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HomeMy WebLinkAboutMiscEXHIBIT 14 Kennydale Creek 9/9/2011 3:55:06 PM EXHIBIT 6 Hearing Examiner Olbrecht: After spending many thousands of dollars on lawyers trying to protect these streams and wetlands in our neighborhood we are now going to present our case on our own, so we are hoping truth will overcome our amateur mistakes and lack of legal expertise. The City of Renton has repeatedly cited studies which "prove" that Kennydale Creek is a Class IV [intermittent] stream, according considerably less protection than it would have if it was correctly classified as perennial. Not one of these studies actually says what the City claims they do.' The City, after numerous requests, has never been able to provide any documents which provide the basis for the original designation of the creek as Class IV.' There has also been no proof provided of the origin of the puzzling dual rating of the creek, which is mapped as both a Class III and Class IV in the half mile between the headwaters just south of NE 20'h ST and the mouth of the creek where it enters Lake Washington. At the"time of our last appearance in front of Hearing Examiner Fred Kaufman, the City lawyer was insistent that we needed a stream study to verify our claim that the creek runs in the summer months. Since ourhearing"was in February, and the City was demanding that we do the study that month, Examiner Kaufman correctly decided that doing it at that time of year was pointless. He ruled on the evidence that we did have that the creek should have been considered perennial, and reversed the City's decision to rely on inconclusive field reports instead of requiring a stream study as the RMC requires.'At the appropriate "low flow" season in September of 2008, during the driest summer in over 50 years, we did commission a study of the creek, carried out by the Wild Fish Conservancy. They are considered one of the most experienced stream classification organizations in Washington, and we were very lucky to be able to benefit from their services.' Prior to our stream study being completed, the City Council's Planning and Development Committee had recommended overturning "the Hearing Examiner's decision. When the full Council was due to vote on this recommendation, two Council members were told they should recuse themselves, due to the fact that they lived in the area and had direct knowledge that the creek was perennial. 5 The remaining Council members voted to reverse, leaving us with the very expensive and ultimately futile option of a LUPA appeal. Ironically, the City spent considerable time and money successfully fighting to keep" our stream study out of evidence in Superior Court, only months after demanding that we should have one done." The City was fortunate enough to get a judge who had obviously not read the boring reports that we were basing our case on, and was relying on the City to tell him what they contained;' 2 We delivered a copy of our stream study, which states unequivocally that the stream has not dried up in any recent times, to City administrator Chip Vincent in January of 2009. We were hoping that this would be the evidence that the City needed to finally upgrade the creek to the proper classification. For years, we had been told that there was no "process" to upgrade a creek from the QMap designation, even though the City's own code said the classification should be based on the actual physical characteristics on the ground [automatically]. Subsequent to receiving the WFC study, the City did formalize a process for upgrading a stream classification. We believe that we have met the conditions of even this "after the fact" change in the rules. The recent decision by the City to allow the Joey's Short Plat to go forward, with the creek still classified as intermittent [only in the areas where people want to build houses] is the impetus for our appeal. We feel that the City has a history of discounting any evidence contrary to their Class IV designation. There is obviously a large amount of tax income at stake, as evidenced by the huge mansions which are replacing the modest little farmhouses once common in the area," but financial benefit is not a rationale for under-protecting critical areas. In 2005, the City recommended granting a developer's request for a downgrade to a Class V unprotected "drainage ditch" based on the flimsiest of secondhand hearsay: For six years, they have applied a far more stringent standard for evidence presented by our neighborhood. We have provided an overwhelming amount of testimony that the creek runs continuously no matter what the season.'o Our speeches, Fish and Game expert) and State letters were ignored; photos and eyewitness affidavits were dismissed as "anecdotal"; the reports referenced by the City, which actually do not classify the creek, are constantly referred to as "proof' of the City's position. Many are carefully worded so as not to offend the people who pay them. ["The City of Renton considers this stream a Class 4."] Some ofthe reports actually support our contention that the creek is perennial. We feel that the protection of the creek and the associated wetlands is the City's responsibility, and we citizens should not have to spend this incredible amount of time, money and energy doing what they should have been doing all along. Using our tax money to help developers avoid the truth is offensive to all of us; let them hire their own lawyers, and Renton's lawyers can start representing the rest of us for a change. The City has had SIX SUMMERS to "get it right" -to use their dubious characterization of the new OTAK report-and they are obviously not interested in having the stream examined during the drier months. They know what the answer would be, and It isn't the one they want. • _ .• • EXHIBIT 7 Wild Fish Conservancy NORTHWEST selENell HIJUCATION AI)VUCACV Chip Vincent, Planning Director ·City of Renton Planning Division 1055 South Grady Way Renton, W A 98059 December 5, 20 II Mr. Vincent: I am writing to provide clarification regarding the September 23, 2008 report (attached) we prepared regarding Kennydale Creek. I am disappointed to learn that there is still some confusion regarding the classification of this stream. To be as clear as possible, our findings demonstrate that Kennydale Creek is a perennial stream, and therefore it meets the City of Renton's definition of a Class 3 stream. The work we performed documented that Kennydale Creek was flowing at the time of the September 2008 low-flow survey despite documented extreme low flow conditions that were well-below the mean annual conditions for that date (see Figure 6, hydrograph and data from nearby Mercer Creek as a reference watershed and discharge surrogate for Kennydale Creek). Further' information we presented to support the conclusion regarding the perennial nature of Kennydale Creek included our observation of perennial aquatic invertebrates (page 3). I welcome the opportunity to address any questions you or your colleagues may have about our observations or conclusions. Thank you, j~~;~ C/~J~\ Jamie Glasgow Director of Science and Research Wild Fish Conservancy , • ' " • EXHIBIT 8 Creek Affidavit , I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. , I have been in this neighborhood for ,tf8 years . ~yY)~,d.ddl{e.s~ " , ~s -S ce-y 's ~+ 'P(at 1'·--------------------------------------... -------- 1 • • • EXHIBIT 9 State of Washington DEPARTMENT OF FISH AND WILDLIFE Region 4 Offioe: 16018 Mill Creek Boulevard· Mill Creek. Washington 98012· (425) 775·1311 October 12, 2006 Erika Conkling, Senior Planner City of Renton Economic Development Neighborhoods and Strategic Planning Division \055 South Grady Way Renton, Washington 98055 Dear Ms. Conkling: SUBJECT: Proposed Determination of Non-significance; Kennydale Blueberry Farm Rezone, File Number CPA 2006-M-02, Kennydale Creek and Its Associated Wetlands, Tributary to Lake Washington The Washington Department ofFish and Wildlife (WDFW) has reviewed the above-referenced Proposed Determination of Non-significance, and offers the following comments at this time. Other comments may be offered if the project progresses. A Hydraulic Project Approval (HPA; RCW 77.55.021/WAC 220-1 \0; to be issued by WDFW) would be required for activity affecting the natural bed or flow of the stream or its associated wetlands. The stream on the property is the upper end of Kennydale Creek and should be classified at least as a class 2 perennial stream. It supports crayfish and other unidentified fish species. The wetlands are a rare peat soil based system of very high value, especially if restored and given adequate buffering. WDFW believes it is imperative to preserve and protect these wetlands, as directed by the Growth Management Act (GMA), and it would be contradictory to the GMA to rezone this property and allow dense residential development, particularly without a carefully planned and implemented mitigation plan. Development of the property without such a plan would result in disruption of the natural drainage and the degradation of the quality of the stream and wetland system. WDFW also notes the buffers widths being considered are inadequate to protect this very sensitive system. Furthermore, WDFW believes it would be premature to evaluate the potential impacts of the proposed rezone without a proper wetland delineation and a full biological evaluation. The SEPA checklist is lacking key information concerning fish and wildlife use of the site and the area near the site. A variety of wildlife species (including great blue herons, osprey, pileated woodpeckers, deer, ducks, and shorebirds) have been observed using this area for habitat, but • • • Ms. Conkling October 12, 2006 Page 2 that is not mentioned in the SEPA checklist. Nor does the checklist even mention the existence of the wetland. As it is, there is no scientific basis by which to evaluate the potential impacts of the proposed rezone on the wetland or stream system or the fishlife and wildlife which use it for habitat. This proposal should not proceed without further study and a plan to restore the wetland and its buffers. WDFW appreciates the cooperation of the City of Renton in our efforts to preserve, protect, perpetuate, and manage the fish and wildlife resources of the state of Washington. Thank you for the opportunity to provide these comments. If you have any questions, please contact me at (425) 649-7042 or fisheldf@dfw.wa.gov. Sincerely, ~'1.:.I.- Larry Fisher Area Habitat Biologist LF:lf:CORBlueberryFarm.s.doc cc: WDFW SEP A Coordinator • • ... " Erika Conkling-State agency comments on proposed rezone of Kennydale Blueberry Farm From: To: Date: Subject: CC: Erika Conkling f1sheldf@drw.wa.gov; Robohm, RIchard 10/18/2006 11:29 AM State agency comments on proposed rezone of Kennydale Blueberry ~~ . . . . . Bunten, Donna; Davis, Jeff; erslapke@dfw.wa.gov; Fritzel, Anne· (CTED); Und, Rebecca; Stockdale, Erik (ECY) . Thank: you for your comment letter received on the Notice of Application and Proposed DNS for the rezone of the Kennydale Blueberry Farm. Attached are additional materials for your review. Although the comment period for this proposal has fonnally expired, our reviewing authority is meeting on Monday (October 23) and would be highly interested in any further comments that you make. . After reading through your comments, there is a clear assumption that the City is planning to allow full development on the site of the Blueberry farm . This is simply not true. The proposed rezone would allow the owner of the parcel some use of the portion of the property that is developable, while protecting the majority of the acreage through our critical areas ordinance. At present time, the owner. of the property has extremely limited use of the property, even that portion that is "high and dry". It has come to my attention that your office was alerted to this application by a private citizen, a neighbor of the proposed rezone. This neighbor appears to have provided supplemental materials for your review. Such materials likely did not represent the full research and work done by the City on this prop.osal. The City was never contacted by you or your agency for supplemental file materials that would have provided the full complement of . background i1Jformation necessary for comment. We feel this was an error. I am providing additional information for your review. Included isa series of issue papers on this proposal and a related proposal to rezone a portion of the . • ,' surrounding. In these issue papers, I wish to draw your attention to two file:IIC:\Documents and Settings\econkling\L{)cal Settings\Temo\GW}OOOO1.HTM 10/18/2006 • • areas. First is the fact that even if the least restrictive of our critical areas· regulations were applied to this site (in the form of a class three wetland buffer), approximately two acres of potential wetland area would be preserved. Second, the City proposed to down zone approximately 50 acres surrounding the Blueberry Farm parcel from R-8 (eight units per acre residential zoning) to R-4 (four units per acre residential zoning) in attempt to reduce the intensity of development around this resource to provide additional protection. Unfortunately, we received no comments in support of tbisproposal at all, which has significant implications for the long term survival of the potential wetland resources on the Blueberry Farm site and in the neighborhood as a whole. It is not often that the City receives comment letters from state agencies. We understand that you receive many notices and it is not possible to respond to each. However, when you take interest in a proposal or land use action in. our jurisdiction, it would be nice to use that opportunity to establish a working relationship. There are times where it would be nice to consult with you on these types of complex issues. I would like to extend an invitation to you to please feel free to contact us for information and additional materials in the future. It is much easier to come up with appropriate, context specific solutions to such complex issues if we can bridge the gap between our . agenCIes. Thank you for you time. Erika Er1ka L. Conkling Senior Planner voice: (425) 430-6578 fax: (425) 430-7300 Oly of Renton Economic Development, Neighborhoods and Strategic Planning 1055 S.Grady Way Renton, WA 98055 1 O/18l200fi • • • EX\-lIBIT 10 State of Washing . DEPARTMENT OF FISH AND WILDLIFE Region 4 Office: 16018 Mill Creek Boulevard -Mill Creek, Washington 98012 -(425) 775-1311 October 19, 2006 Erika Conkling, Senior Planner City of Renton Economic Development Neighborhoods and Strategic Planning Division 1055 South Grady Way Renton, Washington 98055 Dear Ms. Conkling: SUBJECT: E-mail Concerning WDFW Comments on Proposed Determination of Non- significance; Kennydale Blueberry Farm Rezone, File Number CPA 2006-M- 02, Kennydale Creek and Its Associated Wetlands, Tributary to Lake Washington The Washington Department ofFish and Wildlife (WDFW) has reviewed the above-referenced e-mail received from you on October 18,2006, The e-mail provided further information related to the Proposed Determination of Non-significance (DNS), The e-mail stated the WDFW comments were based on " .. ,a clear assumption that the City is planning to allow full development on the site ... ", That statement is inaccurate. WDFW comments were based on the information provided in the checklist and accompanying site plan map showing the potentially proposed buffers around the blueberry production (wetland) area. Thank you for providing the information documenting the basis of the City's analysis and staff recommendation for the proposed DNS and rezoning. Based on the City's own analysis, it is evident that the proposed rezone is completely inappropriate, since it is based on speculation that a purchaser of the property would not continue its use in agriculture. Therefore, WDFW now requests the proposed DNS be withdrawn and considered only after the property is sold and it has been documented the property would no longer be farmed. Also, the City needs to amend the stream classification. The stream is perennial (The spring source of the stream is shown on a diagram which accompanied the SEPA checklist.) and should be classified to class 2 cir 3 per the City critical areas ordinance to reflect this. The wetland classification is probably also incorrect. The Blueberry Farm area appears to be a part of a larger peat bog wetland which extends north and south of NE 20th St. and should be classified as such. As stated in the earlier WDFW comments, this proposal is premature and should not proceed • • • Ms. Conkling October 19, 2006 Page 2 without further study, as has been recommended by the Washington Department of Ecology . Contrary to what was stated in the City's analysis (page 3, paragraph 2 of the Amendment 2006- M-2 -Blueberry Farm), development which has been allowed in the area has degraded and reduced wetland features, functions and values, but it has not eliminated them. Furthermore, if the property were to be rezoned, the available information indicates that R-I, not R-4 and certainly not R-8, would be the appropriate designation. This is because the City's critical areas regulations would not adequately protect the stream and wetland on the site. This can easily be observed from the damage to critical areas occurring near the site and elsewhere in the City where development is ongoing. (One example is to the wetland northeast of the Blueberry Farm where a violation occurred and was permitted after the fact; rather than corrected.) This damage is actually a key part ofthe basis for the request for the rezone. . The configuration of the property outside of the likely critical areas buffers may not even be amenable to formation of additional building lots, since access to additional lots may be unavailable due to the narrow width of the developable area. This would be even more evident if the appropriate buffers, after the wetland is properly classified, were included on the site plan. WDFW appreciates the cooperation of the City of Renton in our efforts to preserve, protect, perpetuate, and manage the fish and wildlife resources of the state of Washington. Thank you for the opportunity to provide these comments. If you have any questions, please contact me at (425) 649-7042 or fisheldf@dfw.wa.gov . Sincerely, ~~"L~/. Larry Fisher Area Habitat Biologist LF:lf:CORBlueberryFarm2.s.doc cc: WDFW: SEPA Coordinator, GMA Biologist WDOE: Robohm Kennydale Creek @Watt&Zevartproperties 9/17/2006 1:14:42 PM 1-405 grate @ Kodis property 9/17/2006 1 :01 :33 PM Kennydale Creek @ NE 24th ST 9/1712006 12:59:21 PM Kennydale Creek @ NE 20th 8T 7/9/2006 12:38:43 PM EXHIBIT 12 Ket'lnydale Creek near headwalers @ NE 201h ST 1/91200612 :28 :12 PM Kennydale Creek @ NE 20th ST 7/9/200612:37:19 PM Pond full of groundwater next to Kennydale Creel< 8/20120072:10 :23 PM Spring fed pond next to Kennydale Creek 61512010 12:31 :48 PM © WALKER AND AS "'Cli THIS PHOTO C ,. I~T ~~ r SCA ,~') r IN At .. , R.I ~I~ I. ) . : W /\U 'E~ /','" I ) A ..J_r ,., ES 126 52 INTtI.l-iluAN A 'v EI~UE SCJTH SEATTLE, WA 98168 • (20 S) 244-23 0 0 (888) 970-0599 • www.walkermap.cora Al KE R A 'D ASSO ... ,· . PHOT OG .. 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KiigC;~~niy,~.'~g,~~~ or warranties, expr,ess or implied, as' accuracy, completeness, timeliness, or rights to the use 01 such i, r.~~~;~h~1t not be_liable for '~1_~< :ial! i~dire~~, I i I or consequential damages including, but not limited to, '~f~ ~aD-i~~ i i I-;~~';~~~~~i~~!~~ the use ~~j. i "c~~~i~,· i contained on this map, Any sale of this map or information on By visiting this and other King County-web pa~esl, you : I ~~~e to be' ~ound by te~~ conditions of the site, Toe "d_~lails" • i.owe.d-eL~ V(drb~1:\ IAJ e.,H~V\.ct Page 1 of 1 • • EXHIBIT 17 Technical Memorandum 10230 NE Points Drive Suite 400 Kirkland, WA 98033 Phon, (425) 8224446 Fax (425) 827-9577 To: From: Copies: Chip Vincent, Planning Director, City of Renton Jennifer Henlling, Planning Manager, City of Renton Stephanie Smith, Wetland Biologist Kevin O'Brien, Ph.D., Senior Wildlife Biologist Suzanne Anderson, Ph.D., Senior Wetland Biologist Date: October 20, 2011 Subject: Kennydale Creek Stream Typing Project No.: 31821C Otak Inc. biologistS were asked by the City of Renton (City) to confirm the stream typing of Kennydale Creek (also called Clover Creek) in the vicinity of 2208 Jones Avenue NE (parcel # 3343903602), which has been approved as a two-lot short plat (Joey's Short Plat). Otak biologists conducted their site visit on October 6, 2011, and were able to view the stream on the subject parcel. Ho":'ever, because Otak biologists lacked property access to any other parc~ls, they were Ullable to observe the stream in its entirety. Otak biologists were only able to view additional segments of Kennydale Creek from public rights-of way upstream ofInterstate 405 (l-405), including the intersections of: Jones Avenue NE near NE 24th Street; NE 24"' Street near High Avenue NE; and the stream crossing on NE 20"' Street. . Kelll1ydaleCreek is currently categorized by the City as a Class 4 stream upstream of the 1-405 crossing (including the subject parcel), and as a Class 3 stream downstream of the 1-405 crossing. Per the Renton Municipal Code (RMC 4-3-0S0.L.l.a) Class 3 and 4 streams are defined as: Class 3: Class 3 waters are non-salmonid-bearing perennial waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 3. (RMC 4-11- 160 deftnes perennial as "Waters which flow continuousfj'). Class 4: Class 4 waters are non-salmonid-bearing intermittent waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 4. (RMC 4-11-090 defines intermittent as "A condition where water is not pre~ent in the channel year-round duringyears of normal or above normal rain/a!!'). Numerous studies have been completed for different segments of Kennydale Creek. Th~se studies include a stream assessment conducted by Jamie Glasgow of Wild Fish Conservancy on September K:\project\31800\31821 C\Reports\31821 C techmemo SAJ(OB.doc.'{ ,I' • • • Cllip Vincent, Planning Director, City of Renton Kennydale Creek Stream Typing Page 2 October 20, 2011 18, 2008 on segments of KennydaleCreek located upstream of 1-405 (Wild Fish Conservancy memorandum, September 23, 2008), Ms, Glasgow reported observing flow both upstream (near NE 20 th Street) and downstream (near NE 24'" Street) of the subject parcel in the autumn of 2008. However, since she did not assess the entire reach of Kennydale Creek located upstream ofI -405, she did not have sufficient information to determine whether any section of the stream lacks continuous flow during the summer. Additional studies on upper Kennydale Cree~ include a stream assessment prepared by Carl Hadley of Cedarrock Consultants, Inc., dated February 17, 2006. Mr. Hadley reviewed the water type classification of upper Kennydale Creek, and recommended maintaining the Class 4 water classification of the stream, Otak biologists were asked to determine wherller the current Class 4 categorization for Kennydale Creek on the subject parcel is correct, or if the stream meets the definition of a Class 3 stream. The subject parcel has been approved for a two-lot short plat, and currently has a house on the northern portion of the property. The southern portion of the parcel·consists of a mowed field dominated by creeping buttercup (Ranunculus repens), and the western portion of the parcel fronts J ones Avenue NE. Kennydal<:Creek flows from south to north on the subject parcel, and it is located approXimatelyq.7.5J~~t east of Jones Avenue NE, essentially bisecting the parcel. On,the subject parcel, the creek\,ch~"ilielis d~nsely vegetated, is approximately foul: feet wide, and had . -~ , '. ' . between five and <;Jgbt inc]{~s of very slowly flowing water at the tinle of the site ·visit -see the photo attach~d t?'the',~lohl;us, m,emorandum, It is important to note that the Otak site visit occurred on, Octb1'j~'9' 201'~ after several days of rain. Vegetation in the creek was dominated by watercress (Ndstliftium4ficilltile), American speedwell (Veronica Americana) , with some reed canarygrass (Phalam'aru!(dini1c~a), The two dominwt species in the creek (watercress and speedwell) are both obligate',wetl,an.d species, meariirig that 99-percent of the tinle, these pl~nts are found in , wetland habiti;t~,·:y~ge~.~oii ~()mpletely filled the stream channel, growing from the channel bed and banks of the .stream,. The density of the vegetation indicates that water does not flow through this segment of the stream a! a sufficie!1tly high velocity to prevent plants from becoming established. The dense' vegetiiti\lfi al~o indic"tes that this segment of the stream may lack surface water flow during the sumnier, but it likely has high enough groundwater to support the hydrophytic (water- loving) vegeta~;n.