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HomeMy WebLinkAboutLUA97-029 Exhibit No. 5 Landscaping Plan (located in Land Use Application File LUA-96-164,SA) Exhibit No. 4 Site Plan (located in Land Use Application File LUA-96-164,SA) Exhibit No. 3 Land Use Application File LUA-96- 164,SA (by reference) r ` • STATE OF WASHINGTON DEPARTMENT OF FISH AND WILDLIFE HABITAT MANAGEMENT PROGRAM HABITAT PROTECTION SERVICES DIVISIO_ N AQUATIC SYSTEMS UNIT March 26, 1997 TO: Larry Fisher Area Habitat Biologist FROM:FROM: Bob Zeigler(360) 902-2578 Wetland Biologist SUBJECT: Wetlands and Aquatic Resources on Site that is approximately 2 blocks , south of 44th Street N.E. and east of I-405 in Renton. We visited the site on Tuesday, March 18. We observed the stream,two seasonally flooded wetlands; wetland A with water ponded to depths greater than 20 inches and wetland B, an emergent and forested wetland(a component of which had cottonwood trees that were estimated to be 40 or more years in age and 60-70 feet in height). This is the area proposed to be used as a drainage swale. We also observed drainage that flowed in two directions from wetland B. Both wetlands would interact hydrologically with the stream known as Gypsy Creek, We observed and sampled cutthroat trout in the stream attempting to migrate upstream of the impassible culvert. Maintenance of water quality and providing for fish passage are important components that should be incorporated into any proposal. One hundred and fifty feet is the prescribed buffer for type 3 streams less than 5 feet wide made in our Department's Priority Habitat and Species Management Recommendations. Some resource literature includes the following: The Aquatic/Watershed Group for the Report of the Forest Ecosystem Management Assessment Team, July 1993 outlined what is needed for aquatic organism from water quality: "Elements of water quality that are important for aquatic organisms include water temperatures within a range that corresponds with migration and emergence needs of fish and other aquatic organisms (Sweeney and Vannote 1978; Quinn and Tallman 1987). Desired conditions include an abundance of cool(generally less than 68 degree F),well-oxygenated water that is present at all times of the year, free of excessive amounts of suspended sediments (Sullivan et al. 1987) and other pollutants that could limit primary production and benthic invertebrate abundance (Cordone•and Kelley 1961; Lloyd et al. 1987) . . . Broderson studied three watersheds in western Washington and found that 200 foot buffers, or about one site-potential tree height,would be effective to remove sediment in most situations if the buffer were measured from the edge of the ��xt11Z 41 S Larry Fisher March 26, 1997 Page 2 floodplain." (Broderson, J.M. 1973. Sizing buffer strips to maintain water quality. M.S. thesis. University of Washington, Seattle, Washington). Wetland Buffers: Use and Effectiveness.,Andrew J. Castelle, Catherine Conolly,Michael Emers, Eric Metz, Susan Meyer,Michael Witter, Susan Mauermann, Terrell Erickson, Sarah S. Cooke, for Washington State Department of Ecology,February, 1992 provides information on needed buffers: "Buffers of less than 50 feet in width are generally ineffective in protecting wetlands . . . In western Washington,wetlands with important wildlife functions should have 200 to 300-foot buffers based on land use . . . To retain wetland-dependent wildlife in important wildlife areas, buffers need to retain plant structure for a minimum of 200 to 300 feet beyond the wetland based on land use. This is especially the case where open water is a component of the wetland or where the wetland has heavy use by migratory birds or provides feeding for heron. . . Buffer widths effective in preventing significant water quality impacts to wetlands are generally 100 feet or greater. . ." (Page 48). The wetlands on the property would appear to be Category III wetlands but a component of forest cover is reaching maturity which increased the diversity of species that would depend upon the area to meet primary breeding and/or feeding needs. The wetlands provide habitat for neotropical migrant species of birds and would appear to support amphibians. I recommend that fish passage be restored to stream above the culvert and that 150' riparian buffer be left on both sides of the stream. This would be consistent with Department Priority Habitat and Species Riparian recommendations and Wild Salmonid Policy. I would also recommend that buffers on the wetlands be increased to 50' instead of the proposed 25' and that the proposed drainage swale be moved out of the existing wetlands. Mitigation is a sequenced approach including: First,the avoidance of the impact; Second,minimization of the impact; Third, compensation for unavoidable losses. In the site plan approval, I recommend that impacts to the aquatic resources be avoided and minimized to the greatest extent possible. i l 0�STATE • Q ir'. J aslb lade State of Washington DEPARTMENT OF ASH AND WILDLIFE Mailing Address: 600 Capitol Way N•Olympia,WA 98501-1091 •(360)902-2200,TDD(360)902-2207 Main Office Location: Natural Resources Building• 1111 Washington Street SE•Olympia,WA February 21, 1997 DEVELOPMENTPLANNINn CITY OF P` • Mark R . Pywell City of Renton • . � Planning/Building/Public Works Dept . ei L 200 Mill Avenue South Renton, Washington 98055 SUBJECT: Determination of Non-Significance-Mitigated - Williamsburg Condominiums - LUA-96-164, SA, ECF, Unnamed Creek, Tributary to Lake Washington, King County, WRIA 08 .MISC Dear Mr . Pywell : The Washington Department of Fish and Wildlife (WDFW) has reviewed the above-referenced document and submits the following comments . A Hydraulic Project Approval (HPA) is required for relocation of the creek, alteration of any adjacent wetlands, and outfalling of stormwater to waters of the state from this proposed project . I am disappointed that the requirement to obtain an HPA was not noted in the environmental checklist, since I have already met with the applicant ' s consultant at the site . I recommend that • alternatives to relocation of the creek be selected, due to the -probability of significant impacts on the creek if it were relocated . Thank you for the opportunity to comment . If you have questions or need additional information, please call me at ( 206 ) 392-9159 . We appreciate your cooperation in our efforts to protect, perpet- uate, and manage the fish resources of the state of Washington . Sincerely, Larry Fisher Area Habitat Biologist Habitat Management Program if cc: WDFW, Muller WDFW, Banyard • Exhibit No. 8 May Creek Conditions Report (by reference Exhibit No. 9 May Creek Basin Action Plan (by reference %i :«�� CITY IF RENTON "AL Hearing Examiner Jesse Tanner,Mayor • Fred J.Kaufman May 15, 1997 • • • To: All Parties Concerned Re: Reconsideration of Decision.on Appeal of Determination of Non-Significance re Williamsburg Condominiums , File No..LUA-97-029,AAD This office has received a.re request for clarification"from Citystaff and q both,a request for clarification and reconsideration by the underlying applicant in the matter noted above. This office has reviewed these requests as well as the record in this matter. :The basis for the - proposed mitigation measures or why those particular measures were chosen is not in the record. Even the additional mitigation 'a m ligation measures submitted after-the ERC s determination have no foundation for why particular measures were advocated: The applicant's letter references Finding 40 and Conclusion21. Those'references do not•compel the result that'the applicant and staff suggest. Conclusion 18 should not be overlooked. It stated: "Since the only issues raised on appeal deal with the wetlands, creek and drainage issues,the required environmental studies shall be focused on those issues and _ shall not be expanded to include wildlife or other habitat issues other than those , associated with aquatic ecosystems.'!' Again,the information on which a sound decision can be made as to what is adequate mitigation can only be decided with information that explores the issues that lead up to.mitigation. The. measures submitted after the.ERC decision was made are unsupported by the record. The•decision must be read as a whole. There were questions raised about the consequences of relocating the creek, modifying and consolidating the wetlands and locating the biof ltration , system in the wetland buffer. These questions can only be answered with a focused EIS, not the submission of the tardy mitigation measures requested by the ERC: Therefore, for clarification,the decision of the ERG is reversed. Pursuant to Section,4-6- 23(B)(4):the City shall prepare.a focused EIS dealing with the wetlands, creek and drainage issues. Included would be the obvious habitat related issues of water temperature rise as it might ' impact aquatic life downstream from the subject site. • 200 Mill Avenue South- Renton, Washington 98055 - (206)235-2593 - This pacer contains 50%recycled material.20%post consumer • Fred J.'Kaufman May 15, 1997 Page two If this office can be of further assistance, please feel free to write. Sincerely, Fred J. Kaufman Hearing Examiner cc: Mayor Jesse Tanner Jay Covington, Mayor's Executive Assistant Zanetta Fontes, City Attorney Mark Pywell, Project Manager Jana Huerter, Land Use Review Supervisor ESIOWET il MAY _ 8 1997 CITY OF RENTON H saysayEARING WANNER PLANNINGBUILDING/PUBLIC WORKS MEMORANDUM DATE: May 7, 1997 TO: Fred Kaufinan,Hearing Examiner FROM: Jana Huerter,Land Use Review Supervis '' Development Services Division "F SUBJECT: Appeal of DNS for Williamsburg Condos File#LUA 97-029 AAD I am requesting clarification of your April 29, 1997, decision regarding the above-referenced file. In your decision you state that the appeal is granted. According to the appeal letter, the appellant specifically requests that the applicant be required to prepare an EIS on the project. However, the conclusions in your report do not appear to require the issuance of a DS which would trigger the requested EIS. Please let me know the intent behind this decision so that we can appropriately proceed. Thanks. cc: Mark Pywell Jim Hanson PHILLIPS LAW OFFICES JOHN C.MCCULLOUGH McCULLOUGH MARKET PLACE TOWER a (�(� (� WILSON SUITE I130 Y v �C [1 HILL & 2025 FIRST AVENUE FIKSO SEATTLE,WASHINGTON MAY 13 1997 APROFESSIONAL 9812I-2100 SERVICE CORPORATION (206)448-1818 "Ifs it , IN FAX:(206)448-3444 3 M HER May 13, 1997 VIA FACSIMILE AND HAND DELIVERY • Fred J. Kaufman Hearing Examiner City of Renton 200 Mill Avenue South Renton, Washington 98055 Re: Request for Reconsideration Appeal of DNS (Williamsburg Condominiums) File Nos. LUA-97-029,AAD; LUA-96-164,SA. Dear Mr. Examiner: We represent the applicant for the above-reference project(the"Applicant"), and hereby file this request for reconsideration of the Hearing Examiner's decision in this case dated April 29, 1997 (the "Decision"). The purpose of this request for reconsideration is to clarify an ambiguity in the decision of the Examiner. 1. Request. The Applicant hereby requests clarification of the action to be taken by the City's Environmental Review Committee (ERC) as a result of the Decision. Specifically, the Applicant seeks a clarification that the ERC should reevaluate the project application based on any new information and project modifications submitted by the applicant before issuing a new threshold determination under SEPA for the proposal. 2. Rationale. The Decision notes that final stream and wetland mitigation plans were not a part of the record reviewed by the ERC in issuing its original threshold determination. Findings of Fact(FF) 39, 40. The Decision concludes that"the primary issue encountered in this matter is that there is insufficient information in the record to allow the various decisionmakers to determine between options permitted by code." Conclusion of Law (CL) 7. This information must be available in the record to allow the responsible official to reach informed decisions. CL 8. SEPA requires "this type of information before committing or altering the environment." CL 16. G:\POLYGON\332.001\CORR\RECONSD1.LTR Fred J. Kaufman May 13, 1997 Page 2 Additional environmental analysis shall be conducted in this case on the wetlands, creek and drainage issues associated with the project. CL 18, 19. The Applicant(as noted by the Examiner in the Decision, CL 21, FF 40)has prepared additional analyses relating to these issues. Pursuant to the Decision, all of this study must be submitted to the ERC in a"written, documentary form" (CL 21), so that the ERC can fully consider the environmental consequences of the project. The specific mitigation measures described in these studies "may in fact address the environmental consequences,"but this cannot be known until the studies are reviewed by the ERC. CL 21. This approach is consistent with the SEPA Regulations, under which an applicant may be required to provide additional studies and information prior to issuance of a final threshold determination(WAC 197-11-335) and under which an applicant may amend its proposal to include new mitigating measures in order to address the environmental impacts of the project,prior to issuance of a final MDNS on the project(WAC 197-11-350, -360). In the context of the Decision, reversal of the MDNS issued for this project results in a vacation of the threshold determination and a remand of the proposal to the ERC for issuance of a new threshold determination based on such new information as may be submitted by the applicant. The Applicant recognizes that these environmental analyses must address the questions raised in the Decision(see, e.g., CL 7-9, 11-12, 14-15) and is submitting these analyses to the ERC. The Applicant wishes to clarify that the intent of the Decision is to require such a remand of the threshold determination to the ERC for preparation of a new threshold determination based on new environmental analyses, all of which will be subject to further review by the Examiner. Sin erely, 4-6 Jo C. McCullough JCM:sch cc: Mark Goldberg Allen Bauman Lyle Kussman Bill Shiels Jana Huerter Zanette Fontes • CITY ►F RENTON .. Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman . , May 1, 1997 • • To: All Parties•,Concerned Re: Appeal of Determination of Non-Significance re Williamsburg Condominiums • File No. LUA-97-029,AAD • _ Due to a computer pagination error,Findings No. 33 and Conclusions No. 7 were omitted from - the Report and Decision issued on April 29, 19.97. Therefore;we are enclosing a complete, correct copy for your records. Should you have any further questions,please contact my secretary. , Sincerely, • Fred J. Kaufman Hearing Examiner cc: Mayor Jesse Tanner Jay Covington, Mayor's Executive Assistant Zanetta Fontes, City Attorney Mark Pywell,Project Manager • 200 Mill Avenue South - Renton, Washington 98055 (206)235.-2593 ®This paper contains 50%recycled material,'20%post consumer toIZRZECTt 0 HEARING EXAMINER'S REPORT April 29, 1997 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION APPELLANT: Monica Rosman LaFever Marty Roberts Appeal of Determination of Non-Significance re Williamsburg Condominiums File No.: LUA97-029,AAD LOCATION: 4000 Lincoln Avenue NE SUMMARY OF APPEAL: Appeal of ERC's Determination of Non-Significance regarding Williamsburg Condominiums and Request for EIS PUBLIC HEARING: After reviewing the Appellant's written request for a hearing and examining the available information on file,the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summary of the April 1, 1997 hearing. The official record is recorded on tape. The hearing opened on Tuesday,April 1, 1997, at 9:01 a.m. in the Council Chambers on the second floor of the Renton Municipal Building. Parties wishing to testify were affirmed by the Examiner. The following exhibits were entered into the record: Exhibit No. 1: Yellow file containing the appeal, Exhibit No.2: Memo from Larry Fisher dated proof of posting and publication, and other March 26, 1997 documentation pertinent to the appeal. Exhibit No.3: Land Use Application File No.LUA- Exhibit No.4: Site plan 96-164,SA(by reference) Exhibit No. 5: Landscaping plan Exhibit No.6: Map prepared March 10, 1997 Exhibit No.7: Letter from Larry Fisher to Mark Exhibit No. 8 May Creek Conditions Report dated Pywell dated February 21, 1997 August 1995 (by reference) Exhibit No.9: May Creek Basin Action Plan(by Exhibit Nos. 10-13 Photographs of site reference) Exhibit No. 14 Stream Mitigation Plan Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 2 Parties present: Appellant,Monica Rosman LaFever 3915 Lincoln Avenue NE Renton,WA 98056 Representing the City of Renton Zanetta Fontes 200 Mill Avenue South Renton,WA 98055 Representing the Applicant Lyle Kussman P.O.Box 1705 Bothell, WA 98041 The Examiner explained that the hearing was an administrative appeal held pursuant to Ordinance 3071 and was the only administrative review to occur on the matter. The matter may be submitted back to the Examiner for reconsideration if the parties are not satisfied with the decision. The appeal by writ of review is to Superior Court. He stated that the appellant had the burden of demonstrating that the City's action was erroneous, and would have to show clear and convincing evidence that the City's determination was incorrect. At that point the City could respond, if they chose to do so. The applicant to this proceeding would also be given an opportunity to respond. Monica Rosman-LaFever, appellant herein,stated that she resides on Lincoln Avenue,one driveway from the proposed Williamsburg Condominium project,and is concerned about responsible development of this site. After much research, she believes the Environment Review Committee(ERC)failed to impose sufficient conditions to mitigate the impacts