Judge says Yelm must prove it has water

Condition placed by city on subdivisions ruled illegal

By Christian Hill | The Olympian • Published November 24, 2008

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YELM – The city has lost the latest round in an apparent precedent-setting case that will determine when and to what level a city must prove it has the water to serve a planned development.

Yelm Mayor Ron Harding said Friday the city will appeal a ruling that overturns its preliminary approval of five subdivisions totaling 568 homes, townhomes and condominiums.

Superior Court Judge Chris Wickham ruled a condition placed on the preliminary approval of the subdivisions violated state law. The condition allowed the city to wait until someone applied for a building permit to prove it had enough water to serve the proposed development. He determined the city must show that proof earlier in the land-use process.

The final outcome could have statewide implications as cities continue to grow and drinking water becomes more scarce.

Channeler JZ Knight challenged the approval of the subdivisions on the basis the city did not have sufficient water to serve them and that could affect future development of her property.

A hearings examiner had granted preliminary approval of the subdivisions on the condition the city prove it has enough water to serve the development either "at final plat approval and/or prior to the issuance of any building permit." The City Council upheld his decision in February and Knight appealed to Thurston County Superior Court the following month.

The issues

The court challenge eventually focused on two questions: May the city of Yelm continue the practice of waiting until an individual requested a building permit to provide proof it has enough water to serve the proposed development? What level of proof must be shown?

State law states cities must determine "appropriate provisions" are made for such basic serves as public health, safety and "potable water supplies" before they approve subdivisions. The law fails to define "appropriate provisions" or where in the land-use process that must occur.

Preliminary plat approval of a subdivision allows a developer to grade, install utilities and roads and subdivide the property into lots. Final plat approval allows a developer to sell off the individual lots that will be built on after securing a building permit.