of public hearings and for
distribution of final decisions.
4. The City shall be the keeper of the official record. The City shall provide the
Hearings Examiner copies of all exhibits and make available copies of tapes of
testimony, if requested. The City shall be responsible for all notice of public
hearings and for distribution of final decisions. The Hearings Examiner shall submit
a written decision to the City and to the applicant, appellant and/or other party(ies)
of interest within not more than ten (10) days after the conclusion of the hearing,
unless additional time is needed by the Hearings Examiner to complete the written
decision, in which case the Hearings Examiner shall advise the City and the
applicant, appellant and/or other party(ies) of interest of the need for additional time
within said ten (10) day period. For the purposes hereof, parties of interest shall
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 2 of 7
include any person(s) who have a tangible property rights and/or ownership interest
in the subject matter of the hearing. Persons not constituting parties of interest
may be able to obtain a copy of the written decision, however such copy shall be
obtainable from the City through the public records request process. It shall not be
the obligation or responsibility of the Hearings Examiner to such copy(ies).
5. The Hearings Examiner shall invoice to the City on a monthly basis a statement for
compensation as provided herein. Payment of services shall be within 30 days of
said statement.
6. The services of the Hearings Examiner are to commence pursuant to this
Agreement on March 1, 2004 and be re -negotiated within one year following this
date at the request of either party. Following the end of the one-year term, the
Agreement shall automatically renew on a year-to-year basis unless re -negotiated,
or unless otherwise terminated as herein provided.
7. The Hearings Examiner or the City may terminate this Agreement before the
expiration date by giving a 60 -day written notice of termination for cause. In the
event of termination, matters pending shall be completed and compensated
pursuant this Agreement.
8. The Hearings Examiner shall procure and maintain for the duration of this
Agreement, insurance against claims for injuries to persons or damage to property
which may arise from or in connection with the performance of the work hereunder
by the Hearings Examiner, their agents, representatives, employees or
subcontractors. All insurance shall be placed with insurer(s) with a Best's insurance
rating of not less than "A-."
The insurance policies obtained by the Hearings Examiner shall provide coverage
of not less than the following amounts:
(a) Automobile Liability insurance with limits not less than $1,000,000 combined
single limit per accident for bodily injury and property damage.
(b) Commercial General Liability insurance written on an occurrence basis with
limits no less than $1,000,000 combined single limit per occurrence and
$2,000,000 aggregate for personal injury, bodily injury and property damage.
(c) Professional — Errors & Omissions Insurance with limits not less than
$1,000,000 combined single limit per incident.
The Hearings Examiner shall provide to the City certified copies of such current
policies. Failure of the Hearings Examiner to so provide certified copies of such
current policies shall constitute a breach of this Agreement.
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 3 of 7
The Hearings Examiner's insurance shall contain a clause stating that coverage
shall apply separately to each insured against whom claim is made or suit is
brought, except with respects to the limits of the insurer's liability.
Any payment of deductible or self-insured retention shall be the sole responsibility
of the Hearings Examiner.
The Hearings Examiner's insurance shall be primary insurance with respect to the
City and the City shall be given not less than thirty (30) days prior written notice of
any cancellation, suspension or material change in coverage, which notice
requirement shall be included as a written term of any such policies.
9. The Hearings Examiner is an independent contractor for the performance of
services under this Agreement. The City shall not be liable for, nor obligated to pay
to the Hearings Examiner, or any employee of the Hearings Examiner, sick leave,
vacation pay, overtime or any other benefit applicable to employees of the City, nor
to pay or deduct any social security, income tax, or other tax from the payments
made to the Hearings Examiner which may arise as an incident of the Hearings
Examiner performing services for the City. The City shall not be obligated to pay
industrial insurance for the services rendered by the Examiner Pro Tem. The
Examiner Pro Tem will be solely responsible for the payment of any and all
applicable taxes related to the services provided under this Agreement.
10. The Hearings Examiner shall be disqualified from presiding over any hearing in
which the Hearings Examiner has or may fairly appear to have an actual or
potential interest in the outcome of the proceeding. The Hearings Examiner shall
make a determination of those proceedings in which the Hearings Examiner should
be disqualified after consultation with the City Attorney, based on Washington State
law. The Hearings Examiner shall not disqualify itself from more than five (5)
hearings in any calendar year. In those proceedings in which the Hearings
Examiner is disqualified from hearing any matter otherwise covered under this
Agreement, the City shall obtain a pro tempore Hearings Examiner at the City's
expense.
11. The Hearings Examiner shall be free of any supervision or other influence from the
Mayor or any other official or employee with respect to any decision or
recommendation made by the Hearings Examiner on a specific case, issue or
permit.
12. In the event that any dispute or conflict arises between the parties while this
Contract is in effect, the Hearings Examiner agrees that, notwithstanding such
dispute or conflict, the Hearings Examiner shall continue to make a good faith effort
to cooperate and continue work toward successful completion of assigned duties
and responsibilities.
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 4 of 7
13. This Agreement shall be administered by
on behalf of the Hearings Examiner, and by the Mayor of the City, or designee, on
behalf of the City. Any written notices required by the terms of this Agreement shall
be served on or mailed to the following addresses:
City of Auburn
Auburn City Hall
25 West Main
Auburn, WA 98001-4998
Phone (253) 931-3000
FAX (253) 931-3053
Hearings Examiner
Driscoll & Hunter
Suite 607, 101 Yesler Way
Seattle, Washington 98104
14. All notices or communications permitted or required to be given under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered in person or deposited in the United States mail, postage prepaid, for
mailing by certified mail, return receipt requested, and addressed, if to a party of
this Agreement, to the address for the party set forth above, or if to a person not a
party to this Agreement, to the address designated by a party to this Agreement in
the foregoing manner.
Any party may change his, her or its address by giving notice in writing, stating his,
her or its new address, to any other party, all pursuant to the procedure set forth in
this section of the Agreement.
15. Neither party to this Agreement shall assign any right or obligation hereunder in
whole or in part, without the prior written consent of the other party hereto. No
assignment or transfer of any interest under this Agreement shall be deemed to
release the assignor from any liability or obligation under this Agreement, or to
cause any such liability or obligation to be reduced to a secondary liability or
obligation.
16. No amendment, modification or waiver of any condition, provision or term of this
Agreement shall be valid or of any effect unless made in writing, signed by the
party or parties to be bound, or such party's or parties' duly authorized
representative(s) and specifying with particularity the nature and extent of such
amendment, modification or waiver. Any waiver by any party of any default of the
other party shall not effect or impair any right arising from any subsequent default.
Nothing herein shall limit the remedies or rights of the parties hereto under and
pursuant to this Agreement.
17. In addition to the termination provisions set forth herein above, either party may
terminate this Agreement upon written notice to the other party if the other party
fails substantially to perform in accordance with the terms of this Agreement
through no fault of the party terminating the Agreement.
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 5 of 7
The City may terminate this Agreement upon not less than ninety (90) days written
notice to the Hearings Examiner if the services provided for herein are no longer
needed from the Hearings Examiner, if funds are not appropriated for this
Agreement by the City Council in its budget process.
If this Agreement is terminated through no fault of the Hearings Examiner, the
Hearings Examiner shall be compensated for services performed prior to
termination in accordance with the rate of compensation provided herein.
18. This Agreement shall be binding upon, and the benefits and obligations provided
for herein shall inure to and bind, the parties hereto and their respective successors
and assigns, provided that this section shall not be deemed to permit any transfer
or assignment otherwise prohibited by this Agreement. This Agreement is for the
exclusive benefit of the parties hereto and it does not create a contractual
relationship with or exist for the benefit of any third party, including contractors,
sub -contractors and their sureties.
19. In the event of such litigation or other legal action, to enforce any rights,
responsibilities or obligations under this Agreement, the prevailing parties shall be
entitled to receive its reasonable costs and attorney's fees.
20. This Agreement and the rights of the parties hereunder shall be governed by the
interpreted in accordance with the laws of the State of Washington and venue for
any action hereunder shall be in of the county in Washington State in which the
property or project is located, and if not site specific, then in King County,
Washington; provided, however, that it is agreed and understood that any
applicable statute of limitation shall commence no later than the substantial
completion by the Hearings Examiner of the services.
21. All captions, headings or titles in the paragraphs or sections of this Agreement are
inserted for convenience of reference only and shall not constitute a part of this
Agreement or act as a limitation of the scope of the particular paragraph or sections
to which they apply. As used herein, where appropriate, the singular shall include
the plural and vice versa and masculine, feminine and neuter expressions shall be
interchangeable. Interpretation or construction of this Agreement shall not be
affected by any determination as to who is the drafter of this Agreement, this
Agreement having been drafted by mutual agreement of the parties.
22. Each provision of this Agreement is intended to be severable. If any provision
hereof is illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the validity of the remainder of this Agreement.
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 6 of 7
23. This Agreement contains the entire understanding of the parties hereto in respect
to the transactions contemplated hereby and supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
24. This Agreement may be executed in multiple counterparts, each of which shall be
one and the same Agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other
party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective the day and year first set forth above.
CITY OF AUBURN
Peter B. Lewis, Mayor
Attest:
Danielle E. Daskam City Clerk
Approved as to form:
Daniel B. Heid, City Attorney
Professional Services Agreement
For Hearings Examiner Services
Exhibit "A," Res. No. 3687
February 11, 2004
Page 7 of 7
HEARINGS EXAMINER
Name:
Title:
Name:
Title:
JAMES M. DRISCOLL
(206) 628-0039
jmd@driscoll-hunteccom
November 14, 2003
DRISCOLL & HUNTER
DISPUTE RESOLUTION SERVICES
SUITE 607, OLYMPIC BUILDING
101 YESLER WAY
SEATTLE, WASHINGTON 98104-2219
FAX (206) 628-0514
www.driscoll-hunter.com
Planning & Community Development Department
City of Auburn
25 West Main Street
Auburn, Washington 98001-4998
THEODORE PAUL HUNTER
(206) 628-0700
scoll-hunter.com
Our firm is interested in the position of Hearings Examiner. This letter is our re -sponse to your Request for
Qualifications. Attached to this letter are our individual resumes, a Statement of Qualifications listing
other jurisdictions where we have performed similar work, and references. We have also enclosed a copy
of our publication "You Be the Judge" for your review.
I. OUR APPROACH
Philosophy
The purpose of the Hearings Examiner system is to provide an objective review of the facts of an
application and then apply the goals and ordinances of the City in order to make a decision. In order to
develop a record necessary to make a decision, it is imperative that all interested persons be encouraged to
present all relevant facts at the hearings through oral or written testimony. In doing so, the Examiner
must create an atmosphere that shows courtesy to witnesses and acknowledgement of their opinions. We
are successful in meeting these goals of the Hearings Examiner system. We are unbiased, fair and ethical
while being acutely aware of the exposure of municipalities to legal liability in all land use decision
making. Recent court decisions have made it clear that damages will be assessed if a City does not follow
_appropriate decision making procedures. We know how to adhere to legal requirements of procedural due
process to help prevent liability exposure.
VVe believe it is important to encourage dialogue between staff and the Hearings Examiners. It is our
practice to meet with planning staff both initially and at regular intervals to make certain our decision
makin is performed in the most efficient manner possible.