related to the project and that it requires an Environmental Impact Statement (EIS). This site has a fragile environment with lots of flooding and erosion problems and fish life to support. Her appeal focused on three areas: (1)the value of this site to wildlife; (2)the value of the site to the recharge of May Creek,a salmon stream; and (3) the value of the wetland and the stream to flooding and erosion in the area. Bob Zeigler, Washington State Department of Fish&Wildlife, 600 N. Capitol Way; Olympia, Washington 98501-1091,a wetlands biologist in the habitat program, spoke on behalf of the appellant. He visited the property on Tuesday,March 18, 1997,with habitat biologist Larry Fisher. They observed cutthroat trout on, one of the streams in and below the property. They also observed two wetlands on the property,one of which had cottonwood trees that were estimated to be greater than 40 years old and approximately 60 to 70 feet in height. The area has value in supporting fish resources and other terrestrial wildlife: Department of Fish& Wildlife has recently initiated a wild salmonid policy trying to protect the dwindling fish resources. In the policy for this Type 3 stream which is less than 5 feet wide, 150 foot buffers are recommended to prevent significant impacts to the fish resources. They also observed a wetland area where water ponded to depths of approximately 2 feet, but were unclear of its location relative to the site plan. In order to take and prevent significant impacts of public fish and wildlife resources, it was recommended in a letter to Larry Fisher that there be 150 foot riparian buffer left on both sides of the stream, and that there also be a 50 foot buffer left around the wetlands on the property,and that the proposed drainage swale be moved out of the existing wetlands. He stated that the Department of Ecology in their report in 1992 pointed out that buffers less than 50 feet in width are generally ineffective in protecting wetlands. • 411 Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 3 Ms. Fontes questioned Mr. Zeigler regarding classification of the wetlands in this area and he responded that Wetland A would be a Category 3 wetland, and Wetland B has some components of a Category 2 in that it has some vegetation approaching mature forested,but it would be between a 2 and a 3. He did not visit Wetland C which is in the southwest corner. He stated he was not familiar with the City's ordinances as they relate to averaging and buffer requirements for wetlands. Mr.Kussman asked Mr.Zeigler to indicate on the site map where he located the cutthroat trout, and he responded that the fish were observed below the culvert northeast of the site. Bill Shiels, 15020 Bear Creek Road NE, Woodinville, Washington 98072, consultant for applicant,asked Mr. Zeigler if any of the wildlife located on this site would be identified as sensitive,threatened or endangered species,to which Mr.Zeigler responded that there are none in this area at this time. He pointed out that the only potential would be the salmonid species in May Creek,but they are not listed at this time. Regarding the affect on the recharge of May Creek if this project were built,Mr. Zeigler responded that usually what happens with an increase in impervious surface in a basin is a change in water flow. There is greater water flow in winter leading to potential scouring of spawning areas,and lower flows in.summer. A mitigation measure to protect the wetland would be managing storm water. He was only familiar with the recommendation for the swale within the wetland and he would not recommend that it be done to increase the filtration. Regarding the value of the unnamed stream from a fisheries resource standpoint,he stated that this reach provides a food source and some water retention at times. If passage is provided above that culvert, it could be utilized by the cutthroat trout. The culvert at this time is an obstacle to fish because of the jump they have to make and whether they can take and maintain themselves once they make that leap in the culvert and not get washed back out. Ms. Fontes further questioned Mr.Zeigler regarding the stream if its direction was changed,the change in flow and temperature, and its impact to the food source. He responded that it could affect the food source because the existing vegetation provides a source of insects;the fact that there may not be that vegetation associated with the change can also increase the temperature of the stream. For a short time or even a period of years there could be a change to the food source because a riparian setup does not come in immediately even with plantings. Five years for an area to be restored to something in which there is going to be some temperature modification is not unusual. Larry Fisher,22516 SE 64th Place,#230,Issaquah,Washington 98027,Area Habitat Biologist,Washington Department of Fish&Wildlife,Habitat Program, spoke on behalf of the appellant. With regard to the stream itself,he stated that in his opinion the culvert which is located where the emergency access road is proposed is completely impassable to fish migration. While at the site on March 18,fish were observed jumping up at the culvert outlet and being washed back down into the pool. There is an approximately 2 foot drop there in elevation. Also the culvert is at such a gradient that it would be extremely difficult for fish to get through it even if they could get into it. As to stream relocation,there is a potential to have a severe impact on the flow in the stream if the surface flows are allowed to seep into the ground which often occurs if an impervious layer of clay is commonly used as a liner under the new stream channel. He stated there was a potential for improving the habitat value of the stream if the two culverts were removed and a passable culvert was constructed at the proposed emergency access road. He recommended incorporation of woody debris material to trap sediment and create pools where fish could live. In his opinion the entire reach of stream is habitable by fish if they had access to it. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 4 He stated that the wetland fills that are proposed,are not necessary and could be easily.avoided. The proposed biofiltration swales are also located where there are existing wetlands in two places,Wetland A and Wetland B. He did not believe it was appropriate to have the biofiltration located within the buffer. He felt the importance of the stream was overlooked in the environmental checklist,and it was referred to as a ditch/stream. The stream is actually a tributary to Lake Washington which enters Lake Washington on the Port Quendell site. Information on animals in the environmental checklist only mentioned song birds. There are many animals that could potentially be on or near the site, including bald eagles,red-tailed hawks, and certainly the small mammals that provide prey for hawk species. Ms.Fontes questioned Mr.Fisher about his visits to the site,and Mr.Fisher responded that he had been there on March 18 and in either December or January prior to that. Mr.Fisher stated that in his letter to Mark Pywell he stressed the fact that a hydraulic project approval would be required. Mr.Kussman asked Mr.Fisher where he had located the second culvert and Mr.Fisher indicated on the map that it was east of the site,not on the subject property. There was some discrepancy about the location of the culverts in relation to the site.. Mr.Fisher stated that he did not see any of the drawings that were submitted along with.the environmental checklist such as the conceptual drainage report,conceptual drainage plan or the detention systems. Ms.LaFever reiterated her position that the stream is an important thing to study before land use decisions are made. Kimberly Swanson, 1909 NE 36th Street,Renton,Washington 98056, spoke on behalf of the appellant. Her property is located just due south of the site and is on the precipice above that feeds the whole area. She related the various animals that are seen on the subject site on a consistent basis, including deer, cougar,bobcat, bear,river otter,porcupine and various others. Many of these animals use this site as a path from the greenbelt that goes up over the mountains from there. Ms.LaFever stated that the substantial wildlife in the area needs habitat to live in and the wetlands and stream provide good riparian vegetation in which to live. She stated that as recommendations the stream and the wetlands need bigger buffers and they need the bioswale outside the buffer on Wetlands A and B. Dave LaFever, 3915 Lincoln Avenue NE,Renton,Washington 98056, spoke on behalf of the appellant. He and a geologist had toured the site and at that time ascertained that it had at one time been a mining site for sand and gravel. The sand on the site has a high infiltration rate,meaning rain water does not run off the site as surface water but travels down under the sand into what is called ground water. Mr.LaFever read a portion of the May Creek Conditions Report prepared by King County Public Works and the City of Renton Building Planning Public Works Department dated August 1995,regarding Wetland 34. Based on this report and the report from the geotech for the project,Mr.LaFever felt there was insufficient data to prove or disprove the amount of water going into the discharge of May Creek and influencing Wetland C. Ms.Fontes questioned Mr.LaFever about his qualifications and his investigation of the site. He stated that he was a mechanical engineer and practiced the use of hydraulics in his job. He had walked the perimeter of the Monica Rosman LaFever , Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 5 site and across the middle and had observed sand all the way through the site. In response to questioning,Mr. LaFever indicated he did not know the specific City code requirements relating to buffering of Category II wetlands. Ms. LaFever presented further arguments at this time. She stated that the introduction of an impervious - surface on.the site changes the direction,quantity.and quality of the water flow that may.have been ground flow before. -As to the value of the wetlands and stream,they are important in that.they,moderate impacts of storm water runoff by providing storm water retention, slowing peak flow rates...Wetlands.also_provide essential habitat for fish. There is a major point of flooding at the corner of Jones Road and 43rd which basically floods any.time it rains anymore. The storm water runoff also erodes on Lincoln Drive. There is flooding that happens yearly on Ripley Lane. Flooding and erosion equals a hazard for people and a destruction of habitat for wildlife. She I stated that in her opinion the detention system proposed for this project addresses the quantity of water flow but not the quality of water flow. The quality of water flow affects the wetlands,the stream,the wildlife on it. Ms.LaFever requested that the bioswale be taken out of the buffer for:Wetlands A and B,..and a larger buffer be placed on both these bodies of water. In addition,she requested a fence around the wetlands so that residents of condominiums don'.t use these places as their backyard.: She would also request extensive construction mitigation on this project. There are steep slopes around the bank and a lot of care needs to be taken to prevent slides of vegetation, soil,etc. into the stream. Ms.LaFever looked at the Critical Areas Ordinance for Renton and the Sensitive AreasOrdinance for King County and noted that mitigation has a three-step order. The first is avoidance of impact;the second is minimization of impact; and the third is compensation for unavoidable losses. With this picture of the area, with the flooding, erosion, the hazards that are there, it is necessary to be on the conservative side of mitigation and to avoid impacts. There needs to.be analysis of the wetlands,the stream,the drainage ditches,May Creek as a system,and the quantity and quality of the water. The developer and the City of Renton must adequately mitigate development and strongly consider drafting an EIS. Ms.LaFever also requested that it be ', demonstrated that what is proposed for mitigation has no impact to these important features of the area,the stream and wetland. I Ms. Fontes questioned Ms.LaFever about the requirements of the City code as it relates to buffers in wetlands, and she responded that a Category III wetland has a 25 foot buffer minimum,and a Category II wetland has a 50 foot minimum. Even though the code allows bioswales in a buffer,Ms.LaFever stated that it is prudent that in this situation it be outside the buffer and that the bioswale is necessary to catch and filter sediments from the parking lot that will be introduced. Responding to questioning by Mr.Kussman,Ms.LaFever stated that there had been no flooding at the intersection of Monterey and Lincoln since the City of Renton had installed the new riprap,drop manhole and bird cage. Mr. Shiels asked Ms.LaFever if the proposed measures of mitigation were avoidance and minimization of impact, and she responded that the plan was to give a minimum buffer without consideration of fish or habitat. She stated that because there are salmonid in the stream, it should be a Class II stream with a buffer of 100 feet, and that a minimum buffer of 25 feet falls far short of that. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 6 Ms.Fontes in her opening remarks stated that there is no significant adverse environmental impact that has not been mitigated. That is the standard that the ERC must impose-- identifying significant adverse environmental impacts and their mitigation. The ERC identified significant adverse environmental impacts and mitigationconditions were required which met code requirements. Neil Watts,Plan Review Supervisor,Development Services,.City of Renton,200 Mill Avenue South,Renton, Washington 98055,testified concerning the flooding in the vicinity and the various measures the City has taken to correct it. In view of the fact that there are some flooding problems downstream from this particular project, particularly Ripley Lane area,the ERC:felt that additional mitigation for the•drainage concerns was appropriate. The project has been conditioned to provide detention beyond what is required by code;basically to provide detention through the 100 year storm event with a 30 percent safety factor with release rates that would model the existing release rates from the site. Regarding surface water runoff from the proposed parking area,Mr. Watts explained that the on-site drainage system is designed that all the runoff from the pavement areas will be directed to catch basins which will have a sump to collect some of the sediment at that point. Those are directed through a tight line system through a detention system which,then releases into a biofiltration swale along the northerly part of this site. The discharge point for that swale.and.for the runoff from-this-site is then into what is currently designated wetland B. Responding to Ms..LaFever's question•regarding future flooding anderosion in the area,Mr. Watts stated that this particular stretch is always going to be a challenge,partly because of the need of this area as a habitat but also realizingit is becoming a major drainage facility..Much of the problem is not within the City of Renton; it is residential development in the Newcastle area. The impacts on this particular stretch of upstream drainage ditch will be caused by things off-site rather than this one. Regarding the detention system,Mr. Watts indicated that this particular one was not designed for water quality, only water quantity as the site was not large enough to require that type of improvement. Bill Shiels testified on behalf of the applicant as a principal of Talasaea Consultants,an environmental and resource planning firm. He described the current condition of that part of the stream which this project proposes to straighten out. He also described the mitigation measures required by the various agencies,which included elevating the outlet of the stream about 6 feet at the north end of the property to create a more gentle stream gradient. They would lay the slopes back so that they would not be as steep as they currently are now where the riprap has been placed along the road. The stream banks would be more gentle and allow for placement of top soil and a number of plants. . The Examiner asked if the culvert is now probably impassable to fish at a 2 foot drop,would it not make it absolutely impassable for any fish. Mr. Shiels responded that that was correct,but it was their understanding after meeting with Department of Fisheries personnel that this was not a fish-bearing segment of the stream. It was seen as a food production element for salmonid resource. He detailed his contacts with Department of Fisheries personnel and their requirements for this project. Mr. Shiels described the change in the water flow if the stream is straightened out. The velocities would change,but in widening the base of the stream channel and elevating the outlet,there would be a more relaxed or gentle stream gradient. That will cause more friction and consequently lower velocities. The water temperature could be raised if the stream corridor were not vegetated. Applicant is planning dense vegetation with willows primarily. Eventually it will close the canopy over the top of the channel so it should all be Monica Rosman LaFever I . • Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 7 filtered light in the summer. In the winter it is not a serious problem with insulation. Responding to further questions,Mr. Shiels described Wetlands A,B and C--their depth,water flow, drainage, recharges. Ms:LaFever questioned Mr. Shiels regarding ratio replacement to loss. He