Jacob Dimond / jake@yelmonline.com
With a vote of 5-1, excluding councilor Joseph Richardson — who recused himself from the decision during the Tuesday, May 27, meeting — the Yelm City Council has denied an appeal in relation to the Palisades Subdivision and moved to affirm the hearing examiner’s decision to grant a variance.
The Palisades Subdivision, a proposed community with over 60 planned lots, was granted a variance from the hearing examiner in direct relation to Yelm Municipal Code 18.52.080, which requires any subdivision greater than 24 units to have two entrances into the complex.
Garrette Custom Homes, developers of the project, contacted Washington state Department of Transportation in an attempt to have the ability to install the second entrance and exit to the complex, but it was ultimately denied. This led to the developers applying for a variance to the municipal code, leading to an appeal from a community member.
Prior to the council’s vote on the matter, the appellant, Justin Linson, and the Palisades Subdivision developer, Matt Lewis, each spoke before the council. Linson defended and explained his reason for appealing the hearing examiner’s decision to grant a variance for the development, while Lewis, president of Garrette Custom Homes, defended the hearing examiner’s decision.
Richardson was excluded from the council’s vote, recusing himself from the matter after the city’s attorney, Brent Dille, told councilors because they’re acting in a judiciary role he’d have to ask questions to ensure a fair and impartial hearing.
After some questioning, Richardson told Dille, “If I’m being honest, I would say, yes, I have expressed an opinion,” before recusing himself from the hearing. Councilors Tracey Wood, Joshua Crossman, Stephanie Kangiser, David Johnstone and Terry Kaminski each voted in support of the hearing examiner’s decision, while councilor Brian Hess was the lone vote against the variance being granted.
Long before the vote occurred, Dille explained to the six voting councilors that they’d be participating in what’s called a “closed record appeal,” meaning the record was closed to any new evidence. No new evidence was considered.
Dille also explained to councilors what it would take to overrule or overturn a decision under Washington state law and Yelm Municipal Code. He said decisions can only be overturned if one or more of the following is true:
• The decision was clearly erroneous.
• The decision was not supported by substantial evidence on the record.
• The decision is contrary to applicable law or proper procedure.
“Substantial evidence, what does that mean? It means relevant evidence that a reasonable person would accept as adequate to support a conclusion,” Dille said. “It’s a fairly high standard. Unless the appellant can show the examiner’s decision failed one of these standards … then you must uphold the hearing examiner’s decision.”
Linson, the appellant, said he was speaking on behalf of himself and “many concerned neighbors” regarding the variance granted by the hearing examiner for the Palisade Development, which is proposing 63 homes. He claimed the development would be using the only local access point, which he stated “is in direct conflict with Yelm Municipal Code 18.52.080.”
Linson claimed a subdivision of this size would require an arterial or a collector street.
“Let me be clear: I’m not introducing new evidence. Every point I’ve raised today is already reflected in my filed appeal or administrative record. My intent is to clarify or emphasize the legal argument already made before you. At the core of this issue is a contradiction,” Linson said. “The examiner justified the lack of arterial access as a hardship, yet the city, now defending that decision, claims that decision will be resolved through a future road. If a decision is already anticipated, it is not already a hardship under the law. It’s a constraint waiting for completion.”
He added there’s no timeline, no WSDOT commitment and no binding obligation to construct a new road now. Linson believes defending this variance based on what might happen later will set a dangerous precedent.
“It says our planning code is optional, bendable to fit developer’s timelines instead of community safety. This is about preserving the credibility of our code. If developers know they can bypass fundamental requirements with vague future promises, what stops this from happening again?” Linson questioned. “This isn’t just unsound policy. It’s circular logic used to override public safety standards. This is where the legal concern comes in. The variance process is supposed to be a legal exception, not a planning tool. In this case, the hearing examiner applied a hardship standard inconsistently and subjectively. Now, the city is defending that decision backed not on present day compliance, but on speculative future infrastructure. If the council affirms this variance based on assumption of future access or road construction that lack a binding timeline or agreement, it creates a potential legal vulnerability under Washington’s land use potential act LUPA.”
Lewis spoke following Linson’s remarks and stated growth, development and traffic are always thorny and difficult issues. He claimed the point of the variance is when you cannot meet the development code, there’s a legal procedure to “deviate from the adopted code.”
“That is the whole intention of it. There are very specific criteria in the Yelm code, which are referenced in the memo 18.14.100,” Lewis said. “We do meet the legal standard. The hardship, we cannot get access onto the state highway. That was the first thing when we got the property under contract — we approached WSDOT, because in the development world that’s a big deal … You’ve got to find out what the rules are. It’s part of the record. We were denied another access to it because of the 660-foot spacing requirement, which is what led us into the variance.
“There are some real improvements being made in the area. We have worked with WSDOT and the city. We have to put a turn pocket in to access the site — a left turn pocket — and that will help,” Lewis continued. “We have to put in a couple pedestrian crossings with the beacon… That is part of the development.”
Linson, in his rebuttal to Lewis’s remarks, said that even with a turn lane, 2027 is when the project is projected. He claims the subdivision would make traffic conditions worse, stating the traffic report goes from a C to a D.
“We just heard the applicant say in his own words that there’s going to be a future build, and that they’re building for that future. That’s a constraint still. That’s not a hardship,” Linson said. “Under a hardship means that you can’t do anything. This is a constraint. Any builder would have this set up for them and have to meet that constraint later on.”
Lewis, in his rebuttal to Linson, said a constraint would mean there’s additional environmentally sensitive areas on the property, and he’d need to provide adequate buffers.
“So instead of getting 40 lots, I’m getting 30 lots. That’s a constraint. Not being able to meet the letter of the code because WSDOT won’t give you access. Going from 39 to one, that’s not a constraint. That is a hardship, as defined by the code,” Lewis said. “That would justify the variance.”
Drew Kollar, representing the City of Yelm, also provided comments during the hearing and spoke in favor of the hearing examiner’s decision on behalf of the city.
“The city submits that the hearing examiner’s decision to grant the variance was proper and consistent with applicable standards,” he said. “The hearing examiner carefully evaluated the application, staff reports and public comments, and made findings supported by substantial evidence in the record. Staff respectfully recommends that council affirm the hearing examiner’s decision.”