~' Looking upstream (to the south) from the subject parcel, the stream bed appears to generally lack vegetation, indt4tihg ~at~r'may flow through that segment at a higher velocity than on the subject parcel, thereby pr~~tlfIing ,vegetation establishment. Other segments of the stream channel that we were able to vleW:'frbfu public rights-of-way (both up-and downstream of the subject parcel) also generally lackeii vegetation, indicating potentially higher velocity flows or impoundment. However, many of these segments were viewed at or near culvert inlets or outlets, which can influence stream flows, and may not be representative of the stream's characteristics. Downstream (north) from the subject parcel, there is a pond on a parcel adjacent to Jones Avenue NE, just south of the NE 24th K\project\31800\318,21C\Reports\31S21 C techmemo SA_KOB.docx Chip Vincent, Planning Director, City of Renton Kennyda!e Creek Stream Typing Page 3 October 20, 2011 • Street. It appears that Kennydale Creek enters and exits the pond via culverts prior to crossing beneath Jones Avenue NE. • • While our site visit and data collection was limited by pr'operty access and time of year, it is our best professional judgment that some portions of Kennydale Creek upstream ofI-405, particularly in the vicinity of 2208 Jones Avenue NE, may lack surface water flow during some portion of the year, thereby meeting the definition of a Class 4 water per RMC 4-3-050.L.1.a.iv. While it is likely that some segments of Kenny dale Creek located upstream ofI-405 remain inundated throughout the year; the heavily vegetated nature of d,e stream channel on the subject parcel suggests that a combination of evapotranspiration and infiltration during at least a portion of the SUOlmer may result in a lack of surface water flow in this segment of the stream . Photo looking downstream (towards the north) at Kennydale Creek on the joey's Short Plat parcel. Note the dense vegetation in the stream channel. K: \project\31800\31821 C\Reports\31821 C techmemo SA_KOB,dOCl{ • • • EXHIBIT 10 Altmann Oliver ASsociates, LLC N) Box57R August 4, 2011 Bill Hughes WH Hughes Homes 14401 Issaquah-Hobart Rd SE Issaquah, WA 98027-6925 ilOA Environ m ent;.l Planning &: Lan'lscape Archit.eci11re AOA-4072 SUBJECT: Revised Critical Areas Review for Joey's Short Plat (File No. 11-021) 2208 Jones Ave. NE, Renton, WA (parcel 3.34390-3602) Dear Bill: On June 30; 20'11 I conducted a wetland and stream reconnaissance and delineation on the subject property utilizing the methodology outlined in the 1997 Washington State Wetlands Identification and Delineation Manual. The primary focus of the initial reconnaissance was on the southwestern portion of the site .in the vicinity of a proposed new residence to be constructed as part of the short plat. A subsequent site visit was conducted on July 26, 2011 to map the approximate location of a wetland located in the northeastern portion of the site. Existing Conditions The northwest portion of the site is currently developed with an existing single-family residence and associated detached out-buildings. The southwestern portion of the site in the vicinity of the proposed residence consists of a flat mowed upland lawn. Soil borings taken throughout this portion of the site revealed dry, non-hydric, high chroma soils and there was no evidence of ponding or prolonged soil saturation. Kennydale Creek drains from south to north through the central portion of the site. During the initial field investigation, the ordinary high water (OHW) of the west side of the stream was delineated. The delineated boundary was subsequently surveyed by Touma Engineers and Land Surveyors, PLLC and is depicted on the survey drawing. Kennydale Creek is considered a Class 4 stream by the City of Renton and would require a 35-foot buffer. Kennydale Creek on the site consists of a well-defined channel that appears to have been historically ditched. Vegetation along the stream banks is mowed to the edge of the channel and plant species within and adjacent to the channel at the time of the field investigation consisted almost entirely of reed canarygrass (Pha/aris • • • Bill Hughes August 4, 2011 Page2 arundinacea) and watercress (Rorippa nasturtium-aquaticum). Woody vegetation along the stream corridor was generally restricted to one twin red alder (Alnus rubra) tree adjacent the southern portion. of the channel. . In addition to Kennydale Creek, a disturbed wetland was observed in the northeastern portion of the site. The approximate location of this wetland was . mapped during the July 26, 2011 site visit and is depicted on your density calculation . sheet (attached). The wetland consists of a shallow topographic depression that appears to extend slightly off-site to the north. Vegetation within the wetland at,the time of the site visits included Pacific willow (Salix lasiandra), Himalayan blackberry '(Rubus discolor), reed canarygras'S, creeping buttercup (Ranunculus repens), giant horsetail (Equisetum telmateia), Watson's willow-herb (Epilobium watsonil), and .scattered skunk cabbage (Lysichiton americanum). Hydrology within the wetland was generally assumed based on the presence of disturbed hydric soils. Since this wetland is located more than 15 feet from the eastern OHW of the stream, and the maximum possible buffer from this wetland would be 50 feet, the buffer from Kennydale Creek would be more restrictive. The maximum 50-foot buffer is based on the unlikely possibility that the wetlimd is a Category 2 rather than a more likely Category 3 wetland which requires a 25-foot buffer per RMC 4-3-050M.6.c. Priority Habitats and Species As part of the stream assessment, the Washington Department of Fish and Wildlife's Priority Habitats and Species database was reviewed. This database does not indicate that any priority habitats or species are located on or adjacent the property. In general, the habitat value of the on-site riparian corridor is relatively low due to the historic and on-going vegetation maintenance that has resulted in a low plant species and structural diversity along the stream channel. Conclusion As part of the proposed short-plat, a single-family residence would be constructed within the lawn in the southwestern portion of the site. It is my understanding 'that since: 1) the proposed residence would be constructed outside of the 35-foot stream buffer and 2) there is no proposed activity within the wetland area located east of the stream, there are no proposed critical area impacts on the site . • • • Bill Hughes August 4, 2011 Page 3 If you have any questions regarding the reconnaissance or stream delineation, please give me a call., Sincerely, . ALTMANN OLIVER ASSOCIATES, LLC John Altmann Ecologist ------------------------- , I I L ,-,------------------~--..,----------'-----------. s-r~ . .fAnt APJ:A 10 1 LJ;c9~ X. /&,5 I l,bSO . FT .... W<2-~ L.A ~t::.. AQ..'t:.A J K 50 7 0 {=--r~ -3 SOO I, Q£P.o.RT)JENT OF" .lS~~EHts REr:OROLNG NO VOL/p:a.a: __ ~IM_"'''' :0_ j,_.f-""~ ,----..-.. -~ or .. ~'0' : :::-:=::iii&A¢ I "_*f." ::..:.....-seAl:£! ~,-s.:;J.[. , .... lO' 0 .. "" ----. I flafnlGH Of .-..:.t _ J:!tJ~(I-JfO:; sW 1/"'.Of n·n;:: NE 1/4 rj:-SEC.:i, 1WN 2:5 !'f. Re. fI E. ",M. 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(m~" ' I' '''''", rr -"'" - " '''''' ~ " •• -- f--• \ '-""T 4-1.1 C. ~ ;r.,Il'31' SWPI I.IflE r:r w,n ~ D~ -1.)6 tJU/~ til WII !:I. ~ WI; .. )!; _\low PIIIOI'"CBim :3QJ.oIJU; I'OOlUlE OF lHE 1./31'S (&'50 + 3/500 .- 0, tS O c:,-'Z... ,l SAi=oy' -«I¥ n. _ :t:Ia:?II' &1" f~l \ 1-l'7,eII.l.~ n. .. ~n", S!~,%!,37"'ft 'lti5 -~ ~tt'~,~ugr~(UIIJm;~ tt-'11,"5'~f\, , cntr"l~' 'I/.UZ!I.7t' -d4 J¢ 2OtIo,~ ~ J1IIU,S5 lICH W . NE 20th STREET ~.~j CC(ICllf1[ ),jl;)< IH 1:4: {1I1/!CH) '~~~·",,~~,i..t r-.;lOIJ,2I.5.3CIa W"ttRIU':!:1IOI1 ,o.8tR:lE[lt 11\£ /('. It; !il:!Il1It ~1)f[D_'~NIIl'I!I"'" ~),jCJt lH t.ost, (01/10'1) ~ FK\PlNlt.c ~n:1 ~SE (!J1/2/lU) ~J7 ;1.1"7 {~S CERTlFIC,4. K ""j t~p:rC:la1lt~ (I w ... e~ made 'ny 'dlrection 11'1 CC>"Hl!!YMort<: .. er:h .ot lh .. '$.Jr"lty !i1i!~:tI"d;'lll It ~t l(!rrql,.,~ lqyl<v g TOUMA ENGINEERS LAND SURVEYORS,PLLC JOEY SHORT PLAT ~ y~ txI:tI.m'<£ P10RK v_ !J~ 2!DS J;WU p,\tE ~ RalTOtt. WJoo Ba056. ~" X""' ~ " ~ f.1fil t~~l ~ ~ .It!O<II>O ,.,tt~. lUlE'I-\!Ot -ICDIT. "" .......rIl . 6.v< T. I ~v :20l1 I U::_H~~otl ~ (.u) n\-ON~ ,Iot (oW) ~-~ etQ(c !/, !::J.U: SlID:T CeriWcClte Nr",--i6992 ~7 1'_;1.1)' "'" • , • • • • Ph 253-896-1011 Fx 253-896-2633 EXHIBIT 11 oResources, LLC 5007 Pacific Hwy E., Ste. 16 Fife, Washington 98424 WH Hughes Company, Inc. 14404 Issaquah-Hobart Road, Suite 104 Issaquah, Washington 98027 (425) 444-3367 Attn: Mr. Bill Hughes July 26, 2011 Geotechnical Infiltration Letter 2208 Jones Avenue NE Renton, Washington PN: 3343903602 Job No. WHHughes.JoneAve INTRODUCTION & SCOPE ,f""'. : ' ,~_.~ --' . .....,... '0"1, This letter addresses .the feasibility of infiltration for the proposed single family residences to be located at 2208 Jones Avenue NE in Renton, Washington, as shown on Figure 1.' We visited the site on June 15, 2011. The purpose of our services was to. evaluate the surface and subsurface conditions at the site as a basis for developing and providing geotechnical storm water recommendations for the proposed development. Specifically, our scope of services for the project included the following: , 1. Visiting the site and conducting a geologic reconnaissance to assess the site's soil, groundwater and slope conditions; 2. Exploring the subsurface conditions in the pond areas by excavating two test pits across the site; 3. Completing laboratory grain size analysis for the site soils; and 4. Providing infiltration rates for the stormwater facility, as appropriate. SITE CONDITIONS Surface Conditions The site is in an area of existing residential development. The site consist of a single tax parcel that measures about 25 feet deep (east to west) by 150 feet wide (north to south) and encompasses about 0.85 acres. The site is currently developed with an existing single family residence located in the northwest corner of the parcel. The site is bounded by residences on the north and south, Jones Avenue on the west, and by a vacant parcel on the east. The homesite is generally level, to slight lower, than Jones Avenue on the west. Behind the house is a shallow seasonal drainage that tends to flow from south to north across the parcel. The bottom of the drainage is about 2 to 3 feet below the existing residence (see attached photographs). On the east side of the drainage, the site slopes back up to the east. According to topographic information obtained from the King County iMap website, total topographic relief across the parcel is on the order of 10 feet. The site is mostly covered-with grass and scattered ornamental trees. The eastern, upper portion of the site is covered with a dense stand of younger trees and native shrubs. • • • • WHHughes.JoneAve July 26, 201.1 'Page 2 Site Soils The USDA Natural Resource Conservation Service (NRCS) Web Soil Survey for Pierce County maps the soils in the area of the site as Indianola loamy sand (InC). The Indianola soils are derived from sandy glacial outwash deposits that form on 6 to 15 percent slopes and are listed as having a "moderate" erosion hazard. These soils are listed in hydrologic soils group "A". Subsurface Conditions As stated, the subsurface conditions underlying the site were evaluated by excavating two shallow test pits with a mini-excavator. In general, out test pits encountered about 4 to 6 inches of sod and topsoil overlying a loose to medium dense silty fine to medium sand. These shallow soils mantled a dark brown/gray fine to medium sand with minor amounts of silt and organics. The subsurface conditions in the two test 'pits were fairly consistent and generally confirmed the mapped stratigraphy. The soils encountered were visually classified in accordance with the Unified Soil Classification System (USCS), a copy of which is attached as Figure 4. The Test Pit Logs are attached as Figure 5. Grain Size Analysis Our geotechnical laboratory tests were completed on representative samples collected from the proposed stormwater facility. The enclosed laboratory testing sheets· graphically present these results. Groundwater Conditions Slow groundwater was observed at about 3% feet below existing grades in both test pits. The depth of seepage was generally consistent with the level of water in the drainage ditch east of the residence. Based on the nature of the near surface soils, we anticipate fluctuations in the local groundwater levels will occur in response to precipitation patterns, off-site construction activities, and site utilization. CONCLUSIONS AND RECOMMENDATIONS Based on the soils encountered in our explorations, laboratory analyses, and our engineering analysis, we conclude that the infiltration of stormwater is feasible in the native .sand appears feasible from a grain size standpoint. According to the 2009 King County Stormwater Manual, Appendix C2.2.2.1.b, a minimum of 1-Ioot of separation is required between the seasonal high groundwater and the bottom the infiltration gallery; therefore there may not be sufficient separation between the bottom of an infiltration gallery and . seasonal high groundwater. . Stormwater Infiltration Stormwater infiltration rates for the site soils were determined in accordance with the 2009 King County Stormwater Manual, Appendix C. We performed sieve analysis on a representative soil sample collected from the outwash soils. Based on the results of our sieve analysis and our experience, the upper loamy sand would be considered a Type 4 soil, whereas the deeper, cleaner sand would be a Type 3 soil (Appendix C.2.3.2). We would recommend a maximum infiltration rate of 4 for the deeper sand and a rate of 1 for the upper silty sand. We recommend that an appropriate factor of safety should be applied to this value. A typical factor of safety of 2 is usually applied to surface grade stomnwater systems. A higher factor of safety should be considered for a below grade stormwater system. We recommend that we observe the excavation of the infiltration system to verify " . • • • • ------------- WHHughs.JoneAve.1 July 26, 2011 Page 3 that suitable soils have been exposed. Appropriate design, construction and maintenance measures will be required to ensure the infiltration rate can be effectively maintained over time. It should be noted that special care is required'during the grading and construction periods to avoid fine sediment contamination of the infiltration system, especially from the overlying loamy gravels. This may be accomplished by using an alternative storm water management location during grading and construction activities or leaving the bottom of the systems 1 to 2 feet high, and subsequently excavating to the finished grade once the driveways are paved and landscaping is installed. All contractors working on the site (builders and subcontractors) should be advised to avoid "dirty" storm water flowing to the site's stormwater system durin'g construction and landscaping activities at the site. Concrete trucks should not be washed or cleaned on-site. Suspended solids could clog the underlying soil and reduce the infiltration rate for the system. To reduce potential clogging of the infiltration systems, the infiltration system should not be connected to the stormwater runoff system until after .construction is complete and the site area is landscaped, paved or otherwise protected. Temporary systems may be utilized through construction. Periodic sweeping of the paved areas will help extend the life . of the infiltration system. • • + We trust this is sufficient for your current needs. Should you have any questions, 'or require additional information, please contact us at your earliest convenience. Respectfully submitted, GeoResources, LLC KSS:RMH:kss Renee M. Hadley Staff Geologist DoclO: WHHughs.JoneAve.1 Attachments: Figure 1: Site Vicinity Map Figure 2: Exploration Map Figure 3; USDA son Map Figure 4: Unified Soil Classification System Figure 5: Test Pit Logs GraIn Size AnalysIs Principal ------------------------------------------------------- • 2 4 . Depth (It) o )I, Y2 2% 3)1, 4 SP Soil i Test Pi! TP-1 Location: Front of site Sod over Topsoil Ught gray/Ian with orange mottling, silty fine to medium SAND (loose io medium dense, moist) Dark brown/gray fine to medium SAND, some silt, scattered organics (medium dense, moist to wet) Terminated at 4 feet below ground surface. No caving observed. Slight groundwater seepage observed from 3)1, feel. Tes! Pi! TP·2 Location: Back of sile Soil Type Soil Description Sod over Topsoil Ught gray/tan with orange mottling, silty fine to medium SAND (loose to medium dense, moist) SP Dark brown/gray fine to medium SAND, some sil~ scattered organics (medium dense, moist to wet) Terminated at 4 feet below ground surface. No caving observed. Slight groundwater seepage observed from 3 feel. GeoResources, LLC Test Pit Logs 2208 Jones Avenue NE Renton, Washington 5007 Pacific Highway East, Suile 16 Fife, Washington 98424 Phone: 253-896-1011 Fax: 253-896-2633 DoclO: Hughes.JonesSt.F July 2011 Figure 3 , , • .' ." ___ '~:~~;W~~~lt(~~ october 7,~Oll ',' William ,Collins, ' "420 Cedar Aile South " , Renton, WA98057 ~partment of Community and Economic Devel~pmerit , ' , Alex Pietsch,Mmlnlstrator ... ' SUBJECT: , Renton's Stream Classifications " , Dear Mr.Coiliris: . ;' , " A copy of your email i~qUiry dated April 22, 2009, was ~ecentlypro~lded to me from City' , Council members Terri Briere arid Marti Palmeri submitted via the City counciiweblink. I am now In receipt of your letter a'nd apologize that you did not receive a response '" , so~,"er,and hope that'this letter provides the information you have ~queSted.' " ' "I appreciate your summary of the DeFoor Short Plat review when the City respondedto' ,the applicant's requesHor reClassification of streams on that site (File lUA05-089, SH-' ,HJ. The applicantfor the DeFoor proposal requested that two stn!amsand tWo drainages be classified as Clas~'5 streams which' ar~ exempt from th~ CIty's Critical Area " P:egulations. The Cjty'sconsliltan~ cond,ucted a, secondaryrevhlw of,the report submitted by the, applicant arid provldedrecommendatloils to the City. 'Based oli ttlOse , re~ommendatlons;the Admlnistratordetem,ili~d that one ofthe drainages be dassifi~d asa Class" stream; one strea~ be classified as a Class 3 stream; imdone stream 'be" ' classified as a Class 4 stream. There was '1ot sufficient Informatloii,provided to ' '. reclassify all the requested streams and drainages to a lowe'rclassification.' " . ' .' . . .' . ..... , Similarly, duringthereview of.an appli~atlonfo~landdiViSi~n in the Keoriydalearea, a , , request was submitted to reclassify Kennydale ,Creek from a Class 4 to a Class 5 stream., ' ", Wetiad our consuitani conduct an Indep~mdentanalvsls and again they did liot-concur with the reclassification ofthestream;Sev~r<!1 strearn studies. have beeri submitted ,', ' ' " over time, and the majority Indicate that the Class ,4 stream claSSification is correct, ' ' , In2009,a report ~as stream asseSSment conducted.by Wild Fish ConserVancy was' , submitted to the City by concerned, parties Who five In the area. ' Thatstudy provides " ' , 'information regarding Kimnydale 'Creek, including' documentation that the cre'ek was' ' flowing on September 18. 2009i In ~ddition, the study states that the creek may ~rrnay , 'n'ot support '3 fish population.' The study alio proVides discharge data.'for Mercer Creek" 'a tributary of lake washin~on'li:lcated near Bellevtle. The data does not nicommenda 'paitiCuiarstream Classification recornrnimdatlon for Kennydilie Creek., As this study did not appear to provide Information beyond that viealre'ady had in City file~, and because' , we were aware 6fa large impediment to fish passage near Lake WashlnStonBoulevard. , R~~,ton City H~II' ~ , 1055 South Graqy Way • ·,'R~~ton. Washi~gton 9~S7 • rentonwa.gov .J •' ',." , , • ---------- WllUam Collins Page 2 oCtober 7, 2~11 .' we did not advance the study with the code docket work that c1arlfhid the process for' stream reclassification as well as make ch~nges to sOlne stream typing based onthe,' ' data prOVided byState agencies' ,,' 'In tne Interest' of "get;ting it right" and,-makIng sure we are protecting our important " ,environmental resources,,! asked our tontractenvlronmental con$ultlng firm"Otak, to " , ' conduct an h1dependentanalysis cita portion of.the stream reach for which we had a ' " " recent tWo-lot short plat application. They co~dudeci Kellnydale Creek to bea Ciass4 , stream for the portion asSociated with the short plat. "" , ',... :.", . . ,,:' .'. .' , In th,e Mur~ if you havecancerhs regarding planning projects, please cQntact.me ",directly a~ biincent@r'eritonwa.gov or 4i5.430.6588, ' ' ", , " ~"~Jl,.J"," . L-."~. ~'d .. ~--...:."\.) ,'C. E. NChip," Vincent I'iarinlng Director .' Cc:. Mayor Denls·~w:.· Jay COvington, CAO , ,Councilmembers, ' , ' ",".Pletsch; CfO AlImlnlstralOr , ,', " ".:. -. " ' , , ,', . , : , , ' i: ", ,'.', .' .' , , . t I I i ; ; EXHIBIT 18 8 The Watershed Company 19 July 2005 Nancy Weil, Senior Planner City of Renton Planning Department 1055 South Grady Way' Renton, VIA 98055 Re: , Bluebeny Meadows projeCt -Environmental Review' Dear Nancy: , Th~ you for the opportwu(y to revi~w the~bOve referenced project for compliance with CitY of Renton DeveloprnentRegulations, Title IV: For ,this review, I read thtougbthe , iriformation you provided me, 'which included oile binder containing the folloWing docuinentation: ," , ' , 1) 2) 3) 4) 5) ~tier fromMlJSterbuilder Construction, requeSting a stream reclassification, dat~ 6/30/0$,," ", ' " , ,,' " , , " Letter from ,Masterbuildef Construction outlining the diiching history of the vicinity, dated 5/17105" Letter fu>m Ellisport Engineering swrirriarlzing the wetland and stream' delineaiion findings, dated 6/29/05,," , . '. Wetland delineation by EWsport Engineeriog for parcel nlimber 3343903203, dated is/OV05" ' . " Wetlanddelinioation by EUispoit Engineenng foipari:~rriumllers 3343903563 " and; 3343903201 (includingihe 1219isEntnin6o delineation) dated 10120/04. ' Ialso made' a site visit on the 18'" of)ul~ 2005 to e~a1uat~ site conditionS, check the,' 'accuracy of the delineati6nand veritY th~ stream classification. TIlls letter is a summary of the findings ofmjreview" ' ", It is my understanding iliat, with the exception ,of adetentionporid in the northwest site , comer, the entire ,thrOe proPerties would be platted for single-family lots and'thatwetland orstreatrilditch featufes,would notbe retained" ' ". Findings Conditions observed during the site visit Standing water was present in the pond and in'tlie main ditch/stream., Soil saturation was observ,ed across much of the" site; No delineation flags were found on parcels 3343903563 and 3343903201. Only two flags were found on parcel 3343903203" Wiltercourse 'The applicant contends that the stream on the subject property is Type 5, rather than Type 1410 Market Street, Kirkland, WA 98033 -(425) 822 5242 -fax (425) 827 8136 watershed@waters,hedeo.com -www.watershedco.coni N. Weil 19 July 2005 Page 2 of3 4 as is depicted in the City of Renton Water Ciasses Map (dated 5/05). To qualifY as a Type 5 stream, a watercourse must have been artificially created and not carry flows of a historic stream. UndisputedlY, ditching has occurred on this site, resulting in thepnisent, straight and steep-sided channel form. Downstream of the site, beyond Jones Avenue NE, a natural stream channel in ~ narrow valley viis noted. . The valley in the vicinity of the subject property clearly has 'been an area that conveyed s\II'face-';"ater prior to historic agricultural and residential development. EXactly how that surface water was hisiorically conveyed, whether as sheet and sub"surface flow, or m a definedclrann~l or bed, is the reli,vaniquestion. Thisvalleywas once a more exte~ive headw:iteryjeiland system that could have had a . p<mnanent. or seasomil stream channelrUnIling .throughit. This historic channel would Iikelyhave had severe and/or braided meanders within the wetland: Th~ bllfden of proof as to whether or not ach;mneI or bed was present .prior to diicIUng f~lIs· orith •. applicant. The ;haterials sublpittOd thus,far do not address this question. Therefore,the recoinmendation is thaUhe' Type,4 cIaSsificaiion staitds until. compelIing .. evidencC isdiscoveredtbat proves the areawaswetland only and did not have a channel orbed. . . , . , . .' It should also be noted that The WlishingtonDepartfuentof Fish and WildIife (WDPW) also has . regUlatory authority over ~treams. Consultation with the loCal WDFW' area . habitat biologist should.also be sought for their interpretaiion of whether or not this area meets the Washington state definition ofa stream.. . , '.' ." Wetlands ; EIIisport Engineeringcontencts that the ",etlands on parcels 3343.903563 and 3343903201 have diiedout.due to the sewer line· and new development. However, I found that wetlandhoundari~ extend· across most ot'these parcels; In general; the fmdings of the Entranco delineation :ire accurate; however boundaries are difficult to discem and cc.mpare to siteconditio~s on the suppIied Enuanco map; Hydrophytic vegetation and dark,hydric soils are present in allateas delineated or depicted by Entranco; I.also noted that soils were saturated to th~ surface or-at leasi within the root zone' across· previously delineated areas. ft should be noted iliat the delineation for these two parcels took place at the end of the 2004 summer, in October. Due to the timing; it is not surprising that these wetlands were i observed to be dry during the delineation. . While hydrology is the most important indicator of the three required for a determination of wetlaitd, it is also the most difficult to inte.rPret due to its ephemeral nature. Wetland, hydrology in this system is highly altered, but is still-driven by groundwater . and surface water movement through the ditch/stream systein. I found no eyidence that the site has dried out to the extent tbat former wetland areas no longer meet the hydrology parameter. Since this wetland is in the headwaters of a stream system, it would qualifY as Class 2 N. Weil 19 July 2005 Page 3 of3 ... rn ........ ·""'=_'" . wetland with a 75-foot buffer. Recommendations ... ==<. -- The following iasks are recommended for corrections to the submittal. I) Ddineate wetlands on .all ~ parcels. Since these wethinds have s"llSonal hydrology, they should either be delineated in the winter or cady spring, or the delineation should acknowledgeth~lack of s'!ffiIDer h)'lrology and rely more stnmgly on soil.andvegetation cues, . 2) . Flagth"OHWM ofthestreiun: ,', " 3) ,siIrY~y ih~ Wetland and stre.m· delijJ.~iQn flags and other propertY features . and present the findings in a legible map at a feasonablescaie.·. . 4) Redesign the proposed lot. layout ,to observe cU!'fCnt Ciiyof Renton de~elopmenttesirictioris on streams iutd we.tlands.' ' ' Inlpleme~~tio~ofthese reconuiu,-ndiiiionS.will ensure that theproje6t ineets the lett~rand inien! oftheCit'y'of Renton Critical AreaS Regulations. ' Please c~iwith any questions. ' " Sincerely, Hugh Mortensen EcolQgistlPWS == ... ~--------------------------------- 'p" . , , . ~ , •. > I \... '~", t ,J . Prudential NW Realty ,Fax:4252354158 ,i }Pr19 200~ 19:13 Eliisport., " EngJneering, Inc. EXHIBIT 19 , . WETLAND DELINEATION GORDLY ANn/CORE PROPERTIES . " . \ .... ~ .... October 20; 2004 ' 20501 81st Ave. S.w. Vasbon, WA 98070 , Telephone (~~.(6'M!5""'-s3 ..... n- • 'FAX{206) 463-2578' ' , E-MfJI: IlllJ.BportJ,@aol.com ' , , "PARCEL 3343903563 8nd 3343903201 '. . . '- .. ' ". "'. :-,--'----, P.02 I \ '~' • • • PROJECT OVERVIEW , , Gonlly & Core Properties Renton, Washington The Core property is being, subdivided and the Gordly property adjoining it is being considered for inclusion in this proposed subdivision. The properties are located east of 1- 405, in the Kennydale hill area of Renton. See Figure I for the properties location. The Core property covers 1.15 acres ,and the Gordly property covers 1.47 acres. The Core property runs north and south with access from,NE 20 th St. The Gordly property extends from Jones Ave NE east to the driveway 'access for the Core property and south to NE 20 th St. , Previously much of these properties were placed in either a Class II wetland or its buffer. Since that time the City of Renton has installed a sewer line across the Gordly property and along the western edge of the Core property in 2003. TIlls work and the recent housing developments to the north and east have apparently changed the areas hydrology. The intent of this investigation is to determine if this area is still a wetland and if so to what extent. EXISTING CONDITIONS The Core property extends north from NE 20 th St. for 590 feet. The first 234 feet are a 26- foot wide driveway from the street. The main portion of the property is 126 feet wide. A single family residence and separate garage are on the lot. The lot slopes very gently to the west. The northern most portion of the lot is an old orchard, and the reminder is old pasturellawn. A thicket of Hardhack (Spiraea douglasii) runs along the southern edge of the western property line. TIlls thicket ends where a ditch crosses' the property from midway along the west side of the house and continues due west on to the lot adjoining. North of the ditch the western edge of the property is bordered by young Red alder trees (Alnus rubra). A second ditch crosses the property further to the north. No water was flowing in . any of the ditches crossing the property at the time of the site inspection. The City sewer line runs along the west property line. The Gordly property extends between the Core driveway on the east and Jones Ave. NE to the west and south to NE 20th St. A single family residence is located off Jones Ave NE. A small Class in stream crosses this lot from the south to north flowing into a small pond on ~ the adjoining property north of the Gordly's and west of the Core property. The Gordly property slopes down from Jones Ave to the stream and gently to the northwest. Most of this property is mowed lawn. The eastern 50 feet abutting the Core driveway is covered with a mixture of Pacific willow (Salix lucida) and Himalayan blackberry (Rubus discolor). West of the stream is a line of poplars running north/south for approximately 400 feet from NE 20 th St. Two drainage ditches flow to the stream from the area of Pacific willow. Two main ditches run from the west side of the Gordly's property to the stream. At the time of site inspection these ditches were dry. South across NE 20th St. is a blueberry farm, where the Class, III stream originates. The 'stream flows under the street in a culvert which extends northward onto the Gordly property. Water was flowing in the stream at the time of the site inspection. Originally the ditches 2 i • • • \ ,I 'i Gordly & Core Properties ... j Renton, Washington I running east/west on these lots all drained into the stream. See Figure 2 for a sketch of these , I~ts and exis!ing conditions . DOCUMENT RESEARCH National Wetland Inventory (NWI) Maps and the City of Renton Maps were reviewed for known wetlands in this area. The NWI map shows a seasonally flooded, palustrine scrub- shrub wetland in the area, see Figure 3. This site corresponds to the blueberry farm directly south ofNE 2OthSt. The City of Renton wetland maps shows a wetland in the same area, but extending north ofNE 20th St, see Figure 4. The wetland study done for the sewer main and sewage lift station and the report prepared for the housing development going in directly east of the Core property were reviewed as part of this study. The study prepared by Entranco, December 1996 for the sewer main and sewage lift station indicated a large Clails II wetland adjoining the Class ill stream crossing the Gordly property. The wetland and its buffer were shown to' cover much of the Core and Gordly properties. The report prepared by Habitat Technologies, April 2003 for the housing development showed an approximate edge of a wetland off site on the eastern portion of the Gordly property, but no delineation was done. It is the Entranco wetland report which has been used as a base line to determIne if any changes have occurred on the Core and Gordly properties. These reports are included in Appendix B. The Soil Survey of King County by the SCS maps the soil in this area as Indianola loamy fine sand with a swath of Sbalcar muck on either side of NE 20 th St. in the area of the blueberry farm. See Figure 5 for the soil map. Shalcar soil is an organic soil (Histosols) and considered a hydric soil. Indianola soil is somewhat excessively drained sandy, recessional, stratified glacial drift. WETLAND DELINEATION METHODOLOGY The method used to determine if a wetland exists and if so its boundary was as specified in . the "Washington State Wetlands Identification and Delineation Manual", March 1997 and the "Corps of Engineers Wetland Delineation Manual", January 1987. The Washington State Manual is based on the Corps of Engineers manual, but takes into account conditions found within the state. Both use the triple parameter approach. The vegetation, soils, and hydrology are each evaluated to determine the presence or absence of a wetland. The City of Renton requires the use of the Washington State Manual. SITE EVALUATION The properties were inspected taking note of the plant species, their abundance, soil conditions and hydrologic conditions present at different locations to determine if a wetland is present. The primary area of concern was the western edge of the Core property along the sewer easement, extending south onto the Gordly property. The vegetation along the Core 3 ! • • .'--• Gordly & Core Properties Renton, Washington western property line begins as Red alder at the north end, changing to a Hardhack thicket approximately 125 feet south of the northwest property comer. lhls thicket continues south for 230 feet. The Hardhack is interspersed with Himalayan blackberry (Rubus discolor) . The west side of this thicket abuts the sewer easement which is vegetated with young Red alder trees and grass to the northern edge oithe Gomly property. The Gordly property is mowed lawn with some scattered deciduous trees. East of the sewer easement on the Core property is old pasturellawn that has not been mowed regularly. The mixture of grasses, soft rush (Juncus effuses) gave away to Creeping buttercup (Ranunculus repeus) in the southwest comer of the Core property. I Three soil test pits were dug along the western edge of the Core property. See Figure 2 for their locatious. The data forms for each test pit are included in Appendix A. Test pit #1 was located midway between the house and garage, near the west property line. The soil was damp, but not saturated. There was no water seepage at the bottom of the test pit. The lack of saturation indicates there is no wetland hydrology present. The sOil color was determined by using the "Munsel Soil Color Charts". The colors found were indicative of a hydric soil. The plants at this site were predominately a mixture of grasses, soft rush, small flowered bulrush (Scirpus microcarpus), Common horsetail (Equisetum arvense), and Creeping butt,ercup. More than fifty percent of these plants are considered hydrophytic vegetation. 'The three criteria necessary to classify this site as a'wetland are not present. Only two of the criteria are met. Another test pit was dug due west in the sewer easement. The soil encountered was entirely different, indicating fill material was placed along the sewer line. The soil was much lighter in color and consisted of much more gravel. The second test pit was dug at the bottom of the ditch running west from the house, near the west property line. The bottom of the ditch is 20 inches lower than the surrounding area. The soil colors found were indicative of a hydric soil. Standing water was 19 inches down in the hole, a total of 42 inches below the top of the ditch. Because of this depth down, this was not considered to be representative of wetland hydrology. The bottom of the ditch was covered with Creeping buttercup, The sides of the ditch were a mixture of grasses, Soft rush, and Common horsetails. These plants are indicative of hydrophytic vegetation. Once more, all three criteria for a wetland are not met. The third test pit was dug in the southwest comer of the Core property. The soil colors found were sin:tilar to those .previously found and indicative of a hydric soil. The soil was damp but not saturated and with no water seepage. The total depth of the pit was 22 inches. The lack of water indicates no wetland hydrology is present. The predominate plant was Creeping buttercup, which is indicative of hydrophytic vegetation. Because of the lack of wetland hydrology, this site does not meet the criteria for a wetland. WETLAND DETERMINATION These results were compared to the data collected in August 1996 by Entranco, It is evident this area has become much drier and no longer meets the three criteria for a wetland, The 4 • . ' • --. ../ (j Gordly & Core Properties , .. ' Renton, Washington ground water and surface water that was flowing to this area has been intercepted and routed directly to the small stream by the new developments in the area and the sewer line. Because of this change the wetland determination method for "Atypical Situations" was followed, The property owners have noticed very little water is collected in the drainage ditches crossing the lots and flowing to the stream in the last year. The soil colors and plants are still indicative of a wetland, but the lack of water is changing the environment. The vegetation has started to transition .. This is most evident along the sewer easement, where the dominant plant has become Red alder. The eastern comer of the Gordly property was not inspected directly, but based on the appearance of the property line with the Core property and lack of water there, it was inferred this area has also become drier. The change in the water levels appears to have occurred because of development projects approved by the City of Renton. Considering this, it has been determined the Core and Gordly properties no longer have a Class IT wetland or its associated 50-foot buffer on them .. The Gordly property does have a Class ill stream crossing it north to .south. This stream has a 25-foot buffer on either side of the stream. STANDARD LIMITATIONS The Findings and conclusions documented in this report have been prepared for this specific project. They have been developed in a manner consistent with the level and care and skill normally practiced. The conclusions presented in this report are professional opinions based on the interpretation of information currently available to Ellisport Engineering. No warranty, expressed or implied is made . Since wetlands. are dynamic communities affected by both natural and man-made activities, changes in wetland boundaries over time may be expected. Therefore, wetland delineations cannot remain valid for an indefinite period of time. Any new development activities on the project site two year after the completion of this report may require revision of the wetland determination. 5 ------------------~----------------~ '- • "'-.-• • " Gordly & Core Properties .' Renton, Washington REFERENCES Cooke, Sarah S. editor. 1997, A Field Guide to the Common Wetland Plants of Western· Washington and Northwestern Oregon. Seattle Audubon Society, Seattle W A. Cowardin, Lewis M., Virginia Carter, Francis C. Golet, and Edward T LaRoe. 1979. Classification of Wetlands and Deepwater Habitats of the United States. U.S. Department of the Interior, Fish and Wildlife Service. FWS/OBS 79/31. Environmental Laboratory, Department of the Army. 1987. Corps of Engineers Wetlands Delineation Manual. Technical Report &-87-1. Waterways Experirp.ent Station, Corps of Engineers. Hitchcock, D.L. and A. Cronquist. 1973. Flora of the Pacific Northwest. University of Washington Press, Seattle, W A. City of Renton Critical Areas Inventory Maps. 1992. City of Renton, W A. City of Renton Municipal Code Title IV, Chapter 3. City of Renton, W A. Munsell Color. 1992. Munsell Soil Color Charts. Macbeth Division of Kollmorgen Instruments Corporation, Newburgh, NY. Popjar, J. and MaKinnon, A. 1994. Plants of the Pacific Northwest Coast. Lone Pine Publishing, Redmond, W A. Reed, Porter B., Jr. 1993, 1988. National List of Plant Species That OCU" in Wetlands: Northwest (Region 9). U.S. Fish and Wildlife Service Biologic81 Report 88(26.9) Snyder, D.E., P.S. Gale, and R.F. Pringle, 1973~ Soil Survey, King County Area, Washington. U.S. Department of Agriculture, Soil Conservation Service. Washington State Department of Ecology. 1997. Washington State Wetlands Identification and Delineation Manual. Ecology Publication #96-94. 6 • • • VICINITY MAP FIGURE 1 .. Gordly & Core Properties / Renton, Washington 7 • . -_ . • '-• Gordly & Core Properties Renton, Wasbington NATIONAL WETLANDS INVENTORY MAP FIGURE 3 9 N • • , ) • \) ./' S-18 10 o· ! W-29 Gordly & Core Properties .. .j) Renton, Washington S-11 HE 20t Stroet PROJECT LOCATION V ::2 ,..... w 16 . ., t I I f'---l I l, I s AGURE#3 CITY OF RENTON WETLANDS INVE.NTORY MAP IT " 1 ' CITY OF RENTON WETLANDS MAP FIGURE 4 10 " • • • APPENDIX A DATA FORMS , Gordly & Core Properties Renton, Washington 12 U8..1.i\.. rv.l\ly.l .I. tJ'U~· .. ,.n~a) , Routine Wetland Determination , ,-(\vA State Wetland Delineation Manuak) 1987 Wetland Delineation Project/Site: CorG-I 6<-ri 1 Applicant/owner: Do Nonnal Circumstances exist on the site? Is the site significantly disturbed (atypical situation)? Is the area a potential Problem AIu? 'lb cover all indicators that apply & explain below: Visual observation of plant species growing in areas of prolonged inUndation/saturation MotphologiClil adaptations vegetation present? Rationale for decisionlRemarks: HYDROLOGY Is it the gTowing season 1 (i§) no , 1fI((of-~,!:v~ 1jflLs5 S!>#H q(&V,"!!J Based on: soil temp (record temp' ) Dept. of yes d![/ no yes no Indicator Date: t.. 10 4- County: k;\IV\ / ~ State: 'U Community ID: Transect ID: / PlotID: #- PhysiologicaVreproductive adaptations Wetland plant database Personal kDowledge of regional plant communities WaterMarks: yes (~ on Drift Lines: yes Sediment Deposits: yes 'rio) '--- Drainage Patterns: yes (~~J N j-F.l,--inches f\.O r.,.J~ inches, I YL f,.&Jl<..- inches Local Soil Survey: Water-stained Leaves yes, Other " 'Mall Ucit Name dfdcu/ !MlCn~ (Series & Phase) . . "---Aonom Horizon (inches) 0-17/ Matrix color (Munsell IDye. 41 Mo¢ecolors . (Munsell (check all that'apply) Histosol __ Histic Epipedon __ Sulfidic Odor . __ Aquic Moisture Regime __ Reducing Conditions or Low-Chroma present? for decisionlRemarlcs: Wetland Determination (circle) matrix " , Drainage ClL.I:~ . _____ --'--_.,.- Field observations confinn ~ No ?' Mottle abundance size & ·contrast Texture, concretions, structure, etc. Dl.-I~' __ Matrix chroma $ 2 with mottles __ Mg or Fe Concretions Drawing of soil profile (match description) __ High Organic Content in Surface Layer of Sandy Soils _" _ Organic Streaking in Sandy Soils __ Listed on National!Local Hydric Soils List Hydrophytic vegetation present? ,:-yti) no Hydric soils present?' :]J§J no Is the sampling point Wetland within a wetland? yes ~ NOTES:' Revised 4197 • tJATA I'UKM 1 (Kevrsea) Routine Wetland Determination ... .)W A State Wetland Delineation Manual. Project/Site: 'Applicant/owner: Do Normal Circumstances exist on the site? Is Ibe site significantly distwbed (atypical sitnation)? Is the area a potential Probleni AIea?, VEGETATION (For strata, indicate T = tree; S = shrub; H = herb; V ;= vine) VEGETATION % of dominants OBI., FACW, & FAC .r:J1)2, all indicators that apply & explain below: Date: County: j.q'n,-, /.?-<-:'tdZ)(\ State: ......; Community !D: I_I -J.J . TransecrID: ,ole. ...... z.. /oD~ 'Zi ~ cr; kJ...:, Visual observation of plant species growing in areas of prolonged inundatiOn/saturation Morphological adaptations PhysiologicaVreproductive adaptations' Wetland plant database Hydrophytic vegetation present? Rationale for decision!Remarks: Personal knOWledge of regional plant communities HYDROLOGY" '. Is it llie growin;: _s~on? (~no . . . Md t.If~, bu'-ftr'rtl!b'JS6/iI!tjn0»j Water Marks: yes Based on: soil temp (record temp' ) " Mi'" . h LL-IOC es. Other: yes. Drift Lines: Drainage Patterns: Other WC.$ro/--/VllN. unh} c3Oj" bt/'rhJ .fN. 6Ckfi)Vn:/'Yr; "ladle, aMI SOILS,. • Map'UnitName 5hakt£c/(adMk, (Series & Phase) Depth (roches) rJ -/Z Horizon Matrix color (Munsell Mot!le colors . (Munsell Hydric Soil Indicators: (check all that apply) __ Histosol __ Histic Epipedon __ Sulfidic Odor . __ Aquic Moisture Regime __ Reducing Conditions (circle) Hydrophytic vegetation present? Hydric soils present? matrix. Drainage Cl~-s~:< . _____ -'-__ Field observations confirm c§) No ma d ? Mottle abundance size & contrast Texture, concretions, structure, etc. __ Matrix chroma s; 2 with mottles __ Mg or Fe Concretions Drawing of soil profile (match description) __ High Organic Content in Surface Layer of Sandy Soils __ Organic Streaking in Sandy Soils _. _ Listed on NationaJ/Local Hydric Soils List Is the sampling point within a wetland? yes n ~ 7h~WCJfb._~. ~ b':u11iJ~, u(Jffo tv ·~S0)·1 , Cry). frC£-:I/<./~ /6 Iv NOTES:· Revised 4197 • ,; DATA FORM 1 (Revtsea) , " Routine Wetland Determination , "--(WA State Wetland Delineation Manual 'i>.) Applicant/Qwner: Do Normal Circumstances exist on the site? Is the site significantly disturbed (atypical situation)? Is the area a potential Problem Area? yes ~no VEGETATION (For strata, indicate T = tree; S = shrub; H = herb; V = vine) % cover -r Date: {p County: 1<J'n / ~ , State: Community !D: Transect ro: Plot ID: c::tJ; 3 " % ofdorninantsOBL. FACW, & FAC 1 aDb- all indicators that apply & explain below: Visual observation of plant species growing in ,areas of prolonged inundation/saturation Morpbological adaptations Hydrophytic vegetation present? Rationale for decisionlRemarks: - HYDROLOGY Is it tJie growing s~& 1iLL.-'1J¥? I no no Based on: soil temp (record temp" I q~ 6111 inches 'Pbysiological/reproductive adaptations Wetland plant database Personal knowledge of ~gionaI plant communities Other Water yes no Other (explain): Sediment Deposits: yes Patterns: yes~ yes e9 Leaves yes SOILS ' """"" .. - ,. Map'Unit Name Sht:fI,6![ (Series & Phase) Drainage Chi,,/~' , _____ -'-__ /? Field observations confirm (YeD No m ?' Depth Horizon Matrix color Mol!ie colors Mottle abundance Texture, concretions, Drawing of soil profile (match description) , (inches) (Munsell ' (Munsell size & contrast structure, etc. Hydric Soil Indicators: (check all __ RiStosol , " '- _, _'_ Histic Epipedon __ Sulfidic Odor __ Aquic Moisture Regime __ Reducing Conditions or Wetland Determination (circle) Hydrophytic vegetation present? Hydric soils present? RationaleIRemarks: NOTES:' • matrix no no Matrix chroma !> 2 with mottles __ Mg or Fe Concretions __ High Organic Content in Surface Layer of Sandy Soils __ Organic Streaking in Sandy Soils __ Listed OD NationallLocaI Hydric Soils List Other Is the sampling point within a wetland? yes G Revised 4197 ., I I , ') Gordly & Core Properties '.j Renton, Washington • APPENDIXB • 13 • • • • I I »0 I I <: I . \'I i '0 2: ('\ roYe~ ~ ---. L--,-_ £.X!?TI "-1& CDNbtTllVNS ~ (" (j r?-E-~ °0 I /Y~ ~ 0 ~&: ~~ . ~. I .... -I I - ( , 1 I 'I' .1 • I • Z (\'1 1------ o E.Xl'7Tt N& CDN])!l/fDNS 1=1 G, () i2-E-2- ./ ,. , . ., • '-• '-• Gordly & Core Properties Renton, Washington 21 \ Map Output Page I of I ®King County ~~ Comments • ,t 5 sources i j i t~~:~.