explained that the code provides for 1-to 1 replacement to loss ratio if two Class III wetlandsare connected, which this project,shows between A and B there will be a physical connection of wetlands,one contiguous wetland system., The wetland replacement to - .'i. loss ratio:physically is a 1 to. 1 on an areabasis. The ratio for replacement to loss for'a Class III wetland to be filled is 1.5 to 1. If two Class III wetlands are joined,then the replacement to:loss ratio is.1.to 1.as stated in the code. Mr. Shiels stated that on the project site the applicant has demonstrated avoidance and minimization with respect to the stream and wetlands. It was his understanding that the existing road has encroached beyond the road right-of-way on the east side of the property, so the only opportunity for expansion was to the west. He stated that the net result will be an improved riparian corridor when this project is built as designed. Applicant must monitor any project that involves mitigation to streams or wetlands for.a-period'of five years per the City's code. ,,Mark Pywell, Senior Planner,City of Renton,:200 Mill Avenue South;.Renton,:Washington 98055, spoke as project manager on behalf of the City. He explained the City's code as it relates to joining of wetlands. The applicant could have designed a created wetland area on site at.a.1.5_to.1 ratio and left the two wetlands as separate wetlands. However,the code does allow the 1 to 1 ratio because it is looked at as being a better solution to combine the smaller wetlands into one functioning large wetland for better survival rate. Regarding the moving of the stream,-he stated that,it was the outcome of a requirement to improve Lincoln Avenue along this project to meet current City standards. Mr. Kussman stated applicant's position and related the problems associated with the stream relocation as well as the street improvements required by the City. A representative of the Fisheries Department, after reviewing the plans, stated that there should be no problem with the stream relocation. Regarding the wetland buffers,he stated that under Renton code they have met every requirement. There are provisions in the wetlands ordinance that public ways,utilities,etc.,may be placed through and around buffers of wetlands and actually even through the wetlands if it is required by code for the benefit of the public. Closing arguments were given by the parties and their comments reiterated their previous statements. The Examiner called for further testimony regarding this appeal. There was no one,else wishing to speak. The hearing closed at 4:07 p.m. FINDINGS.CONCLUSIONS &DECISION Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1. The appellants,Monica Rosman LaFever and Marty Roberts,represented by Monica Rosman LaFever (hereinafter appellant),filed an appeal of.a Determination of Non-Significance(DNS)issued for a proposed multiple family complex. The appeal was filed in a timely manner on March 10, 1997. The • Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 8 subject proposal was subjected to the City's ordinary SEPA review process. The City, in the course of and as a result of its.SEPA review, issued.a Determination of Non-Significance-Mitigated for the project. During the review process the City determined that certain conditions should be imposed on the projectto minimize the potential impacts associated with the proposal. The appellants objected to the determination and raised a number of issues concerning the impact of..the..proposal on the stream and wetlands found on and adjacent to the site and to the waters into which.they flow and the habitat. 2. The underlying proposal entails the construction of a 9-building,.62 unit multiple family.complex. It will be located on an approximately 3.3 acre site. Parking for 120 vehicles will.be located within garages in.the nine buildings with an additional 16 open stalls located throughout the site. 3. Three separate wetlands and a small creek are located on or partially on the site. Wetland A is approximately 3,079 sq ft on-site. It is approximately 10,000 sq ft in total area. It is forested. The wetland is probably fed by rain for the most part,but there is an artesian well leaking offsite. The wetland is a Category 3.wetland which requires a 25 foot buffer. The applicant:proposes filling approximately 1,248 sq ft of it. 4. Approximately 1,094 sq ft of Wetland B is located on.the subject site. The wetland including offsite portions totals approximately.5,000 sq ft. It is forested and is also.a Category 3 wetland. Approximately 164 sq ft of it would be filled. 5. Wetland B appears to flow in two directions,toward May Creek and toward the other stream. 6. Wetlands A and B are forested with cottonwood trees approximately 60 to 70 feet tall and are estimated at about 40 years old. 7. In total approximately 1,412 sq ft of Wetlands A and B would be filled. In compensation,the applicant will be excavating approximately 1,624 sq ft in an attempt to create wetland between A and B. The replacement ratio would be approximately 1.15:1 which is slightly more than the 1:1 required by the Renton Wetland Ordinance. That ordinance permits 1:1 replacement when two smaller Category 3 wetlands are combined. 8. Category 3 wetlands require a buffer of 25 feet. The applicant proposes constructing the site's needed biofiltration swale in the proposed wetland buffer. This is permitted by ordinance. 9. Wetland C straddles the boundary between the subject site and property to its west. Approximately 2,617 sq ft is contained within the site. A large portion extends offsite. It is located at the toe of a slope and contains black muck. It is a Category 2 which is higher in quality than the other two wetland areas. It requires a 50 foot buffer. With City permission,the applicant proposes buffer averaging which would reduce a portion of the required buffer below 50 feet but to not less than 40 feet. The total square feet of the buffer will be maintained. 10. A stream flows from south to north along the eastern edge of the southern half of the site. It crosses in and out of City owned property both near the north and south ends of the site. It is located below Lincoln Avenue NE. A 25 foot buffer from edge of high water is proposed along both sides of the creek. Monica Rosman LaFever • Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 9 11. The record reflects that the stream bears fish downstream(north)from the subject site. A change in topography at the lower end of a culvert appears to prevent fish passage upstream to the segment of the creek flowing beside and through the subject site. 12. The City proposes widening Lincoln in this area in order to serve both the subject site and the general traffic needs of the area. This widening would necessitate the relocation of the creek. Stream relocation would require the removal of vegetation,as well as excavation„filling and grading on both sides of the creek. To prevent erosion,riprap has already been.installed.along_portions of the creek. 13. The stream would be moved to the west. Some meander would be accommodated.and its gradient (drop from south to north)would be lessened. It would be deeply incised and riprap would be part of stabilization. The outlet would be raised approximately 6 feet. This would increase any obstacle to fish migration that the existing two foot drop already presents. The existing obstacle probably is already too severe to accommodate fish migration upstream. The gradient change would lower the overall velocity of the creek but could also lead to increased water temperatures. 14. The area north of the site is a mix of commercial and residential uses concentrated around and generally east of the NE 44th Street interchange at I-405. South of that fairly developed node,the area becomes more sparsely developed with scattered single family uses located on larger lots. 15. Lincoln Avenue NE which runs north to south east of the subject site is a narrow street developed to older standards. Just north of NE 40th(unopened)Lincoln forms a"Y" intersection with Monterey Place NE. Jones Avenue NE is located west of the subject site. 16. The subject site and property north and west of it are zoned CA(Commercial Arterial). East of the site, across Lincoln Avenue is an R-10 zone(Residential/10 units per acre). Immediately south of the site is an R-8 zone(Single family residential/8 units per acre). 17. The map element of the Comprehensive Plan designates the area in which the subject site is located as suitable for the development of commercial uses but does not mandate such development without consideration of other policies of the Plan. 18. The CA zone does permit the development of multiple family uses under certain conditions. One of those conditions is that a single use multiple family use be limited to 20 units per acre. The proposal complies with the limitation. 19. At least south of the site there have been bear,deer and cougar sightings. 'Salamanders have been found in the area as well as song birds,piliated woodpeckers and other birds. 20. While wildlife has been seen in the area,the appeal did not initially raise any issues dealing directly with habitat. In any event,there is no definitive evidence of threatened or endangered species occupying the subject site. 21. The appellant addressed concerns regarding the recharge of May Creek(from Wetland C)and impacts on the wetlands and the wetlands'buffers,flooding and erosion. Monica Rosman LaFever - Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 10 22. There is some evidence in the record that some testimony may have been about property not within the boundaries of the subject site. Employees of the State Fisheries Division noted that preferred policies, not necessarily those in effect within the City,would provide 150 foot setbacks from both sides of a stream and 50 feet around wetlands and that lesser buffers are ineffective. 23. The loss-of vegetation that might occur with road construction and:vegetation removal could result in raised stream temperatures. The differences would be measurable and not speculative. 24. .The increase in impervious surface could lead to altered stream.flows>with,less:.water released from underlying soils in summer and greater flows and scouring in winter. City code requires detention which necessitates post-development flows leaving the site not exceed predevelopment release rates. . 25. A hydrology(hydraulic)permit will be needed from Fisheries and this was omitted from the checklist. 26. The checklist did not deal with storm water but noted it would be managed by discharging into the wetlands. It will be channeled through a detention structure,routed through a biofiltration-swale and released into the combined A-B wetland. 27. - :The site had been an extraction site and quarry. There are ridges along the east and west boundaries of the site. There are sands which allow water to percolate into the site;however,there is no information on hydrology and which way the underground flows run. 28. May Creek studies indicate habitat problems and suggest restoration. A management plan is under review at this time but has not been adopted. 29. Flooding occurs in the area upstream or south of the subject site. The City had responded and did repair work on the drainage ditch east of the site. The most recent heavy storm appears to have not caused a recurrence of the flooding. 30. There is also flooding north of the subject site in the vicinity of Denny's Restaurant and at Jones and 43rd. Staff noted this is caused by a substandard culvert system under I-405. This flooding has closed off access to the areas south of Jones Road just west of the subject site. Flooding has also occurred in the vicinity of Ripley Lane. 31. The ERC did impose a condition that the applicant provide for a 100-year storm event either with onsite detention or downstream improvements. 32. The record reflects that riparian environments are not easily replaced. Recovery can take at least the five years specified by the ERC in its mitigation measures and can take longer. Depending on the type of vegetation planted, it could take a number of years before the creek is shaded sufficient to reduce water temperature. It was predicted that a minimum of three years would permit trees to grow from 4 feet to 8 feet. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 11 33. The bioswale,depending on circumstances,will need to be maintained by the property owner. This would necessitate entering into the wetland buffer area. The scope of the operation was not fully discussed. 34. The slopes above the stream do not evidence any immediate erosion or slide potential or any recent geological instability. 35. The appellant recommended a number of measures to reduce or eliminate the impacts this proposal would have on the wetlands and creeks: that the bioswale not be developed:within the wetland buffer area;the culvert should be removed under the emergency road and the gradient altered to allow fish ' . . .. passage; and straightening the channel would be inappropriate. The appellant's plans show a gentle meandering stream course and suggest lowering the gradient of the stream on the subject site but potentially increasing the drop at the culvert. The second, lower culvert,apparently mislocated by the appellant already presents a formidable obstacle to fish passage. Woody debris and pools would create a preferable stream profile. 36. It is not known who installed the culvert or when it was installed. It is not dear if fish passage might have been accommodated for its installation. 37. The ERC imposed the following wetland condition: "The applicant shall submit a final wetland mitigation report. This report,shall include,but not be . limited to, a description of the existing wetlands,the areas that will be filled as part of the project,the establishment of new wetland areas to replace the disturbed wetlands,the treatment of buffer areas,a five year monitoring plan, and identify the party responsible for the maintenance of the wetlands,and buffer areas. This report shall be submitted to the satisfaction of the Development Services Division prior to the issuance of construction or building permit." 38. The ERC imposed the following stream buffer condition: "The applicant shall submit a plan or report detailing the buffer area along the stream and the treatment of this areas to the satisfaction of the Development Services Department prior to the issuance of construction or building permits." 39. There was no demonstration that the mitigation would work. The applicant believes that a better riparian environment would result from the proposed stream work. The applicant also indicates that there will be limited impacts to the wetlands. 40. The stream mitigation plan was worked out after the appeal was filed. It was not fully reviewed by the appellant or the ERC. CONCLUSIONS: 1. The decision of the governmental agency acting as the responsible official is entitled to substantial weight. Therefore,the determination of the Environmental Review Committee(ERC),the City's responsible official, is entitled to be maintained unless the appellant clearly demonstrates that the determination was in error. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 12 --2. The Determination of Non-Significance in this case is entitled to substantial weight and will not be reversed or modified unless it can be found that the decision is "clearly erroneous." (Hayden v. Port Townsend, 93 Wn.2d 870, 880; 1980). The court in citing Norway Hill Preservation and Protection Association v. King County Council, 87 Wn.2d 267,274; 1976, stated: "A finding is'clearly erroneous' when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Therefore,the determination of the ERC will not be modified or reversed if it can meet the above test. For reasons enumerated below,the decision of the ERC is reversed. 3. The clearly erroneous test has generally been applied when an action results in a DNS since the test is less demanding on the-appellant. The reason is that SEPA requires a thorough examination of the environmental consequences of an action. The courts have,therefore,made it easier to reverse a DNS. A second test,the "arbitrary and capricious"test is generally applied when a determination of significance(DS)is issued. In this second test an appellant would have to show that the decision clearly flies in the face of reason as a DS is more protective of the environment since it results in the preparation of a full disclosure document, an Environmental Impact.Statement. 4. An action is determined to have a significant adverse impact on the quality of the environment if more than a moderate impact on the quality of the environment is a reasonable probability. (Norway,at 278). Since the Court spoke in Norway, WAC 197-11-794 has been adopted, it defines "significant" as follows: Significant. (1) "Significant"as used in SEPA means a-reasonable likelihood of more than a moderate adverse impact on environmental quality. (2) Significance involves context and intensity. . .Intensity depends on the magnitude and duration of an impact. . . The severity of the impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great,but the resulting environmental impact would be severe if it occurred. 5. Also redefined since the Norway decision was the term "probable." Probable. "Probable"means likely or reasonably likely to occur, ...Probable is used to distinguish likely impacts from those that merely have a possibility of occurring,but are remote or speculative. (WAC 197-11-782) 6. Even given the relaxed standards cited above,a case can only be made with the submission of support for the contentions of error. 