Cor. licts of Interest and Appearance of Fairness
Mr. Hunter, Mr. Driscoll arid Ms. Toweill do not have any ownership interest in any real property nor do
they conduct business or practice law within Auburn. We understand the processes and the criteria to be
followed when making land use decisions and are free from personal or political influence regarding any
land use application in Auburn. With the availability of three experienced Hearing Examiners, the City
would be assured of conflict -free coverage of all hearings.
stq ff
If appointed, Mr. Driscoll, Mr. Hunter and Ms. Toweill would each be available to serve as Hearings
Examiner. Mr. Hunter would be the contact person for the City regarding the operations of the Office of
Hearing Examiner and would provide most Land Use Hearings Examiner services.
Kathy Pugh provides secretarial support for our Hearings Examiner services. She is well versed in all
aspects of the Hearings Examiner process. She prepares public information materials and tracks the files
for each jurisdiction. She is also available to assist at hearings when needed.
II. SERVICES OFFERED
Hearings Examiner Services
We would provide a full range of Hearings Examiner services to Auburn. Experience in other
jurisdictions (including the cities of Kent and Puyallup) provides us the background to hear and decide
every type of case over which the Auburn Hearings Examiner has jurisdiction. In addition, we recognize
the importance of providing legal updates. We would meet with planning staff at regular intervals to
provide updates on the law as it applies to the hearing examiner decisionmaking process.
The firm of Driscoll & Hunter will provide the following services:
1. Review files, conduct hearings and prepare Findings, Conclusions and Decisions on land
use permit requests and appeals.
2. Prepare up-to-date Rules of Procedure for open -record hearings, open -record appeals and
closed -record appeals.
3. Prepare a Public Information Brochure on the Land Use Hearing Examiner system to help
guide public participation in the system. The brochure would answer many "standard"
questions and thus reduce staff time now needed to answer simple questions.
4. Coordinate informal public meetings to help ease the transition to a new Land Use
Hearing Examiner system.
5. Conduct a "You Be the Judge" training session for the Council and Planning Commission
to help ensure coordination between those bodies
6. Meet with the Council at least annually to discuss issues of the land use review process.
7. Provide "Updates on the Law" for planners at quarterly meetings to help ensure
compliance with rapidly changing land use law requirements.
Familiarity with Codes
Our experience as land use Hearings Examiners, practicing attorneys and legislative analysts provides us
with broad experience in developing, interpreting and implementing development regulations. We are
intimately familiar with the Washington Growth Management Act, the Shoreline Act, the Subdivision Act,
the State Environmental Policy Act and the Regulatory Reform Act. We understand how the ordinances
of Auburn must be implemented in compliance with state law.
Mr. Hunter serves as Hearing Examiner in the City of Kent and as Appellate Examiner in the City of
Puyallup. Mr. Driscoll conducted the hearings on the siting of the new high school for the Auburn School
District. Driscoll & Hunter also are the hearing examiners for Maple Valley and Covington. While none
of these cities is exactly the same as Auburn, there are similar characteristics in the city ordinances and in
the issues that come before the hearing examiner for resolution.
Our office is in full compliance with the Americans with Disabilities Act and all other applicable federal,
state and local laws.
City of Auburn
Proposal for Hearing Examiner Services
November 14, 2003
Page 2 of 5
III. EXPERIENCE
Experience in Other Jurisdictions
Our experience is fully detailed in our Statement of Qualifications attached to this letter. We serve as
Hearings Examiners or Pro Tem Examiners on a contract basis in over eighteen different jurisdictions
ranging in size from 1000 to over 100,000 in population. The types of hearings we conduct include
variances and conditional uses, SEPA appeals, Shoreline Management Act permits and appeals,
preliminary plats, PRD applications, county staff administrative appeals, search and seizure forfeitures,
zoning enforcement actions, false alarm appeals, illegal sign violation appeals, noise abatement appeals,
code appeals and LID rolls and assessments. We have established Hearings Examiner systems and
improved the efficiency of existing systems. We also have presented training programs in land use
decision making for city councils and planning commissions on behalf of the Association of Washington
Cities and the Washington Cities Insurance Authority. This broad-based experience allows us to begin
work to interpret and apply City of Auburn ordinances without the need for additional training. Our
commitment is to provide the highest level of professional expertise of planning theories and land use law
to Auburn.
Time from Hearing to Decision
State law requires that Hearings Examiner decisions be issued within ten working days of the close of the
public hearings on an application. RCW 36.63.130 (3) allows extension of deadlines upon approval of the
Applicant. We have consistently met these deadlines.
There are several reasons for this record. First and foremost is that our firm focuses its practice almost
exclusively on providing land use hearings examiner and dispute resolution services to cities and counties.
As a result, we are not distracted by lengthy trials or other legal work.
We also keep up on legal developments in the specialized field of land use law so we do not need to
conduct extensive legal research when a legal issue is presented in an application (which is increasingly
the case). We provide regular briefings to all of our municipalities on the current status of legal
requirements for land use decisions. This helps reduce the time needed for making a decision, as the staff
is also familiar with how to handle legal issues.
Finally, we use a state-of-the-art networked computer system to conduct legal research, write decisions
and index past decisions. A significant part of decisions use a similar format. Thus, the decision -maker
can focus on the controversial issues and make certain all procedural and substantive due process
requirements are met in each decision issued.
It is extremely important to avoid delay when deciding a land use application. The state and federal courts
have made it clear that a municipality will be held liable for costs caused by unreasonable delays and other
violations of procedural due process.
Interest and Skills
Our interest in providing ongoing, professional Hearings Examiner services to your city is demonstrated in
many ways. Our professional practice is focused on providing Hearings Examiner services and related
dispute resolution services. We also provide training in decision making processes to councils and
planning commissions. Mr. Driscoll and Mr. Hunter are the authors of "You Be the Judge," published by
Citv of Auburn
Proposal for Hearing Examiner Services
November 14, 2003
Page 3 of 5
the Association of Washington Cities in 1993. This is a manual that helps councils and planning
commissions make legally defensible land use decisions. We are the only law firm that has focused its
practice entirely in the area of land use decision making.
Our skills have been developed in over 35 combined years of land use law practice. Mr. Driscoll and Mr.
Hunter were involved in the practice of land use law for many years prior to becoming Hearings
Examiners. We take full responsibility for the legal accuracy of our decisions. Our decisions are written
in plain English and are drafted to communicate simply and effectively. We work efficiently under time
pressure and consistently meet deadlines. We work closely and efficiently with Hearings Examiner
administrative staff in the jurisdictions we serve.
IV. COMPENSATION
Compensation for our services can be done in any of the following ways: (1) a flat retainer, (2) a
combination of retainer and fee per case or (3) an hourly rate. These methods are discussed in detail
below.
The flat fee for services is based on a projected number of cases to be heard and on the number of
hearings each month. The flat fee for services would be determined by the type of cases heard. The bulk
of the cases are assumed to be conditional uses and variances. The monthly retainer would need to be
higher if the cases are primarily plats, SEPA appeals and rezones as these applications are typically more
complex. The primary benefit of a flat retainer is that it can be budgeted with certainty. Our retainer
services also include phone access on specific land use procedural questions, training sessions and updates
on the law.
The retainer plus flat fee per casearrangement is also available and used by most of our clients. This
arrangement allows the municipality to commit to a monthly fee for budgeting purposes. The monthly fee
typically includes file review, hearing preparation, site views, hearing time, case procedural consultation
time, and reports to Council. A set number of cases of a specific type may also be included in the annual
fee. If cases exceed the agreed-upon number, those cases that exceed the agreed upon amount are billed
on a per -hour basis. The fee would be negotiated with the City to take into account the time of the
hearing, the degree of city staff involvement and the number of cases heard. The preparation of the
decision -would be billed at an hourly rate.
The hourly rates of each of our attorneys vary with his or her experience. The hourly fees range from
$75 to $180 per hour. This approach is unpredictable for the city and the attorney, but does allow the
experience of the hearing officer to be matched with the type of case being heard such that the highest
expertise is reserved for the toughest cases.
We do not charge for travel expenses or other "extras" such as copying charges or phone calls.
A Word about Fees: It is our strong recommendation that your Hearings Examiner be selected on the
basis of qualifications regardless of fees. What might appear to be an attractive hourly fee can be costly
(for both hours taken to get a result and for exposure to liability) if the candidate is inexperienced. If fee
Cilyy ofAuburn
Proposal.for Hearing Examiner Services
November 14, 2003
Page 4 of 5
negotiations are unsuccessful with the highest qualified candidate, negotiations can proceed with other
candidates.
Thank you for your consideration of Driscoll & Hunter for the office of Hearings Examiner. We look
forward to hearing from you.
Sincerely,
Theodore Paul Hunte
Attachments: Resumes of James M. Driscoll, Theodore Paul Hunter and LeAnna C. Toweill; Statement
of Qualifications; and References.
Enclosure: "You Be the Judge"
City of Auburn
Proposal for Hearing Examiner Services
November 14, 2003
Page 5 of 5
REFERENCES
Michael Kane, Permit Coordinator
Thurston County Department of Community Services
2000 Lakeridge Drive SW
Olympia, WA 98502
360-794-7894
Jerry Litt
Assistant Planning Director
City of Lacey
420 College Street SE
Lacey, WA 98503
360-491-3214
Paul Roberts
Planning Director
City of Everett
2930 Wetmore
Everett, WA 98201
360-259-8731
Fred Satterstrom
Planning Manager
City of Kent
400 Gowe, Suite 100
Kent, WA 98032
253-859-3390
Tim Woolett
Senior Planner
Clallam County
Post Office Box 863
Port Angeles, WA 98362-0149
360-417-2000
Roger Lubovich
City Attorney
Bremerton, Washington
239 Fourth St.
Bremerton, WA. 98337
360-478-5345
STATEMENT OF QUALIFICATIONS
James Driscoll currently serves as Hearing Examiner for Clallam and Thurston Counties and the
cities of Lake Stevens, Everett, Snohomish, Woodinville, Lacey, Mukilteo, Issaquah, Maple
Valley, Kenmore, Des Moines, Bremerton and Covington. In the cities of Redmond, Edmonds
and Everett, he was the first Examiner and was responsible for establishing the office and
developing the procedures required at the hearings. With Theodore Hunter he helped establish
the Office of Hearing Examiner in the cities of Woodinville, Monroe, Snohomish, Mukilteo
Lacey and Lake Stevens. From 1980 through 2003 he has presided over thousands of hearings
involving preliminary plats, shoreline permits, SEPA appeals, variances, conditional use permits
and other land use actions. He continues to assist the communities he serves in improving the
efficiency and effectiveness of their land use processes. He developed a zoning enforcement
procedure for Everett, LID procedures for Redmond, and a mediation process for Lake Stevens.
Mr. Driscoll is President of the Northwest Chapter of the American Association of Professional
Hearing Examiners. He has made presentations at the Association of Washington Cities
convention and at the American Planning Association's national convention. He is co-author,
with Mr. Hunter, of a booklet, You Be the Judge, published by the Association of Washington
Cities.