~;:~~, completeness, timeliness, or rights to the use of such __ ',._ _ not be liable for any general, special, in i I or consequential damages including, but not limited to, of the information contained on this map. Any sale of this map or information ~~ By visiting this and other King conditions of the site. The details. :llwww5 .metro kc. gOY I serv I etJ com.esri .esrimap. Esrimap ?ServiceN ame=overview&CI ie... 12/5/2005 Map Output Page 1 of 1 ®King COUnty ~ __ Comments '. ,/ By visiting this and other King County , • http://www5 .metrokc. gOY I serv let! com.esri. esrimap. Esrima p ?ServiceN ame=overvi ew &C lie... 12/5/2005 I • • • ORDINANCE NO. 5137 \ Exhibit A Documents Prepared in Support of City of Renton Best A vallable Science Critical Areas Regulations and Shoreline Master Program GMA Integration Project • "Renton Best Available Science Critical Areas Regulations and Shoreline Master Program GMA Integration," Jones & Stokes, July 13,2004. • "City of Renton Best Available Science Literature Review and Stream Buffer Recommendations," prepared by AC Kindig & Company and Cedarock Consultants, Inc. on February 27, 2003. • Streamllake classification results in the Renton Water Classes Map prepared by AC Kindig & Company and Cedarock, in conjunction with Renton City staff, as most recently issued January 26, 2005. . • "Transmittal of Parametrix Review of Wetlands Regulations," Jones & Stokes, July 13, 2004; together with "Best Available Science Ordinance Review" by Jim Kelly, PhD, Parametrix, June 28, 2004. . • "Overview and Comparison of Aquifer, Flood Hazard, Geologic Hazard, and Habitat Conservation· Regulations to State Example Critical Areas Code," Jones & StOkes, July \3, 2004. • "Proposed Renton Comprehensive Plan and Shoreline Master Program Policy Amendments," Jones & Stokes, January 26, 2005. • "Proposed Renton Shoreline Master Program Use Environment Amendments," Jones & Stokes, March 8, 2004 together willi the updated ShOreline Environment Map transmitted January 26, 2004. • "Revised Review Dritft --Renton Critical Area Ordinance and Shoreline Master Program Regulation Amendments," Jones & Stokes, January 26, 2005. Includes proposed draft Best Available Science Regulation Amendments, January 26, 2005. . • "Agency Comments March 2004 to December 2004," Jones & Stokes, January 26, 2005. • "Stream and Lake Code Amendments and Updates: Edits to July 13, 2004 Best Available Science Regulation Amendments," Jones & Stokes, January 26, 2005. • "Staff RecoIiunended Adjustments to January 26, 2005 Revised Review Drat Critical Areas Ordinance and Shoreline Master Program Regulation Amendments," Jones & Stokes, March 2, 2005 together with "City of Renton Wetland Rating System -Field Review," Parametrix, March 2, 2005. • "Frequently Asked Questions: Single Family Homes and new StreamlLakeiShoreline Buffers," March 8, 2005, prepared by Jones & Stokes for the City of Renton .. • "Responses to Planning Commission Hearing Comments: Renton Best Available Science Critical Areas Regulations and Shoreline Master Program GMA Integration" Jones & Stokes, dated March 9, 2005. Includes ERC Report and Decision dated August 17, 2004, as well as the March 2, 2005 memo above. • "Meeting with Richard Robohm, State Department of Ecology," Jones & Stokes, March 15,2005. • "Planning Commission Follow-Up Questions," prepared by Jones & Stokes, March IS, 2005. • "Updated Responses to City Council Hearing Comments: Renton Best Available Science Critical Areas Regulations and Shoreline Master Program GMA Integration," Jones & Stokes, March 31, 2005; together with a letter "Critical Areas and Shoreline Master Plan Update: Response to Livable Communities Coalition Letter, March 21, 2005," by AC Kindig & Co . CEDAROCI< CONSULTANTS, INC. EnvironnwrH~1 Consultin~~ February 17, 2006 Jennifer Henning City of Renton Development Services Division 1055 South Grady Way Renton, W A 98055 Subject: Upper Kennydale Creek Basin Water Classification Gordley, Umbedacht, Dutro Properties . Dear Ms Henning: EXHIBIT 20 At your request I am providing an independent third party review of water type classification for the upper Kennydale Creek headwaters area. As you know, I was a consulting aquatic biologist for the streams and lakes portion of the new City Code, thus I am familiar with the intent behind the code. It is my understanding that there is disagreement as to the appropriate classification for the existing watercourse. This watercourse starts in the area southeast of the blueberry farm and continues north and west eventually passing under Jones Ave NE near NE 24th Street. I have also provided an assessment of existing functions and values ofthe ditched watercourse. As part of the review I examined a number of documents and visited the site. The documents include: • A copy ofRMC 4-3-050(L) (revised 6/05) • Figure 4-3-050Q4 Streams and Lakes • A copy of Section 4-11-190, of Chapter II, Definitions, of Title IV (Development Regulations) of Ordinance No. 4260: • A letter from Jennifer Henning (City of Renton) to Terry Dutro (Masterbuilder Construction) dated December I, 2005 regarding a reclassification request. • A memo from Gregg Zimmerman (City of Renton) to Terri Briere (City of Renton) dated November 10, 2005 regarding reclassification. • A letter from Neil Watts (City of Renton) to Terry Dutro dated July 29, 2005 regarding a reclassification request. • A letter from Terry Dutro to City of Renton Hearing Examiner dated August 12,2005. • A letter from Nancy Weil (City of Renton) to Terry Dutro dated July 22,2005 regarding a reclassification request. • A letter from Hugh Mortensen (Watershed Company) to Nancy Weil dated July 19,2005 regarding a Blueberry Meadows environmental review. • A letter from Anne Seethoff (Ellisport Engineering) to Terry Dutro dated July 29, 2005 regarding a critical areas evaluation. • A letter from Ann~ Seethoff to Lauralee Gordley (homeowner) dated April 25, 2005 regarding a stream classification. 1960924"'" AVFNlIE NE WOODiNViLLE. Wi\ 98077 . P:425/788·0961 . F:425/788·5562 ,; Jennifer Henning February 17,2006 Kennydale Headwaters • A letter from Terry Dutro to the City of Renton dated May 17, 2005 regarding reclassification. • A report entitled Wetland Delineation, Gordly and Core Properties by Anne Seethoff of Ellisport Engineering dated October 20, 2004. • A letter from Ken Sargent to John Hobson (City of Renton) dated August 16, 1999 regarding a wetland delineation. . • A report entitled Wetland Delineation, Higate Sewage Lift Station Elimination, Renton~ Washington by Entranco dated December 1996. • Various aerial photos from 1936, 1946, 1960, and 2002. I visited the site on the afternoon of January 27, 2006. The weather was dry but an unusually high amount of rainfall had fallen over the previous month. I reviewed the blueberry farm from off-site locations on NE 20th Street and NE 19 th Place. I reviewed the Gordley property together with Mr. Rick Gordley, I reviewed the Dutro property by myself. I was not allowed access to the Umbedacht property but was able to see parts of it from other locations. The watercourse in question was flowing strongly in all areas visited and much of the area adjacent to the watercourse was saturated. Water Type Classification The watercourse has been classified by the City of Renton (Figure 4-3-050Q4) as a Class 4 water based on their belief that: I) the watercourse is not fish-bearing, and 2) the watercourse is intennittent (i.e. stops flowing in the summer) during years of normal rainfall. There is no disagreement regarding fish-bearing status. If indeed the stream is intermittent, even just occasionally, then fish from populations in Lake Washington would have to recolonize the channel each winter. It is believed that the steep slope of the channel as it approaches Lake Washington historically prevented fish from migrating past this point. Currently there is also a manmade dam in this area. There has been discussion of whether or not the watercourse is intermittent in normal years. If the watercourse flows continuously during years of normal rainfall, it would be classified as a Class 3 water. Conclusively evaluating the intermittent vs. continuous flow issue is difficult at best and not possible at this time. The stream would most appropriately be examined during the period between late July and late September during a year of normal rainfall. Normal Rainfall is defined under Section 4-11-140 as "Rainfall that is at the mean or within one standard deviation of the mean of the accumulated annual rainfall record. based upon the water year for King County as recorded at the Seattle-Tacoma International Airport". This year looks like it might be unusually wet with rainfall currently almost 40 percent above the mean. Water year 2005 was Unusually dry (about 20 percent below normal) but just barely met the definition of Normal Rainfall. Water Year 2004 was near normal being about \0 percent over the average. The wetland delineation conducted by Ellisport Engineering was completed on October 6, 2004, typically a relatively dry time of the year. Records indicate that only 0.24 inches of rain had fallen in the previous 10 days. Normal would have been about 0.50 inches during the same period. Under Existing Conditions, Ellisport Engineering staff state: Page 2 of5 • •• ----------------------------------------- Jennifer Henning Kennydale Headwaters February 17,2006 "South across NE 2(/h Street is a blueberry farm where the Class II stream originates. The stream flows under the street in a culvert which extends northward onto the Gordly property. Water was flowing in the stream at the time o(the site inspection". (underline added for emphasis). The Watershed Company inspected the ditch on July 18,2005, a normal but very dry year. They reported "standing water was present in the pond and in the main ditch/stream". Recollections of a past landowner in the area was provided by Mr. Dutro in his letter of August 12,2005. A previous owner of the Blueberry Meadows Property told Mr. Dutro that "he thought that the ditch on the blueberry farm to the south dried up in the summer at that time." He was apparently referring to 1958 when he dug the ditch. Anecdotal evidence indicates· the watercourse may flow seasonally during some years and be perennial during others. The most credible report was provided by the homeowners consultants (Ellisport Engineering) which provided some evidence that the stream may flow year-round during normal years. It is possible that previous to human disturbance the historic swamp dried up each year on the surface. The ditch system may have cut into an elevation of perennial groundwater. This would cause the ditch to be perennial where historically the ground water receded below the ground surface elevation during normal years. The second issue is whether or not the channel was artificially constructed in an area where no naturally defined channel had previously existed. Certainly the existing channel is manmade. Aerial photos from as early as 1936 show no obvious channels in the area. However, the area in question has a very low gradient slope and one would not necessarily expect a well defined channel to naturally develop under this situation. The historic area was described as more of a swamp with very soft soils. In my experience, watercourses in these relatively flat headwater valleys consist primarily of wide, swampy, and densely vegetated areas. Defined flow patterns are difficult to discern with hydrology mainly controlled by groundwater levels. High groundwater in the area was evidenced in wells dug for the Higate lift station, local private wells, and the wetland pits. Many examples of this type of feature can still be found throughout King County. While these swampy areas are clearly a type of watercourse with important aquatic habitat functions and values, the question is whether or not they meet the definition of "naturally defined channef'. One could argue that a swamp is a channel and is the only type of channel that would form under the circumstances. The definition in the Webster Dictionary defines channel as "the bed of a body of water flowing on the earth". There is no evidence that the site was ever hydraulically isolated. It most likely drained to the north under pre-existing conditions as it does now. The area was clearly a wetland and stitt contains wetland characteristics. The channel was dug to drain the historic wetland and create "usable" land. The City of Renton may choose to distinguish between wetlands and channels. However, there is no clear dividing line between the two so any distinction would have to be done carefully. Page 3 of5 , " '. ,/ Jennifer Henning February 17, 2006 Conclusion Available evidence supporting each Water Class is presented below: Class 3 Water Kennydale Headwaters • Two recent reports during years meeting the definition of Normal Rainfall reported observations of water in the ditch during the summer. One report was made relatively early in the season, the other relatively late. However, no observations were made during the driest time of the year and it is possible the stream dried up at some point one or both years. Class 4 Water • One anecdotal statement about the creek going dry in 1958 was reported. • Before the ditch was dug, the "swamp" may have dried up each year. • A wide watercourse (swamp) meeting the dictionary definition of a channel was present across the area in the past. Class 5 Water • Aerial photos show no well defined channel in 1936 though this was subsequent to human disturbance. The perennial stream flow issue (Class 3 vs. Class 4) can only be answered by direct observation of flow characteristics in the channel during the summer. These data could take a few years to gather if this winters heavy rainfall pattern continues. The presence or absence of a previous naturally defined channel (Class 5 vs. Class 4) depends in part on the definition of channel that is acceptable to the City. Evidence provided by the applicant to date only addresses the absence of a well defined "classic" stream channel with clearly identifiable banks. As this type of feature would not naturally be expected in this area, it is not surprising one wasn't observed by early residents. In the absence of conclusive evidence supporting a change from the existing Class 4 water classification, it is my recommendation that this classification stands. Functions and Values Non fish-bearing stream channels and their riparian buffers are important to the contribution of clean, cool, and productive flows to fish habitat downstream as well as providing wildlife habitat and migration corridors. Vegetation in riparian areas shades streams and maintains cool water temperatures needed by most fish. Plant roots stabilize stream banks and help control erosion and sedimentation. Riparian habitat contributes leaves, twigs, and insects to streams, thereby providing basic food and nutrients that support downstream fish and aquatic wildlife. Riparian vegetation, litter layers, and soils filter incoming sediments and pollutants, thereby assisting in the maintenance of high water quality. Riparian habitat moderates stream volumes by reducing peak flows during flooding periods and by storing and slowly releasing water into streams during low flows. Page 4 of5 ~.i (. Jennifer Henning February 17,2006 Kennydale Headwaters The existing ditch on the Gordley property provides little in the way of riparian vegetation beneficial to aquatic habitat. A single line of poplars planted along the west bank are dead. Though they still provide a minor amount of shade, their organic nutrient contribution will soon cease, as will any bank stability or wildlife functions. The maintained turf grass on either side of the channel and down into the watercourse does little to protect water quality or remove biological and chemical contaminants from upslope runoff. Existing conditions are somewhat better on the portions of the Umbedacht property that could be evaluated. Native vegetation including a dense willow thicket have returned to some of the riparian corridor. Most of the Dutro property appeared to have been kept cleared of vegetation in the past though exotic grasses and blackberry are beginning to take over. Overall, the three properties provide minimal to moderate riparian functions under existing conditions. Should the City approve moving all or parts of the watercourse, it is possible that a riparian buffer could be created that would increase the overall functions and values of the corridor in comparison to existing conditions. With an appropriate planting design the channel could be enhanced to protect water quality, improve shade, increase organic input and aquatic productivity, provide channel stability, and prevent human access. These values would be important to fish populations in Lake Washington which depend to large extent on input from lake tributaries for food and nutrients. Please contact me if you have any questions. Carl . Hadley Principal Biologist Cedarock Consultants, Inc. Page 5 of5 . Gerald Wasser From: .gent: To: Karen Walter [KWalter@muckleshootnsn.usj . Wednesday, September 07, 2011 11:14 AM Gerald Wasser EXHIBIT 21 Subject: Joey's Short PiaL LUA 1 l-066 , ECF, SHPL-A, Notice of Application and Proposed Determination of Non-Significance, Mitigated • Jerry, The Muckleshoot Indian Tribe Fisheries Division has reviewed the Notice of Application materials for the above referenced project We have a question and initial comment about this project as noted below: 1. Per the Critical Areas Review for this site (Altmann Oliver Associates Aug 2011), Kennydale Creek through this site is considered a Class 4 stream by Renton.· What is the basis for this classification? According to the surveyors configuration of the stream and wetland onsite, the stream is 10 feet wide. If the stream is this wide, then it suggests that the stream is capable of supporting salmon. Please provide the data that Renton has to support the classification of Kennydale Creek at this location. 2. The Critical Areas Review also notes that the stream is currently ditched and mowed to the edge of the channel. As part of the short plat, the stream buffer should be enhanced with native trees and shrubs to improve habitat and water quality and shade out the existing reed canarygrass. We appreciate the opportunity to review this proposal and look forward to the City's responses. We may have comments subsequently. . Thank you, Karen Walter Watersheds and Land Use Team Leadei Muckleshoot Indian Tdbe Fisheries Division 39015172"d Ave SE Auburn, WA 98092 ~76-3116 • 1 • •••• . . • Dents law' Mayor . Department ofCom[,!)unity and Ee: EXHIBIT 22 . September 21, '2011 .: . , : Aiex f-1t=L!>CJ.l, ...... UUllfHSUd1.0r Kar,en Walt:er Muckieshoo.t Indian'Tribe Fis·heries DiVision 39015 172cd Avenue 56'. AU!Jurn,WAgS092 SUBJECT: JOEY'S SHORT PIAT r LUAll-066, ECF, SHPL-A Dear Ms. Walter:'· . .... Than~ youJor. your email of September 7,2cili regarding Joey's Short Plat; LUA11:066, ECF~ SHPL,A. In that email you askwhat the basis is for classifying KennyOale. Creek ".5 a Class 4 Streah, in thisare.a and you provide ·suggestions·f~r.stream buffer en-hancement. Renton Municipa,l Cod~ (RMC)4-3~G50Q, Fig~re 4-?_-OSQQ4 icopyatta~hed) id~ntifies . Kennydale'Creek as'aClass'4 Stream in this vicinity. RMC 4:3 c050L.1:a.ividentifi es Class' . 4 waters as non-salmonid-be'a~ing'during years of norinal rainfall.. A check-dam on . Lower KennYdale _Cre~k would likeIY·render.the stream co~rse.irTipassable t~ salmon. . ." '.' '. . . The project i5to subdividi: the existi'ng garce'l which would create one adclitibnallDt~ B~th lots wciuid be Oriented eakVwestand Keniwdale tre~k wouid remai~uhtouched. -rhe buffer for Class 4 str~ams is a minimu'm pf 35 feet. Th.e ,lpplbnt is proposing to m:aint~in that buffer and staff will recomm.·endtliat a 'splitTaii fe~ce be installed al~'ng the buffe·rb~unciarY. Because the 3S~foot buffer area will be maintairi~d,thete isno essential nexus to,require'buffer enhancement. l:tru5t tha.i your'concerns have been addressed'i~ this·lette~. . . .' " .. , . . . . please contal=t meat (4,25) 430-7382 or gwas5.er@rentohw~'l'ovifYou have any ·questions .. · " . , '. Associate. Plilnner . Attachment f3.~nton Oty .. Hal! • , oS?"south Grady Way ., Renton, Washington 98057 • "rentonwa.gov • •• J, <, '. • • City of Renton EXHIBIT 23 City Clerk, 7'" Floor 1055 S Grady Way Renton, WA 98055 Office: 425·430·6510 Fax: 425·430·6516 CITY OF RENTON REQUEST FOR PUBLIC RECORD NOV 292007 RECEIVED CITY CLERKS OFFICE NAME OF REQUESTOR _-=S_U_~_A.-,-,I\j,--,K.~' l7-=e'-,(-'-___________ _ PHONE: (Home) 42<)-L"Z.'a, gz" (Business) 206-2'tG· £1/W (Fax) ______ _ PUBLIC RECORDS/INFORMATION BEING REQUESTED: (Please be specific-give name, location, file number, etc,) REQUESTOR TO READ AND SIGN UPON SUBMITTING REQUEST I understand that \Vashington Stllte law, prohibits the use of lists of individuals for commercial purposes (ReW 42.17.260(9)), and prohibits the use of lists for promotion of an elected official or to promote or oppose a ballot proposition (RCW 42.17.130). [also understand that r may be charged a copy fee based on rates set by RCW 42.17.260 (8), in conjunction with the Fee Schedule set in the Renton Municipal Code. S 21~CLC\ ) Signature of Requestor /1 -:19 Date of Request Per RCW 42,17,320, within five business days of receipt of the records request, the City must 1) provide the record; 2) estimate when the request can be completed; or 3) deny the request. 07 . • DC/ExcdCOrcLordsrequesl 08/200 I I I RECORDS REQUEST PROCEDURES PER P&P 100-05 (partial): Public Records: Each department shall make public records available for public inspection and copying during the customary office hours of the department. To the extent required to prevent an unreasonable invasion of personal privacy, the department shall delete exempt material when it makes available or publishes any public record; however, in each case, the justification for the deletion shall be explained fully in writing. 6.1.1. The City is required to provide assistance to citizens in obtaining public records and to explain how the City's public records process works. Persons wishing to inspect or copy records should first make such request to the department of the aty in which the requested records are maintained. The request can be initiated in person, by mail or fax, or over the telephone. If the requestor does not know in which department such records are maintained, the request shall be to the city clerk. The city clerk shall direct the requestor to the appropriate department. All assistance neces~ary to help the requestor locate the particular record shall be provided by the city clerk and the department maintaining the records; provided, that the giving of such assistance does not unreasonably disrupt the operation of the department or the other duties of the aSSisting employee. '6.1.2. Depending upon the volume or complexity ofthe records request, the City may require completion of a public records request form by'the requestor. Forms are available on the'City's web site and local area network (Rentonnet), and in the City Clerk Division. . 6.1. 3. Upon receiving a completed written request for records form, the city clerk or police records manager, in the case of a request to inspect or copy a record maintained by the police departmen~, shall determine whether the record requested is exempt by law from inspection and copying in whole or in part. When necessary, the city clerk and police records manager shall consult with the city attomey in making such determination. 6.1.4. No fee shall be charged for the inspection of public records. Copy charges will be assessed in accordance with Title V, Chapter 1, Fee Schedule, of the Renton Municipal Code in compliance with RCW. .' 6.2. Agency Response to a Request for Disclosure of Records: Agencies are required to respond promptly to a request for records. Within five business days after receiliing a 'request, the aty must either: , 6.2.1. Provide the reyorqC s); 6.2.2. Acl<nowledgethe reques,t.ln writjng and provide a reasonable estirilateof how long it will take. to responq; or .' . ,. . . .... " , 6.2.3. Dimy the Jeque~t in writing, with reasons forthe denial (this could hlcluqeadenial of part of the request andagfahting of the remainder). Theagepcy must Identify the ~peclfic exemptiori or . other law it relies upq~ for its denii3!. .. " . '. . . . .. , .... '. . 6.2.4. If a request iSHot clear, t~eCitY maYilsk ,thereql!estor. for furthercl,ilrijiCC!tion. If.the cityder~9rp0Ifc:e,recorclsmanilger, inthec:~~eof it request for policer¢cqrds, determines that the documentis~~rill?tin J)artibut~n qe made!l,I,(ci!labll?after deleti6hofe~e,mHtportions, 0~ . request sha.ll be granted, ,provide~ that sucheXemptpoft1ons shall firstqe,cI~leted, If the city clerk or· police records.manager,detenninesthilttherequest·should be denied, a wtitl;~n statement of ):he . 'specifii: reasonforttiedenlalsti.all be,providedtothe requestor.. . , ...... ' . . 'If a request is made 'wheh ,a record existS but. is scheduled for dest;ruction;theagency may not qestroy the recor~j:mtil tiiereqyest lsi'esalvecL~"' '.' . '. ... ..•. ,., . NOTE: While,. ingeReral,the Cit'tmu$t provldeacC:ess to e)<lsting. public recorqs in its po?session, it is not required to cbllect .iriformatlon or organize dCltato create a record not eJ:(istil)g at the time of the request. . ". . • • • :~~ ~~< Kathy Keolker, Mayor ~'N?f EXHIBIT 24 City Clerk Bonnie I. Walton • November 30, 2007 • • Sue Rider 1835 NE 20th Street Renton, W A 98056 RE: Public Records Request -Kennydale Creek Records Dear Ms. Rid.er: This letter is to acknowledge receipt of your Request for Records. You have asked for access to records regarding the classification of Kenny dale Creek as seasonal. This disclosure request has been forwarded to the appropriate City department for retrieval of records deemed responsive. It is estimated "that it will take approximately two weeks to complete this research. Further clarification may be needed. Public documents deemed responsive to this request may be provided in increments, as allowed by law. Please note that the City is not obligated by law to compile information from various records into a speCific form, and that certain records are legally exempt from disclosure. Also, as a matter of information, the City charges $.15 per letter-sized, single-sided copy in accordance with State and City law. You will be contacted by December 14, 2007, or earlier, as to the status of the records search. If you have any questions, please feel free to contact me. Sincerely, Bonnie 1. Walton City Clerk and Public Records Officer cc: Gregg Zimmerman, PBPW Administrator -,-os-s-S-ou-th-G-ra-dy-W-aY---R-e-nt-o-n,-W-as-hln-'-gto-n-9-8-0S-7---(4-2-S)-4-30---6S-I-0-'-' F-AX-(-4-2S-)-43-Q--6-S-'6-~ * This paper contains 50% recycled material, 30% post consumer AHEAD OF THE CURVE EXHIBIT 25 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND RECOMMENDATION APPELLANT: APPLICANT: Susan Rider Richard and Lauralee Gordley 2010 Jones Avenue NE Renton, W A 98056 Blueberry Haven Short Plat Appeal WA-07-131, SHPL-A, ECF March 27, 2008 PUBLIC HEARING: After reviewing the Appellant's written requests for a hearing and examining available information on file, the Examiner conducted a public hearing on the subject as follows: MINUTES The/ollowing minutes are a summary of the February 12, 2008 hearillg. The legal record is recorded on CD. The hearing opened on Tuesday, February 12, 2008, at 9:00 a.m. in the Council Chambers on the seventh floor • of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner. The following exhibits were entered into the record: Staff file the original Exhibit No.2: Map the Original the plat application and the City's Plat Exhlbit No.3: Plat Map Prior to Lot Line Adjustment Stream 2007. Lerrers From Blueberry Haven Short Plat Appeal LUA-07-131. SHPL-A. ECF March 27. 