7. The primary issue encountered in this matter is that there is insufficient information in the record to allow the various decisionmakers to determine between options permitted by code. Just because the code allows certain options like filling portions of wetlands if they are consolidated or building the biofiltration swale in the wetlands'buffer does not mean they should be sanctioned. The environmental consequences of such actions should be spelled out before committing to them. The problem is that approaching this project from the outside as are the appellants and the various decisionmakers, such as the Hearing Examiner on the site plan and the Public Works Administrator on some wetlands options, there is insufficient information to decide between some of the options or variations. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 13 8. The applicant proposes developing an approximately 3.3 acre undeveloped site with three wetlands, severe slopes and a creek. Along with this development which will increase impervious surface,the applicant proposes filling portions of two of the wetlands, altering the connections between two of them and re-routing and regrading the stream.bed. While the applicant and maybe even the directly involved staff might have been privy to additional considerations,that information is not available in the existing file or record to allow anyone else to reach any informed decisions. 9. Should the stream's curves be altered and should its gradient be lowered?..To what:effect? Should it meander or be widened? What are the affects on water quality and stream temperature? Will the additional elevation difference created by lowering the overall descent of the creek make impossible restoration of fish passage above the,culvert? 10. While the applicant and City indicated that Fisheries likes or approves some of the mitigation ideas, those ideas only are clearly enunciated in documents that followed,not preceded some of the environmental review. The ERC's condition is that: "The applicant shall submit a final wetland mitigation report. This report shall include,but not be limited to, a description of the existing wetlands,the areas that will be filled as part of the project,the establishment of new wetland areas to replace the disturbed wetlands,the treatment of buffer areas, a five year monitoring plan, and identify the party responsible for the maintenance of the wetlands, and buffer areas. This report shall be submitted to the satisfaction of the Development Services Division prior to the issuance of construction or building permit." 11. Similarly,another ERC condition applicable to the creek is: • "The applicant shall submit a plan or report detailing the buffer area along the stream and the treatment of this area to the satisfaction of the Development Services Department prior to the issuance of construction or building permits." These conditions are vague. They provide no basis for an interested party to know what is proposed as mitigation. They assure nothing at the time of the environmental determination. There is nothing adequately defined to assure the appellants that the stream will be protected--only that it be submitted and satisfies someone ultimately. At that point, if the plan appeared inadequate,challenges might be too little,too late. Or it could require significant alteration of a plan built around stream and wetland relocations and acreage devoted to biofiltration that might need to be moved. Might a thorough study indicate whether filling should or should not occur or relocation should or should not occur? The submission of the mitigation plan that appeared at the appeal hearing cannot substitute in the time frame for review prior to the committal of resources. The appellant did not have an access to the plan to see if it was sufficient prior to the appeal. 12. Shouldn't the full description of the wetland be available before the environmental determination? Shouldn't the extent of fill be known before environmental determination? Shouldn't the new wetlands areas and the vegetation proposed also be known so that the ERC can truly conclude that mitigation will minimize the adverse impacts? There is nothing that assures any reader that, in fact,the impacts of all of these various actions will be fully mitigated or that these actions are the best alternative given the sensitive nature of the site or portions of the site. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 14 13. The site is not simple from a topographical or hydrological standpoint. The site appears to have three discrete wetlands and a creek. Each of the wetlands is shared.between the subject site and adjacent property meaning any change could affect other property. The stream also traverses adjacent property. 14. Staff correctly pointed out that City Wetlands Ordinance permits the various options that the applicant proposed for wetland fill, consolidation and construction of the biofiltratrion swale in the buffer. That does not necessarily mean they have.to be permitted or should be permitted. Ananalysis of those options, alternatives to those options or avoidance is necessary. Again,the record does not disclose in any affirmative fashion the background that would appear to be necessary to make decisions on whether to regrade the creek and what affects that would have on streamside vegetation,erosion,water temperatures,etc. Nor is there any information in the file which apparently weighs the options of filling portions of Wetlands A and B and joining them together. Do they drain to different areas? If so, would joining them alter the seasonal recharge of their respective downstream areas? Will altering the creek's course by straightening,moving and realigning it and changing its gradient cut into clay or impermeable layers that would change its capacity as a creek,or would introducing such layers to prevent saturation of nearby soils have the opposite affect? 15. Would permitting the bioswale in the buffer, a swale that might require periodic maintenance, introduce intrusions into what should be generally undisturbed"setback" buffer from the actual wetlands? Will this move pollutants and sediments closer to the actual wetlands? Again,this information is not available. 16. SEPA requires this type of information beforecommitting or altering the environment. While the site is not very large, it does contain sensitive areas. As SEPA points out, it is neither the size nor even beneficial ultimate results of a project that determines whether a project has more than a moderate impact on the quality of the environment. All factors come into play in assessing how the alteration of the site will affect the environment of the site and surroundings. 17. Even if all told,the proposed modifications to this site's hydrologic components would be beneficial, that still does not alter the fact that the total of all such changes will have more than a moderate impact on the quality of the environment and therefore deserve the study and analysis that can only be accomplished preparing an environmental study. 18. Since the only issues raised on appeal deal with the wetlands, creek and drainage issues,the required environmental studies shall be focused on those issues and shall not be expanded to include wildlife or other habitat issues other than those associated with aquatic ecosystems. 19. Finally, in doing the appropriate environmental analysis,the fact that all of the options that the applicant planned or proposed might be permitted by code does not minimize or remove their potential environmental impacts. It is a well-known fact that not everything sanctioned by code is exempt from SEPA review. SEPA has clear exemptions and any other action is subject to appropriate review. 20. The mitigation measures proposed do not necessarily remove the environmental consequences of these actions. Further,as was noted at the hearing, certain documents and mitigation measures were not developed prior to the issuance of the DNS-Mitigated and were not available to either the ERC or the appellants in this case. 21. Those mitigation measures may in fact address the environmental consequences, and then again they may not. They were not part of the record of review before the ERC when a decision was issued and when an appeal was timely filed. In addition,as noted,the record does not have much information in Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 15 DECISION: The determination of the Environmental Review Committee is reversed and the appeal is granted. ' ORDERED THIS 29th day of April, 1997. FRED J.KA MAN HEARING EXAMINER TRANSMITTED THIS 29th day of April, 1997 to the parties of record: Monica and Dave LaFever Zanetta Fontes Bob Zeigler 3915 Lincoln Avenue NE 200 Mill Avenue S 600 N Capitol Way Renton,WA 98056 Renton,WA 98055 Olympia,WA 98501-1091 ' Lyle Kussman Bill Shiels Larry Fisher P.O.Box 1705 15020 Bear Creek Road NE 22516 SE 64th Place,#230 Bothell,WA 98041 Woodinville,WA 98072 Issaquah,WA 98027 Shupe Holmberg Neil Watts Mark Pywell 100 Front Street 200 Mill Avenue S 200 Mill Avenue S Issaquah,WA 98027 Renton,WA 98055 Renton,WA 98055 Kimberly Swanson Mark Goldberg Tri-Delt 1909 NE 36th 4739 University Way NE,#1607 6840 112th Avenue SE Renton,WA 98056 Seattle,WA 98105 Renton,'WA 98056 Edwin Stone Paul and Pam Miller Marty and Mike Roberts 744 Belmont Place NE 3623 Lincoln Avenue NE 3925 Lincoln Avenue NE Seattle,WA 98102 Renton,WA 98056 Renton,WA 98056 Hal Brandt Pamela Mullen Peter Johnson 12727 SE 63rd Street 5320 242nd Place NE P.O.Box 744 Bellevue, WA 98006 Redmond,WA 98053 Kirkland,WA 98083 Blair Baummer Pat Dana Sheri Waddington 3636 Lincoln Avenue NE 5219 Ripley Lane N 2332 NE 31st Street Renton,WA 98056 Renton, WA 98056 Renton,WA 98056 Gordon Donnell Frank and Rose Falaniko Richard and Teri Brunory P.O.Box 2576 2224 NE 31st Street 3866 Monterey Place NE Renton,WA 98056 Renton, WA 98056 Renton,WA 98056 Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 16 Gordon Donnell Frank and Rose Falaniko Richard and Teri Brunory P.O.Box 2576 2224 NE 31st Street 3866 Monterey Place NE Renton,WA 98056 Renton,WA 98056 Renton, WA 98056 Margaret Nielsen Roger Urbaniak Susan Bollinger 3835 Lincoln Avenue NE 1020 108th Ave NE,#109 3812 Monterey Place NE Renton,WA 98056 Bellevue,WA 98004 Renton, WA 98056 D.Allen Bauman Nancy Crisp Gene.Jackson 4030 Lk Washington Blvd.NE 2100 NE 31st 1909 NE 36th Kirkland,WA 98033 Renton,WA 98056 Renton,WA 98056 Ralph Shaw Jim and Lynn Bisset Andy and Beth Alexander 3935 Monterey Place SE 3901 Lincoln Avenue NE 2336 NE 31st Renton,WA 98056 Renton, WA 98056 Renton,WA 98056 Kenneth LaBeau Lisa Brick Judy Stoloff 115 East School House Road 4006 Lincoln Avenue NE 2019 Fairview East, Slip B Wenatchee,WA 98801 Renton, WA 98056 Seattle,WA 98102 Kennydale Vista LLC Oldrich Frye 4030 Lk Washington Blvd,#208 21505 196th Avenue SE Kirkland,WA 98105 Renton,WA 98058 TRANSMITTED THIS 29th day of April, 1997 to the following: Mayor Jesse Tanner Gregg Zimmerman,Plan/Bldg/PW Administrator Members,Renton Planning Commission Jim Hanson,Development Services Director Art Larson,Fire Marshal Mike Kattermann,Technical Services Director Lawrence J.Warren, City Attorney Larry Meckling,Building Official Transportation Systems Division Jay Covington,Mayor's Executive Assistant Utilities System Division Councilperson Kathy Keolker-Wheeler South County Journal Pursuant to Title IV, Chapter 8, Section 15 of the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m..May 13, 1997. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen(14) days from the date of the Examiner's decision. This ' request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record,take further action as he deems proper. M •n' • • ica o Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 17 Appeal of the Examiner's decision is governed by Title IV, Chapter 8, Section 11, which requires that such appeal be filed with the Superior Court of Washington for King County within twenty (20) days from the date of the decision. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the.proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This,public;communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. 04/30/97 WED 09:39 FAX 4252352513 RENTON-FINANCE UU1 • *************fie**** ** • *** TX REPORT *** ********************* TRANSMISSION OK TX/RX NO 4801 CONNECTION TEL 92065242927 SUBADDRESS CONNECTION ID ST. TIME 04/30 09:37 USAGE T O1'49 PGS. 3 RESULT OK CITY OF RENTON 200 MILL AVENUE SOUTH RENTON, WA 98055 206-235-2501 FAX# 235-2513 DATE 30( • '� PAGES (EXCLUDING THIS COVER SHEET) ATTENTION: kAtK, ( OLDf3c7Z 6 FROM: 14 �ILYA) hose-.S L I�(LI �J C� L k A o1 'r 04/30/97 WED 09:43 FAX 4252352513 RENTON-FINANCE g001 • ************xe*xe****:cue • *** TX REPORT *** TRANSMISSION OK TX/RX NO 4803 CONNECTION TEL 94258069628 SUBADDRESS CONNECTION ID ST. TIME 04/30 09:41 USAGE T 02'O1 PGS. 3 RESULT OK • CITY OF RENTON 200 MILL AVENUE SOUTH RENTON, WA 98055 206-235-2501 FAX# 235-2513 DATE 2 3 qt 7 .� PAGES (EXCLUDING THIS COVER SHEET) ATTENTION: i_y I e IQ (Sfr1'1(11 . FROM: MA l 4L-'/J1?tj( oc& i0 . Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 12 Townsend,93 Wn.2d 870, 880; 1980). The court in citing Norway Hill Preservation and Protection Association v.King County Council, 87 Wn.2d 267,274; 1976, stated: "A finding is'clearly erroneous' when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Therefore,the determination of the ERC will not be modified or reversed if it can meet the above test. For reasons enumerated below,the decision of the ERC is reversed. 3. The clearly erroneous test has generally been applied when an action results in a DNS since the test is less demanding on the appellant. The reason is that SEPA requires a thorough examination of the environmental consequences of an action. The courts have,therefore,made it easier to reverse a DNS. A second test,the "arbitrary and capricious"test is generally applied when a determination of significance(DS)is issued. In this second test an appellant would have to show that the decision clearly flies in the face of reason as a DS is more protective of the environment since it results in the preparation of a full disclosure document,an Environmental Impact Statement. 4. An action is determined to have a significant adverse impact on the quality of the environment if more than a moderate impact on the quality of the environment is a reasonable probability. (Norway, at 278). Since the Court spoke in Norway,WAC 197-11-794 has been adopted, it defines "significant" as follows: Significant. (1) "Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. (2) Significance involves context and intensity. . .Intensity depends on the magnitude and duration of an impact. . . The severity of the impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great,but the resulting environmental impact would be severe if it occurred. 5. Also redefined since the Norway decision was the term "probable." Probable. "Probable"means likely or reasonably likely to occur, ...Probable is used to distinguish likely impacts,from those that merely have a possibility of occurring,but are remote or speculative. (WAC 197-11-782) 6. Even given the relaxed standards cited above,a case can only be made with the submission of support for the contentions of error. 7. The primary issue encountered in this matter is that there is insufficient information in the record to allow the various decisionmakers to determine between options permitted by code. Just because the code allows certain options like filling portions of wetlands if they are consolidated or building the biofiltration swale in the wetlands'buffer does not mean they should be sanctioned. The environmental consequences of such actions should be spelled out before committing to them. The problem is that approaching this project from the outside as are the appellants and the various decisionmakers, such as the Hearing Examiner on the site plan and the Public Works Administrator on some wetlands options, there is insufficient information to decide between some of the options or variations. 8. The applicant proposes developing an approximately 3.3 acre undeveloped site with three wetlands, severe slopes and a creek. Along with this development which will increase impervious surface,the applicant proposes filling portions of two of the wetlands,altering the connections between two of Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 13 them and re-routing and regrading the stream bed. While the applicant and maybe even the directly involved staff might have been privy to additional considerations,that information is not available in the existing file or record to allow anyone else to reach any informed decisions. 9. Should the stream's curves be altered and should its gradient be lowered? To what effect? Should it meander or be widened? What are the affects on water quality and stream temperature? Will the additional elevation difference created by lowering the overall descent of the creek make impossible restoration of fish passage above the culvert? 10. While the applicant and City indicated that Fisheries likes or approves some of the mitigation ideas, those ideas only are clearly enunciated in documents that followed,not preceded some of the environmental review. The ERC's condition is that: "The applicant shall submit a final wetland mitigation report. This report shall include,but not be limited to,a description of the existing wetlands,the areas that will be filled as part of the project,the establishment of new wetland areas to replace the disturbed wetlands,the treatment of buffer areas,a five year monitoring plan, and identify the party responsible for the maintenance of the wetlands, and buffer areas. This report shall be submitted to the satisfaction of the Development Services Division prior to the issuance of construction or building permit." 