Theodore Hunter also has broad experience as a Hearing Examiner. He serves as Hearing
Examiner for Clallam and Thurston Counties and the cities of Lake Stevens, Kent, Snohomish,
Woodinville, Mukilteo, Issaquah, Maple Valley, Kenmore, Hunts Point, Des Moines, Bremerton
and Covington. He understands the Hearing Examiner system from both sides of the bench. He
has over fifteen years of experience in land use law including many appearances before local
Hearing Examiners, City Councils and all levels of the courts. He has over ten years of
experience as an Arbitrator for King County Superior Court and is an experienced mediator. His
trial experience from 1978 to 1983 involved representation in land use matters at the Superior,
Appellate and Supreme Court levels. From 1983 to 1988 he served as Legal Counsel to the
Legislature where he prepared revisions to the State Environmental Policy Act, the Shoreline
Management Act and other environmental laws. Mr. Hunter received his Doctor of
Jurisprudence from the University of Washington and was trained in mediation techniques at
Willamette and Harvard Universities. He served as Chair of the State Bar Association Dispute
Resolution Section and is also the co-author of a booklet published by the Association of
Washington Cities on land use decisionmaking called You Be The Judge.
LeAnna Toweill serves as Deputy Hearings Examiner for the cities of Snohomish, Woodinville,
Covington, Kenmore and Maple Valley, and as Hearings Examiner Pro Tem for Thurston
County. Since 1999 she has presided over hearings involving variances, street vacations, special
use permits, shoreline permits, preliminary plats and administrative appeals. In addition, Ms.
Toweill has experience drafting land use decisions as a law clerk for Driscoll & Hunter,
including decisions on SEPA appeals and code enforcement orders. Ms. Toweill is well -versed
in state land use law and has provided case law research for many of the land use law seminars
conducted by Mr. Driscoll and Mr. Hunter. She has presented case updates at seminars in
Thurston County and the cities of Lacey, Monroe and Maple Valley.
JAMES M. DRISCOLL
EDUCATION
University of Montana School of Law, 1972 (J.D.), University of Washington, 1969 (B.A. - Political
Science)
• Licensed to Practice Law: Washington, 1980 (Member: Washington State Bar Association)
EXPERTISE RELATING TO HEARINGS EXAMINER
Comprehensive experience in all aspects of planning, zoning and land use administrative review, including
reviewing staff reports, conducting hearings and issuing decisions. Effective and empathetic communication
at public hearings while maintaining a fair and impartial presence. Ability to compile concise and
understandable written reports. Extensive experience in analyzing, developing and implementing effective
decision-making procedures.
EXPERIENCE
Hearings Examiner for listed cities and counties. Responsible for knowledge of local and state land use laws
and regulations; workable knowledge of procedure; current on all legislative and case law changes.
Working knowledge of planning principles as well as substantive and procedural legal land use issues. Able
to effectively review staff reports and other evidence presented at hearings. Strong ability to conduct
hearings and draft of decisions in a legal and procedural correct manner. Serve in the following
communities:
City of Everett, (1980 - present); City of Lake Stevens, (1991 - present); City of Woodinville, (1993 -
present); City of Snohomish, (1994 - present); City of Mukilteo, (1994 - present); Thurston County,
(1995 - present); Clallam County, (1996 - present); City of Lacey, (1997 -present); City of Covington,
(1997 -present); City of Maple Valley, (1997 -present); City of Issaquah, (1997 -present);). Also served as
the first Hearing Examiner of City of Redmond, (1980 - 1996); City of Edmonds, (1981 - 1994); City of
Monroe, (1991 - 2002)
CONSULTANT
Past consultant for Association of Washington Cities and Washington Cities Insurance Authority for training
of elected officials on the legal procedural requirements of land use hearings.
CITY ATTORNEY
City attorney in Helena, Montana. 1977-1979
LECTURER
Presentations on land use law and procedure at the Association of Washington Cities State
Convention (1993) and American Planning Association Convention (1994, 1996 and 1997).
Presentation at Washington APA Fall Conference in 1996. Member of faculty for Washington
Municipal Research Council's training for local improvement districts (LIDS). Guest lecturer at
University of Washington School of Public Health.
AUTHOR
Co-authored You Be the Judge, a handbook for the land use decision -maker. (Copyright 1993)
COMMUNITY INVOLVEMENT
• President, Association of Washington Land Use Hearing Examiners, Washington -Oregon.
• Past Board Member, Phinney Neighborhood Association, Seattle, Washington.
• Coached Little League; Community choir, Bicycle tours
• Started Homeless Shelter at St. John's Catholic Church, Seattle
THEODORE PAUL HUNTER
SPECIAL EXPERTISE
Expert knowledge of land use law, SEPA Appeals, code enforcement, municipal law and administrative
procedure. Extensive experience in dispute resolution processes and in litigation at all state judicial levels.
Skilled in negotiation, arbitration and mediation techniques.
EDUCATION
Juris Doctor, University of Washington School of Law (1978).
Harvard Negotiation Institute, Coursework in Mediation & Negotiation Techniques (1989).
School of Graduate Affairs, University of Washington, Coursework in Forestry, Marine Policy, Urban
Planning & Environmental Assessment (1979 — 1988).
Portland State University, B.S., University Scholars Program (1973).
EXPERIENCE
ATTORNEY, DECISIONMAKER & MEDIATOR: LAND USE ISSUES Ongoing
Provide independent legal analysis of land use ordinances for city and county governments. Clients have
included City of Shoreline, City of Kenmore, City of Seattle, Clallam County and Jefferson County.
Provide full Hearing Examiner services for Thurston County, Clallam County, Kent, Lake Stevens,
Issaquah, Mukilteo, Maple Valley, Covington, Kenmore, Woodinville, Snohomish, and Hunts Point on a
contract basis. Responsible for all activities of the Office of Hearing Examiner including reviewing
applications, facilitating settlement conferences, conducting hearings, interpreting ordinances, writing
decisions and promulgating rules of procedure.
Provide mediation services to local governments to attempt resolution of land use disputes.
ARBITRATOR & MEDIATOR 1983-2003
Served as Arbitrator for King County Superior Court (fifteen years of experience) for business and personal
injury disputes. Serve as Mediator for the Washington Arbitration & Mediation Service (eight years
experience) for personal injury and land use disputes. Past Chair of the Alternative Dispute Resolution
Section of the Washington State Bar Association.
TRAINING CONSULTANT: WCIA, APA & ICMA 1995-2000
Provided training to elected officials and staff on how to participate in a land use hearing. Training focuses
on legal liability for failure to follow procedural due process, hearing methodologies to avoid liability and
mediation techniques to resolve disputes prior to formal hearings. Co-author of "You Be the Judge" — a
manual for public officials involved in land use decisionmaking — published by the Association of
Washington Cities.
DEPUTY PROSECUTING ATTORNEY, JEFFERSON COUNTY 1997-1998
Provided legal review and analysis of land use ordinances and comprehensive plan for compliance with
state statutes and case law. Prepared amendments and revised ordinances to implement required changes.
Provided comprehensive plan revisions to ensure consistency with legal requirements. Responded to
specific legal concerns of Planning Department and Board of Commissioners.
LEGAL COUNSEL, ENERGY & ENVIRONMENTAL ISSUES,
HOUSE OF REPRESENTATIVES (Olympia, WA.) 1983-1988
Served as Legal Counsel to members of the House on energy and environmental issues. Prepared legal
briefs on issues and developed legislation to address specific concerns. Selected to represent the Legislature
as Chief Negotiator in interactions with the federal government on nuclear and hazardous waste
matters. Prepared legal memos and public presentations on matters related to land use development,
hazardous and solid waste, and administrative decisionmaking processes. Served as Special Counsel to the
Environmental Affairs Committee on the State Environmental Policy Act, Shoreline Management Act,
Solid Waste Management Act, and the Model Toxics Control Act.
ACTIVITIES
Member: Washington State Bar Association; Environmental Lawyers of WSBA; Dispute Resolution
Section of WSBA; Seattle Peace Chorus; Roughrider Baseball Club; Leland Neighborhood Association,
K1apaDoWoPella.
Participant: Sports (especially Squash, Tennis & Long Distance Running); Music (Trumpet, Guitar &
Voice).
LEANNA C. TOWEILL
EDUCATION
University of Washington School of Law, Seattle, Washington
Juris Doctor, June 1999
International Institute of Human Rights, Strasbourg, France
Certificate, July 1995
Southern California College, Costa Mesa, California
Bachelor of Arts, History and Political Science, December 1994
EXPERIENCE
5/98 - Present Law Clerk, Attorney and Hearings Examiner, Driscoll & Hunter
As an attorney (11/99 to present), conducted hearings as Hearings Examiner for ten
jurisdictions including the Cities of Snohomish, Covington, Lacey, Lake Stevens,
Monroe, Maple Valley, Mukilteo, Kenmore, Woodinville and Thurston County.
Presented legal updates at the 2001 and 2003 Washington Association of Hearing
Examiners conferences. Participated in numerous training sessions with city and county
staff on topics including hearing preparation, procedural due process and land use law.
As a law clerk (5/98 to 11/99), provided the Hearings Examiners with draft findings,
conclusions, and legal orders, and performed ordinance, statutory and case law research
to support decisions. Topics most frequently researched include eminent domain,
vested rights, nonconforming uses, preliminary plats, the State Environmental Policy
Act, and the Telecommunications Act of 1996. Maintained a strong working
knowledge of Washington case law and statutes in the field of zoning and planning,
with particular emphasis on the topic of municipal liability. Assisted in drafting rules of
procedure and code enforcement ordinances.
6/97-10/97 Legal Intern, Government Accountability Project, Seattle, Washington
Conducted research and drafted pleadings and memoranda for public interest
organization specializing in the representation of corporate and government
whistleblowers. Topics researched include employee protection and criminal provisions
of federal environmental statutes, the Freedom of Information Act, and Washington tort
law.
PROFESSIONAL ORGANIZATIONS
Member, Washington State Bar Association
ACTIVITIES AND INTERESTS
Hiking, running and cooking
BEFORE THE HEARINGS EXAMINER
FOR THE CITY OF MAPLE VALLEY
In the Matter of the Appeal of
Tube Art Displays, Inc. on behalf of )
Hogate Properties, Inc. )
Of a Notice of Violation and )
Order to Correct Violation )
NO. CE 21 1-001
DECISION ON
ADMINISTRATIVE APPEAL
BACKGROUND
Request:
Tube Art Displays, Inc. ("Appellant") on behalf of Hogate Properties, Inc. ("Property
Owner") appealed a Notice of Violation, Order to Correct Violation ("Notice") served on
the Property Owner on November 7, 2002. The Notice alleged violations of Sections 301
and 103.4 of the Uniform Sign Code, as adopted by the City of Maple Valley (MVMC
15.05.070), because "the sign on Witte Road SE that is used by QFC was enlarged
without a Sign Permit on November 4, 2002." The Notice ordered the Property Owner to
remove the sign by November 13, 2002 and pay a monetary penalty of $500.
The Appellant filed a request for a sign permit with the City on the same day that the City
asked that work stop on installation of the new sign. The Appellant also requests review
of the denial of that permit request.
Hearing Date:
An open record hearing on the appeal was held before the Hearings Examiner for the City
of Maple Valley on March 12, 2003. Mr. Duncan Wilson and Mr. Mark Funke of
Samson & Wilson, Attorneys at Law, represented the Appellant; Mr. David B. St. Pierre
of Kenyon, Dorney & Marshall, Attorneys at Law, represented the City.