2008 Page 2 ~~~~~ Department Wetland dated October 16.2000. Sewage Lift Station Elimination. December 1996 Exhibit No. 17: Letter from Watershed Company to City of Renton U''''''''.J''''Y 19.2005 regarding for Environmental Review Exhibit No. 19: Ellisport to Dutro dated June 29. 2005 and letter to Lauralee dated 2005 also from • Parties Present: , Jennifer Henning. Development Services Ann Nielsen. Assistant City Attorney Ashley Peck, Attorney for Appellant Susan Rider, Appellant Richard and Lauralee Gordley, Applicant Exhibit No. 14: Ellisport Engineering Packet. Wetland Delineation Report on Gordleyand Dutro Report dated r"o'ornlino wetland Consultants to Mr. Dutro dated February 17. 2006 Construction letter to the City of Renton. Prior to testimony. discussion was had regarding briefs. responses. and testimony of witnesses and determining , classifications of creeks and wetlands. Ms. Peck stated that they had eight witnesses, seven are neighbors and have personal knowledge of the creek. The eighth witness was Larry Fisher from the Department ofFish and Wildlife. A list of witnesses was provided to the Examiner. Opening Statement from Ashley Peck. The main issue in Ms. Rider's appeal is the application of the Critical Areas Ordinance to this Short Plat approval. Kennydale Creek flows through the propertY, there also are wetlands on the site and they believe that the classifications that have been applied in this short plat are contrary to the critical areas criteria as well as the existiog conditions. The Kennydale Creek should be classified as a Class 3 perennial stream rather than a Class 4 stream. The buffers applied to this stream are the least restrictive and least protective buffers to a stream. Further. there are issues with the wetland classification, in the past this wetland has been classified as a Category 2 Headwater Wetland because it is located in the headwaters of .ennydale Creek. The Critical Area Study submitted by the applicant shows the creek as a Category 3 Wetland and does not take into consideration that it is located in the headwaters. . , Bluebeny Haven Short Plat Appeal LUA-07-131, SHPL-A, ECF March 27, 2008 Page 3 , l J. Jennifer Henning gave a brief overview of what is proposed and where the property is located, where the creek runs and the associated wetlands. The property is located in the East Kennydale area to the east ofI-405 and east of Jones Avenue NE and north ofNE 201h Street. The proposal is to subdivide the property into two lots. The wetland area extends across both parcels. In addition Kennydale Creek is located on the east boundary of the property. It is a drainage channel that feeds into the larger creek downstream. The City has classified the creek as both a Class 3 and a Class 4. As the creek begins to cross under 1-405 it converts to a Class 3, at NE 241h it becomes a Class 4 stream. Julie Bray. 1901 NE 201h Street, Renton, WA 98056 stated that she has lived at this address for approximately 20 years, she walks almost every day and the creek has always been running. It runs during the dry summer season, she has never seen it without water. Upon Questioning by Ana Nielsen, Ms. Bray stated that she has worked for the City of Renton for 26 years in the Fire Department. She does have access to City Codes, as well as being aware of and \mowing Jennifer Henning and where the Development Services Division is located. She has seen signs on the property, but did not realize that it was going to impact her property. She further stated that she saw the creek on a daily basis, her house is located just south of Lot B and she walks along 201h at a distance of approximately two feet from the creek. Her dog would often go into the creek and play in the water. Larry Fisher, 1775-12"' Ave NW, Ste. 201, Issaquah, WA 98027 stated that he has been with the Washington Department of Fish and Wildlife'and'has'beenthe'area-Habitat'Biologist for about 17 years. His area of • expertise includes all tributaries south ofI-90, he is familiar with Kennydale Creek. He received a notice to testify and to his \mowledge he is testifying as a State expert. . There has been activity around this creek for several years. He has seen the stream during all the months of the year and has never seen it dry. It does not make sense that the headwaters would be classified different than the lower part of the stream. Comment letters have been sent to the City of Renton regarding the Kennydale Blueberry Farm proposal explaining why this stream should be a Class 3 rather than a Class 4. The creek is spring fed and they maintain their flow year around. Upon Questioning by Ms. Nielsen, Mr. Fisher stated that he received the subpoena requesting him to testify approximately two weeks prior to today. He believed that his supervisor was'aware that he was present today testifying in his capacity as an employee of the Department ofFish and Wildlife. He has had conversations with Ms. Rider about the application and reviewed materials that she had in her file. The creek does have water running in July, August and September. Ms. Nielsen wanted to establish when exactly he was out there, from what vantage point was he able to observe the creek. Mr. Fisher stated that he was there during the summer in the 90's when the City did a sewer line project, he was also there during the summer reviewing the activity during the Roberson Short Plat extension of the culvert about two years ago. During the normal construction season, usually during the summer .. the waters are the lowest and likely to cause the least impact, there has always been water in the creek. His observations of the creek have been from the road (NE 201h). From this vantage point, he is able to see approximately 100 feet up stream. Deanna Dobak, 1700 NE 20'h Street, Renton, WA 98056 stated she overlooks Lot A and Lot B, they are able to eeethe wetlands from their house. They have lived the.re since 2002 and she has never seen the creek dry. They BI~ebeny Haven Short Plat Apperl LUA-07-131, SHPL-A, ECF ,-:\ " . J March 27, 2008 Page 4 ) • walk with their dogs and child at least three times a week. She stops and checks it out and takes the time to look at the water. She has never seen the creek dry during the months of June, July and August. Upon questioning by Ms. Nielsen. Ms. Dobak stated that she was observing the creek from NE 20 111 Street and can see approximately a third to half of the way up the east property line of Lot B. She has seen ducks swimming in the water during the summer months. William O'Connor, 921 S Washington Street, Port Angeles, WA 98362 stated that he has known Ms. Rider for five to six years. Together they have been watching and studying the creek for some time. Ms. Rider !)as a ground water pond in her backyard that is level with the stream at the B1uebeny Farm. There has been water in the Bluebeny Farm stream and at NE 24111 Street on every occasion that they have looked at it. His personal knowledge is that the stream is always flowing during the summer months and that it has never dried up. Paul Watt, 2433 Jones Avenue NE, Renton, WA 98056 stated that he has lived at this address since the 1960's, he is north of 24111 on the. west side of Jones. The stream runs on the backside of his property between the freeway and his property. He gets up at 5:00 am and walks to the creek each morning, he has never seen the creek dry. He does not walk to the creek in the winter months, it's too soggy and wet. Karen Finnicum, 1302 Aberdeen Ave NE, Renton, WA 98056 stated that she has lived in the area since 1963, in 1971 her car was driven into the creek. The creek has never been dry. When the property belonged to the Pohls, she rode horseback through the property, the ponies would dump them into the creek in the summer. She has never seen the creek without water. 10-minute recess • Susan Rider, 1835 NE 20 111 Street, Renton, W A 98056 stated that when they first found out about the creek reclassification in 2005 the neighborhood was astonished that there was a claim that the stream was seasonal, because no one had ever seen it go dry. The creek is obviously a Class 3, in 2005, 2006 and 2008 letters and affidavits regarding the stream and the amount of water consistently in the stream were written by the neighbors. A series of photos were introduced by Ms. Rider, they were documented as Exhibit [Oa-r: lOa: Shows the grate on the east side ofI-405 that takes the water underneath I-405 and comes out onto the Kennydale Creek ravine, which flows into Lake Washington, . [Ob: Shows the same area showing water flowing out of a pipe in the Misty Cove area, . IOc: Shows wetlands next to the project (deer in field). She was standing on NE 20 111 east of the Gordley property when taking these photos, . 10d: From 24 111 and Jones showing creek flowing downstream from the Gordley property, 10e: Shows creek flowing along the west side of the Rider property and continues across the Bluebeny property and comes out by Mr. Gordley's ,property, 10f: Shows where creek comes out on 20 fi:om the Bluebeny Farm (looking south), 109: Shows the creek along NE 20 111 in front of the Blueberry Farm during the summer, 10h: Shows the creek along NE 20 th in front of the Bluebeny Farm during summer flowing to the culvert, lOi: Shows the creek in the Rider backyard during the summer, 10j: Shows the creek coming out under the fence on the Bluebeny Farm, 10k: Shows the Rider backyard in July 2006, _ 101: Shows the creek in front of the Bluebeny Farm on NE 20 111 in July 2006 during the drought, 10m: Shows the creek flowing to the culvert where it goes under NE 20 111 and continues to the Gordiey • property, IOn: Duplicate of IOf, ---------------------------------- • f • _,~ Blueberry Haven Short Plat Appeal ( ... ') LUA-07-131, SHPL-A, ECF March 27, 2008 Page 5 ---~------------- lOa: Mr. Zevart in Mr. Watt's yard, shows dog playing in the creek at the end of the longest drought in Washington history. The picture was taken in the vicinity of Jones Avenue between NE 24th and the grate that goes under I-405, 10p-q-r: Show water flowing in the creek during the summer months. The above photos all depict water north and south of the Gordley property in July, which was one of the driest July's on record. People in the neighborhood have called the City Council with concerns about the creek and headwater wetlands. Recently a foundation was being dug for a house across the street, north of Ms. Rider's house. The water table is on higher ground than the wetlands and creek, the property was entirely spring fed, the contractors had to run pumps 24-hours a day for months. She presented another photograph that was taken by Randy Corman on a visit to the location. City Council minutes from the March 21, 2005 meeting were presented, there were statements in the minutes for the adoption of Kenny dale Creek classification as a Class 3 creek. Mr. Rider presented a letter from the Washington State Department of Ecology referring to the wetland and creek issues in this area. As well, Wetland Studies were presented by various professional organizations. They refer to water in the creek, and the creek being perennial if it were doWn to the ground water level, which it is. Upon questioning by Ms. Nielsen, Ms. Rider stated she had looked at the creek on the Gordley property during the summer of2007. She had not been on the property since the Gordleys purchased it approximately 10 years • ago. She also observed the creek from NE 20 th, she could see approximately 100 feet into the property. She is also able to see the wetlands, the deer in a prior picture were in the wetlands and on the Gordley property. Since then, there has been a lot line adjustment and she was not sure where the Gordley property runs now. ~ Ms. Rider has lived on her property since 1982, she had lived on NE 20 th since 1976, sees the creek most every day. In the sununer there is more grass, but the creek is fairly open, it can be seen both summer and winter. The mud is really deep, the water on top of the mud is only a few inches, once the kids or dogs get in, they are wet up to their knees. During the Roberson Short Plat planning, it seemed that no one knew anything about that project, then all of a sudden they started doing work on the property. There was further discussion on how the stream was classified, Exhibit 18 was a stream survey which stated that it was not possible to teU if it was indeed a Class 3 stream because the survey was done during the winter months and the person doing the work did not study the stream in the summer months. Ms. Nielsen went on the clarify that this classification study was submitted as part of the Dutro application, Mr. Dutro came up with his own study, in which he proposed that the classification be evaluated as a Class 5. The City was then left to do a study to evaluate if it truly was a Class 5 or if it was a Class 4 stream. There was never an issue to looking at the stream as a possible Class 3. The requirements of a stream classification study were then discussed, it has to identify the mean high water mark, the functions of the stream and review the criteria in the Code for the classification. Lauralee Gordley, 2010 Jones Avenue NE, Renton, WA 98056 stated that she is the applicant. She started this _~rocess began in March of2005. The short plat was filed based on the current zoning and the current stream ..,lassification. Both of those have changed since she started this project. The CAO was adopted in June 2005 and the rezone was adopted in December 2006. The stream has been addressed previously, there has been r----~-- -) • • Blueberry Haven Short Plat AppeG' ) LUA-07-131, SHPL-A, ECF March 27, 2008 Page 6 planning and council meetings regarding the stream. Sue Rider attended those meetings and stated her position. Ms. Gordley feels that she has been at a disadvantage as a property owner, she has put out great expense doing the short plat, this is not a big developer short plat, rather a private short plat. She has been reduced to a two-lot short plat. They have previously gone through a stream classification, the Department of Fish and Wildlife have been to the site, they have said this stream is not significant, it's not even on their radar. She feels she has not been treated fairly by the City and others. The wildlife, deer, ducks and rodents are typical to this area but she has never seen any of them drink out of the "drainage ditch" as it is called on her title report. They will drink surface water. The Monterey Court NE residential neighborhood runoff drains into the Blueberry Farm, the 37-home Westminster development drains all surface water into the entrance of her property, which on her title reports notes that it is a private drainage ditch and was determined to be such in 1958. The sewer line was put in after the purchase of her property and has been addressed in prior meetings that that sewer line changed the hydrology of her property. They created a French drain in order to drain the area of its water. Exhibit 2, the photograph showing a foundation filled with standing water, was discussed regarding the sewer lines that were installed north of 20 th and west/north of the subject site. Surface water runs into the ditch at NE 20 th Street, the pipe from the Blueberry Farm has no water flowing out of it. There could be standing water, but it is not flowing. People testified that they could see 100' up the stream, however, the landscape consists of a row of Poplar trees with blackberry bushes that are overgrown and obstructing. The blackberry bushes begin at the corner ofNE 20 th Street and continue back approximately 100 feet. The creek cannot be seen from Jones or NE 20 d " it's private property, once the creek hits the property north of them, it is completely overgrown and cannot be viewed from anywhere. The original owner of the property told her that he and his children dug the ditch, it was also stated in the history of the stream that the Corps of Engineers brought out mules and dug some of the ditch. ' When Terry Dutro purchased the property he wanted to reclassify the stream to a Class 5, Gordley's said they did not want to be involved in changing anything. In 2004 she went to the City and wanted to know the status of her property, what documentation there was on the wetland, and what could be done. In order to sell part or all of her property, she needed to have that information. She was told that she would have to do a new wetland study, things change and there had been a lot of new development in the area. They agreed to doing ajoint wetland study at that time, if the study had shown that there was a wetland, she would not have invested any further money into the development of her property. Ms. Gordley continued with a list of objections that she had with the previous testimony heard. First, Larry Fisher talked about a peat bog, there is no peat bog on her property. The photo ofthe headwater is far from her property and her understanding is that while there may be some water flowing at that point, it does not get to her property without other surface water taking it there. She further stated that she had never seen any fish or other life form in the stream. They tried to enhance the area by placing frogs in the stream, but they died. She has never seen any animals drinking from the aitch. The deepest level of water has been to the top of the ditch and that was during the monsoon rains. The ditch is approximately 3 feet deep. She has seen the pipe coming from the Blueberry Farm at the entrance of her property with no water coming out. Regarding the photos that were presented earlier, she stated that none of the photos were taken on the Gordley property. The Randy Corman log was not about their property. Exhibit 15 was prior to their ownership and the hydrology has changed since that report was written. She has had two studies done since then. The Ellisport Engineering Report was not accepted by the City, it did state a stream classification but the information was based on a pre- • Bluebeny Haven Short Plat Appea! .. ) LUA-0?-13I, SHPL-A, ECF March 27, 2008 Page 7 CAO category.· A letter following that was submitted, however the referenced area is not in the short plat application, she did offer the letter as an exhibit. Exhibits 16 and 17 were not on their property. If the area were one that needed to be preserved, she would not have gone through this process. The property has been enhanced since their purchase, the neighborhood enjoys their open space. She believes this is an open space issue and that a huge burden has been placed on them by the City PlalUling Department to provide reports and documents. They have committed money based on the City procedures and zonings. There should be a grandfather clause so they can finish up their project. The area' was originally zoned R-8 and was downzoned to R-4. Upon questioning by Ms. Peck. Ms. Gordley stated that the ditch is not continuous, there are culverts that come in above the level of the bottom of the ditch. She has.seen that no water is coming from that pipe. People saying that they can see 100' down her property calUlot possibly see that far. The plants and trees would definitely block the view of the stream. She further stated that she has no proof or information that this stream is intermittent rather than perennial: The Cedarock Consultants prepared a stream classification report for the short plat. It was not, however, her burden to prove the stream classification. Her title report states that it is a drainage ditch, not a stream. It became a Class 4 stream, but that wa·s without best available science, it is a drainage ditch. The City Council . depided to send out their own consultant who stated that if the property were to be short platted it could be enhanced in the buffer zone to keep water cool. There is no official stream study report concluding thatthis stream flows intermittently. Break for Lunch to reconvene at 1 :49 p.m . Rick Gordley. 2010 Jones Avenue NE, Renton, WA 98056 stated that he was using Exhibit 3 for reference and gave a description of the terrain between the Bluebeny headwaters and the end of his property. All the local neighborhoods built in the 1980 's use surface drains, the houses, roads, sidewalks, and driveways have below grade surface drains, which flow downhill to the Bluebeny field and into his and the adjacent properties to the north. There are well over 400 houses that drain to these properties. The drainage ditch was dug in 1958, since that time neighborhoods have been developed, roads built and all that water is being directed to the drainage ditch. He further stated that he is a licensed ICC inspector, most of his fieldwork has been in drainage. Upon questioning by Ms. Nielsen. Mr. Gordley stated that the headwater is at the entrance of Ills driveway and the creek runs right along the east side of his property. There are lots oflarge poplar trees·and blackberries in the vicinity. At the end of the culvert where the creek dumps into Ills property from the adjacent neighborhood of 37 homes, it is impossible to see five feet up the creek from the middle of June on. Today you can see maybe 30-feet up stream. He has only seen this ditch with a mud bottom one time, he does not believe it is a creek, he believes it is a drainage ditch. Currently the watcr is approximately 3-4 inches deep, in the rainy season it can go all the way to the top of the bank. No living critters are in the water, no fish, no frogs, in fact one of Ills animals died from drinking the stagnant water . • Mr. Pohl originally owned the land, he wanted to create a wildlife preserve in the backyard. He brought in the . wetland along with trees. and bushes and planted them all over the yard. He installed a 25,000-30,000 gallon Blueberry Haven Short Plat Appea; LUA-07-131, SHPL-A, ECF March 27, 2008 Page 8 .. ) pond that he pumped from the ditch to his backyard. He has an agreement with the City that he can continue to do that for the next 30-40 years. Mr. Pohlleft and the system failed. Uoon questioning by Ms. Peck. Mr. Gordley stated that he has owned this property for approximateiy 9-10 years. He only knew of the one stream study that was done by Mr. Hadley from Ellisport Engineers. Erika Conkling, Sr. Planner, Economic Development stated that their responsibility is looking at planning and long-range issues. They process plans and programs of a non-project nature where they look at the long term and large view of the City, including the processing of annual comprehensive plan amendments. She was involved with the 2006 updates and managed the Gordley comprehensive plao amendments. This was considered a non-project action because there is not a specific development proposal associated with them, but because they were amending the comprehensive plan. SEPA determinations were made on the proposed comprehensive plan amendments of non-significance. Two separate comment letters were received from Larry Fisher of the Department of Fish and Wildlife on the Blueberry Farm comprehensive plan amendment. There were no comments on the downzone of the larger area. It was not necessary at the time of the SEP A review to look at critical areas that would come at the time of a specific project review. Things are looked at in general, but one can never predict what the specific analysis would be until you have a project. The Examiner reviewed this testimony and fmished by asking exactly what is happening on the Gordley property? Jennifer Henning, Current Planning Manager, Development Services showed the code provision 4-3-050q, the Streams and Lakes map also known as the water class map. She marked the map with various colors to show • the different classifications of this stream in question today. . The Examiner was given an II x 17-inch copy ofthe map for his use during this hearing. Ms. Henning continued stating that this map does not include Class 5 streams because they are considered to be unregulated, nor does it include Class 1, which are the shorelines of state by significance and are subject to the shoreline master program. This is for streams in the city that are Class 2, 3, or 4. When initial discussions begin with an applicant, the critical area maps are one of the first things that are looked at, including the stream and water class maps so it can be determined what, if anything, is on the subject property. In this case, the map shows a Class 4 stream going through the property, which begins to the south of this property and extends to the north, crosses under I-405 comes out in a ravine and outlets into Lake Washington. [t is not unusual to have multiple classifications on anyone stream. The first person in this case that came looking for a downgrade in the classification was Mr. Terry Dutro, he was looking at assembling various parcels in ·the area including the Gordley's property, the Core property (which Dutro now owns) and one other parcel. He brought in some studies that stated it was a man made drainage ditch and therefore should not be regulated. July 19, 2005 they received correspondence from Hugh Mortenson of the Watershed Company that talked about what it would take to classify the stream as a Class 5 stream, more discussion was had about the wetland system. At the time Mr. Mortenson determined that the recommendation for this stream as a Class 4 should stand. The City held that it was a Class 4 Stream not a Class 5; Mr. Dutro appealed the determination and wcmt before the City Council. (see RMC 4-3-050Llcii -Reclassification) Ultimately Mr. Dutro withdrew his appeal but it became a larger discussion on how these streams get reclassified and what is the proper process. When public .