11. Similarly,another ERC condition applicable to the creek is: "The applicant shall submit a plan or report detailing the buffer area along the stream and the treatment of this area to the satisfaction of the Development Services Department prior to the issuance of construction or building permits." These conditions are vague. They provide no basis for an interested party to know what is proposed as mitigation. They assure nothing at the time of the environmental determination. There is nothing adequately defined to assure the appellants that the stream will be protected--only that it be submitted and satisfies someone ultimately. At that point, if the plan appeared inadequate,challenges might be too little,too late. Or it could require significant alteration of a plan built around stream and wetland relocations and acreage devoted to biofiltration that might need to be moved. Might a thorough study indicate whether filling should or should not occur or relocation should or should not occur? The submission of the mitigation plan that appeared at the appeal hearing cannot substitute in the time frame for review prior to the committal of resources. The appellant did not have an access to the plan to see if it was sufficient prior to the appeal. 12. Shouldn't the full description of the wetland be available before the environmental determination? Shouldn't the extent of fill be known before environmental determination? Shouldn't the new wetlands areas and the vegetation proposed also be known so that the ERC can truly conclude that mitigation will minimize the adverse impacts? There is nothing that assures any reader that, in fact,the impacts of all of these various actions will be fully mitigated or that these actions are the best alternative given the sensitive nature of the site or portions of the site. 13. The site is not simple from a topographical or hydrological standpoint. The site appears to have three discrete wetlands and a creek. Each of the wetlands is shared between the subject site and adjacent property meaning any change could affect other property. The stream also traverses adjacent property. ' 14. Staff correctly pointed out that City Wetlands Ordinance permits the various options that the applicant proposed for wetland fill,consolidation and construction of the biofiltratrion swale in the buffer. That ®� CIT' JF RENTON Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman April 29,;1997 To: All Parties.Conceined Re: Appeal of Determination of Non-Significance re Williamsburg Condominiums File No. LUA-97-029,AAD Williamsburg Condominiums,File.No. LUA-96-164,SA Due to the issuance of a decision requiring re-examination by the ERC of the above-referenced project, a decision on the land use hearing held April 1, 1997 (File No. LUA96-164,SA)will not be issued at this time. A further land use hearing will occur once,the ERC,has resolved this matter. Should you have any further questions,please contact my secretary. Sincerely,- - � � •, ', Fred J. Kauf an Hearing Examiner cc: Mayor Jesse,Tanner • Jay Covington, Mayor's.Executive Assistant • Zanetta Fontes, City Attorney Mark.Pywell,Project Manager 200 Mil 1 Avenue South -Renton, Washington 98055 - (206)235-2593 ®This paper contains 50%recycled material,20%post consumer 0 AFFIDAVIT OF SERVICE BY MAILING STATE OF WASHINGTON ) ss. County of King ) MARILYN MOSES ,being first duly sworn,upon oath, deposes and states: That on the 29th day of April ,1997, affiant deposited in the mail of the United States a sealed envelope(s) containing a decision or recommendation with postage prepaid, addressed to the parties of record in the below entitled application or petition. Signature: g c� d SUBSCRIBED AND SWORN to before me this .29 - day of 4Y-J , 1997. Notary ubli an or the State of Washington, residing at ,therein. Application,Petition, or Case No.: Appeal of DNS for Williamsburg Condominium LUA97-029,AAD The Decision or Recommendation contains a complete list of the Parties of Record • . April 29, 1997 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION APPELLANT: Monica Rosman LaFever Marty Roberts Appeal of Determination of Non-Significance re Williamsburg Condominiums File No.: LUA97-029,AAD LOCATION: 4000 Lincoln Avenue NE SUMMARY OF APPEAL: Appeal of ERC's Determination of Non-Significance regarding Williamsburg Condominiums and Request for EIS PUBLIC HEARING: After reviewing the Appellant's written request for a hearing' and examining the available information on file,the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summary of the April 1, 1997 hearing. The official record is recorded on tape. The hearing opened on Tuesday,April 1, 1997,at 9:01 a.m. in the Council Chambers on the second floor of the Renton Municipal Building. Parties wishing to testify were affirmed by the Examiner. The following exhibits were entered into the record: Exhibit No. 1: Yellow file containing the appeal, Exhibit No.2: Memo from Larry Fisher dated proof of posting and publication, and other March 26, 1997 documentation pertinent to the appeal. Exhibit No.3: Land Use Application File No.LUA- Exhibit No.4: Site plan 96-164,SA(by reference) Exhibit No. 5: Landscaping plan Exhibit No.6: Map prepared March 10, 1997 Exhibit No.7: Letter from Larry Fisher to Mark Exhibit No. 8 May Creek Conditions Report dated Pywell dated February 21, 1997 August 1995 (by reference) Exhibit No.9: May Creek Basin Action Plan(by Exhibit Nos. 10-13 Photographs of site reference) Exhibit No. 14 Stream Mitigation Plan Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 2 Parties present: Appellant,Monica Rosman LaFever 3915 Lincoln Avenue NE Renton,WA 98056 Representing the City of Renton Zanetta Fontes 200 Mill Avenue South Renton, WA 98055 • Representing the Applicant Lyle Kussman P.O.Box 1705 Bothell,WA 98041 The Examiner explained that the hearing was an administrative appeal held pursuant to Ordinance 3071 and was the only administrative review to occur on the matter. The matter may be submitted back to the Examiner for reconsideration if the parties are not satisfied with the decision. The appeal by writ of review is to Superior Court. He stated that the appellant had the burden of demonstrating that the City's action was erroneous, and would have to show clear and convincing evidence that the City's determination was incorrect. At that point the City could respond, if they chose to do so. The applicant to this proceeding would also be given an opportunity to respond. Monica Rosman LaFever,appellant herein, stated that she resides on Lincoln Avenue,one driveway from the proposed Williamsburg Condominium project,and is concerned about responsible development of this site. After much research, she believes the Environment Review Committee(ERC)failed to impose sufficient conditions to mitigate the impacts related to the project and that it requires an Environmental Impact Statement (EIS). This site has a fragile environment with lots of flooding and erosion problems and fish life to support. Her appeal focused on three areas: (1)the value of this site to wildlife; (2)the value of the site to the recharge of May Creek, a salmon stream; and (3) the value of the wetland and the stream to flooding and erosion in the area. Bob Zeigler, Washington State Department of Fish&Wildlife, 600 N. Capitol Way,Olympia,Washington 98501-1091,a wetlands biologist in the habitat program, spoke on behalf of the appellant. He visited the property on Tuesday,March 18, 1997,with habitat biologist Larry Fisher. They observed cutthroat trout on one of the streams in and below the property. They also observed two wetlands on the property, one of which had cottonwood trees that were estimated to be greater than 40 years old and approximately 60 to 70 feet in height. The area has value in supporting fish resources and other terrestrial wildlife. Department of Fish& Wildlife has recently initiated a wild salmonid policy trying to protect the dwindling fish resources. In the policy for this Type 3 stream which is less than 5 feet wide, 150 foot buffers are recommended to prevent significant impacts to the fish resources. They also observed a wetland area where water ponded to depths of approximately 2 feet,but were unclear of its location relative to the site plan. In order to take and prevent significant impacts of public fish and wildlife resources, it was recommended in a letter to Larry Fisher that there be 150 foot riparian buffer left on both sides of the stream,and that there also be a 50 foot buffer left around the wetlands on the property,and that the proposed drainage swale be moved out of the existing wetlands. He stated that the Department of Ecology in their report in 1992 pointed out that buffers less than 50 feet in width are generally ineffective in protecting wetlands. • Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 3 • Ms.Fontes questioned Mr.Zeigler regarding classification of the wetlands in this area and he responded that Wetland A would be a Category 3 wetland,and Wetland B has some components of a Category 2 in that it has some vegetation approaching mature forested,but it would be between a 2 and a 3. He did not visit Wetland C which is in the southwest corner. He stated he was not familiar with the City's ordinances as they relate to averaging and buffer requirements for wetlands. Mr.Kussman asked Mr.Zeigler to indicate on the site map where he located the cutthroat trout,and he responded that the fish were observed below the culvert northeast of the site. Bill Shiels, 15020 Bear Creek Road NE,Woodinville,Washington 98072, consultant for applicant,asked Mr. Zeigler if any of the wildlife located on this site would be identified as sensitive,threatened or endangered species,to which Mr.Zeigler responded that there are none in this area at this time. He pointed out that the only potential would be the salmonid species in May Creek,but they are not listed at this time. Regarding the affect on the recharge of May Creek if this project were built,Mr.Zeigler responded that usually what happens with an increase in impervious surface in a basin is a change in water flow. There is greater water flow in winter leading to potential scouring of spawning areas,and lower flows in summer. A mitigation measure to protect the wetland would be managing storm water. He was only familiar with the recommendation for the swale within the wetland and he would not recommend that it be done to increase the filtration. Regarding the value of the unnamed stream from a fisheries resource standpoint,he stated that this reach provides a food source and some water retention at times. If passage is provided above that culvert, it could be utilized by the cutthroat trout. The culvert at this time is an obstacle to fish because of the jump they have to make and whether they can take and maintain themselves once they make that leap in the culvert and not get washed back out. Ms. Fontes further questioned Mr.Zeigler regarding the stream if its direction was changed,the change in flow and temperature, and its impact to the food source. He responded that it could affect the food source because the existing vegetation provides a source of insects;the fact that there may not be that vegetation associated with the change can also increase the temperature of the stream. For a short time or even a period of years there could be a change to the food source because a riparian setup does not come in immediately even with plantings. Five years for an area to be restored to something in which there is going:to be some temperature modification is not unusual. Larry Fisher,22516 SE 64th Place,#230,Issaquah,Washington 98027,Area Habitat Biologist,Washington Department of Fish&Wildlife,Habitat Program, spoke on behalf of the appellant. With regard to the stream itself,he stated that in his opinion the culvert which is located where the emergency access road is proposed is completely impassable to fish migration. While at the site on March 18, fish were observed jumping up at the culvert outlet and being washed back down into the pool. There is an approximately 2 foot drop there in elevation. Also the culvert is at such a gradient that it would be extremely difficult for fish to get through it even if they could get into it. As to stream relocation,there is a potential to have a severe impact on the flow in the stream if the surface flows are allowed to seep into the ground which often occurs if an impervious layer of clay is commonly used as a liner under the new stream channel. He stated there was a potential for improving the habitat value of the stream if the two culverts were removed and a passable culvert was constructed at the proposed emergency access road. He recommended incorporation of woody debris material to trap sediment and create pools where fish could live. In his opinion the entire reach of stream is habitable by fish if they had access to it. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 4 He stated that the wetland fills that are proposed are not necessary and could be easily avoided. The proposed biofiltration swales are also located where there are existing wetlands in two places, Wetland A and Wetland B. He did not believe it was appropriate to have the biofiltration located within the buffer. He felt the importance of the stream was overlooked in the environmental checklist and it was referred to as a ditch/stream. The stream is actually a tributary to Lake Washington which enters Lake Washington on the Port Quendell site. Information on animals in the environmental checklist only mentioned song birds. There are many animals that could potentially be on or near the site, including bald eagles,red-tailed hawks,and certainly the small mammals that provide prey for hawk species. Ms. Fontes questioned Mr.Fisher about his visits to the site, and Mr. Fisher responded that he had been there on March 18 and in either December or January prior to that. Mr.Fisher stated that in his letter to Mark Pywell he stressed the fact that a hydraulic project approval would be required. Mr.Kussman asked Mr.Fisher where he had located the second culvert and Mr.Fisher indicated on the map that it was east of the site,not on the subject property. There was some discrepancy about the location of the culverts in relation to the site. Mr.Fisher stated that he did not see any of the drawings that were submitted along with the environmental checklist such as the conceptual drainage report,conceptual drainage plan or the detention systems. Ms.LaFever reiterated her position that the stream is an important thing to study before land use decisions are made. Kimberly Swanson, 1909 NE 36th Street,Renton,Washington 98056, spoke on behalf of the appellant. Her property is located just due south of the site and is on the precipice above that feeds.the whole area. She related the various animals that are seen on the subject site on a consistent basis, including deer, cougar,bobcat, bear,river otter,porcupine and various others. Many of these animals use this site as a path from the greenbelt that goes up over the mountains from there. Ms.LaFever stated that the substantial wildlife in the area needs habitat to live in and the wetlands and stream provide good riparian vegetation in which to live. She stated that as recommendations the stream and the wetlands need bigger buffers and they need the bioswale outside the buffer on Wetlands A and B. Dave LaFever,3915 Lincoln Avenue NE,Renton,Washington 98056, spoke on behalf of the appellant. He and a geologist had toured the site and at that time ascertained that it had at one time been a mining site for sand and gravel. The sand on the site has a high infiltration rate,meaning rain water does not run off the site as surface water but travels down under the sand into what is called ground water. Mr.LaFever read a portion of the May Creek Conditions Report prepared by King County Public Works and the City of Renton Building Planning Public Works Department dated August 1995,regarding Wetland 34. Based on this report and the report from the geotech for the project,Mr.LaFever felt there was insufficient data to prove or disprove the amount of water going into the discharge of May Creek and influencing Wetland C. Ms.Fontes questioned Mr.LaFever about his qualifications and his investigation of the site. He stated that he was a mechanical engineer and practiced the use of hydraulics in his job. He had walked the perimeter of the Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 5 site and across the middle and had observed sand all the way through the site. In response to questioning,Mr. LaFever indicated he did not know the specific City code requirements relating to buffering of Category II wetlands. Ms.LaFever presented further arguments at this time. She stated that the introduction of an impervious surface on the site changes the direction, quantity and quality of the water flow that may have been ground flow before. As to the value of the wetlands and stream,they are important in that they moderate impacts of storm water runoff by providing storm water retention, slowing peak flow rates. Wetlands also provide essential habitat for fish. There is a major point of flooding at the corner of Jones Road and 43rd which basically floods any time it rains anymore. The storm water runoff also erodes on Lincoln Drive. There is flooding that happens yearly on Ripley Lane. Flooding and erosion equals a hazard for people and a destruction of habitat for wildlife. She stated that in her opinion the detention system proposed for this project addresses the quantity of water flow but not the quality of water flow. The quality of water flow affects the wetlands,the stream,the wildlife on it. Ms.LaFever requested that the bioswale be taken out of the buffer for Wetlands A and B, and a larger buffer be placed on both these bodies of water. In addition,she requested a fence around the wetlands so that residents of condominiums don't use these places as their backyard. She would also request extensive construction mitigation on this project. There are steep slopes around the bank and a lot of care needs to be taken to prevent slides of vegetation, soil, etc. into the stream. Ms.LaFever looked at the Critical Areas Ordinance for Renton and the Sensitive.Areas Ordinance for King County and noted that mitigation has a three-step order. The first is avoidance of impact;the second is minimization of impact; and the third is compensation for unavoidable losses. With this picture of the area, with the flooding, erosion, the hazards that are there, it is necessary to be on the conservative side of mitigation and to avoid impacts. There needs to be analysis of the wetlands,the stream,the drainage ditches,May Creek as a system, and the quantity and quality of the water. The developer and the City of Renton must adequately mitigate development and strongly consider drafting an EIS. Ms.LaFever also requested that it be demonstrated that what is proposed for mitigation has no impact to these important features of the area,the stream and wetland. Ms.Fontes questioned Ms.LaFever about the requirements of the City code as it relates to buffers in wetlands, and she responded that a Category III wetland has a 25 foot buffer minimum, and a Category II wetland has a 50 foot minimum. Even though the code allows bioswales in a buffer,Ms.LaFever stated that it is prudent that in this situation it be outside the buffer and that the bioswale is necessary to catch and filter sediments from the parking lot that will be introduced. Responding to questioning by Mr.Kussman,Ms. LaFever stated that there had been no flooding at the intersection of Monterey and Lincoln since the City of Renton had installed the new riprap, drop manhole and bird cage. Mr. Shiels asked Ms. LaFever if the proposed measures of mitigation were avoidance and minimization of impact, and she responded that the plan was to give a minimum buffer without consideration of fish or habitat. She stated that because there are salmonid in the stream, it should be a Class II stream with a buffer of 100 feet, and that a minimum buffer of 25 feet falls far short of that. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 6 Ms. Fontes in her opening remarks stated that there is no significant adverse environmental impact that has not been mitigated. That is the standard that the ERC must impose-- identifying significant adverse environmental impacts and their mitigation. The ERC identified significant adverse environmental impacts and mitigation conditions were required which met code requirements. Neil Watts,Plan Review Supervisor,Development Services, City of Renton,200 Mill Avenue South,Renton, Washington 98055,testified concerning the flooding in the vicinity and the various measures the City has taken to correct it. In view of the fact that there are some flooding problems downstream from this particular project, particularly Ripley Lane area,the ERC felt that additional mitigation for the drainage concerns was appropriate. The project has been conditioned to provide detention beyond what is required by code; basically to provide detention through the 100 year storm event with a 30 percent safety factor with release rates that would model the existing release rates from the site. Regarding surface water runoff from the proposed parking area,Mr. Watts explained that the on-site drainage system is designed that all the runoff from the pavement areas will be directed to catch basins which will have a sump to collect some of the sediment at that point. Those are directed through a tight line system through a detention system which then releases into a biofiltration swale along the northerly part of this site. The discharge point for that swale and for the runoff from this site is then into what is currently designated wetland B. • Responding to Ms. LaFever's question regarding future flooding and erosion in the area,Mr. Watts stated that this particular stretch is always going to be a challenge,partly because of the need of this area as a habitat but also realizing it is becoming a major drainage facility. Much of the problem is not within the City of Renton; it is residential development in the Newcastle area. The impacts on this particular stretch of upstream drainage ditch will be caused by things off-site rather than this one. Regarding the detention system,Mr. Watts indicated that this particular one was not designed for water quality, only water quantity as the site was not large enough to require that type of improvement. Bill Shiels testified on behalf of the applicant as a principal of Talasaea Consultants,an environmental and resource planning firm. He described the current condition of that part of the stream which this project proposes to straighten out. He also described the mitigation measures required by the various agencies,which included elevating the outlet of the stream about 6 feet at the north end of the property to create a more gentle stream gradient. They would lay the slopes back so that they would not be as steep as they currently are now where the riprap has been placed along the road. The stream banks would be more gentle and allow for placement of top soil and a number of plants. The Examiner asked if the culvert is now probably impassable to fish at a 2 foot drop,would it not make it absolutely impassable for any fish. Mr. Shiels responded that that was correct,but it was their understanding after meeting with Department of Fisheries personnel that this was not a fish-bearing segment of the stream. It was seen as a food production element for salmonid resource. He detailed his contacts with Department of Fisheries personnel and their requirements for this project. Mr. Shiels described the change in the water flow if the stream is straightened out. The velocities would change,but in widening the base of the stream channel and elevating the outlet,there would be a more relaxed or gentle stream gradient. That will cause more friction and consequently lower velocities. The water temperature could be raised if the stream corridor were not vegetated. Applicant is planning dense vegetation with willows primarily. Eventually it will close the canopy over the top of the channel so it should all be Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 7 filtered light in the summer. In the winter it is not a serious problem with insulation. Responding to further questions,Mr. Shiels described Wetlands A,B and C--their depth,water flow, drainage, recharges. Ms.LaFever questioned Mr. Shiels regarding ratio replacement to loss. He explained that the code provides for 1 to 1 replacement to loss ratio if two Class III wetlands are connected,which this project shows between A and B there will be a physical connection of wetlands, one contiguous wetland system. The wetland replacement to loss ratio physically is a 1 to 1 on an area basis. The ratio for replacement to loss for a Class III wetland to be filled is 1.5 to 1. If two Class III wetlands are joined,then the replacement to loss ratio is 1 to 1 as stated in the code. Mr. Shiels stated that on the project site the applicant has demonstrated avoidance and minimization with respect to the stream and wetlands. It was his understanding that the existing road has encroached beyond the road right-of-way on the east side of the property, so the only opportunity for expansion was to the west. He stated that the net result will be an improved riparian corridor when this project is built as designed.,,Applicant must monitor any project that involves mitigation to streams or wetlands for a period of five years per the City's code. Mark Pywell, Senior Planner, City of Renton,200 Mill Avenue South,Renton, Washington 98055, spoke as project manager on behalf of the City. He explained the City's code as it relates to joining of wetlands. The applicant could have designed a created wetland area on site at a 1.5 to 1 ratio and left the two wetlands as separate wetlands. However,the code does allow the 1 to 1 ratio because it is looked at as being a better solution to combine the smaller wetlands into one functioning large wetland for better survival rate. Regarding the moving of the stream,he stated that it was the outcome of a requirement to improve Lincoln Avenue along this project to meet current City standards. Mr.Kussman stated applicant's position and related the problems associated with the stream relocation as well as the street improvements required by the City. A representative of the Fisheries Department,after reviewing the plans, stated that there should be no problem with the stream relocation. Regarding the wetland buffers,he stated that under Renton code they have met every requirement. There are provisions in the wetlands ordinance that public ways,utilities,etc.,may be placed through and around buffers of wetlands and actually even through the wetlands if it is required by code for the benefit of the public. Closing arguments were given by the parties and their comments reiterated their previous statements. The Examiner called for further testimony regarding this appeal. There was no one else wishing to speak. The hearing closed at 4:07 p.m. FINDINGS.CONCLUSIONS&DECISION Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1. The appellants,Monica Rosman LaFever and Marty Roberts,represented by Monica Rosman LaFever (hereinafter appellant),filed an appeal of a Determination of Non-Significance(DNS)issued for a proposed multiple family complex. The appeal was filed in a timely manner on March 10, 1997. The 111, 411 Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 8 subject proposal was subjected to the City's ordinary SEPA review process. The City, in the course of and as a result of its SEPA review, issued a Determination of Non-Significance-Mitigated for the project. During the review process the City determined that certain conditions should be imposed on the project to minimize the potential impacts associated with the proposal. The appellants objected to the determination and raised a number of issues concerning the impact of the proposal on the stream and wetlands found on and adjacent to the site and to the waters into which they flow and the habitat. 2. The underlying proposal entails the construction of a 9-building, 62 unit multiple family complex. It will be located on an approximately 3.3 acre site. Parking for 120 vehicles will be located within garages in the nine buildings with an additional 16 open stalls located throughout the site. 3. Three separate wetlands and a small creek are located on or partially on the site. Wetland A is approximately 3,079 sq ft on-site. It is approximately 10,000 sq ft in total area. It is forested. The wetland is probably fed by rain for the most part,but there is an artesian well leaking offsite. The wetland is a Category 3 wetland which requires a 25 foot buffer. The applicant proposes filling approximately 1,248 sq ft of it. 4. Approximately 1,094 sq ft of Wetland B is located on the subject site. The wetland including offsite portions totals approximately 5,000 sq ft. It is forested and is also a Category 3 wetland. Approximately 164 sq ft of it would be filled. 5. Wetland B appears to flow in two directions,toward May Creek and toward the other stream. 6. Wetlands A and B are forested with cottonwood trees approximately 60 to 70 feet tall and are estimated at about 40 years old. 7. In total approximately 1,412 sq ft of Wetlands A and B would be filled. In compensation,the applicant will be excavating approximately 1,624 sq ft in an attempt to create wetland between A and B. The replacement ratio would be approximately 1.15:1 which is slightly more than the 1:1 required by the Renton Wetland Ordinance. That ordinance permits 1:1 replacement when two smaller Category 3 wetlands are combined. 8. Category 3 wetlands require a buffer of 25 feet. The applicant proposes constructing the site's needed biofiltration swale in the proposed wetland buffer. This is permitted by ordinance. 9. Wetland C straddles the boundary between the subject site and property to its west. Approximately 2,617 sq ft is contained within the site. A large portion extends offsite. It is located at the toe of a slope and contains black muck. It is a Category 2 which is higher in quality than the other two wetland areas. It requires a 50 foot buffer. With City permission,the applicant proposes buffer averaging which would reduce a portion of the required buffer below 50 feet but to not less than 40 feet. The total square feet of the buffer will be maintained. 10. A stream flows from south to north along the eastern edge of the southern half of the site. It crosses in and out of City owned property both near the north and south ends of the site. It is located below Lincoln Avenue NE. A 25 foot buffer from edge of high water is proposed along both sides of the creek. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 9 11. The record reflects that the stream bears fish downstream(north)from the subject site. A change in topography at the lower end of a culvert appears to prevent fish passage upstream to the segment of the creek flowing beside and through the subject site. 12. The City proposes widening Lincoln in this area in order to serve both the subject site and the general traffic needs of the area. This widening would necessitate the relocation of the creek. Stream relocation would require the removal of vegetation, as well as excavation,filling and grading on both sides of the creek. To prevent erosion,riprap has already been installed along portions of the creek. 13. The stream would be moved to the west. Some meander would be accommodated and its gradient (drop from south to north)would be lessened. It would be deeply incised and riprap would be part of stabilization. The outlet would be raised approximately 6 feet. This would increase any obstacle to fish migration that the existing two foot drop already presents. The existing obstacle probably is already too severe to accommodate fish migration upstream. The gradient change would lower the overall velocity of the creek but could also lead to increased water temperatures. 14. The area north of the site is a mix of commercial and residential uses concentrated around and generally east of the NE 44th Street interchange at I-405. South of that fairly developed node,the area becomes more sparsely developed with scattered single family uses located on larger lots. 15. Lincoln Avenue NE which runs north to south east of the subject site is a narrow street developed to older standards. Just north of NE 40th(unopened)Lincoln forms a"Y" intersection with Monterey Place NE. Jones Avenue NE is located west of the subject site. 16. The subject site and property north and west of it are zoned CA(Commercial Arterial). East of the site, across Lincoln Avenue is an R-10 zone(Residential/10 units per acre). Immediately south of the site is an R-8 zone(Single family residential/8 units per acre). 17. The map element of the Comprehensive Plan designates the area in which the subject site is located as suitable for the development of commercial uses but does not mandate such development without consideration of other policies of the Plan. 18. The CA zone does permit the development of multiple family uses under certain conditions. One of those conditions is that a single use multiple family use be limited to 20 units per acre. The proposal complies with the limitation. 19. At least south of the site there have been bear,deer and cougar sightings. Salamanders have been found in the area as.well as song birds,piliated woodpeckers and other birds. 20. While wildlife has been seen in the area,the appeal did not initially raise any issues dealing directly with habitat. In any event,there is no definitive evidence of threatened or endangered species occupying the subject site. 21. The appellant addressed concerns regarding the recharge of May Creek(from Wetland C)and impacts on the wetlands and the wetlands'buffers,flooding and erosion. • • Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 10 22. There is some evidence in the record that some testimony may have been about property not within the boundaries of the subject site. Employees of the State Fisheries Division noted that preferred policies, not necessarily those in effect within the City,would provide 150 foot setbacks from both sides of a stream and 50 feet around wetlands and that lesser buffers are ineffective. 23. The loss of vegetation that might occur with road construction and vegetation removal could result in raised stream temperatures. The differences would be measurable and not speculative. 24. The increase in impervious surface could lead to altered stream flows with less water released from underlying soils in summer and greater flows and scouring in winter. City code requires detention which necessitates post-development flows leaving the site not exceed predevelopment release rates. 25. A hydrology(hydraulic)permit will be needed from Fisheries and this was omitted from the checklist. 26. The checklist did not deal with storm water but noted it would be managed by discharging into the wetlands. It will be channeled through a detention structure,routed through a biofiltration swale and released into the combined A-B wetland. 27. The site had been an extraction site and quarry. There are ridges along the east and west boundaries of the site. There are sands which allow water to percolate into the site;however,there is no information on hydrology and which way the underground flows run. 28. May Creek studies indicate habitat problems and suggest restoration. A management plan is under review at this time but has not been adopted. 