Testimony:
At the open record hearing, the following individuals presented testimony under oath:
Mr. Steve Taylor, City of Maple Valley Director of Community Development
Mr. Eric Pennala, City of Maple Valley Associate Planner
Mr. Bill Duncan, City of Maple Valley Building Official
Ms. Denise Martin, Tube Art Displays, Inc.
Mr. Tom Bonifant, Tube Art Displays, Inc.
Mr. Charles Boblenz. Tube Art Displays, Inc.
Tube Ail Appeal
Citr of Maple b'aller Hearings Eyaminer
CE 211-001
Page I of 12
Exhibits:
At the open record hearing, the following exhibits were admitted:
Appellant's Exhibits:
I . Tube Art Displays, Inc. Notice and Statement of Appeal dated November 26,
2002, with the following attachments:
A. Notice of Violation, Order to Correct Violation
B. Letter from Eric Pennala, City of Maple Valley to Shawn Bowen, Tube
Art dated November 6, 2002
C. Proposal, Purchase Order and Survey and Installation Form for QFC
Stores, Inc.
D. Sign Diagram depicting original and replacement sign dated November 5,
2002
E. Copy of Horan v. Cite of Federal Wad,, 110 Wn. App. 204 (2 002)
F. Photographs (2) of current QFC sign from SR -169
G. (Not Admitted, Withdrawn)
2. Tube Art Displays, Inc.'s Response to City's Statement of Case
City Exhibits:
1. City of Maple Valley's Statement of Case and List of Witnesses and Documents
dated March 5, 2003, with the following attachments:
A. Affidavit of Service of Notice of Violation Order to Correct Violation
B. Notice of Violation, Order to Correct Violation
C. Application for Sign Permit dated November 5, 2002, with Sign Diagram
depicting original and replacement sign dated November 5, 2002, Wind
Load/Footing Formulas, and Site Plan
D. Letter from Eric Pennala, City of Maple Valley to Shawn Bowen, Tube
Art dated November 6, 2002.
Upon consideration of the testimony and exhibits submitted at the open record appeal
hearing, the Hearings Examiner enters the following Findings and Decision:
FINDINGS
Tube Art, Inc. ("Appellant"), on behalf of Hogate Properties ("Property Owner")
and Quality Food Centers, Inc. ("QFC" or "Sign Owner")', appealed a Notice of
1 Samson & Wilson filed the Notice and Statement of Appeal as attorneys for Tube Art, Inc. However, the
appeal document also notes that it "shall also serve to appeal all rights of Quality Food Centers, Inc. a.k.a.
QFC Stores, Inc. [hereinafter "QFC']. the holder of the commercial easement right on the property, and
Hogate Properties, Inc., the subject property owner." Appellant Exhibit 1, Attachment, page 1. The
Property Owner and QFC both had a representative present in the hearing room, but did not participate in
the hearing. No one raised the question of whether the proper party appealed the order of the City. Since
this question was not raised.. the Hearing Examiner will consider Tube Art. Inc. as the one Appellant
Tube Art Appeal
Cite of Maple Valles- Hearings Examiner
CE 211-001
Page 2 of 12
Violation, Order to Correct Violation ("Notice") served on the Property Owner on
November 7. 2002. The Notice alleged violations of Sections 301 and 103.4 of
the Uniform Sign Code. as adopted by the City of Maple Valley (MVMC
15.05.070), because "the sign on Witte Road SE that is used by QFC was
enlarged without a Sign Pen -nit on November 4, 2002." The Notice ordered the
Property Owner to remove the sign by November 13, 2002 and pay a monetary
penalty of $500. The subject sign is located at 23670 Witte Road SE, Maple
Valley, Washington. Appellant Exhibit 1, Notice and Statement ofAppeal;
Appellant Exhibit 1-A.
2. Prior to November 4, 2002, the QFC sign consisted of a -10'-3" wide by 6'-3" tall
double-faced, internally illuminated cabinet sign printed with "QFC" over a 131-
0" wide by 4'-6" tall reader board mounted on two poles. The total height was
23'-9" and the total area was 122.56 square feet. Appellant Exhibit 1, Notice and
Statement ofAppeal; Appellant Exhibit I -D; Testimony ofMs. Martin.
3. On November 4, 2002, the Appellant, acting under a contract with QFC,'
removed the cabinet sign and reader board from the poles (the poles were not
disturbed) and replaced them with a single 13'-8" wide by 8'-6" tall double-faced,
internally illuminated cabinet sign printed with "QFC." The Appellant did not
apply for a sign permit prior to performing this work. Appellant Exhibit 1, Notice
and Statement ofAppeal: Appellant Exhibits 1-C and I -D; Testimony ofMs.
Bonifant.
4. The replacement cabinet sign is identical in design to the original cabinet sign
except for its total area. While the original cabinet sign had an area of
approximately 64 square feet, the replacement sign has an area of 116.17 square
feet. However, the replacement cabinet sign has a smaller area than the combined
area of the original cabinet sign and reader board (122.56 square feet total). The
replacement sign does not include a reader board. Appellant Exhibit 1, Notice and
Statement of Appeal; Appellant Exhibit I -D.
5. On November 5, 2002, the City of Maple Valley Building Official and Code
Enforcement Officer, Mr. Bill Duncan, observed workers replacing the QFC sign.
Upon investigation, he found that no permit had been issued and ordered workers
on site to stop work. At the time of the stop work order, the new sign was in
place but had not been welded to the poles. After Mr. Duncan left the site,
workers welded the sign in place. The sign is now installed except for electrical
involved in the hearing, through representation by legal counsel, and will consider the interests of the
Property Owner and Sign Owner only as expressed through the Appellant.
'The Appellant argued vigorously that it is not the General Agent of QFC, but an Independent Contractor.
See, Tube Arts Response to City's Statement of Case, pages 4-7. The question of whether Tube is or is not
an agent is not resolved by the Hearing Examiner; there is no disagreement that Tube Art was acting to
replace the sign as an independent contractor under a contract it had with QFC.
Tube Art Appeal
City of Maple Fallei- Hearings E.xaniiner
CE 211-001
Page 3 of 12
work and some touch-up paint. The sign has not been lit since the stop work
order. Appellant Exhibit 2, Cite of ,Waple 1 alle.v Statement of Case; Testimom. of
Ms. Ww-till Testiniom- or Mr. Bonifant.
6. On November 5, 2002, the Appellant filed an application for a sign pen -nit for the
replacement sign. In a letter dated November 6, 2002, the City Planner explained
that prior to November 4, 2002 the QFC sign had been considered a legally
nonconforming sign under MVMC 18.50.010(17)(1)2. but, pursuant to MVMC
18.50.010(17)(2)(d)4, the sign lost its legally nonconfonning status when it was
altered without a pen -nit. The City Planner explained in the letter that before the
sign pen -nit application could be reviewed for approval, revised project plans in
compliance with the sign standards set forth in MVMC 18.50.0 10 would be
required. The drawings submitted on November 5 did not comply with MVMC
18.50.010. Although the City Planner characterized the letter as constituting "no
decision" on the sign permit application, the letter functioned as a denial of the
sign permit application for the replacement sign because no sign pen -nit has been
or will be issued for it. Appellant Exhibit I -B; City E.rhibit 1-C; Testimony ofMr.
Pennala.
7. The City Building Official issued a Notice of Violation, Order to Correct
Violation and served it on the Property Owner on November 7, 2002. The Notice
of Violation (which cited the Property Owner but not Tube Art or QFCS) alleged
violations of Sections 301 and 103.4 of the Uniform Sign Code, as adopted by the
3 MVMC 18.50.010(F)(1) defines a nonconforming sign as follows:
A nonconforming sign shall mean any sign as defined by subsection (B) of this section, that was
legally in existence on the effective date of the ordinance codified in this chapter, but that does not
comply with these sign regulations or any other ordinances as adopted by the City of Maple
Valley.
4 MVMC 18.50.010(F)(2)(d) reads as follows:
2. Loss of Nonconforming Status. A nonconforming sign shall immediately lose its legal
nonconforming designation if...
d. The applicant is making changes, alterations or performing any work to the legal
nonconforming sign other than regular and normal maintenance. Prohibited sign alterations
include relocating or replacing the sign; provided, however, that replacing any individual tenant's
identification sign in either a center identification sign which separately identifies the tenants or in
a tenant directory sign shall not result in the loss of such sign's legal nonconforming status; ....
s The City Building Official determined that citing the Property Owner was consistent with Section 103.4
of the Uniform Si -n Code.. which states that "It shall be unlawful for a person, firm or corporation to erect,
construct, enlarge, alter ... a sign or sign structure in this jurisdiction, or cause or permit the sante to be
done, contrary to or in violation of the provisions of this code" (emphasis added). The Property Owner did
not appeal the Notice. Testhnom- of Mr. Duncan.
Tube Art Appeal
Cin- of Maple !'alley Hearings Examiner
CE 211-001
Page 4 of 12
City of Maple Valley (MVMC 15.05.070). Citi- Evhibits 1-A and 1-B; Testimon1^
of Mr. Duncan.
On November 26, 2002, the Appellant filed a Notice and Statement of Appeal
appealing both the November- 6. 2002 "denial of a Sign Pen -nit" and the
November 7, 2002 Notice of Violation." The relief requested by the Appellant
was that the Hearings Examiner "invalidate that portion of Violation CE021 1-001
requiring Tube Art to remove the nonconfonning QFC sign and allow the current
nonconforming sign to remain" or "allow Tube Art to replace the existing
nonconforming sign with a replica of the previously grandfathered QFC sign that
was in place prior to November 4, 2002."7 Appellant Exhibit 1, Notice and
Statement ofAppeal.
9. In support of its appeal, the Appellant argued that no permit was required for the
sign replacement because the sign was made "less nonconforming" with respect
to square footage because the total sign area is less with the one sign than with the
reader board and sign. The Appellant cited MVMC 18.80.040(B), which
addresses improvements to nonconforming structures, and 18.20.020(5)(20),
which contains the definition of structure, in support of this argument. The
Appellant argued that the nonconforming structures provision, which allows the
alteration or enlargement of nonconforming structures under certain
circumstances, is inconsistent with the Sign Code and that the inconsistency
should be resolved in favor of the Appellant. Appellant Exhibit 1, Notice and
Statement of Appeal, page 4: Argument of Mr. Wilson.
Other arguments offered by the Appellant in support of the appeal include: (1)
that the Scenic Vistas Act (RCW 47.42) requires a municipality to pay
compensation before it can require removal of commercial signs that are near
state highways; (2) that "it is not equitable to allow QFC, a third party, to lose its
property rights because of the failure to apply for a 540.00 permit fee"; and (3)
that "it is not legal or equitable to allow the alleged mistake of a third party
`'The City argued that Tube Art, Inc. has no independent "standing" to bring the appeal and that its only
status is as a representative for the Property Owner, who received the notice of violation. Tube Art, Inc.
argued that it should have standing as an "aggrieved party". The Hearing Examiner notes that Tube Art,
Inc. filed the appeal for itself and on behalf of the Property Owner and Sign Owner. The City accepted the
appeal and did not file a motion to dismiss the appeal. The Hearing Examiner must hear and decide cases
that are assigned to him by the City and cannot dismiss them sua sponte. The status of Tube Art, Inc. as the
Appellant is derived from its representative capacity for the Property Owner, the party that received the
notice of violation. The question of "standing" — whether a party qualifies as an "aggrieved party" under
the LUPA criteria of RCW 36.70C.060 - need not be and is not now resolved by the Hearing Examiner.
