DeTray v. City of Olympia

121 Wash. App. 777
CourtCourt of Appeals of Washington
DecidedMay 25, 2004
DocketNo. 30033-8-II
StatusPublished
Cited by1 cases

This text of 121 Wash. App. 777 (DeTray v. City of Olympia) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DeTray v. City of Olympia, 121 Wash. App. 777 (Wash. Ct. App. 2004).

Opinion

Hunt, J.

Paul DeTray appeals the superior court’s summary judgment dismissal of his land use (LUPA)1 petition, in which he challenged the City of Olympia’s [779]*779conditions for approval of his proposed mobile home park development. DeTray argues that (1) res judicata does not bar his appeal of the conditions because he made substantial changes to his original development application, for which the conditions were first imposed; (2) he exhausted all administrative remedies; and (3) the conditions violate RCW 82.02.020 because they are disproportionate to the actual impacts of his proposed project.

Agreeing with the superior court that res judicata bars DeTray’s land use petition, we affirm.

FACTS

I. First Application

In August 2000, Paul DeTray filed his first land use application for the Colonial Estates Mobile Home Park Phase III (Park) in Olympia. His application proposed a 55-unit mobile home park for senior citizens, to be built on 13.35 acres abutting Chambers Lake and accessed by a 22-foot-wide private road. DeTray applied for two conditional use permits (CUPs), one under the Olympia Zoning Ordinance, and one under the Thurston Region Shoreline Master Program.

A. Original MDNS

Following State Environmental Policy Act (SEPA)2 review, on March 23, 2001, the City’s responsible SEPA official issued a mitigated determination of nonsignificance (MDNS) (2001 MDNS). This 2001 MDNS imposed two SEPA-based mitigating conditions, requiring DeTray to construct and to dedicate to the City (1) a 500-foot extension of the Chambers Lake Loop pedestrian trail, in compliance with the Parks and Open Space chapter of Olympia’s [780]*780Comprehensive Plan;3 and (2) a public “local access street,” extending from 14th Avenue on the northern boundary of the property to the southern boundary of the project site.

DeTray appealed the 2001 MDNS to the City hearing examiner. DeTray claimed that (1) the City could not show sufficient project-specific impacts justifying either condition; and (2) the dedicated access road requirement was contrary to the City’s ordinances, which, for security reasons, “permit and encourage” private road access for mobile home parks.

B. Hearing Examiner’s Ruling

The City hearing examiner consolidated a hearing on DeTray’s CUP applications with his 2001 MDNS appeal. On July 6, 2001, the hearing examiner (1) granted the CUP subject to conditions; (2) denied the Shoreline Master Program CUP; (3) required DeTray to move the proposed stormwater system outside the 200-foot Conservancy Environment; (4) affirmed the MDNS condition that DeTray dedicate land for the pedestrian trail; and (5) declared DeTray’s appeal of the MDNS dedicated road condition moot because this condition was also imposed under the CUP.

C. Abandoned Appeal of Hearing Examiner’s Decision

DeTray appealed the hearing examiner’s decision to the City Council, raising the following challenges: (1) the hearing examiner erroneously based his conclusion that the road dedication was permissible on his finding that the road was necessary to connect the Park with DeTray’s other undeveloped property to the south; (2) the hearing examiner did not “particularize” the road’s necessity to “specific characteristics of the site”; and (3) the evidence refuted, rather than supported, the hearing examiner’s finding that [781]*781the Park’s elderly residents would use the trail sufficiently to justify the trail extension condition. Administrative Record (AR) at 318-19.

Less than one month later, DeTray withdrew this appeal. The next day, the City notified DeTray that the hearing examiner’s July 6, 2001 decision, including all conditions, constituted the CUP for the Park.

II. Second Application

Four months later, DeTray filed a “ [modification” of his previous application for the Park.4 This modified application described his “[n]ew proposed project” as a two-phase, 38-unit mobile home park, with three 20-unit, two-story, senior apartment buildings. It increased the number of dwelling units to 98 (from the original 55) and decreased the project site area to 11.90 acres (from the original 13.35 acres). AR at 228. DeTra/s modified site plan incorporated the following changes, which satisfied the City’s July 6, 2001 CUP conditions: (1) stormwater system relocation outside the Conservancy Environment, (2) dedication of public right-of-way access, and (3) extension and dedication of a 10-foot-wide county pedestrian trail.

A. Amended MDNS; No Appeal

On March 7, 2002, the City’s SEPA official issued an Amended MDNS (2002 MDNS). The 2002 MDNS noted in bold type that it was an amendment to the July 6, 2001 CUP and, except for reducing the number of mobile home units and adding apartment buildings,

[a] 11 other aspects of the proposed development either remained] the same as in the original Conditional Use Permit application or have been altered to meet the conditions imposed by the Examiner in his decision dated July 6, 2001.

[782]*782AR at 108 (emphases added). The 2002 MDNS concluded that this amendment to the 2001 CUP “probably will not have a significant adverse impact upon the environment.” AR at 108.

The 2002 MDNS provided a 14-day appeal period. DeTray did not appeal.

B. Amended 2002 CUP

Following a March 25, 2002 hearing on DeTray’s request to amend the 2001 CUP, the City hearing examiner found that (1) the requested CUP amendment complied with the public road and trail extension conditions in the 2001 MDNS; and (2) except for the wetland buffer, all conditions imposed in the July 6, 2001 CUP “are either met by this amended proposal or are required to be met at a subsequent approval stage.” AR at 38-39.

The hearing examiner concluded:

The Applicant requests an amendment to the conditional use permit issued July 6, 2001. . . . [T]he principal effect of the requested amendment is to add a trail segment and north-south street to comply with the 2001 permit and to reduce the number of mobile home lots and add three two-story, 20-unit apartment buildings. The amendment is requested to the permit, not to an application for a permit.... As with any permit, the question for decision is whether the entire proposal complies with governing law. Thus, this review must examine not only the changes to the proposal approved in 2001, but also whether those changes have affected the nature or impact of any features which are not changed by the amendment. All other features of the proposal, that is, those which are not changed or affected by the proposed amendments, remain governed by the 2001 permit.

AR at 40 (emphases added). The hearing examiner granted the amended 2002 CUP on April 16, 2002, incorporating all conditions from his July 6, 2001 decision and CUP.

C. Second Appeal to City Council

DeTray again appealed to the City Council.

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Related

DeTray v. City of Olympia
90 P.3d 1116 (Court of Appeals of Washington, 2004)

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Bluebook (online)
121 Wash. App. 777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/detray-v-city-of-olympia-washctapp-2004.