29. Flooding occurs in the area upstream or south of the subject site. The City had responded and did repair work on the drainage ditch east of the site. The most recent heavy storm appears to have not. caused a recurrence of the flooding. 30. There is also flooding north of the subject site in the vicinity of Denny's Restaurant and at Jones and 43rd. Staff noted this is caused by a substandard culvert system under 1-405. This flooding has closed off access to the areas south of Jones Road just west of the subject site. Flooding has also occurred in the vicinity of Ripley Lane. 31. The ERC did impose a condition that the applicant provide for a 100-year storm event either with onsite detention or downstream improvements. 32. The record reflects that riparian environments are not easily replaced. Recovery can take at least the five years specified by the ERC in its mitigation measures and can take longer. Depending on the type of vegetation planted, it could take a number of years before the creek is shaded sufficient to reduce water temperature. It was predicted that a minimum of three years would permit trees to grow from 4 feet to 8 feet. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 11 34. The slopes above the stream do not evidence any immediate erosion or slide potential or any recent geological instability. 35. The appellant recommended a number of measures to reduce or eliminate the impacts this proposal would have on the wetlands and creeks: that the bioswale not be developed within the wetland buffer area;the culvert should be removed under the emergency road and the gradient altered to allow fish passage; and straightening the channel would be inappropriate. The appellant's plans show a gentle meandering stream course and suggest lowering the gradient of the stream on the subject site but potentially increasing the drop at the culvert. The second, lower culvert, apparently mislocated by the appellant already presents a formidable obstacle to fish passage. Woody debris and pools would create a preferable stream profile. 36. It is not known who installed the culvert or when it was installed. It is not clear if fish passage might have been accommodated for its installation. 37. The ERC imposed the following wetland condition: "The applicant shall submit a final wetland mitigation report. This report shall include,but not be limited to, a description of the existing wetlands,the areas that will be filled as part of the project,the establishment of new wetland areas to replace the disturbed wetlands,the treatment of buffer areas, a five year monitoring plan,and identify the party responsible for the maintenance of the wetlands,and buffer areas. This report shall be submitted to the satisfaction of the Development Services Division prior to the issuance of construction or building permit." 38. The ERC imposed the following stream buffer condition: "The applicant shall submit a plan or report detailing the buffer area along the stream and the treatment of this areas to the satisfaction of the Development Services Department prior to the issuance of construction or building permits." 39. There was no demonstration that the mitigation would work. The applicant believes that a better riparian environment would result from the proposed stream work. The applicant also indicates that there will be limited impacts to the wetlands. 40. The stream mitigation plan was worked out after the appeal was filed. It was not fully reviewed by the appellant or the ERC. CONCLUSIONS: 1. The decision of the governmental agency acting as the responsible official is entitled to substantial weight. Therefore,the determination of the Environmental Review Committee(ERC),the City's responsible official, is entitled to be maintained unless the appellant clearly demonstrates that the determination was in error. 2. The Determination of Non-Significance in this case is entitled to substantial weight and will not be reversed or modified unless it can be found that the decision is "clearly erroneous." (Hayden v.Port Monica Rosman LaFever - Marry Roberts File No.: LUA97-029,AAD April 29, 1997 Page 12 2. The Determination of Non-Significance in this case is entitled to substantial weight and will not be reversed or modified unless it can be found that the decision is "clearly erroneous." (Hayden v. Port Townsend, 93 Wn.2d 870, 880; 1980). The court in citing Norway Hill Preservation and Protection Association v. King County Council, 87 Wn.2d 267,274; 1976, stated: "A finding is'clearly erroneous' when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Therefore,the determination of the ERC will not be modified or reversed if it can meet the above test. For reasons enumerated below,the decision of the ERC is reversed. 3. The clearly erroneous test has generally been applied when an action results in a DNS since the test is less demanding on the appellant. The reason is that SEPA requires a thorough examination of the environmental consequences of an action. The courts have,therefore,made it easier to reverse a DNS. A second test,the "arbitrary and capricious"test is generally applied when a determination of significance(DS) is issued. In this second test an appellant would have to show that the decision clearly flies in the face of reason as a DS is more protective of the environment since it results in the preparation of a full disclosure document, an Environmental Impact Statement. 4. An action is determined to have a significant adverse impact on the quality of the environment if more than a moderate impact on the quality of the environment is a reasonable probability. (Norway,at 278). Since the Court spoke in Norway,WAC 197-11-794 has been adopted, it defines "significant" as follows: Significant. (1) "Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. (2) Significance involves context and intensity. . .Intensity depends on the magnitude and duration of an impact. . .The severity of the impact should be weighed along with the likelihood of its.occurrence. An impact may be significant if its chance of occurrence is not great,but the resulting environmental impact would be severe if it occurred. 5. Also redefined since the Norway decision was the term "probable." Probable. "Probable"means likely or reasonably likely to occur, ...Probable is used to distinguish likely impacts from those that merely have a possibility of occurring,but are remote or speculative. (WAC 197-11-782) 6. Even given the relaxed standards cited above,a case can only be made with the submission of support for the contentions of error. 7. The primary issue encountered in this matter is that there is insufficient information in the record to allow the various decisionmakers to determine between options permitted by code. Just because the code allows certain options like filling portions of wetlands if they are consolidated or building the, biofiltration swale in the wetlands'buffer does not mean they should be sanctioned. The environmental consequences of such actions should be spelled out before committing to them. The problem is that approaching this project from the outside as are the appellants and the various decisionmakers, such as the Hearing Examiner on the site plan and the Public Works Administrator on some wetlands options, there is insufficient information to decide between some of the options or variations. Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 13 • them and re-routing and regrading the stream bed. While the applicant and maybe even the directly involved staff might have been privy to additional considerations,that information is not available in the existing file or record to allow anyone else to reach any informed decisions. 9. Should the stream's curves be altered and should its gradient be lowered? To what effect? Should it meander or be widened? What are the affects on water quality and stream temperature? Will the additional elevation difference created by lowering the overall descent of the creek make impossible restoration of fish passage above the culvert? 10. While the applicant and City indicated that Fisheries likes or approves some of the mitigation ideas, those ideas only are clearly enunciated in documents that followed,not preceded some of the environmental review. The ERC's condition is that: "The applicant shall submit a final wetland mitigation report. This report shall include,but not be limited to,a description of the existing wetlands,the areas that will be filled as part of the project,the establishment of new wetland areas to replace the disturbed wetlands,the treatment of buffer areas,a five year monitoring plan,and identify the party responsible for the maintenance of the wetlands,and buffer areas. This report shall be submitted to the satisfaction of the Development Services Division prior to the issuance of construction or building permit." 11. Similarly,another ERC condition applicable to the creek is: "The applicant shall submit a plan or report detailing the buffer area along the stream and the treatment of this area to the satisfaction of the Development Services Department prior to the issuance.of construction or building permits." These conditions are vague. They provide no basis for an interested party to know what is proposed as mitigation. They assure nothing at the time of the environmental determination. There is nothing adequately defined to assure the appellants that the stream will be protected--only that it be submitted and satisfies someone ultimately. At that point, if the plan appeared inadequate,challenges might be too little,too late. Or it could require significant alteration of a plan built around stream and wetland relocations and acreage devoted to biofiltration that might need to be moved. Might a thorough study indicate whether filling should or should not occur or relocation should or should not occur? The submission of the mitigation plan that appeared at the appeal hearing cannot substitute in the time frame for review prior to the committal of resources. The appellant did not have an access to the plan to see if it was sufficient prior to the appeal. 12. Shouldn't the full description of the wetland be available before the environmental determination? Shouldn't the extent of fill be known before environmental determination? Shouldn't the new wetlands areas and the vegetation proposed also be known so that the ERC can truly conclude that mitigation will minimize the adverse impacts? There is nothing that assures any reader that,in fact,the impacts of all of these various actions will be fully mitigated or that these actions are the best alternative given the sensitive nature of the site or portions of the site. 13. The site is not simple from a topographical or hydrological standpoint. The site appears to have three discrete wetlands and a creek. Each of the wetlands is shared between the subject site and adjacent property meaning any change could affect other property. The stream also traverses adjacent property. 14. Staff correctly pointed out that City Wetlands Ordinance permits the various options that the applicant proposed for wetland fill, consolidation and construction of the biofiltratrion swale in the buffer. That • Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 14 13. The site is not simple from a topographical or hydrological standpoint. The site appears to have three discrete wetlands and a creek. Each of the wetlands is shared between the subject site and adjacent property meaning any change could affect other property. The stream also traverses adjacent property. 14. Staff correctly pointed out that City Wetlands Ordinance permits the various options that the applicant proposed for wetland fill, consolidation and construction of the biofiltratrion swale in the buffer. That does not necessarily mean they have to be permitted or should be permitted. An analysis of those options, alternatives to those options or avoidance is necessary. Again,the record does not disclose in any affirmative fashion the background that would appear to be necessary to make decisions on whether to regrade the creek and what affects that would have on streamside vegetation,erosion,water temperatures, etc. Nor is there any information in the file which apparently weighs the options of filling portions of Wetlands A and B and joining them together. Do they drain to different areas? If so, would joining them alter the seasonal recharge of their respective downstream areas? Will altering the creek's course by straightening,moving and realigning it and changing its gradient cut into clay or impermeable layers that would change its capacity as a creek, or would introducing such layers to prevent saturation of nearby soils have the opposite affect? 15. Would permitting the bioswale in the buffer,a swale that might require periodic maintenance, introduce intrusions into what should be generally undisturbed "setback"buffer from the actual wetlands? Will this move pollutants and sediments closer to the actual wetlands? Again,this information is not available. 16. SEPA requires this type of information before committing or altering the environment. While the site is not very large, it does contain sensitive areas. As SEPA points out, it is neither the size nor even beneficial ultimate results of a project that determines whether a project has more than a moderate impact on the quality of the environment. All factors come into play in assessing how the alteration of the site will affect the environment of the site and surroundings. 17. Even if all told,the proposed modifications to this site's hydrologic components would be beneficial, that still does not alter the fact that the total of all such changes will have more than a moderate impact on the quality of the environment and therefore deserve the study and analysis that can only be accomplished preparing an environmental study. 18. Since the only issues raised on appeal deal with the wetlands,creek and drainage issues,the required environmental studies shall be focused on those issues and shall not be expanded to include wildlife or other habitat issues other than those associated with aquatic ecosystems. 19. Finally, in doing the appropriate environmental analysis,the fact that all of the options that the applicant planned or proposed might be permitted by code does not minimize or remove their potential environmental impacts. It is a well-known fact that not everything sanctioned by code is exempt from SEPA review. SEPA has clear exemptions and any other action is subject to appropriate review. 20. The mitigation measures proposed do not necessarily remove the environmental consequences of these actions. Further, as was noted at the hearing,certain documents and mitigation measures were not developed prior to the issuance of the DNS-Mitigated and were not available to either the ERC or the appellants in this case. 21. Those mitigation measures may in fact address the environmental consequences,and then again they may not. They were not part of the record of review before the ERC when a decision was issued and when an appeal was timely filed. In addition, as noted,the record does not have much information in Monica Rosman LaFever - Marty Roberts File No.: LUA97-029,AAD April29, 1997 Page 15 written, documentary form on which this office can conclude that the ERC could have considered the environmental consequences and alternatives to those consequences. 22. The reviewing body should not substitute its judgment for that of the original body with expertise in the matter,unless the reviewing body has the firm conviction that a mistake has been made. It appears that such a mistake has been made. Therefore,the determination below must be reversed. DECISION: The determination of the Environmental Review Committee is reversed and the appeal is granted. ORDERED THIS 24th day of April, 1997. FRED J.KAU N HEARING E MINER TRANSMITTED THIS 29th day of April, 1997 to the parties of record: Monica and Dave LaFever Zanetta Fontes Bob Zeigler 3915 Lincoln Avenue NE 200 Mill Avenue S 600 N Capitol Way Renton,WA 98056 Renton, WA 98055 Olympia, WA 98501-1091 Lyle Kussman Bill Shiels Larry Fisher P.O.Box 1705 15020 Bear Creek Road NE 22516 SE 64th Place,#230 Bothell,WA 98041 Woodinville,WA 98072 Issaquah, WA 98027 Shupe Holmberg Neil Watts Mark Pywell 100 Front Street 200 Mill Avenue S 200 Mill Avenue S Issaquah, WA 98027 Renton, WA 98055 Renton, WA 98055 Kimberly Swanson Mark Goldberg Tri-Delt 1909 NE 36th 4739 University Way NE,#1607 6840 112th Avenue SE Renton, WA 98056 Seattle, WA 98105 Renton,WA 98056. Edwin Stone Paul and Pam Miller Marty and Mike Roberts 744 Belmont Place NE 3623 Lincoln Avenue NE 3925 Lincoln Avenue NE Seattle, WA 98102 Renton,WA 98056 Renton, WA 98056 Hal Brandt Pamela Mullen Peter Johnson 12727 SE 63rd Street 5320 242nd Place NE P.O.Box 744 Bellevue,WA 98006 Redmond, WA 98053 Kirkland,WA 98083 Blair Baummer Pat Dana Sheri Waddington 3636 Lincoln Avenue NE 5219 Ripley Lane N 2332 NE 31st Street Renton,WA 98056 Renton, WA 98056 Renton, WA 98056 • Monica Rosman LaFever Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 16 Margaret Nielsen Roger Urbaniak Susan Bollinger 3835 Lincoln Avenue NE 1020 108th Ave NE,#109 3812 Monterey Place NE Renton,WA 98056 Bellevue,WA 98004 Renton, WA 98056 D.Allen Bauman Nancy Crisp Gene Jackson 4030 Lk Washington Blvd.NE 2100 NE 31st 1909 NE 36th Kirkland,WA 98033 Renton,WA 98056 Renton,WA 98056 Ralph Shaw Jim and Lynn Bisset Andy and Beth Alexander 3935 Monterey Place SE 3901 Lincoln Avenue NE 2336 NE 31st Renton,WA 98056 Renton, WA 98056 Renton,WA 98056 Kenneth LaBeau Lisa Brick Judy Stoloff 115 East School House Road 4006 Lincoln Avenue NE 2019 Fairview East, Slip B Wenatchee,WA 98801 Renton,WA 98056 Seattle,WA 98102 Kennydale Vista LLC Oldrich Fryc 4030 Lk Washington Blvd,#208 21505 196th Avenue SE Kirkland,WA 98105 Renton, WA 98058 TRANSMITTED THIS 29th day of April, 1997 to the following: Mayor Jesse Tanner Gregg Zimmerman,Plan/Bldg/PW Administrator Members,Renton Planning Commission Jim Hanson,Development Services Director Art Larson,Fire Marshal Mike Kattermann,Technical Services Director Lawrence J. Warren,City Attorney Larry Meckling,Building Official Transportation Systems Division Jay Covington,Mayor's Executive Assistant Utilities System Division Councilperson Kathy Keolker-Wheeler South County Journal Pursuant to Title IV, Chapter 8, Section 15 of the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m..May 13. 