The Appellant's sign installer testified that the previous nonconforming sign could be re -installed in one -
and -a -half to two days. Te.stintonv of .11r. Bonifimt.
Tube Art Appeal
City of Maple faller Hearings Exatniner
CE 211-001
Page 5 of'12
contractor to create the loss of property rights held by Hogate Properties and
QFC." Exhibit 1, Notice and Statement of'Appeal; Testimom• of Ms. Martin.
The Appellant argues that the holding in Ian Sant v. Citi• of Everett, 69 Wn. App.
641 (1993), places the burden on the City to prove the loss of a nonconfonning
right. The Appellant submitted that neither Tube Art not- QFC intended to
relinquish its nonconfonning rights in the subject sign. Appellant Exhibit 3;
.til gunient of MI'. Wilson.
10. In response to the arguments of the Appellant, the City submits that once a legally
existing nonconforming sign is altered, it loses its status and that a permit is
required prior to the alteration of any sign in the City. The City also argues that
the intent to abandon is irrelevant under the City's ordinances. Cite Exhibit 1;
Argument of Mr. St. Pierre.
CONCLUSIONS
Jurisdiction
Section 2.65.070 of the Maple Valley Municipal Code grants the Hearings Examiner
authority to conduct open record appeal hearings and issue final decisions for those
matters specifically identified in city ordinances. Subsection 2.65.070 (C)(2) authorizes
the Hearings Examiner to hear and decide "appeals from citations, notices and orders and
stop work orders...".
The appeal of the denial of the Sign Permit is outside the jurisdiction of the Hearings
Examiner because the City Council of Maple Valley did not grant authority for the
Hearing Examiner to hear and decide appeals of all administrative actions. An
administrative decision on a sign permit application cannot be appealed to the Hearing
Examiner. MVMC 18.100.040(A) identifies Sign Pen -nits as Process I applications.
MVMC 18.100.040(B) does not provide an appeal to the Hearing Examiner for actions
taken on Process 1 applications. The Hearings Examiner's decision will be limited to
review of the appeal of the November 7, 2002 Notice and Order.R
Applicable Law
The City of Maple Valley adopted the 1997 Uniform Sign Code, as amended, as the sign
code for the City. MVMC 15.05.070(A). MVMC 15.05.070(B) states that in the event of
a conflict between the Uniform Sign Code and any provision of the Maple Valley Zoning
Code, the applicable Zoning Code provision shall govern.
Uniform Sign Code Section 301, as amended through MVMC 15.05.070(D), reads as
follows:
' The Appellant may have an appeal of a denial of a sign permit application to Superior Court as provided
in MVMC 18.100.040 (F). Inasmuch as the letter in response to the permit request was not a formal denial,
and may not have been considered a denial until this decision. it is fair to consider the date of denial of the
permit request to be the date of this decision for purposes of appeal.
Taube Art Appeal
Cite of Maple 6 alley Hearings Evaminer
CE 211-001
Page 6 of 12
301 Pen -nits Required. A sign shall not hereafter be erected, re -erected_
constructed or altered except as provided by this code and after a permit has been
issued by the building official. A separate pen -nit shall be required for a sign or
signs for each business entity. and a separate pen -nit shall be required for each
group of signs on a single supporting structure. In addition, electrical pen -nits shall
be obtained from the Washington State Department of Labor and Industries for all
electric signs.
Uniform Sign Code Section 103.4 reads as follows:
103.4 Violations. It shall be unlawful for a person, firm or corporation to erect,
construct, enlarge, alter, repair, move, improve, remove, convert or demolish,
equip, use, or maintain a sign or sign structure in this jurisdiction, or cause or
permit the same to be done, contrary to or in violation of the provisions of this
code.
The Maple Valley Zoning Code (Title 18 MVMC) contains sign regulations that are
applicable to the appeal. MVMC 18.50.010(C) reads as follows9:
1. No sign governed by the provisions of this code shall be erected, moved,
enlarged, altered or relocated by any person without a permit issued by the
City unless such sign is expressly excluded from this permitting requirement
pursuant to subsection (C)(3) of this section. An applicant shal-1 pay the permit
fees set forth in the City's fee schedule except that, in cases where a legal
nonconforming sign is being voluntarily replaced by a sign that conforms to
the current sign regulations, all permit fees shall be waived by the Community
Development Department. No new permit is required for signs which have
valid, existing permits and which conform with the requirements of this code
on the date of its adoption unless and until the sign is altered or relocated.
Signs which, on the date of adoption of this code, have permits but do not
conform to this code's requirements may be eligible for characterization as
nonconforming signs....
Permit Exceptions — Maintenance and Operation. A Sign Permit is not
required for maintenance of a sign or for operation of a changeable copy sign
and/or an electronic changeable message sign.
4. Permit Exceptions — Exempt Signs. A Sign Permit is not required for the
following signs:
a. Address identification with numbers and letters not more than 10 inches in
height.
9 The amendments to this code adopted by Ordinance. 0-03-228 in Februaiv_ 2003 do not affect the
applicability of this provision to this appeal.
Tube Art Appeal
Cit), of Maple Pallor Hearings E.vaminer
CE 211-001
Page 7 of 12
b. Barber poles.
c. A change to center identification signs or tenant directory signs when the
change is of an individual tenant's identification on an existing sign. This
exemption includes copy changes to conforming signs that does not involve
enlarging the sign or structurally altering the sign.
d. Construction signs: provided. such signs are limited to two signs per project
and each sign does not exceed 32 square feet per sign face and 10 feet in
height... .
e. Content identification for separate purpose devices such as phone booths,
product dispensers, recycling containers, collection containers, gas pumps,
etc., indicating only the contents or purpose of the device.
f. Directional signs, on-site....
g. Flags of any nation, government, educational institution, or noncommercial
organization....
h. Fuel price signs... .
i. Government signs... .
j. Gravestones or other memorial displays associated with cemeteries or
mausoleums.
k. Historical site plaques and signs integral to a historic building or site.
1. Holiday decorations and/or decorative lights displayed in conjunction with
recognized holidays.
m. Incidental signs attached to a structure or building, providing that the total
of all such signs per use or business shall not exceed two square feet.
n. Instructional signs.
o. Integral design features when such features are an essential part of the
architecture of a building (including religious symbols) and when such
features do not represent a product, service, or registered trademark.
p. Interior signs located completely within a building or structure and not
intended to be visible from outside the structure, exclusive of window signs.
q. Nameplates not to exceed two (2) square feet per sign face.
r. Nonblinking small strings of lights, which are part of decoration to be used
in association with landscaped areas and trees.
s. Political signs. For additional requirements refer to subsection (E)(1) of this
section.
t. Private advertising signs....
u. Real Estate Signs....
v. Under canopy signs not exceeding the width of the canopy and eight square
feet in size and provided that a minimum separation exists between such signs
equal to 20 lineal feet or more.
w. Warning signs.
The applicable nonconforming sign provisions referenced in MVMC 18.50.010(C)(1)
read as follows:
MVMC 18.50.010(F)(1):
Tube Art Appeal
City of Maple Palley Hearings Evaminer
CE 211-001
Page 8 of 12
A nonconforming sign shall mean any sign as defined by subsection (B) of
this section, that was legally in existence on the effective date of the ordinance
codified in this chapter, but that does not comply with these sign regulations
or any other ordinances as adopted by the City of Maple Valley.
MVMC 18.50.010(F)(2)(d):
2. Loss of Nonconforming Status. A nonconfonning sign shall immediately lose
its legal nonconfonning designation if...
d. The applicant is making changes, alterations or perfonning any work to the
legal nonconforming sign other than regular and non -nal maintenance.
Prohibited sign alterations include relocating or replacing the sign; provided,
however, that replacing any individual tenant's identification sign in either a
center identification sign which separately identifies the tenants or in a tenant
directory sign shall not result in the loss of such sign's legal nonconforming
status; ....
The term "maintenance", referenced in MVMC 18.50.010(C)(1) and (F)(2), is defined in
MVMC 18.50.010(B)(41) as follows:
"Maintenance" means the cleaning, painting and minor repair of a sign in a
manner that does not alter the basic copy, design or structure of the sign.
Conclusions Based on Findings
The Appellant altered a sign, and the Property Owner pennitted the alteration to
occur, without obtaining a City Sign Pen -nit. The failure to obtain a pen -nit prior
to alteration of the sign is a violation of Uniform Sign Code Sections 301 and
103.4 and MVMC 18.50.010(C)(1). Findings of Fact Nos. 2, 3, 5, 6 & 7.
2. The nonconforming status of the former sign is not relevant to a determination of
the legitimacy of the code enforcement action. MVMC 18.50.010(C)(1) states
that a pen -nit must be obtained to erect, move, enlarge, alter or relocate a sign.
This means any sign, whether or not it is legally nonconfonning. Although that
same section acknowledges that some signs might become legally nonconforming
upon adoption of the code, it does not exempt such signs from the permit
requirement if moved, enlarged, altered or relocated. None of the permit
exemptions set forth in MVMC 18.50.010(C)(3) and (4) apply to nonconforming
signs or to any other aspects of this case. For example, although the Appellant
appears to argue the replacement was part of maintaining the QFC sign, the
replacement of the sign does not qualify as "maintenance" under MVMC
18.50.010(B)(41). Findings ofFact 2,3,4,5,6,7, & 8.
Tube Art Appeal
Cit.1y of Maple Valley Hearings Examiner
CE 211-001
Page 9 of 12
3. The Appellant is incorrect that the "City code also states that because the sign was
made less nonconfonning. there was no need for TubeArt to apply for a permit."
Appellant Exhibit 1, Notice and Statement ofAppeal, page 4. The code section the
Appellant refers to is MVMC 18.80.040(B)(1), which reads as follows:
Nonconfornina structures may be structurally altered or enlarged only if
the degree of nonconformance is not increased and the setback, height, lot
coverage, impervious surface and other requirements and development
standards of this code are met;
There is nothing in this section that exempts the activity allowed from the
requirement to obtain a sign permit. Even if it were true that the Appellant's
nonconforming rights allowed the enlargement of the sign, a permit would still be
required for the enlargement pursuant to MVMC 18.50.010(C). Moreover,
MVMC 18.80.090 states that "Nothing in these provisions in any way supersedes
or relieves the applicant from compliance with the requirements of the City's
building codes and other construction -related codes as adopted and amended from
time to time by the City." The Uniform Sign Code, as adopted by the City, is
codified in the "Building and Construction Standards" chapter of the MVMC
(MVMC 15.05). The Uniform Sign Code requires a permit to alter a sign.
Findings of Fact Nos. 2, 3, 4, S, 6, 7, 8, 9 & 10.