• notice went out on discussion of this creek, neighbors came, wrote letters or attended committee meetings. The Council decided that they needed to understand better what was going on, they asked that the City pay for a study to evaluate whether this stream should be a Class 5 or remain a Class 4. They further instructed the City · . Blueberry Haven Short Plat Appea, ',') LUA-07-13 I, SHPL-A, ECF March 27, 2008 Page 9 ------------------- •• to hire the finn that had put together the City's water classification map originally. That was Cedarock Consulting, Carl Hadley. After evaluation by Mr. Hadley, he determined that the stream should remain a Class 4. ,Mr. Hadley only studied the stream as to whether it was a Class 4 or 5 stream, he did not look at the possibility of the stream being a Class 2 or 3. A discussion was had between the Examiner and Ms. Nielsen. Ms. Henning stated that one of the reasons Mr. Dutro asked for this reclassification was because he and the neighbors both presented aerial photographs ofthe site dating back to 1936 which showed no defined channel until in the 1950's when it was hand dug. Mr. Hadley's conclusions state that he looked at the possibilities of Class 3 and Class 4 and Class 5, those conclusions are in his decision. He does state that "in the absence of conclusive evidence supporting a change from the existing Class 4 water classification, it is my recommendation that this classification stands." , Upon questioning by Ms. Peck. Ms. Henning stated that as the current planning manager, she is charged with implementing the codes of the City. There is another group in strategic planning that actually drafts the codes and runs the critical areas program and hires consultants. How information gets translated into these maps is for those experts, she had no working knowledge of how the information came about. The map that she used is her guidepost, what she uses to implement the code. When an application for a land use project comes in, there is a list of things that might apply. They have the ability to require, modify or waive requirements. The supplemental stream study was waived in this case, because they felt that they had the information they needed and it was current based on the Hadley report that ). the City had paid for. A supplement analysis would only be needed to address the crossing of the stream and if the buffers were to be reduced to 25-feet. Ms. Peck stated that if the stream flows perennially then it would be classified as a Class 3 stream and that is , essentially what the Hadley study states. She quoted from the study as follows, "If the water flows continuously during years of normal rainfall, it would be classified as a Class 3 water", He does note that he was not commissioned to address that issue; that he was there in February and that it would take years of study to detennine. Nowhere in the letter does he say that this is an intermittent stream. Ms. Nielsen countered with the first paragraph, "water type classification" he says that, "the water course has been classified'by the City of Renton, the Q map, as a Class 4 water based on the belief that, I) the water is not fish bearing, and 2) the water course is intennittent during years of normal rainfall." Discussion continued between Ms. Peck and Ms. Nielsen. Ms. Heming stated that she had a minimum of six studies for this area that were done in the last 10 years. The reason for so many studies is due to the change of the water over that span of years, development has taken place and caused the water table and drainage patterns to change, She further stated that she has three reports that call the stream a 4, one that calls it a 5 and one that, back in 2004 called it a 3, however there was no classification system in place at that time. She does not have any report that says it is anything other than a 4 or 5. Ms. Peck stated that the applicant did submit a critical area report for the Gordley property. There are some errors in the report. The Steward & Association Report concludes that this property is a Category 3 wetland and they allude to hydrological changes in the area. There were several wetland studies done and Ms. Peck referred to each showing the various classifications that were given at the specific times. The 1996 report stated that the • area should be classified as a Category 2 wetland. The area has been reviewed on three subsequent occasions or the City, the most recent time was 2007 in which it was confirmed as a Category 2 wetland, that report was Blueberry Haven Short Plat Appea. ., LUA-07-13I, SHPL-A, ECF March 27, 2008 Page 10 .) • done by the Watershed Company. There was an additional confirmation by Entranco in 1999 and the Watershed Company in 2005 again .confirmed this classification. The initial report goes on the refer to the Kennydale Creek as a seasonal drainage ditch and further refers to the fact that the creek flows north and eventuaIly runs into May Creek. She does not know where that information came from, but this creek does not flow into May Creek, it flows into Lake Washington. A IS-minute break was taken. Testimony resumed at 3:48 p.m. Ms. Nielsen stated that regarding the concerns of the Hearing Examiner over the fact that there has not been an independent study done on this project, which leaves a quandary on any challenger in that they are not aJlowed on the subject property with an expert in order to try to present a counter study. The City's position is that there should be more than a layperson's information submitted. Therefore, the City proposed to adjourn this hearing and give the appellant an opportunity to bring in their own study performed by an expert, the applicant has agreed to that limited purpose and that an expert would be aIlowed to come onto their property. The City did request that the consultant not be someone who has previously made a report on this particular project. Secondly, they asked for a list of experts be submitted to the City within two weeks, the City will look at the list and make a determination as to which expert should do the study. Within onemonth that person would have a report prepared. Finally, there needs to be communication between the appellants' expert and the applicant, they need to set a date and time that they would be on the property to do the study. The Examiner stated· that this could take longer than one month, the expert cannot do fair research this time of ). year. It certainly would be different now than in the dry summer months. Ms. Peck stated that she did not feel that it was the appeIlant's responsibility to pay for the expert. It is a shame that the appellant has had to hire an attorney to enforce the City's own codes. The Examiner further stated that there are properties that have constraints, it would have been helpful if the Gordleys' had been told about some of the constraints on their property and sometimes it just is not known until the money has been spent and the surveys done. However, in one month could an expert come in and say this creek is intermittent, or this creek flows. If they cannot, then we are back at square one. He also agreed with the appeIlant, he did not know if it truly was their burden. If the evidence shows that the creek is flowing regularly, then is the map wrong or the text right The appellants do have the burden to show testimony, lay testimony is permitted, it is not anecdotal. There had even been conflicting lay testimony. Ms. Peck stated that she felt it was not her client's duty to do the work. This is not the frrst time this has been brought to the City. The City has classified this stream and still caMot produce any scientific evidence that it has ever done a study that proves that this stream is intermittent. The City has had ample notice of this issue. The Examiner decided to go ahead with the hearing, he would make a decision and either party can appeal. He is not totally convinced that the creek is always there. It has to flow and it has to flow more than intermittently, there is a water body out there that contains water. After·much discussion on the merits of the offer being presented to the appellants, it was decided that the hearing would continue, the Examiner felt that the offer was not a fair offer. The applicant usually pays the cost for studies and determinations on water situations and the timing would not work. '. Christian Denzler, 1800 NE 20 th Street, Renton, W A 98056 stated that he lives on NE 20 th immediately east of the Gordley property. He shares the stream with the Gordleys a length of approximately 134 feet. He has lived ,----------------------------------------------------- Blueberry Haven Short Plat Appeal LUA-07-13I, SHPL-A, ECF March 27, 2008 Page II there 14 years and has the low lot in the area. Springs bubble up and move around to a different part of the yard and then disappear. Several years ago the City took out the Highgate lift station and created a gravity feed sewer line that goes 12 feet deep and then cuts over to Jones and gravity feeds down. This essentially created a French drain, it took about two years and his yard started drying out. Heritage Glen, east of his property, capped a spring and put in a surface water drain for the development, it is a 24-inch diameter pipe that runs in front of his house and dumps into a small pool in the ditch. They were also allowed to put in 3-5 dewatering weIls, which changed the entire water table. When that happened, the stream ~~~ . Jennifer Henning stated that before the above discussion, Ms. Peck had been asking questions regarding the wetland study that was presented. Ms. Peck stated that the applicant's study does not aclmowledge that this is located in the headwaters of Kennydale Creek. Prior studies that were submitted included one done for the City by the Watershed Company dated March 2, 2007, which concluded that these wetlands were Category 2 because they were located in the highwaters of Kenny dale Creek. Ms. Henning continued that the Watershed study was done as a result of some grading activity that had happened at the Dutro site, they required a delineation to be done. It does state that it isa Category 2 headwaters wetland. They are still in the process of responding to that study in terms of the restoration that must occur. They have stated that they believe the wetland was disturbed enough, several have called it a Category 3 wetland, two have called it a Category 2 headwater wetland. They are accepting a mixed • designation where it appears to have been heavily disturbed. Discussion continued between Ms. Henning and Ms. Peck regarding the headwaters of Kennydale Creek and as to the classification of the wetlands whether they are Category 2 or 3. Regardless of what the wetland is classified as, there are still buffers and the site has development potential. A Category 2 wetland has a 50-foot buffer, a Category 3 wetland has a 25-foot buffer. Before the Critical Areas Ordinance was adopted all creeks and water bodies in the City had a 15-foot buffer. A Class 4 has a 35-foot buffer which can be averaged down to 25 feet, a Class 3 has a 75-foot buffer which can be buffer averaged down to 37.5 feet. The Steward and Associates report was accepted. Exhibit 4 shows the wetland in green with the buffer area in light green and in light yellow a 35-foot buffer from the creek. It is difficult to tell the wetland area because it is a mowed lawn area. Exhibit 24 a-d photos (4 pages) of the Gordleys' home were identified and show the location and condition of the wetland. Lauralee Gordley stated that she believed they had been burdened with going the extra mile on the development of this property. The Preliminary Application response is dated March 2005. They have had to do the best available science, they understand the concern of the people in the area and that they enjoy the open space. There is a great conflict of interest on the part of people walking by and walking their dogs, they are benefiting from this property and to say that it is an independent opinion is not true. If the codes are going to change, the Gordleys should be grandfathered on their original application. Making this process go on for years is not justice to the Gordleys, they have submitted reports they paid for as weIl as the codes and regulations of the City. She further does not believe that people have a clear view of the stream. The poplar trees are fuIJ and there is a .heavy growth of blackberries which block view of the stream. Blueberry Haven Short Plat Appeal WA-07-l3I, SHPL-A, ECF March 27, 2008 Page 12 , \ Ie The Examiner stated that the record would be kept open for one week for written rebuttal of information presented today. Record will be open until February 15, 2008. Ann Nielsen's brief will be submitted by February 29, 2008 and Ashley Peck's reply will be in March 7, 2008. • The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and no further comments from staff. The hearing closed at 4:38 pm. FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: 1. 2. 3. 4. 6. 7. 8. 9. 10. The appellant, Susan Rider, hereinafter appellant, filed an appeal of an administrative decision approVing a short plat A brief submitted on behalf of the appellant noted it was filed for "appellants Sue Rider and the Kennydale Critical Areas Alliance." The appeal was filed in a timely manner on December 26, 2007. The appellant lives across the street from the subject site. The City approved a two-lot short plat for property located at 2010 Jones Avenue NE. The short plat is called the BluebetTy Haven Short Plat '(LUA07-131, SHPL-A). It was an administrative approval. The parcel is an inverted L-shaped parcel with frontage along Jones Avenue NE (its address street) and along NE 20th Street. The subject site is apprOXimately 37,714 square feet. Proposed Lot A would be 17,930 square feet wlrile Proposed Lot B would be 19,784 square feet. Proposed Lot A would contain the existing home and would take its access from Jones. It would be oriented in an east-west direction. Proposed Lot B would be oriented north-south and take its access from the south or NE 20th Street. Proposed Lots 1 and 2 would comply with the R-4 (4 dwelling units per acre) Zoning district. The subject site contains areas defmed or limited by City Critical Areas regulations. There is a creek that flows along the eastern margin of the subject site !)lid a wetlandjust west of the creek in the northeast portion of the subject site. The City has two maps that define or deal with the creek. There is a Water Class Map (Ex 5) and the Streams and Lakes Map found in Section 4-3-050(Q) generally known as the Q Map. Both of those maps appear to show that the stretch of the creek at the subject site is a Class 4 waterway. The applicants submitted a Critical Areas Study prepared at their request by Steward and Associates. That study determined that the wetland on the subject site was a Category 3 wetland. The City determined that an analysis of the creek was unnecessary apparently in the belief that sufficient studies in the area had already been conducted and that the creek was a Class 4 creek given the City's Water Class Map and the Q Map. Staff based its short plan analysis and approval on its review of both the wetland and creek located on the subject site as well as the zoning and comprehensive plan. Staff determined that the wetland is a Category 3 wetland and required a buffer of 25 feet. Certain requirements accompany the preservation or enhancement of such wetlands but those are not at issue in this review. Staff also determined that the . '.~ Bluebeny Haven Short Plat Appeal ) ') LUA-07-131, SHPL-A, ECF March 27, 2008 Page 13 11. 0). or enhancement of such wetlands but those are not at issue in this review. Staff also determined that the stream is a Class 4 stream that requires a 35-foot buffer. Again, issues relating to buffer or stream preservation are not at issue in this review. The appellant alleges that the approval of the short plat violates critical areas regulations by not recognizing the appropriate classification of a stream that runs along the eastern margin of the site and not recognizing the appropriate categorization of a wetland located in the center of the site, generally where Proposed Lots A and B join. The appellant alleges that the stream should be a Class 3 stream with a buffer of75 feet. The appellant also alleges that the wetland is a Headwaters Wetland and should be a Category 2 with a buffer of 50 feet. The City dismisses the many letters and comments as merely anecdotal and lay observations on the nature of the creek, particularly as to whether it is an intermittent creek or perennial. The City also objected to photographs showing the creek at various points in time showing water flowing in the creek. The objections were twofold. First, they were not taken of the subject property and second, they represented a mere snapshot in time, not showing perennial flows. The photographs show the creek flowing during generally dry times of year and they show it flowing both south (upstream) and north (downstream) of the site. Similarly, the City objected to letters from Mr. Fisher who represents the Department ofFish and Wildlife. The letters were submitted for property upstream and across NE 20th street from the subject site. They appear to indicate that the creek was misclassified and that it flows perennially. While not directly observed on the subject site and not submitted for the stretch of the creek on the subject site, the letters demonstrate the creek appears to flow almost immediately upstream of the subject site, state's interest in this creek and suggest its Class and/or significance was not fully understood or examined. The City in its arguments asks that the Examiner consider that the stream was a manmade ditch and should be classified a Class 5 based on the testimony of the applicants, again, lay testimony. The City argues their testimony be given as much credence as the other lay witnesses that the creek is perennial. First, the applicants' knowledge of the stream is much more recent and they do not know its history. Second, and more importantly, the City Council has already determined this issue and rejected it. . The City also argues (at page 12 brief) with no persuasive power whatsoever that the Q Map designates the creek in the vicinity of the subject site as a Class 4 waterway. The City indicated (at Page 2 brief) that "it is nearly impossible to exactly pinpoint and identify the Kennydale Creek or stream on Gordley's property" on that very same map. The Renton Water Class Map is Figure Q, Section 4-3-050(Q5). It is quite small and lacks much detail . although it probably does show the general area of the creek where the subject site is located and the Map's Legend shows it as a Class 4 Creek in this general location. Actually, such a map lacking in detail might explain why the actual language of the Code says that actual characteristics of the stream prevail ovetthe map. (4-3-050(L)(I)(c) The Cedarock Consultants study done by Carl Hadley states at Page 2 that "Conclusively evaluating the intermittent vs. continuous flow issue is difficult at best and not possible at this time. The stream would most appropriately be examined during the period between late July and late September during a year of normal rain. (it goes on to define "normal rainfall.") • Bluebeny Haven Short Plat Appeal ") LUA-07-131, SHPL-A,ECF March 27, 2008 Page 14 The Hadley report then goes on to discuss an Ellisport Engineering report and rainfall during 2004 (considered a normal year) and 2005 (considered a dry year) and the Ellisport report done in October 2004, a normal year but a "relatively dry time of year" with less than normal rainfall, about half of' normal. Hadley quoting from the Ellisport report: "South across NE 20th Street is a bluebeny farm where the Class II stream originates. The stream flows under the street in a culvert, which extends northward onto the Gordly (sic) property. Water was flowing in the stream at the time of the site inspection." (Emphasis was in the original Hadley report). /: tiJli 17. The Hadley report also references a Watershed Company report. Apparently the waterway was inspected by The Watershed Company on July 18, 2005. Hadley reports that 2005 was a normal but very dry year. The Watershed report contained the following: • "standing water was present in the pond and in the main ditch/stream" The Hadley report also appears to answer a question that this office is still pondering. What is the status of a creek that enters a broad swampy area and flow is not so easily discernable? "While these swampy areas are clearly a type of watercourse with important aquatic habitat functions and values, the question is whether or not they meet the definitions of" naturally defined channel." (italics in original) One could argue that a swamp is a channel and is the only type of channel that would form under the circumstances. The definition in Webster Dictionary defines channel as "the bed of a body of water flOWing on the earth." (italics in original). There is no evidence that the site was ever hydraulically isolated. It most likely drained to the north under pre-existing conditions as it does now. The area was clearly a wetland and still contains wetland characteristics. The channel was dug to drain the historic wetland and create 'usable' land. The City of Renton may choose to distinguish between wetlands and channels. However, . there is no clear dividing line between the two so any distinction would have to be done carefully." (emph\lsis supplied)." This language does appear to address what happens when a visible stream hits a wetland or bog and discernable flow melds into a marsh, swamp or bog. It becomes hard to distinguish but that does not mean the stream is no longer flowing. @ Finally, the Hadley report notes: • "The perennial stream flow issue (Class 3 vs. Class 4) can only be answered by direct observation of flow characteristics in the channel during the summer. These data could take a few years to gather if this winters heavy rainfall pattern continues.1I This statement helped inform this office that any immediate study such as that offered during the course of the hearing wherein the City and the applicant requested the appellant to engage and fund a study almost immediately would be meaningless in answering the "intennittent versus perennial" status during the later dry months of summer. This was the information the Examiner used to decide an expert employed by any party for a short period near the hearing time would be fruitless in answering the !e • -------------- Blueberry Haven Short Plat Appea LUA-07-131, SHPL-A, ECF March 27,2008 Page 15 21. question. So Footnote 5 of the City's Brief is clearly a one-sided, incomplete statement. The issue was not limited to which party should pay for such an expert. The expert would be limited to examining the creek during a very limited time so that nothing definitive could show the flow during the drier months of summer. Any expert hired by any party would only be able to review a snapshot of the creek during the rainy season, leaving doubt about whether it is perennial or not. The City objected to photographs showing the creek flowing as those actual snapshots (photographs) were, as the City maintains, snapshots proving nothing about "perennial flow." A wetland study conducted for the City by Entranco (December 1996) for the Higate Sewage Lift Station found the wetlands in the area of the subject site were a Category 2 wetland including disturbed wetlands nearNE 20th Street. Entranco in 1999 confirmed in correspondence with John Hobson the wetland was a headwater wetland. The Watershed Company in 2005 by Hugh Mortenson indicated to. Nancy Wei! that they were a Category 2 wetland as they were "the headwaters of a stream system." The Watershed Company, again, in 2007, when asked in a potential corrective review, concluded that the wetland was a headwaters wetland (page 7) and reaffirms "the findings expressed in Mr. Mortensen's 2005 letter to the City of Renton." A number of provisions of the Renton Municipal Code are applicable to this review. They include: Section 4-3"()50(L)(I) I. Applicability/Lands to Which These Regulations Apply: These stream and lake regulations apply to sites containing all or portions of Class 2 to 4 streams or lakes and/or their buffers as described below. This section does not apply to Class I waters, which are regulated by RMC 4- 3-090, Shoreline Master Program Regulations, or to Class 5 waters which are exempt. All other critical area regulations, including. but not limited to, flood hazard regulations and wetland regulations, do apply to classified streams where applicable. . a. Classification System: The following classification system is hereby adopted for the purposes of regulating streams and lakes in the City. Stream and lake buffer widths are based on the following rating system: i. Class I: Class I waters are perennial salmonid-bearing waters, which are classified by the City and State as Shorelines of the State. ii. Class 2; Class 2 waters are perennial or intermittent salmonid-bearing waters which meet one or more of the following criteria: (a) Mapped on Figure Q4, Renton Water Class Map, as Class 2; and/or (b) Historically and/or currently known to support salmonids, including resident trout, at any stage in the species lifecycle; and/or (c) Is a water body (e.g., pond,lake) between one half (O.S) acre and twenty (20Yacres in size. . iii. Class 3: Class 3 waters are non-salmonid-bearing perennial waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 3. - iv. Class 4: Class 4 waters are non-salmonid-bearing intermittent waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 4. v. Class 5: Class 5 waters are non-regulated non-salmonid-bearing waters which meet one or inore of the following criteria: (a) Flow within an artificially constructed channel where no naturally defined channel had previously existed; and/or . !. '. Blueberry Haven Short Plat Appea: "'J LUA-07-13I, SHPL-A, ECF I March 27, 2008 Page 16 (b) Are a surficially isolated water body less than one~half (OJ) acre (e.g., pond) not meetirig the criteria for a wetland as defined in subsection M of this Section. 