1997. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen(14) days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record,take further action as he deems proper. Appeal of the Examiner's decision is governed by Title IV, Chapter 8, Section 11, which requires that such appeal be filed with the Superior Court of Washington for King County within twenty (20) days from the date of the decision. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not 1111 Monica Rosman LaFever 110 Marty Roberts File No.: LUA97-029,AAD April 29, 1997 Page 17 communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. 1 T - 9(o - April 11, 1997 1 [[� .. � b�v�(.,0^�nr�ENTON I(.o� N f ,�.PR 1 ��, T APR 15 199 ; Ted Muller Regional Habitat Program Manager - RECEIVED Washington Dept.'of Fish &Wildlife . _ SEARING 1 R 16018 Mill Creek Blvd. . Mill Creek, WA 98012-1296 Subject: Larry Fisher's association with appeal of DNS Mitigated, Williamsburg Condominiums Dear Mr. Muller: I am a citizen concerned with responsible development, especially in the May Creek area where I live. On March 10, 1997, I submitted a letter of appeal to the Renton Hearing Examiner regarding the Williamsburg Condominium project. I wish to clarify a misunderstanding about Larry Fisher's involvement in my drafting a letter to appeal the plans for the Williamsburg Condominiums. It has been suggested that Mr. Fisher solicited my help or somehow coerced me to submit my appeal. This is not true. Mr. Fisher did not solicit my help or coerce me to submit my appeal. I would like to recount my actions and my phone conversation with Larry Fisher regarding this matter.` " My interest in the Williamsburg Condominium project has been high ever since the start(Feb. 1997).. I was interested in testifying against the Williamsburg Condominium project on a number of points. The most important of these points included increased flooding and erosion, sharp density increase ruining the character of our semi-rural neighborhood, negative impacts to traffic &parking, safety hazards to neighborhood school children, and negative impacts to wildlife. I did an extensive job gathering information and voicing my concerns about the project. I talked to the Renton Development Planning Office, the Fire Department, Public Works, and poured over information from the project file. I became interested in submitting an appeal before I had ever talked to Larry Fisher. In fact, I picked up the appeal guidelines prior to ever talking with Mr. Fisher. I decided to call Larry Fisher when I heard from my neighbors that he wasn't going to be able to come to the first land use hearing. I was interested in capturing his professional observations for the hearing. On April 10th I called Larry Fisher. We talked about the construction setbacks that are usually. seen in development plans. I told him about my concern about further flooding. We talked about the absence of mitigation for moving a segment of the stream. We talked about the importance of riparian vegetation for the health of fish downstream. I conveyed to him my frustration with these clearly negative impacts to my neighborhood and my want to submit an appeal. The poor mitigation in the project directly affected the flooding, erosion, and wildlife issues I was so concerned about. He was aware that his place was not to appeal but was to only get involved when the City of Renton came to the Department of Fish & Wildlife for the necessary permit to move the stream. He did not suggest that anyone submit an appeal against this project. I decided to form an appeal using tile +o ii had formed from researching the project and observations Larry Fisher and Ithad,tal1ed about in our phone conversation. I made the letter as concise and substantial as I could, using the City of Renton guidelines for appealing. I mentioned Larry Fisher's name as a reference to give my statements professional credibility. In my appeal letter, I wrote the phrase, "I was encouraged to appeal by Larry Fisher, ...". I should have said that I was convinced an appeal was necessary after talking with Larry Fisher. It is easy for me to see now why this phrase was misinterpreted. I offer my apologies to everyone who misunderstood this. I want to compliment Larry Fisher for being professional and straightforward in my dealings with him. I want to thank him for supplying professional testimony at my request. I want to highlight his resolve, particularly in dealing with representatives of the City of Renton. The environment in Renton is sensitive and there is tremendous pressure to develop. I have personally witnessed viscous and clearly unprofessional comments made by City of Renton employees about Larry Fisher. These comments are far-fetched and purely political. They are meant to intimidate Mr. Fisher and advance the short-sighted, pro-development agenda of the City of Renton. I believe Larry Fisher is a valuable employee of the Washington Department of Fish and Wildlife. He is open minded and well aware of the natural antagonism that exists between the WDFW and developers. He is sincerely interested in protecting, perpetuating, and effectively managing the fish resources of the state of Washington. Sincerely, (J C Monica C. Rosman LaFever 3915 Lincoln Ave NE Renton, WA 98056 cc: WDWF, Terwilleger WDFW, Larry Fisher Renton DPO, Pywell , AFFIDAVIT OF PUBLICATION Kristina Thompson, being first duly sworn on oath states that he/she is the Legal Clerk of the SOUTH COUNTY JOURNAL 600 S. Washington Avenue, Kent, Washington 98032 a daily newspaper published seven (7)times a week. Said newspaper is a legal NOTICE OF APPEAL HEARING newspaper of general publication and is now and has been for more than six months RENTON HEARING EXAMINER prior to the date ofpublication, referred to, printed andpublished in the English language Real HeaON,WASH) be heldON gAn Appeal Hearing will be held by the continually as a daily newspaper in Kent, King County, Washington. The South County Renton Hearing Examiner at his regular Journal has been approved as a legal newspaper by order of the Superior Court of the meeting in the Council Chambers on the • second floor of City Hall, Renton, WA on State of Washington for King County. April 1, 1997 at 9:00 AM to consider the fol- The notice in the exact form attached, was published in the South County lowing petition: Journal and not in supplemental form)which was regularly distributed to the subscribers APPEAL OF S E PA THRESHOLDG ( pp � y DETERMINATION RE WILLIAMSBURG during the below stated period. The annexed notice, a CONDOMINIUMS;AAD-97-029 (FILE NO. LUA-96-164) Appellants are appealing issuance of Notice of Appeal Hearing Determination of NonSignificance-Mitigat- ed (DNSM) for this project. Appellants believe the DNSM should be withdrawn as published on: 3/21/97 and a Determination of Significance be issued. The applicant is seeking approval The full amount of the fee charged for said foregoing pub. tion is the sum of$39.30 to construct a 62 unit condominium project. The ERC issued a DNSM. Location: 4000 Legal Number VN2715 Lincoln Ave.NE. Legal descriptions of the files noted above are on file in the Development q i; �� Services Division, Third Floor, Municipal i Building,Renton. All interested persons are invited to be egal' rk, S ounty J rnal present at the Public Hearing. Published in the South County Journal ✓` riketitit 7 March 21, 1997.27 15Subscribed and sworn before me on this Zray of , 19-i • YY\ . V --..i. M. FFy�\1 Notary Public of the State of Washington . \\..''s'iotiF•.e/?,II residing in Renton i ;o\'` �A'9%<'•cp lej King County, Washington IN�=a •P� L L �G0,' i 1�11 1,F�,2 6 Z�p,,�,o�1 1�%% \W`St\ or . l ,,I. NT -.:. O . . . CITY OF RENTON HEARING EXAMINER WILL HOLD A PUBLIC HEARING IN CITY COUNCIL CHAMBERS, CITY HALL ON APRIL 01 , 1997, BEGINNING AT 9:00 AM CONCERNING : APPEAL OF SEPA THRESHOLD DETERMINATION RE WILLIAMSBURG CONDOMINIUMS LUA97-029,AAD (LUA-96-164) Appellants are appealing issuance of Determination of NonSignificance-Mitigated (DNSM) for this project. Appellants believe the DNSM should be withdrawn and a Determination of Significance be issued. The applicant is seeking approval to construct a 62 unit condominium project. The ERC issued a DNSM. Location: 4000 Lincoln Ave. NE. GENERAL LOCATION AND/OR ADDRESS: 400.0 LINCOLN AVENUE NE YKE -••4]flD--9S •-•tNEr•-43flDL*"P:-•�-- Q . i •,.... I z o p 2 , i4,\ `'' 3 • !a--� i y es �- ' , OGI D. .H'I AN'S , • i T r... D H ''?ALA . ,wiz* I GTE N-+-"--- 7 9 -✓sue q 9 q•Q 2, �,GA D,Et _ n4\ N,��L: I1I:200' -e �D'IV15,U �N N �— / .Y Ici Q'2 �W.a B . 1 ,w z ary 4 : A 11 FOR FURTHER INFORMATION, PLEASE CONTACT THE CITY OF RENTON, DEVELOPMENT SERVICES DIVISION AT 235-2550. DO NOT REMOVE THIS NOTICE WITHOUT PROPER AUTHORIZATION Please include:the project:NUMBER whencalling`for proper;file;identification NOTICE OF APPEAL HEARING RENTON HEARING EXAMINER RENTON, WASHINGTON An Appeal Hearing will be held by the Renton Hearing Examiner at his regular meeting in the Council Chambers on the second floor of City Hall, Renton, WA on April 1, 1997 at 9:00 AM to consider the following petition: APPEAL OF SEPA THRESHOLD DETERMINATION RE WILLIAMSBURG CONDOMINIUMS; AAD-97-029 (FILE NO. LUA-96-164) Appellants are appealing issuance of Determination of NonSignificance-Mitigated (DNSM) for this project. Appellants believe the DNSM should be withdrawn and a Determination of Significance be issued. The applicant is seeking approval to construct a 62 unit condominium project. The ERC issued a DNSM. Location: 4000 Lincoln Ave. NE. Legal descriptions of the files noted above are on file in the Development Services Division, Third Floor, Municipal Building, Renton. All interested persons are invited to be present at the Public Hearing. ACCOUNT NO. 51067 PUBLICATION DATE: MARCH 28, 1997 • ... .:....:..... . ,OMMEN�ING AT 9 00 AM QUNCIL CHAMBERS#SECOND FLOORS RENTON MUNICIPAL BUILDING ;.:::::..;: • 'l h ;;.application.s.:listed:are::.in:::.orde.r::.<:of::::a. lication:<.number:<:. my ands::not::::n.e. :;. r�l.::theord.er.:In.:wh�c .. 9:00 AM PROJECT NAME: APPEAL OF SEPA•THRESHOLD DETERMINATION RE WILLIAMSBURG CONDOMINIUMS PROJECT NUMBER: AAD-97-029 (FILE NO. LUA-96-164) PROJECT DESCRIPTION: Appellants are appealing issuance of Determination of NonSignificance- Mitigated (DNSM) for this project. Appellants believe the DNSM should be withdrawn and a Determination of Significance be issued. The applicant is seeking approval to construct a 62 unit condominium project. The ERC issued.a DNSM. Location: 4000 Lincoln Ave. NE. • • • AGNDA.DOC .. Ik, • C�T�c�F RENTON Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman March 11, 1997 Monica Rosman LaFever 3915 Lincoln Avenue NE Renton, WA 98056 M�3'Roberts 3925 Lincoln Avenue NE Renton, WA 98056 Re: Appeal of Determination of Non-Significance re Williamsburg Condominiums File No.LUA-97-029,AAD Dear Ms. LaFever and Ms. Roberts: We did receive your appeal dated March 10, 1997,and as you are aware,the hearing will be scheduled for Tuesday,April 1,.1997,at 9:00 a.m.,in the Council Chambers on the second floor of City Hall,Renton.,,t Again,this office wants to remind you that this is"a SEPA appeal and the issues will be narrowly focused according to the terms and procedures found in the enclosed General Procedures for Appeals of Environmental Determination. Shouldyou have anyfurther questions,please contact mysecret tart'. ;. Sincerely, • Fred J.Ka an Hearing Examiner cc: Mayor Jesse Tanner Jay Covington,Mayor's Executive Assistant Larry Warren, City Attorney Mark Pywell,Project Manager Parties of Record 200 Mill Avenue Souih -Renton, Washington 98055 - (206)235-2593 0 This paper contains 50%recycled material,20%post consumer Mark Goldberg Fri-Delt øiwin Stone SDA Brothers, Inc. 6840 112th Avenue SE 74.4 Belmont Place NE 4739 University Way NE,#1607 Renton, WA 98056 Seattle, WA 98102 Seattle, WA 98105 Paul and Pam Miller Marty and Mike Roberts Dave and Monica LaFever 3623'Lincoln Avenue NE 3925 Lincoln Avenue NE 3915 Lincoln Avenue NE Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Hal Brandt Pamela Mullen Peter Johnson 12727 SE 63rd Street 5320 242nd Place NE Port Quendall Storage Bellevue, WA 98006 Redmond, WA 98053 PO Box 744 Kirkland, WA 98083 Blair Baummer Pat Dana Sheri Waddington 3636'Lincoln Avenue NE 5219 Ripley Lane North 2332 NE 31st Street Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Gordon Donnell Frank and Rose Falaniko Richard and Teri Brunory P.O. Box 2576 2224 NE 31st Street 3866 Monterey Place NE Renton,WA 98056 Renton, WA 98056 Renton,•WA 98056 Margaret Nielsen Rogert Urbaniak Susan Bollinger 3835 Lincoln Avenue NE Eastside Commercial, Inc. 3812 Monterey Place NE Renton, WA 98056 1020 108th Avenue NE, #109 Renton, Wa 98056 Bellevue, WA 98004 Kimberly Swanson Nancy Crisp Gene Jackson 1909 NE 36th 2100 NE 31st 1909 NE 36th Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Ralph Shaw Jim and Lynn Bisset Andy and Beth Alexander 3935 Monterey Place SE 3901 Lincoln Avenue NE 2336 NE 31st Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Kenneth LaBeau Lisa Brick Judy Stoloff 115 East School House Road 4006 Lincoln Avenue NE 2019 Fairview East, Slip B Wenatchee, WA 98801 Renton, WA 98056 Seattle, WA 98102 PARTIES OF RECORD . WILLIAMSBURG CONDOMINIUMS,File No. LUA-96-164,SA and LUA-97-092,AAD CITY OF RENTON March 10, 1997 �AR 1 Q 1997 City of Renton Hearing Examiner RECEIVED 200 Mill Ave. S �I IY CLERK'S OFFICE Renton,WA 98055 Subject: Appeal of Determination of Non-Significance,Williamsburg Condominiums Dear Hearing Examiner: I am challenging the Determination of Non-Significance by the Environmental Review Committee by filing an appeal with the City of Renton Hearing Examiner. I believe that the ERC has failed to impose sufficient conditions to mitigate impacts related to this project. I was encouraged to appeal by Larry Fisher,Area Habitat Biologist with the Habitat Management Program for the State Department of Fish and Wildlife. Much of the information I provide here is from speaking with him. I believe that there are unmitigated adverse impacts to the wetlands and stream in the area of this project. Without requiring substantial additional mitigation,this project needs to have an Environmental Impact Statement prepared,and the plans for the project must be changed to comply to the EIS. The wetlands A and B in particular don't have an adequate buffer around them. There is a bioswale in the buffer for these wetlands,essentially erasing the buffer. The bioswale should be outside the wetland buffer. The bioswale will need maintenance,where the buffer's purpose is to be land untouched and unmaintained. There are no building setbacks for this project. King County specifies setbacks of 15 feet for this purpose. It is impossible to construct buildings without damaging the ground. This is why there should be planned setbacks. Without setbacks,the buffer for the stream on the property would be considerably damaged. There cannot be any adverse impacts to this stream. Water flow through the property must be maintained. The portion of the stream on the property to be developed has good streamside vegetation on it and is in good condition. All streams are important for water quality and fish downstream. The City of Renton wants the developer to move a portion of stream away from Lincoln Drive NE so the road can be widened. The road would need to be widened in order to mitigate the additional traffic generated by this development. The portion of stream to be moved is on property owned by the city. There is no mitigation proposed for moving the stream. This is a significant reason to require an EIS. There must be mitigation for moving the stream. It is the opinion of myself and Larry Fisher that this project will certainly increase flooding downstream. The area behind McDonald's,NE 43rd Street and Jones Road,floods easily. This area is the only way out of the May Creek canyon. More flooding will have an adverse impact on this road. Salmonid fish have been sighted in the stream behind McDonald's and Denny's. More flooding will have an adverse impact on these fish. In closing,this project has several unmitigated adverse impacts. These adverse impacts are significant when added up. Without requiring substantial additional mitigation,this project needs to have an Environmental Impact Statement prepared,and the plans for the project must be changed to comply to the EIS. 7rely ,� Monica Rosman LaFever Marty Roberts 3915 Lincoln Ave.NE 3925 Lincoln Ave. NE Renton,WA 98056 Renton, WA 98056 • DUPLICATE RECEIPT DUPLICATE RECEIPT CITY OF RENTON CITY TREASURER REG/RCPT : 02-12697 C:03-10-1997 CASHIER ID : J 14:05:00 A:03-10-1997 8000 MISCELLANEOUS REV $75.00 APPEAL/WILLIAMSBURG CONDO'S 000.000.00.345.81.00.000003 TOTAL DUE $75.00 RECEIVED FROM: LAFEVER/ROBERTS CHECK $75.00 TOTAL TENDERED $75.00 CHANGE DUE $0.00 DUPLICATE RECEIPT DUPLICATE RECEIPT ROLL CALL YES NO EDWARDS STREDICKE KEO LKE:-WHEELER TANNER NELSON MATHEWS SCHLITZER TOTAL L-'xh- '0 - 13 .._ - .e ' c 1 / I • • • NO( —•— ••• , 4r. • • • kik s's • ' k'^1,, lid • • ; 1 Y l,AI t � . , filar .•s f' 01.10 • f:! if -'t *`tom. ii G1 sit 'if'+ } I 1 '. i� ►� / ". . fil . ' ff • k A 1,14.1.k. --=.,.0 "•am l _Y�ry[C