4. The nonconforming structures provision relied on by the Appellant, MVMC
18.80.040(B)(1) does not apply to this case. MVMC 18.50.010 contains specific
sign regulations, including regulations addressing nonconfonning signs, that are
not superseded by the general nonconfonning structures regulations. Section
18.80.040(B)(1) is clear that "other requirements and development standards of
this code", such as the City Sign Code, must be met to alter or enlarge a
nonconfonning structure. Furthernore, the subject sign does not qualify as a
"structure" so as to be subject to the nonconfonning structures regulations.
MVMC 18.20.020(S)(18) defines a structure as follows:
"Structure" means that which is built or constructed; an edifice or building
of any kind or any piece of work composed of parts jointed together in
some definite manner and includes posts for fences and signs, but does not
include mounds of earth or debris.
In this case, a new sign was placed on existing signposts. Although the signposts
are clearly structures under the above -quoted definition, the sign itself affixed to
the posts is not identified as a structure. Findings ofFact Nos. 2,3,4,5,6,7, 8, 9 &
10.
5. The previous nonconforming sign lost its legal nonconforming status when the
Appellant replaced it with the new sign. MVMC 18.50.010(F)(2). Although the
Appellant argues there must be evidence of intent to abandon, the Appellant's
Tube Art Appeal
Cih, of Maple Valley Hearings Examiner
C 211-001
Page 10 of 12
intent is irrelevant to the status of a nonconforning sl, -),n. Although there are court
decisions that hold that intent is necessary to establish that abandonment of a
nonconforming use has occurred (see e.g., .Andrela 1. King Coun, 1 Wn. App.
566 (1978), lam Sant 1-. Cite of Everett, 69 Wn. App. 641, 648(l . 993)), those
decisions address situations where the municipal code requires termination of a
nonconforming use after it has been discontinued for a specified period of time, or
situations where the municipal code is silent. The MVMC does not identify
"abandonment" as a criterion for loss of the nonconforming status of a sign. Even
if a showing of intent to abandon was required, such a showing has been made in
this case because the facts demonstrate that the Appellant intentionalli, removed
the sign. As evidenced by the contract between QFC and Tube Art, the removal
of the sign was not the result of an accident, mistake or indifference. Because the
previous sign lost its nonconfonning status when the Appellant replaced it with a
new sign, the Hearings Examiner cannot allow the re -installation of the previous
nonconforming sign as requested by the Appellant.10 Findings of Fact Nos.
2, 3, 4, 5, 6, 7, 8, 9 & 10.
6. The Hearings Examiner does not have jurisdiction to determine whether
compensation would be required under the Scenic Vistas Act. The Hearings
Examiner's authority is limited to deciding those appeals enumerated in MVMC
2.65.070.'' The list includes appeals of Notice and Orders, and "other applications
or appeals that the Council may prescribe by ordinance." The Hearings Examiner
is not authorized to make determinations of the applicability of the Scenic Vistas
Act or of compensation that may be required under that Act. Finding of Fact No..
Even if a local government hearing examiner had some source of authority to
apply a state statute, the Scenic Vistas Act has no bearing on whether a violation
of the MVMC has occurred. The Appellant's reliance on Horan v. Federal Wav
(Exhibit 1, Attachment E), wherein the state court of appeals held that
enforcement of a removal order for a sign covered by the Scenic Vistas Act could
not occur before compensation was determined, does not affect the decision of the
Hearings Examiner. The court in that case did not disturb the Federal Wav
Hearings Examiner's finding that a violation of the sign ordinance had occurred.
Findings of Fact Nos. 9 ce 10; Horan v. City of Federal Wav, 110 Wn. App. 204
(2002).
7. The Hearings Examiner does not have jurisdiction to decide the equitable issues
raised by the Appellant. The City Council of Maple Valley has authorized the
10 The City may have the authority to enter into an agreement with the Appellant and the Property Owner to
allow this to occur; the Hearing Examiner does not have the power to "do equity" that results in a deviation
from code requirements.
I 1 "Administrative agencies are creatures of the legislature without inherent or common-law powers and
may exercise only those powers conferred either expressly or by necessary implication." Chaussee v.
Snohomish C0111711 -Council. 38 Wn. App. 630. 636 (1984).
Tube Art Appeal
Citv of Maple Valley Hearings Examiner
CE 211-001
Page 11 oT l2
Hearings Examiner to determine whether certain code violations have occurred.
The City Council did not g=rant authority to the Hearings Examiner to disre-ard
the code in favor of the Appellant based on what he might deem to be an equitable
result. As tempting as it might be in particularly difficult case, the Hearing
Examiner must refuse any invitation to do equity when it is not in his power to do
so. See, Chaussee v. Snohomish County Council, 38 Wn. App. 630, 638 (1984).
DECISION AND ORDER
Based on the preceding Findings of Fact and Conclusions, the appeal of the City of
Maple Valley Notice of Violation, Order to Correct Violation No. CE021 1-001 is
DENIED. The property owner is responsible for removing the subject sign in
compliance with the order issued by the City and for payment of $500. The City may
establish the date for removal of the existing sign and for payment of the fine, which
notice shall be served on the property owner and not be less than two weeks from the date
of this decision. The previous sign no longer qualifies as a legally existing non-
conforming sign. Therefor, any replacement sign must be granted a sign permit in
conformance to the applicable sign code at the time of application or be replaced pursuant
to an agreement with the City.
Decided on this 3rd day of April 2003.
Tithe Art Appeal
Cit" of Maple Yaller Hearings Examiner
CE 211-001
Theodore Paul Hunter
Hearings Examiner for the City of Maple Valley
Page 12 of 12
G3
BEFORE THE HEARINGS EXAMINER
FOR CLALLAM COUNTY
In the Matter of the Application of ) NO. CUP 2003-00005
Faith Baptist Church ) FINDINGS. CONCLUSIONS
AND DECISION
For Approval of Conditional Use Permit )
SUMMARY OF DECISION
A conditional use permit to construct a church on a 4.87 acre parcel of property adjacent to the
Old Olympic Highway is APPROVED. subject to conditions.
SUMMARY OF RECORD
Request:
Faith Baptist Church (Applicant) requested a conditional use permit to construct a church on a
4.87 acre parcel of property adjacent to the Old Olympic Highway. I The property located
adjacent to the south side of the Old Olympic Highway and the west side of Marchbanks Road, is
currently zoned "Rural Low" (R5), which is consistent with the Comprehensive Plan's "Rural
" Low' (R5) Land Use Designation.
Hearing Date:
The Hearings Examiner of Clallam County held an open record hearing on the matter on August
11, 2003.
Testimony:
The following individuals presented testimony under oath at the open record hearing:
1. Gary Dougherty, Senior Clallam County planner
2. Lonnie Jacobson. Reverend
3. Earl Donmager,
4. Dan Davidson
5. Robert Emmett
6. Grover Gilbertson
7. Dave Highlander
8. Virginia O"Neill
9. Randy Priceman
10. Nola Magnuson
11. Heidi Conning
12. Don Stoneman
13. Nancy McCorkle
The legal description is as a portion of the Southeast 'i4 of Section 1 I. Township 30 North, Range 4 West. W.M..
Clallam County. Washington. Assessor's Parcel No. 04-30-11-440000.
14. Nancy Stevens
15. Linda Weber
16. Jack Stevens
17. Rolland Andrews
18. Rivers Swonburg
Exhibits:
The following exhibits were admitted at the open record hearing:
Exhibit 1 Staff Report dated August 5. 2003
Exhibit 2 Conditional Use Permit Application dated June 4. 2003 with preliminary site plan
Exhibit 3 Revised preliminary site plan received August 4, 2003
Exhibit 4 Supplemental information submitted by Applicant August 5, 2003
Exhibit 5 Clallam County Assessor's Map excerpt showing subject parcel and surrounding
properties
Exhibit 6 Critical Areas/Zoning Map excerpt showing subject parcel and surrounding
properties
Exhibit 7 Excerpt from ITE Parking Generation Manual — August 1987
Exhibit 8 Clallam County Public Works Department comments dated July 15, 2003
Exhibit 9 Clallam County Environmental Health Division comments dated July 10. 2003
Exhibit 10 Clallam County Building Division comments dated July 15, 2003
Exhibit 11 Clallam County Natural Resource Division comments dated July 22, 2003
Exhibit 12 Public comment letters:
a. Terry Vogel
b. Emil & Linda Weber
C. Heidi K. Kanning
d. John & Jenny Wandling
e. Joseph F. Jezik
f. Emogene Herb
Exhibit 13 SEPA DNS issued July 22. 2003 including environmental checklist and exhibits
Exhibit 14 2000 Aerial Photo of subject property denoting Applicant's residence
Exhibit 15 withdrawn
Findings, Conclusion cQ Recommendation
Hearings Examiner of Clallam Count 1,
Faith Baptist Church CCP 2003-00005
Page 2
Exhibit 16 Britton letter
Exhibit 17 Public comments:
a.
no exhibit
b.
signed petition
C.
Terry Vogel (2)
d.
Mona Bacon
e.
David Highlander
f.
Betsy & Henry Smith
CY
g.
Jack Stevens
h.
Randy & Kimberlie Kreitzman
i.
Nola Kay Kraut Magneson
j.
Nancy R. Stevens
k.
Virginia O'Neil
Exhibit 18 Revised Site Plan
Exhibit 19 Public Works comment
Exhibit 20 Faith Baptist Church Traffic study video the Old Olympic Highway/Marchbanks
Upon consideration of the testimony and exhibits submitted at the open record hearing, the
Hearings Examiner enters the following Findings and Conclusions:
FINDINGS
On June 4, 2003, the Applicant requested approval of a conditional use permit to construct a
church on a 4.87 acre parcel of property adjacent to the Old Olympic Highway. The property
is zoned "Rural Low" (R5), which is consistent with the Comprehensive Plan's "Rural Low"
(R5) Land Use Designation. Exhibit 1. Staff Report, pages 1 & 2.
2. The Applicant submitted an initial request that sought the construction of a nine -thousand
(9,000) square -foot building, and a parking lot for ninety-nine (99) vehicles on site. A
modified site plan submitted on August 4, 2003 included a modified structural footprint
(10,560 square feet in area), additional parking spaces (122 total) and a second structure
(1,120 square feet) that would be utilized for permanent storage of grounds -maintenance
equipment and temporary storage during the period church is under construction. Exhibit 1,
Staff Report. page 1. Exhibit 18, Revised Permit Plan.
3. The property is zoned "Rural Low" (R5). which is consistent with the Comprehensive Plan's
"Rural Low" (RS) Land Use Designation. Exhibit 1. Stuff Report. pages 1 & 2. The purpose
of the Rural Low zoning designation is to "provide areas having a low density rural setting
free from commercial. industrial, and moderate density residential developments." CCC
33.2".040(1)(a). The project site is located within the "Sequim — West" neighborhood of the
Sequim/Dungeness Regional Comprehensive Plan. CCC 31.04.445. There are no provisions
Findings, Conclusion & Recommendation
Hearings Examiner of Clallam Counts,
Faith Baptist Church CUP ?003-00005
Page 3
in the Comprehensive Plan that are specific to the location of the churches. CCC' 31.01 et
se y.