4-3-050(L)(I) Maps and Inventory: c. i. Mapped Streams and Lakes: The approximate location and extent of Class 2 to 4 water bodies within the City limits are indicated on a map in subsection Q of this Section, Maps. The map is to be used as a guide to the general location and extent of streams. Specific locations and extents will be determined by the City I based upon field review and applicant-funded studies prepared pursuant to subsection L3 ofthis Section. ii. Reclassification: Where there is a conflict between the Renton Water Class Map in Subsection Q and the criteria in subsection Lla of this Section, the criteria in subsection Lla ofthis Section shall govern. The reclassification of a water body to a, class (i.e. 2 to 3, or 3 to 4, etc,) requires administrator acceptance of a supplemental stream or lake study, followed by a legislative amendment to the map in subsection Q of this Section prior to its effect. 4-3 -050(M)( 1)( a)(ii)( c) ii. Category 2: Category 2 wetlands are wetlands, which meet one or more of the following criteria: Section 4-3-050(L)(7): (a) Wetlands that are not Category I or 3 wetlands; and/or (b) Wetlands that have heron rookeries or osprey nests, but are not Category I wetlands; andlor (c) Wetlands of any size located at the headwaters of a watercourse, i.e., a wetland with a perennial or seasonal outflow channel, but with no defined influent channel, but are not Category I wetlands; and/or (d) Wetlands having minimum existing evidence of human-related physical alteration such as diking, ditching or channelization; and/or "Criteria for Permit Approval-Class 2 to 4: Permit approval by the Reviewing Official for projects on Or near regulated water bodies shall be granted only if the approval is consistent with the provisions of this subsection L...", 4-3-050(F)(7)(a): "7. Independent Secondary Review: The 'City may require independent review of an applicant's report as follows: a. Aquifer Protection Areas, Flood Hazards, Habitat Conservation, Streams and Lakes, Wetlands: When appropriate due to the type of critical areas, habitat, or species present, . or project area conditions, the Reviewing Official may require the applicant to prepare andlor fund analyses or activities, including, but not limited to: i. An evaluation by an independent qualified professional regarding the applicant's analysis and the effectiveness of any proposed mitigating measures or programs, to include any recommendations as appropriate. This shall be paid at the applicant's expense, and the Reviewing Official shall select the third party review professional; and/or \ • Blueberry Haven Short Plat Appe~'1 LUA-07-13I, SHPL-A, ECF ) March 27, 2008 Page 17 23. 24. After the hearing closed but in the window left open for the City to possibly rebut information contained in the appellant's brief and exhibits, additional correspondence was submitted by a neighbor who left the hearing because her father was in his last illness and 'subsequently passed aWay and additional written submittals and photographs by the underlying applicants. The City did not object to these submissions but the appellant did object. This office has reviewed those submissions and finds that they add nothing of substance to the record. There were arguments and issues raised about the Growth Management Hearings Board and the concept of "best available science." The office is not usurping powers jurisdictionally placed in another review body. It does not need Best Available Science to determine this appeal, although this office believes that it would certainly help everyone if some independent expert had assessed both the stream and wetland. The City insinuates that the neighbors have a bias against the development of the subject site and, therefore, their testimony is potentially tainted. The same can be said for those who warit to develop the subject site -the underlying applicants. The testimony by all parties appeared credible. CONCLUSIONS: I. 3. 4. 5. The appellant has the burden of demonstrating that the decision of the City Official was either in error, or was otherwise contrary to law or constitutional provisions, or was arbitrary and capricious (Section 4- 8-11 0(E)(7)(b). The appellant has demonstrated that the action of the City should be reversed. The decision is reversed. Arbitrary and capricious action has been defined as willful and unreasoning action in disregard of the facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts 'and circumstances, is not arbitrary or capricious (Northern Pacific Transport Co. v Washington Utilities and Transportation Commission, 69 Wn. 2d 472, 478 (1966). An action is likewise clearly erroneous when, although there is evidence to support it, the reviewing body, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. (Ancheta v Daly, 77 Wn. 2d 255, 259 (1969). An appellant body should not necessarily substitute its judgment for the underlying agency with expertise in a matter unless appropriate. Section 4-3-050(L)(7) limits the issuance of a permit where property is on or near regulated water bodies. A permit may orily be issued if it is consistent with the various critical area regulations including buffer widths based'on those water bodies' characteristics. Tn other words this short plat approval can only be approved if it complies with the appropriate buffer widths required around a Category 2 wetland and a Class 3 stream if the appellant has demonstrated error sufficient to overturn the decision below. This office is not dealing with issues properly before the Growth Management Hearings Board. This office is reviewing an appeal of a short plat where the appellant has alleged that the critical areas buffers were not appropriate since the City used the wrong standards for the two critical areas, a stream and a wetland, on the Gordleyproperty. If the City has wrongly defined those critical areas as the appellant alleges, then it would appear that review of the short plat approval is appropriate. This office does not reach any conclusions nor does it know the impacts on the development potential of the property if it decides that the City was wrong . • Blueberry Haven Short Plat Appea'" ") LUA-07-13I, SHPL-A, ECF March 27, 2008 Page 18 6. wetland, on the Gordley property. If the City has wrongly defined those critical areas as the appellant alleges, then it would appear that review of the short plat approval is appropriate. This office does not reach any conclusions nor does it lmow the impacts on the development potential of the property if it decides that the City was wrong. Code requires an applicant to conduct a standard stream study if the site contains a water body or buffer or is within 100 feet (Section 4-3-050(1)(3)(a». The City may also require independent review (Section 4-3-050(F)(7)(a). The City may waive such study ifit does not think it is necessary (4-8-100(A)(a)(a) and 4-8-050(L)(3)(d)(i)(c». The appellant has demonstrated that an error has been made. The City inappropriately waived a study that might have helped finally decide an issue that has been raised by the appellant and neighbors for a number of years. The record before this office demonstrates that the stream flows perennially as it enters a culvert under NE 20th street and appears to flow as it begins its entry into the subject site, the Gordley property. The record further demonstrates that this same stream flows perennially north of the subject site. The record does not directly show how the stream flows once it disappears from view looking north into the subject site. But the Hadley report coupled with the lay testimony allows one to draw reasonable conclusions. The Hadley report indicates that the demarcation or delineation of a creek as it enters a swamp might not be easy to determine but that does not negate that it flows in some fashion. It is interesting to note that the City opted to accept the Critical Areas Study wetland analysis submitted by the applicants that was contradicted by earlier studies but did not seek a stream review. Not only did the City not seek a stream review by the applicants' own expert but it did not seek an independent study that might have resolved the contradictions raised by neighbors. It merely weighed the neighbors' concerns and letters and accepted the applicants' study rather than seeking independent confirmation. " The City notes that there must be a conflict before the definition of the "class" of a stream takes precedence over the Q Map. The record shows a series of letters addressed to the City raising concerns about the creek's classification. The appeal certainly presents a conflict that allows one to determine if the map or the definition applies to this stretch of the creek. The City has already indicated (at Page 2 brief) that "it is nearly impossible to exactly pinpoint and identify the Kennydale Creek or stream on Gordley's property" on that very same map. If it is nearly impossible to pinpoint the creek from that map it certainly has to be impossible to rate its character by that map. Clearly, the maps are not"detailed maps. They don't even purport to be redrawn USGS Topographical maps showing gullies or ridges. They are basically line maps which even at large scale shows no real meaningful features. " ... the city can reasonably surmise that Kennydale Creek flows along the eastern boundary of the subject site" (page 2, brief) "Reasonably surmising" is not a legal standard that meets the defmitions found in code. A stream should be classified based on its real characteristics and not some supposition. The City aclmowledges that it did receive "numerous letters" disputing the classification. It dismisses those as "general conunettts or anecdotal information based on personal observations:" Code basically says: "a stream's classification depends on the stream's character." It is a simple proposition -perennial flow, Class 3. Intermittent flow, Class 4. (We will not deal with Class 5 ditches, wWch can have perennial flow since that had already been decided after an earlier review). The map is not conclusive -rather how a stream flows determines its class. A wrong map designation does not make a stream Ii Class 4 stream if it in fact flows per the definitions. TWs office aclmowledges that personal observations (so- called lay testimony) of Lake Washington's existenoe would be much easier to verify. But there are probably sections of the Cedar River that flow through private property that may be harder to observe and would be hard to verify. Clearly, in those instances, the Cedar River is seen flowing toward a property" and seen .flOwing away but might be Wdden beyond view on private property. Logic allows some leaps of faith and logic suggests that it might be flowing even where it cannot be observed. In this case, perhaps an independent review could have established what happens "out of view." Since no one should blindly sacrifice a critical resource without more information, staff had a responsibility to attain Biueberry Haven Short Plat Appeal LUA-07-131, SHPL-A, ECF March 27, 2008 Page 19 8. 9. applicants but the Code requires either the creek be stUdied or waived unless their is sufficient factual basis for a decision. The City committed error in not requiring a stream study by the applicant and compounded it by not requiring an independent review. This office is left with some unease over how some of these classifications work in realUfe and maybe those concerns cannot be resolved in a forum like this appeal-But if a perennial stream flows into a mucky wetland or bog or through an area of say, quicksand like substance, given no surface evidence of flow through that "thickened" area, and then perennially flows out say, 50 or 100 or 300 feet away downstream, what is the class or character as it moves imperceptibly though that area? But given the record, this office finds that staff erred in waiving the study. There were too many lay observations to render their observations mere anecdote and the Hadley report even suggests the demarcation in streambed and flow uncertain. What do we have in this case? We have a record that demonstrates that. the stream in question flows perennially to and under NE 20th Street from property immediately upstream of the site and we have that same stream flowing perennially north of the subject site. This record seems sufficient to give a reviewer pause. What happens to these perennially flowing waters when they enter, traverse and leave the subject site? Rather than waive requirements for a report, the. City should have required the report and probably should have required an independent assessment of this resource. That decision cannot be likened to one which was "exercised honestly and upon due consideration of the facts and circumstances." (Northern Pacific). That is why this office finds that the Q Map is overruled in this conflict by the language making stream characteristics the final arbiter of stream class.------- r \ ' In the case of the wetland, if the City had compared the results of the applicants' recent wetland study with results of reports it had on file, as it supposedly did with the creek, it might have found contradictions that may have encouraged it to seek an independent assessment. Studies or reviews in three cases called the wetland a "headwaters wetland" and that means it should be a Category 2 Wetland. Nowhere in the City's analysis of this plat is there any mention of the "headwaters wetland" observations of the past studies or the defmition of such wetlands as Category 2 wetlands. In the case of the stream, no stream analysis was provided even with resident evidence that it did flow. On the other hand, in the case of the wetland an analysis was submitted which accounted for its state of degradation but prior reports appear to have called the wetlands, a ''headwaters wetland" which by definition is a • Category 2 Wetland and its'state of degradation would not apparently affect that categorization. The definition though does provide an example, which could confuse the issue: "i.e., a wetland with a perennial or seasonal outflow channel, but with no defined influent channel." It appears that the 10. II. • wetland may be associated with a stream and that.stream, may flow into it But, again, independent analysis was 'not provided. The lack of such independent review was erroneous unless one concludes that the earlier reviews for City projects or other purposes were independent and then. those reviews found it a "headwater wetland, a: Category 2 wetland." . Now, one does have to decide if the applicants must suffer prolonged delays if answers are needed. The current facts, the anecdotal evidence and the Hadley report show evidence of perennial flow in a normal year. Code proclaims streams with those characteristics a Class 3. This office has to conclUde tlherefore, that the City was wrong based on current knowledge. If the applicants wish to contest the characteristics of this DEFINED Class 3 stream, they would have to produce evidence and have it downgraded per regulations. Upgrading it based on its characteristics is automatic -Code says so. The decision below should not be reversed without a clear showing that the decision is clearly erroneous or arbitrary and capricious. This office concludes that tlhere is sufficient reason to reverse the decision below. Bluebeny Haven Short Plat Appeal') LUA-07-131, SHPL-A, ECF ' March 27, 2008 Page 20 have it downgraded per regulations, Upgrading it based on its characteristics is automatic -Code says so. II. The decision below should not be reversed without a clear showing that the decision is clearly erroneous or arbitrary and' capricious. This office concludes that there is sufficient reason to reverse the decision below. DECISION: The decision is reversed and the appeal is granted. ORDERED THIS 27th day of March 2008 FREDf:;JL~~ HEARING EXAMINER TRANSMmED THIS 27 ili day of March 2008 to the parties of record: • Jennifer Henning Development Services City of Renton Susan Rider 1835 NE 20 th Street Renton, W A 98056 Deanna Dobak 1700 NE 20 th Street Renton, W A 98056 Karen Finnicum 1302 Aberdeen Ave NE Renton, W A 98056 Christian Denzler 1800 NE 20 th Street Renton, W A 98056 Robert Cave 12518 E 17 th Street Bellevue, W A 98005 • Ann Nielsen Assistant City Attorney City of Renton Richard and Lauralee Gordley 2010 Jones Avenue NE Renton, W A 98056 William O'Connor ·921 S Washington Street Port Angeles, W A 98362 Julie Bray 190 I NE 20 th Street Renton, W A 98056 Denise B1ackmau 2100 Jones Avenue NE Renton, W A 98056 Barbara Hicks 10402151" Avenue SE Renton, W A 98059 Ashley Peck Gendler and Mann, LLP 1424 Fourth Avenue, Ste, 1015 Seattle, WA 98101 Larry Fisher 1775~12ili Ave NW, Ste. 201 Issaquah, W A 98027 Paul Watt 2433 Jones Avenue NE Renton, W A 98056 Erika Conkling Senior Planner Development Services Sue Larson-Kinzer 1733 NE 20 ili Street Renton, W A 98056 Blueberry Haven Short Plat Appea" ") LUA-07-13I, SHPL-A, ECF March 27, 2008 Page 21 '.Ie TRANSMITTED THIS 27 th day of March 2008 to the following: Mayor Denis Law Jay Covington, Chief Administrative Officer Julia Medzegian, Council Liaison Gregg Zimmerman, PBPW Administrator Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Renton Reporter Dave Pargas, Fire Larry Meckling, Building Official Planning Commission Transportation Division Utilities Division Neil Watts, Development Services Janet Conklin, Development Services Pursuant to Title IV, Chapter 8, Section I OOGof the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m •• April 10. 2008. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors oflaw 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. An appeal to the City Council is governed by Title IV, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m., April 10, 2008 . • If tbe Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the execnted Covenants will be required prior to approval by City Council or final processing oftbe file. Yon may contact this office for information on formatting covenants. 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. • • • EXHIBIT 26 Wild Fish Conservancy o R T 11 WE.' T September 23. 2008 The Wild Fish Conservancy (WFC) performed a stream assessment survey on Kennydale Creek, at tributary to Lake Wa shington in Renton , WA on September 18 ,2008 (Figs . 1-3). The objective of the s urvey was to evaluate the summer low-flow characteristics of the watershed and to describe the likely impacts of continued degradation of the creek 's watershed . + Figure I . Kennydale Creek field assessment locations . • • • Fig .2. Upper Kennydale Creek study reach in Renton, W A. Field assessment locations are represented by the yellow stars. • • • • < lr~'o. • • • Fig.3. Lower Kennydale Creek study reach in Renton, W A. Field verification locations are represented by the yellow stars. Results The channel was wetted and stream flow was easily discemable at all four locations (Table I, Figures 4- 5). The channel meets the physical criteria for fish habitat established by the Washington State in WAC 222-16-031 : at least 2 .0 foot bankfull width and less than 16% gradient . The documented presence of perennial aquatic invertebrates, including the relatively pollution-intolerant families Ephemeroptera and Trichoptera, indicates the stream channel has not gone dry in recent years. Compromising the condition of Kennydale Creek through the addition of impervious area and the associated stormwater runoff will further degrade the condition of the stream (Table 2). The South Puget Sound Forum Indicators Report (TRPC, 2006) summarizes the local impacts of impervious area : "Among other variables, studies have found a strong relationship between the amount of impervious surface and forest cover in a basin or watershed, and the health of streams and other water resources. The greater the amount of impervious area and the corresponding loss of forest cover, the less water that is absorbed into the ground -being filtered naturally and slowly returning to our ground water or stream systems . Increased s urface runoff leads to more pollution in our streams and inlets, to higher and increased numbers of flood events, and to degradation of our streams and stream beds." (South . Puget Sound Environmental Quality -Economic Vitality Indicators Report, July 2006). King County's May Creek Basin Plan (2001), developed for the Lake Washington tributary immediately to the north of Kennydale Creek, states : "Q1f(,r *1>''101'. • • • "Development activities within the basin have historically degraded stream and wetland habitats. Filling of wetlands, increased storm water runoff and peak stream flows, addition of sediment and pollutants to the water, and removal of coniferous forest cover have contributed to the degradation of local habitat in the basin." Table I. Wild Fish Conservancy observations from field verification locations (Figures 1-3), September 182008. Wetted Bankfull Slle Latitude Longitude Width Width Substrate Flow Notes A N 47.50932 W 122.19424 2 feet 4 feet mud V., Ditched stream channel, soft mud substrate, reed canary grass ~iparia. Ditched stream channel, soft mud substrate with occassional B N 47.50961 W 122.19462 31eet 4 feet mud and cobble Ve, cobble. Aquatic macroinvertebrates observed included mayfly nymphs, caddisffy larvae, and amphipods. C N 47.51297 W 122.19756 31eet 4 feel cobble and sand V., Well-shaded stream corridor. Water is clear and cool. Aquatic invertebrates observed, same as B. 0 N 47.51308 W 122.19738 31eet 61eet cobble and sand V., Well-shaded stream corridor. Water is clear and cool. Aquatic invertebrates observed, same as 8. Table 2. Impacts from Increases of Impervious Surfaces, from Thurston Regional Planning Council, 2003 . R II I I Increased ImpervLousness HabLtat Channel Streambed leads to Floodmg loS!!! ErosLon widenmg alteratLon Increased volume x X X X X Increased peak flow X X X X X Increased peak flow duration X X X X X Chan~es in sediment loading X X X X X Decreased base flow X Increased stream temperature X Increased stream acidity X Increased water pollution X SOURCES: (GRk'IT. 2000; URBM1ZATlON AIID STREA..