4. The R5 Zoning standards provide that a church may be developed subject to a conditional
use permit. Exhibit 1, Stuff Report, pages ? & 4. The uses listed in the Zoning Ordinance for
the R5 zone are patterned after the goals and policies of the Comprehensive Plan. The
Zoning Ordinance lists Churches as a conditional use in the underlying R5 zone. which
means they, have been identified by the Board of Clallam County Commissioners as a use
that could be compatible with the listed permitted uses but should be reviewed for
consistency with the criteria for conditional use permit approval. CCC 33.2". Exhibit 1,
Staff Report, page 4.
5. The subject property is flat and the vegetation on the site is limited to pasture grasses.
Currently the lot is undeveloped. Exhibit 1, Staff Report, page 1.
6. The subject property is in the vicinity of single family residential and agricultural properties.
The property is bordered by Marchbanks Road. a dead end street that turns into Starry Road.
Marchbanks Road is the only arterial to a number of residential developments: Mosebar
Short Plat, Marchbanks Short Plat, Obermiller Short Plat. Peters Short Plat, and others.
Exhibit 5. The surrounding properties are approximately an acre in size. Zoning west of
Marchbanks Road and to the north of the subject property is "Rural Low" (R5). Zoning to
the east of the subject property is "Rural Moderate" (R2). Exhibit 1, Staff Report, page 1.
7. The Applicant desires to relocate its existing church currently operating in the Sequim area.
The original application for a conditional use pennit was submitted on June 4. 2003. and
received as complete on July 2, 2003. As noted above, a revised site plan was submitted on
August 4, 2003, which provided additional parking spaces, a modified structural design, and
a 1,000 square -foot storage structure. Exhibit 1, Staff Report. page 2. Exhibit 1.
8. According to the Applicant, the church has approximately eighty (80) members. The Sunday
service attendance at the existing church usually is approximately sixty (60) members.
Exhibit 4. Regular worship services are held on Sundays between the hours of 9:00 a.m. and
12:00 P.M. Exhibit 4. Sanctuary seating in the proposed new facility would be available for
up to approximately one hundred fifty (150) members. Exhibit 1,Staff Report, pages 2. 5.
&6. Exhibit 4.
9. Pursuant to the State Environmental Policy Act (SEPA), Clallam County was designated as
the lead agency for review of environmental impacts resulting from the proposed project.
Following review of the application and environmental checklist, the Responsible Official for
Clallam County issued a Threshold Determination of Non -Significance (DNS) on July 22,
2003. Exhibit 1, Staff Report, page 2. Exhibit 13.
10. The County Planning staff estimates that approximately 100 vehicle trips would be generated
by the completed project during the a.m. hours on Sunday. 40 trips during the p.m. hours.
Peak trips generation during weekdays would be limited to approximately 40 trips on
Wednesday evenings. Exhibit 1, Staff Report, page 6. Exhibit -1. The 1997 Institute of
Findings, Conclusion & Recommendation
Hearings Examiner ofClallam Count,
Faith Baptist Church CUP 2003-00005
Page 4
Transportation Engineers (ITE) trip generation manual estimates a Sundav average of
approximately 100 trips (51 % enterML,. 49% exiting) for a 10.000 square -foot church. Exhibit
1, .Staff Report. pages 5 & 6. The proposal was forwarded to the Clallam County Public
Works Department for reyievN and comment on potential impacts to the County Road system.
Exhibit 1, Staff Report, page 6.
11. One access to the site would be from the Old Olympic Highway. The Applicant proposed a
second approach from the west side of Marchbanks Road. Exhibit 1. Staff Report, page 1.
Exhibit 3. Marchbanks Road and adjacent Starry Road and Willard Drive are dead-end
streets. Marchbanks Road is the only road access to the Old Olympic Highway for a number
of homes. The neighboring residents strongly oppose access off Marchbanks Road because
the church would increase use of the only access road to their residential properties. Their
concerns ranged from increased traffic in the neighborhood to lost drivers looking for outlets.
Exhibit 12 a -e, Public Comments.
12. The Applicant proposed ninety-nine (99) parking spaces to serve the church. The 1987
Institute of Transportation Engineers (ITE) parking generation manual estimates an average
of 100 parking spaces for a church having 200 attendees. Exhibit ?.
B. The minimum parking standards for Clallam County Zoning Code (CCC 33.55) do not
provide parking standard specific to churches. However. the County determined that parking
standards for retail commercial uses apply to the instant request. Retail commercial uses
require one (1) car space for every 200 square -feet of "usable retail area." Using this
standard, a 10.560 square -foot retail establishment requires no more than 53 parking spaces.
Given the present membership of the church, the proposed paved parking area should be
reduced in size to accommodate no more than fifty (50) spaces.' Exhibit 1, Staff Report.
page 6.
14. According to the County, additional parking could be allowed in the future if necessitated by
a growth in church membership. The County opined that phasing the proposal to provide an
initial fifty (50) parking spaces. with future expansion of up to seventy-five (75) spaces after
three (3) years (not to exceed six (6) years from the decision date of this permit application as
allowed by CCC 33.27.050) would provide time for landscape buffers to become established
and functional around the site. If a phased development is proposed, phases and time
deadlines would have to be clearly articulated and approved by the Hearing Examiner prior
to Conditional Use Permit issuance. C'C'C' 33.2?. 050. Any future expansion of parking areas
or other infrastructure after the six (6) year limit would require review through the
Conditional Use Permit or Amendment process in accordance with CCC 33.27. Exhibit 1,
Staff Report, pages 6 & 7.
15. The Applicant indicated to the Clallam County staff planners that outdoor activities such as
games, picnics. etc., would be occasional components of this facility. However. the proposal
does not include specific plans for outdoor activities at the site. such as sports events and
picnics. There are no outdoor recreation areas or associated infrastructure noted in the
Clallam County did not provide the source of authority for applying the retail commercial parking standards.
Findings, Conclusion & Recommendation
Hearings Examiner of Clallam ('01117th
Faith Baptist Church CUP 2003-00005
Page 5
Applicant's materials or the revised site plan. Exhibit 3. The County recommended that
noise impacts from outdoor activities be mitigated by limiting hours of outdoor activities
from 7:00 a.m. to 8:00 p.m. Additionally. vegetated buffers along the adjacent County road
frontages and landscaping and solid fencing required along the adjacent residential parcels
would diminish the noice impact. Exhibit 1. Staff Report. page 7. Exhibit 4. Testimom, of
Mr. Dougherty.
16. The preliminary application materials and environmental checklists do not call for outdoor
lighting for the site. Exhibit 1. Staff Report. page 8. Outdoor lighting would likely be
included later in the development of the church structure and within the parking area. The
neighboring properties' owners expressed concern over the impact of the mounted exterior
lighting, which may produce off-site glare. Exhibits 12 & 1
17. The Applicant proposed a sign 121' x 60' in size that would be internally illuminated.
Pursuant to CCC 3.19.060, signs must comply with the Clallam County Sign Code.'
3CCC
33.19.060. CCC 33.5 7.010 et seq.
18. The subject property is within a Critical Aquifer Recharge Area. A Critical Aquifer
Recharge Area is defined as a geographic area which contains hydrogeologic conditions that
provide the recharge to an aquifer(s) which is a current or potential potable water source and,
due to its geological properties, is highly susceptible to the introduction of pollutants. or
because of special circumstances, has been designated as a Critical Aquifer Recharge Area in
accordance with WAC 365-190-080 by Clallam County.
19. The Clallam County Environmental Health Division submitted comments on July l 0, 2003,
requiring a pressurized distribution septic system and recommending that the Applicant will
develop a new public water system to serve the church. Exhibit I. Staff Report, page 2.
Exhibit 9.
20. The Clallam County Building Division submitted comments on July 15, 2003, requiring "fire
flow, hydrant spacing, CML/Engineered 3 sets of plans, building permit, fire department
access, knox box, 911 address. 2250 fire flow." Exhibit 10.
21. The Clallam County Public Works Department submitted comments on July 22, 2003,
requiring an engineered drainage plan for stormwater runoff control, in addition to road
approach permits for the proposed access points off the Old Olympic Highway and
Marchbanks Road. Exhibit 8.
22. The Clallam County Natural Resources Division submitted comments on July 22, 2003.
providing that runoff from the parking lot should be treated to remove contaminants. Exhibit
11.
The standard is 128 square feet in area.'fifteen (15) feet in height. CCC 33.5-.080.
Findings, Conclusion & Recommendation
Hearings Cummer of Clallam Comnh•
Faith Baptist Church CUP 2003-00005
Page 6
23. The County posted notice on the subject property on July 24. 2003. and mailed notice on July
22. 2003. Exhibit 13. Affidarit ol.Votice io .-ldjac•ent Property Owners and Legal Notices.
CONCLUSIONS
.Jurisdiction
Pursuant to Section 29.13210 of the Clallam County Code; the Hearing Examiner for Clallam
County has jurisdictional authority to hold a hearing and to grant._ condition, or deny an
application for a Preliminary Plat. CCC 29.13: RCW 58.17.
Criteria for Review
The criteria for review of Conditional Use Permits in Clallam County are set forth in CCC
33.27.040(1)(a -d). The criteria are:
A. The proposed action is consistent with the spirit and intent of the Clallam County
Comprehensive Plan.
B. The proposed action is consistent with this title.
C. The proposed action is consistent with land uses within the zoning district in
which it is located and in the vicinity of the subject property.
D. The proposed action will have no unreasonable adverse impact on the surrounding
land uses, which cannot be mitigated through the application of reasonable
conditions.
Pursuant to CCC 33.27.040, the Hearings Examiner "...may attach to any permit
approval such reasonable conditions as may be necessary to assure that development will
comply with the criteria for approval. Such conditions may include, but not be limited to
the following:
Construction sequence and timing, operation and maintenance, duration of
use, removal of development upon termination of use, compliance with
approved engineering plans and specifications, off-street parking,
setbacks, special screening, lighting, site access. site size, road
dedications. signing, structure height, siting of structures and
improvements, strategies to minimize adverse environmental impacts as
specified in the environmental analysis required by the County
Environmental Policy Code, Chapter 27.01 Clallam County Code.
The following provisions of the Clallam County Comprehensive Plan are applicable to
the proposal:
• "The common image of rural lands is of an area which combines a scenic patchwork
of large open fields and woodlots interspersed with rural homesteads and serviced by
small rural commercial clusters. Rural characteristics to be maintained include low
Findings, Conclusion & Recommendation
Hearings Examiner of Clallam County•
Faith Baptist Church CLP 2003-00005
Page 7
densities. small scale agriculture. woodlot forestry. wildlife habitat, clean water, clean
air. outdoor recreation. rural lifestyles and low traffic volumes. Rural lands in the
Growth Management Act are defined by what they are not. They are not urban areas
and they are not resource lands. Great care must be taken to preserve rural areas and
rural characteristics so that rural quality of life for county residents can be maintained
and will not diminish as full development potentials are achieved on rural lands....
1. The lands designated rural on the County's Generalized Land Use Map shall
permit only those land uses that are compatible with the rural character of such
lands and provide for a variety of rural densities and development patterns,
including the use of cluster housing concepts to encourage conservation of open
space and resource lands.
3. Development (allowed uses and densities) within rural areas should not be
counter-productive to the intent of the Growth Management Act which
encourages development to locate in urban areas where public facilities and
services can be provided in an efficient manner. Each regional or sub -area plan
shall include strategies that do not encourage development to occur in rural areas
to the detriment of urban areas.
5. A mix of land uses should be allowed in rural lands, including residential, small-
scale resource production/extraction. tourism and recreation, home based
industries, essential public facilities (see Section 31.02.285), rural villages, and
limited commercial and industrial uses (see Section 31.02275). The primary use
of land in rural areas should be for rural residential and small-scale resource
production or extraction uses. Other mixes of uses may be permitted, provided
they are not incompatible with the primary use of those areas.
Clallam County Comprehensive Plan 31.02.260.
Conclusions Based on Findings
1. With conditions, the proposed action is consistent with the spirit and intent of the
Clallam County Comprehensive Plan. With access to the church limited to the Old
Olympic Highway, surrounding land uses will not be adversely impacted by the proposal.
With conditions of approval. the church will not affect existing rural homes and lifestyles.
Partial mitigation of impacts would by limiting the hours of operation and development of a
buffer between the church and adjacent residential uses. Findings of Facts Nos. 6. 10, & 11.
2. The proposed action is consistent with the Clallam County Conditional Use Permit
statute, CCC 33.27. The burden of demonstrating that any proposed development is
consistent with the Comprehensive Plan, and the permitted uses in the zone in which it will
be located is upon the Applicant. CCC 33.27.110. In this case, the Applicant has
demonstrated that the proposed church is consistent with the Comprehensive Plan and the
spirit and intent of the Conditional Use Permit chapter. Findings of Facts Nos. 1, 2, 4, 5, 6, 7,
3. With conditions, the proposed action is consistent with the Clallam County Zoning
Code. The purpose of the Rural Low zone is to provide areas having a low density rural
setting free from commercial, industrial, and moderate density residential developments.
CCC 33.10.020. Maximum Residential Density for the R5 zone is one dwelling unit per 4.8
acres or 1/128 of standard section subdivision. The Clallam County Code permits churches in
Findings, Conclusion ck, Recommendation
Hearings Examiner of Clallam Comnn
Faith Baptist Church CUP 2003-00005
Page 8
the Rural Low (R5) zoning districts through a special permitting process with public input
and a determination that the proposed use is consistent with applicable land use regulations
and the character of the neighborhood. CCC 33.10.020. This church is consistent with
applicable land use regulations and the character of the neighborhood. Findings of Facls 1,
2,4,3.8.9.&10.
4. The proposed action will have no unreasonable adverse impact on the surrounding land
uses, which cannot be mitigated through the application of reasonable conditions. The
parking request of 99 parking spaces is not supported by parking data requirement to meet
the demands of the current 80 members of the church. The County's recommendation of 50
parking spots, while not part of County standards. is reasonable and supported by facts and
data. The Applicant has agreed to conditions for adequate landscaping to create a buffer
between the church and the adjacent residential properties. Findings of Facts 12, 13. & 14.
The road access must be limited to the Old Olympic Highway. The Applicant proposes a
land use that will increase traffic to the neighborhood. The road access from Marchbanks
Road would have an adverse impact on the surrounding rural area and the dead-end street
designs of established residential developments. Limiting the road access to the Old
Olympic Highway could mitigate the adverse impact on the neighborhood. Findings of Fact
9&10.
6. Adequate notice was given. Finding of Fact 23.
DECISION
Based upon the preceding Findings and Conclusions. the Hearings Examiner APPROVES the
conditional use permit to construct a church on a 4.87 acre parcel of property adjacent to the Old
Olympic Highway, subject to the following conditions:
1. The proposed use shall be insubstantial conformance with the site plans dated May 20, 2003
(Exhibit 3), or any subsequent approved site plans as modified through the conditional use
permit process.'
4 The Hearing Examiner is aware of the need to not impose a "substantial burden" on the practice of religion through
the imposition of these conditions. The approach the Examiner used to avoid this interference is to treat the
proposed church as he would any other proposal in the R5 zone. In other words, it is not the religious practice of the
Applicant that is reviewed for consistency with the criteria of approval of a conditional use permit, but the proposed
land use.
5 Pursuant to CCC 33.27.050. this Conditional Use Permit approval shall terminate if the use is not completely
developed and operational within three years of the date of issuance. The Applicant may request for a longer period
of effectiveness if the use is phased requiring a longer period of development not to exceed six years and said phases
and time deadlines are clearly spelled out in the application. CCC 33.27.050 The Hearing Examiner may extend the
approval for one additional year. Not later than forty five days prior to the termination of the initial approval period,
the Applicant shall submit a written request for extension to the Administrator. If the Applicant has not submitted to
the Administrator a written request for extension of the approval period by the termination date, effectiveness of
conditional use permit shall be invalid and further development of the project shall immediately cease. If the
conditional use is properly constructed in the allocated time. the conditional use permit is valid throughout the
lifetime of the project. Ibid.
Findings, Conclusion B Recommendation
Hearings Examiner of Clallum County
Faith Baptist Church CUP 2003-00005 Page 9
The Applicant shall comply with the conditions of the Clallam County Building Division as
specified in their comments dated July 15. 2003 (Exhibit 10). including but not limited to
demonstration of fire flow and adequate hydrant spacing. the submittal of three (3) sets of
structural plans. acquisition of a building permit. verification of adequate fire department
access. a knox box (if needed). a 911 address. and 2250 fire flow. For more information
about these requirements. the Applicant shall contact the Clallam County Building Division.
The Applicant shall comply with the conditions of the Clallam County Environmental Health
Division as specified in their comments dated July 10. 2003 (Exhibit 9). including but not
limited to the following:
4. Prior to building permit issuance. the Applicant shall develop a "Group A" water system to
serve the church. For specific information about development of the required system, please
contact the Washington State Department of Health at (360) 753-2452.
5. Prior to building permit issuance. a Commercial Sewage Disposal Permit will be required.
6. The Applicant shall comply with the conditions of the Clallam County Public Works
Department as provided in their memo dated July 15. 200' (Exhibit 8), including but not
limited to. the requirement for two (2) road approach permits (Old Olympic Highway and
Marchbanks Road), and submittal and approval of an engineered drainage plan for
stormwater runoff control.
7. Prior to building permit issuance" the applicant shall submit a final parking plan for review
and approval by the Clallam County Zoning Administrator. The plan shall provide paved
parking for no more than fifty (50) vehicles, and shall show the locations and dimensions of
all proposed spaces. A parking space is a 9 foot by 18 foot stall with up to 30% compact (8
feet by 16 feet) and handicap spaces that meet the Americans with Disability Act (ADA).
This plan may be incorporated into the required landscaping and lighting plan. Overflow
parking may be designated outside of the paved parking area.. provided it does not encroach
on the 100 -foot protective well -radius.. drainfield areas. reserve drainfield areas, or landscape
buffers. In no case shall parking be allowed within the Clallam County right-of-way.
8. If the Applicant requests (and the Hearing Examiner provides for) an extended period of
effectiveness to accommodate a second phase for future expansion of parking areas, the total
number of paved parking spaces provided by phases I and 1I shall not exceed seventy-five
(75). Additional paved parking spaces shall only be allowed through the Conditional Use
Permit (or amendment) process as provided by CCC 33.27.
9. The parking areas shall be developed in conformance with the approved parking plan. They
shall be surfaced with asphalt and improved in conformance with the approved engineered
drainage plans.
10. Prior to building permit issuance, the Applicant shall submit a final drainage plan prepared
by a Washington State licensed civil engineer for approval by the County Engineer prior to
site preparation and development activities. A final drainage plan must be consistent with the
Findings. Conclusion & Recommendation
Hearings Examiner oI Clallam County
Faith Baptist Church CUP 2003-00005
Page 10
requirements of the 1992 Department of Ecolog- Stormxvater Management Manual for Puget
Sound and shall include details of the design. peak floe calculations. system capacities.
construction and maintenance provisions of the storinwater system. The County Engineer
may consider a single comprehensive final drainage plan for the overall development as
described herein.
11. The Applicant shall assume responsibility for ongoing monitoring. maintenance and system
corrections of the stormwater control system. A specific monitoring and maintenance plan
should be prepared for review and approval of the County Engineer. From this plan the
Applicant should prepare an operation and maintenance manual for which the Applicant or
its successors will assume perpetual responsibility for ongoing monitoring, maintenance and
system corrections of the stormwater control system.
12. Vegetative buffering shall be provided along all property lines abutting residentially zoned
properties. In addition. the applicant shall construct solid fencing. six (6) feet in height along
all property lines abutting existing residentially developed properties. Vegetative buffers
shall be provided along all County Road frontages, as required by CCC 33.53.
13. Fencing shall be installed prior to issuance of a certificate of occupancy for the church. All
vegetative buffering in the approved landscaping plan shall be installed within one (1) year of
building permit issuance.
14. Prior to site preparation or issuance of any permits for the proposed development, the
Applicant shall submit a final landscape plan for review and approval by the Clallam County
Zoning Administrator. The plan, to be approved by the administrator, shall provide
elevations that illustrate the screening qualities of the chosen plant species at one (1) year and
five (5) years. The plan shall also indicate the name of the plants and the location in which
they are to be planted, emphasize native and/or drought tolerant species that are adapted to
the soil conditions of the site.
15. The Applicant or its successors shall assume full responsibility for maintaining the vegetative
buffer as depicted on the approved landscape plan. The applicant shall ensure a 100 percent
survival rate for vegetation within the buffer for the first year, and an 80 percent survival rate
each year thereafter. The applicant shall contact the Planning Division to arrange an
inspection of the landscaping during the spring season of each year for the first two- (2) years
after planting.
16. Prior to building permit issuance, the Applicant shall submit an outdoor lighting plan for
review and approval by the Clallam County Zoning Administrator. The plan shall include
the proposed locations and mounting heights of all exterior lighting on the site in addition to
fixture types, model number(s) and photometric data for each chosen fixture. The lighting
plan shall demonstrate that exterior lighting will not produce off-site glare through the
utilization of "cut-off fixtures that are downward facing and / or shielded to prevent adverse
impacts to residential properties or adjacent rights-of-way. No outdoor lighting is allowed
prior to consultation with, and explicit approval by the Clallam County Zoning
Administrator.
Findings, Conclusion & Recommendation
Hearings Examiner of Clallam Counh-
Faith Baptist Church CUP 2003-00001
Page 11
17. The Applicant shall limit the hours of outdoor activities to 7:00 a.m. to 8:00 p.m. In no case
shall excessive noise be generated from this proposed use (e.g.. amplified music. etc.).
18. The storage building shall be attached to the main structure and shall be limited in size to that
which is necessary for maintenance equipment. in order to limit visual impacts to
neighboring residential properties. Finding of'Facl No.
19. The access to the site, both ingress and egress. is limited off the Old Olympic Highway. The
Applicant proposes a land use that will increase traffic to the neighborhood. The road access
from Marchbanks Road will have an adverse impact on the surrounding rural area and its
dead-end street structure. Limiting the road access to the Old Olympic Highway could
mitigate the adverse impact on the neighborhood. Findings ql Fact 9, 10.
Decided this day of September 2003.
Findings, Conclusion d Recommendation
Hearings Examiner of Clallam County
Faith Baptist Church CUP 2003-00005
.lames M. Driscoll
Hearings Examiner for Clallam County
Page 12