\!S: STUDIES OF HYDROLOGIC IMPACTS. 1997). Kennydale Creek mayor may not currently support a fish population, but there is no doubt that it contributes water and aquatic invertebrates to Lake Washington and therefore affects the water quality and, in part, the integrity, of Lake Washington. Lake Washington supports chinook salmon and steelhead listed as threatened under the Endangered Species Act; as well as sockeye and coho salmon; kokanee; resident and sea-run cutthroat trout; and a wide variety of native non-salmonids. Bull trout, also listed as threatened under the ESA, have been documented in Lake Washington. Many of these fish, including juvenile chinook salmon, spend a significant amount of time rearing and feeding in the Lake Washington littoral (nearshore) habitats that are fed by small streams including Kennydale Creek. While the streams themselves are small, they are numerous and the cumulative. effects of their degradation can have significant implications for the health and productivity of Lake Washington and the fish that live there . ,. I~ f1; f' ,II OJ ti.. ------- ------------------------------------------------, • • • Figure 4. Culvert outlet under NE C) on September width was 3 feet, and s tream flow was easily discemable. Figure 5. Stream channel at Site D on September 18,2008, approximately 30 feet downstream from the culvert outlet under NE 24'" Street. Flow Conditions: • " ••••• l 0 •• '.11. "'A _.01.' '2~'''''.11''. r.l 4 1J "t .... ,,· ..... ll.,1n."' ••••• , ••• , .,. 5 'I~'Q.I • • ---------------------------------------- Evidence that the survey results from September 18, 2008 are representative of summer low-flow conditions can be found in adjacent watershed stream flow data. Provisional stream flow data from USGS National Water Information System (http://waterdata.usgs. gov/walnwis/uv?cb 00060=on&format=gif stats&period=30&site no= 12120000) demonstrate that flows in the Mercer Creek watershed, a Lake Washington tributary north of Kennydale creek, were 5.4 cfs at the time of Wild Fish Conservancy's Kennydale survey, well below the median flows experienced on September 18 during the past 54 years (Figure 6) and the mean monthly flows during the past 62 years. USGS 12128888 HERtER CREEIC NEAR 8ELLEVUE, MIl ~.8 .-------~----------_r----------.----------.----_, 1 288.8 188.8 l ] Mean Mu IWY) Min IWY) ---'\--4~--------~---------+----------~I+---- ----\----1-----1------+------1-/.-- ----I-\--+----+-----+----rl--- Auv· sa Sop 88 Sap 19 Sap 28 ---Provisional Data Subject to R .... ision - A lledian daily statistic (54 _8) --Diccharee STATISTICS OF MONTHLY MEAN DATA FOR WATER YEARS 1945 -2007. BY WATER YfAR Iwy) 0., Nov Doc Jan Fab Mar Apr May Jun Jul Aug 16.R .12.9 40.0 40.R .1),7 29.5 21.6 14.7 12.4 R.7.1 8.62 44.4 773 7n,7 84.8 61.1 67.5 .N.9 27.2 2.1.8 16.5 20.9 (1982) (2007) (1997) (2006) (1996. (1972) (1991) (1996) (l9R5) (1997' (2004' 7.42 11.0 1b.5 1~.9 IO.l 15.4 9.90 tL45 534 :1.22 .1.25 (200.1, (1977) (1977) (1977) (199.1' (1965) (2"") (19$8) (1958) (1958) (1945. Sop 11.2 22.3 (l97R) 5.05 (1955) Figure 6. August and September 2008 USGS Stream Flow Data for Mercer Creek, a Lake Washington tributary north of Kennydale Creek. Please feel free to contact me with any questions about Wild Fish Conservancy's surveyor this report. Sincerely, Jamie Glasgow, M.ScL Director of Science and Research Wild Fish Conservancy 425n88-1167 • www.wildfishconservancy.org ,. u .. n." AOl. ().vffll, W,\. ",0.9' ~~.'.1IJl.jl'7· r., .j.2.!1.1tl.~r.l·1 • ~ .... :"II~rt'.('III .. e,y.~c;.-u#s 6 r 1'1 (j $ f. R V fl. itn~,o.lt ,-------------------------------------- • • • Wild Fish Conservancy NORTHWEST SCIENCH Chip Vincent, Planning Director City of Renton Planning Division 1055 South Grady Way Renton, W A 98059 December 5,2011 Mr. Vincent: EDUt:ArION Af)VOCACY EXHIBIT 27 I am writing to provide clarification regarding the September 23, 2008 report (attached) we prepared regarding Kennydale Creek. I am disappointed to learn that there is still some confusion regarding the classification of this stream . To be as clear as possible, our findings demonstrate that Kennydale Creek is a perennial stream, and therefore it meets the City of Renton's definition of a Class 3 stream. The work we performed documented that Kennydale Creek was flowing at the time of the September 2008 low-flow survey despite documented extreme low flow conditions that were well-below the mean annual conditions for that date (see Figure 6, hydrograph and data from nearby Mercer Creek as a. reference watershed and discharge surrogate for Kennydale Creek). Further information we presented to support the conclusion regarding the perennial nature of Kennydale Creek included our observation of perennial aquatic invertebrates (page 3). I welcome the opportunity to address any questions you or your colleagues may have about our observations or conclusions. Thank you, Jamie Glasgow Director of Science and Research Wild Fish Conservancy • • • Scenarios for Snohomish Basin 2060 EXHIBIT 28 Page I of I Seen:h Scenarios for Snohomish Basin 2060 adapting to en unc:ertaJn MUTe Home Integrated Mode! Workshop Driving Forces WOf1dng Documents,. ... -, Data;> Driving Force Future Trajectories Meeting;> Integrated Mode! WorKshop Data> Scenario Descriptions .' II UERL project 'I!ndl!lcl by The Bu\litt Foundation Overview Timeline and Products Partnerships Working Documents Data Library PARTNER 610 > Jamie Glasgow Title: Science and Research DireClor (Ecology) Affill811on(s): Wjld Fish Conservancy Nominate a new partner exPertise: Jamie Glasgow contributes to the development and management of all VVild Fish Conservancy scientific programs, including satmonid population surveys and behavioral studies, habitat restoration, and water typing. He received his MS in Fisheries from the University of Washington after earning a as in Biology from Wake Forest University, with additional l!ndergraduate study at the University of New South Wales in Sydney, Australia. Jamie ts instrumental in data collection, analysis, and reporting aspeels of most Wild Fish Conservancy projects. He has been conducting fisheries research and restoration projects in the Northwest slnce 1996. He has extensive experience designing and Implementing field studies 10 evaluate fish pre8~nce. spedes composition. distribution, abundance. and fitness. . Tags: Salmon Bod Stream Habitat < previous Contact \J9 Glossary Links UERL • • • Conserving the Lifeblood of Puget Sound We Cannot Restore the Sound Without an Accurate Stream Inventory Jamie Glasgow, Wild Fish Conserwmcy Director of Science and Rl!Search, Ecology In January 1007. ,hlsjirlr hobilDl waf I~ w;IIKN, any pnN«tion bmnue oj'inarc:aroJe MoV1mwe Mtf'Plng. Wilh QCQ4rate mappiItJ. ,lrb IltYaIIlI/IIOf,//d IuJw btbl providM a j8-jooIlNffer oJrlporlon habitat on eaclI bonk. Photo byJamkJ Glargow. The serious challenges .... ing Pugct Sound reach beyond its deep inlell and sinuoU! shorelines, all the way to the crest of the Cascades, into the rivers and streams thai provide the Sound's lifeblood. The sllUmJ that flow into Pullet Sound fonn an in~1 part of its physical, biologica~ and chemical integrity. As those sttums an: compromised, damaged, and even destroyed by ongoini fo=uy, agriculturlll , industri~ and development practices, the consequences flow into Pugct Sound as surely as water Rows downhill . State and local agencies in Washington are charged with protc<:ting Puget Sound's streams from adv .... impacts associated with adjacent land-usc activities. Most of those agencies have fallen well short of the mark for a 22 surprisingly simple reason : they are relying on inaccurate maps . In Washington, the =ponsible agencies depend on • process called water typing to identify and categorize sttcams, lakes, and wetlands for their importance, ccoloJically and for human uscs . This basic inventory is the moot fundamen~ step in conoerving the health of Puget Sound and its tributaries . Where an: the strcam8, and where an: the fish habitats within them? Unfortunately, current water typing records and maps often underestimate the actual miles offisb-bcaring waters by SOOA. or more. Wild Fisb Conservancy has documented -. • • widespread error Ihioughout Pugct Sound in designating streams as fish-bearing or non fish-bearing. We have found thai a Significant number of s\reSrDS in Puget Sound do not even appear on any maps. Hundreds of miles of productive aquatic hshitats are being threatened und compromised because they have been mi~dentified and subsequently , subjected to inappropriate land practices. This baa created a crisis in how development along streams is being regulated. Many streams race threalll from growing develOpment pressure, and are not receiving protection they warrant under already existing regulstions. Unless the watersheds draining into Pugot Sound are accurately identified and protected, cumulative effeclll from the developmentc,f these wateisheds will continue to contribute to the compromised liealth ofPuget Sound. And until S)'SIem8tic inventories are performed, regulatory maps updated, und critiealll)e8S adequately protected, progress towards sahoon recovery and a healthy Puget Sound will continue to be signifi,cantly offset by the pervasive and in many cases unrecorded loss of habitat and water quality. HOW WATER TYPING WORKS, AND DOESN'T All cities and Counties in Washington arc required to designate "criticalareas" and develop regulstions to protect them througI\'tbC implementation of Critical Areas Ordinances (CADs).' Critieal,areas includeimporlant fish and wildlife habitat _, wCtlands, and aquifer recharge areas. To identify streams that warrant protection as ctitical ' areas, most CADs refer to the water type maps produced by the Washington Department of Natural Resource. (WDNR). In 1975, WDNR, developed the process of water typing to regulate forest practices that impact Washington's surface w8ters, classifying stresms into types depending on their physical, biological, and human-use characteristics. Streams thai soppoIl ~h arc classified as Type F, and non fish-bearing streams are classified as 'JYpe Np (perennial) and Ns (seasonal). Accurate water typing is essential to protecting fish and their habitats because the type and proximity ofhuman activities .dlowable in areas adjacent to streams and other surface..w-is dictated by water type. For example, ripsrian' b'iiffer ZOnes required on Type F streams are larger than thoserel,luired on type N streams. Several studies, including work performed by Wild Fish Conservancy, have demonstrated that WDNR's original water typing efforts imderestimated the actual miles offish-besring stresms by approximately 50'10 statewide. Since 1997 WDNR has maintained a aystem for correcting water type desiiruitions in forestlands, but 23 there is no comparable aystern to ensure timely updates in non-forestty areas subject to Growth Management Act planning and regulstions, Likewise, county and local planning and conservation ordinances often rely on WDNR watertype maps, and 'often without adequate mechanisms for checking or correcting the data presented in the maps. Under illl Habitat Lost & Found progrsm, Wild Fish Conservancy has since 1994 been physically surveying streams throughout Washington to cOrrect their misclasaiflcation and qualify them for the protection warranted under existing laws. Funded by U.S. Fish and Wildlife Service in 1994, Wild Fish Conservancy assessed water type in a randomized subsample of watersheds between the Canadian Border and the Columbia River. Since then, using the state-sanctioned watertype survey protocol we have corrected the WalertypC classification of nearly 6000 stream reaches statewide. A CRISIS IN REGULATING DEVEWPMENT Though originally designed for regnlating forest practices, the WDNR wa\er typing regulatory maps have been widely adopted by city and county govcrDment agencies for regulating development ,activities oulllide the forest-pnsctice zones. Recent Wild Fish Conservancy watertyping surveys in rural and submban landscapes in King. Snohomish. Jefferson. Thwston. San Juan, and Island counties documented similar error-rates in designating stresms as fish-bearing or non fish-bearing, and provided evidence that many streams in these areas do not even appear on any maps, Of 19.9 streain mile. survcyed by Wild Fish Conservancy within the city of Redmond during apring 2005, watertype classification upgrades were required on 18.3 miles; of tho.., some 6.4 miles were previously unrecorded or listed as ''unknown'' on WDNR watertype maps. Consider Snyder Cove Creek. A small watershed located on Cooper Point in west Olympia, Snyder Cove Creek flows into Eld Inlet in South Puget Sound. Prior to a Wild Fish Conservancy survey, regulstory watertype maps identified the watershed as consisting of 955 feet of Type F fish habitat. After surveying the watershed in spring 2005, Wild Fish Couservancy corrected the watertype maps to better reflect reality: 4375 feet of Type F habitat and 2850 feet of Type N habitaL The'regulatory map identified only 14% of the actual stream network. Unfortunstely, the inaccurate stresm channel mapping and the underestimated extent offish habitat exhibited in Snyder Cove Creek regulatory map is the nonn. not the exception. Without watertype assessmenlllto correct the inaccurate regulatory maps, watersheds like Snyder Cove Creek will not he afforded adequate protectionunder,existing regulations . ,--------------------------~--------------------~ • • • Il '<\( \\/( ..I,.,,,, .• ,,' ~ 1n.:am \hl< Cl ! P 4,(~J .Cl!. I .", \11 1., O .~ <I, JUU.O". ,"'..rh'h Md,", 41 .• ) j~ II . AI SItyder Cow Creek in Mndlr Pug tl Sound Wlld Fish Con.tt'r'WA'tC)'.nt1W)'t docJurtcItu til" fM of'fYpe F habitat and 28$0 f«t of'1}pe N hDbital. 1M ubllrtg replolory map Itod idmtjfied jll.Jl 9jJ jm of Type F juJr ItobIhJI, only J.ffl of 1M ocllMJl $tTNm nt:twort. The sell-off of commercial timberlands for conversion into home sites , bobby farms, and commercial developments bas accelerated suburl>an ."",wl in ways that government officials never anticipated . The UW College of Forest Resources estimates chat over the next several 24 years 300,000 acres of f~ in Washington will be CODVerted to otbCr uses; that's an area nearly onc-third the .ize of Pierce County. These factors arc contributing to a crisis in Puget Sound. Development along Puget Sound', .tream. is occurring at unprecedented rates, and it is being inadequately regulated . Local jurisdictions arc relying on inaccW1lte water-typing map. to regulate land and water use, and many streams and the fish they support are facing threats from development and associated practices because they are not receiving protection they legally deserve. ACCURATE WATERTYPES ARE ESSENTIAL FOR PUGET SOUND Miscl ... i1ied Puget Sound lowland stream. in arus within and bordering .ignificant url>an and suburl>an development are not protected from the negative impa<ts associated with developmen~ the results are devastating for the streams , the fish that live in them, and the integrity of the Puget Sound nearshore habitats. they feed . Rentonc€ommunity l!Jpdate'-Why. l:recuse(hnyselffrom:the'Blueberr.y Haven:Appeal:ton, .. Page 4:of8 EXHIBIT 29 raudyconnan 09 June 2008 @ 10:13 pm Why I recused myself from the Blueberry Haven Appeal tonight We reviewed three appeals tonight on city council, all (Jfthem as "quasi-judicial" land-use hearings. In quasi-judicial cases, council is not allowed to take new testimony, and instead is required to make appeal findings strictly from the public record that is already captured'in the project file. In this special' situation, the council is not acting as a normal political body, but is instead serving the role of judges or juries (hence, quasi-judicial). In:one of tonight's three cases, the case of the Blueberry Haven,Appeal, the public record contained: contested testimony about whether Kennydale Creek in the highlands flows year-round; Ifit does, then it is not a class 4 "intermittent creek" as the city has officially classified it, and it requires larger land-use buffers than the applicant proposed. The Hearing Examiner has already had a hearing on this decision, and he heard testimony from a representative from the State Department of Fisheries, and from numerous citizens, indicating that this was a year-round creek. But the applicant insisted if flows only intermittently, and can not support life. This is similar to the official city classification that was assigned to the creek a few years. After 20 years of living in the highlands, I have my own observations about Kennydale Creek. To me, it appears. that the creek flows year round; every year. i' have never seen.it stop' flowing in, 20' sununers . • ~;jnce 1 have made this observation, on countless walks tllroughmy neighborhood; I could not think of a way to keep from being biased by my own observation that this creek seems to always be flowing. I have seen attorneys reject potential jury candidates based on the candidate being too intimately familiar with a location or other aspect of a case; I understandjudges,recuse themselves for a similar: reason,in,some cases. Since this,was,a legai:matter based'on,the existng record; not apolitical,question,l, recused myself instead of arguing my belief that this stream is always flowing. However, I still think it flows year round. Council' Member, Marcie Palmer, a resident of lower Kennydale,recused herselfforthe same reason, (as I understand'it). I should add that I feel that my other five council colleagues (who do not live near this creek) did an honorable job of evaluating the, case record, and, 1 don~tblame them for the decision they made. I might, introduce the idea' that weJiave'a,new study,'commissioned'to,once-and~for.:.all'decide if we have an intermittent creek or a year-round creek. It probably won't affect the subject property, but it could' affect others; Tags: blueberry farm 16 comments I Please Participate! Click here to leave a comment • , ~ 16:coJDments,-Please Participate! Click here to leave a comment) (Anonymous) onJune 10th, 2008;06:33'am,~UTC) , http://randycorman,livejoumalicoml2653'5.J:.html; • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 EXHIBIT 30 The Honorable Jay V. White Trial Date: Monday, Dec. 15, 2008 Trial Time: 9:00 a.m. IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY KENNYDALE CRITICAL AREAS ALLIANCE, a Washington non-profit corporation, and SUSAN RIDER, Petitioners, v. CITY OF RENTON, a Washington Municipal Corporation; and RICHARD LAURALEE GORDLEY, husband and wife; Res ondents. NO. OS-2-2IS23-6KNT PETITIONERS' MOTION TO SUPPLEMENT THE. RECORD l. INTRODUCTION AND STATEMENT OF FACTS Respondents have questioned the veracity of Petitioners' lay observations of Kennydale Creek and suggested that independent review during summer months would help resolve questions about the stream's perennial flow. Respondents have also argued that a stream study would either be "inconclusive or take years to complete." Donckers Declaration (Oct. 27, 2008) (HDonckers Dec.") at Att. P (Respondent Gordleys' Appeal to Renton City Council (April 10, 200S)) at p. 6; id. at p. S. While these arguments ignore the 27 . many first-person observations already in the record, they also ignore a study showing 28 PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - I GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seanle, WA 98101 Phone: (206) 621·8868 Fox: (206) 621·0612 • • • 1 2 3 4 5 6 7 8 water flow during the summer months completed this year. Second Declaration of Brendan W. Donckers in Support of Petitioners' Motion to Supplement the Record (Nov. 6, 2008) ("Second Donckers Dec.") at Att. A ("Wild Fish Conservancy Assessment" ("WFC Assessment")). The record should be supplemented to include this study. The presence of water in Kennydale Creek is integral to this litigation. Despite extensive evidence to the contrary,' the City of Renton's Department of Planning, Building, and Public Works approved the Blueberry Haven Short Plat, LUA-07-13I, and 9 incorrectly categorized Kennydale Creek as a Class 4 stream. The Renton Hearing 10 11 12 13 Examiner's decision, along with evidence already submitted to this court, demonstrate the City's classification to be in error and that the stream, based on its perennial flow, should be categorized according to the City code as a Class 3 stream. The distinction is 14 significant: while a Class 4 stream requires only a 35 foot buffer, a Class 3 perennial 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stream requires a 75 foot buffer. The single most significant difference between a Class 3 stream and a Class 4 stream is the fact that stream flow in a Class 3 waterway is perennial, while stream flow in a Class 4 waterway is intermittent. Petitioners offer the attached stream assessment conducted by the Wild Fish Conservancy ("WFC"), to provide scientific support to evidence already showing Kennydale Creek flows perennially. When the Department of Planning, Building, and Public Works issued its Report and Decision ("Decision") on'December 10, 2007, the Decision acknowledged how very little the City understood about Kennydale Creek's stream flow, particularly during the dry summer months. See also, Donckers Dec. at Att. C (Hearing Examiner Report) at I Petitioners' brief notes the numerous direct observations (some of which stretch over a span of decades), photographs, and previous studies present in the record. PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - 2 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle. WA 98101 Phone: 12061621·8868 Fax: (206) 621-0612 _____ . __________________________________________________________ -J • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Finding 12, Citing an earlier report conducted by Cedarock Consultants, see Donckers Dec. at Att. L (Cedarock Consultant study), the Decision stated that the City had gathered "no conclusive evidence ... as to whether the stream was perennial or intermittent." Donckers Dec. at Att. A (Decision) at p. 8. This issue, the Decision explained, "can only be resolved through direct observation of flow characteristics during the summer." Id (emphasis added). That is, the very report City staff relied upon in approving the Respondent Gordleys' short plat admits the importance of obtaining a stream study conducted during the summer. Significantly, the WFC assessment proposed for addition here includes a review of information conspicuously absent in the study submitted by the Respondent Gordleys. The Gordleys offered a study conducted at their request by Steward and Associates, see Donckers Dec. at Att. D (Critical Area Study), which flatly ignores Kennydale Creek's stream flow. WFC assessed Kennydale Creek's stream flow at four separate locations on September 18, 2008, Study conclusions were clear and direct: stream flow was "easily discernible at all four locations," and the channel meets "physical criteria for fish habitat" established by WAC 222-16-031. Moreover, the study identifies the presence of "perennial aquatic invertebrates" which indicates the channel has "not gone dry in recent years." Second Donckers Dec. at Att. A (WFC Assessment) at p. 3. II. MOTION For the reasons discussed herein, Petitioners move that this court admit the attached document as evidence in this matter. PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - 3 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle. WA 98101 Phone: 1206) 621·8868 Fax: (206) 621-0512 • • • 1 2 3 4 5 6 7 8 9 10 n 12 13 14 15 16 17 18 19 20 21 22 23· 24 25 26 27 28 lII. ARGUMENT This appeal was brought under RCW 36.70C.070, the Land Use Petition Act ("LUP A"). Because LUP A does not address circumstances as they are uniquely presented here, RAP 9.11(a) governs the court's consideration of this motion. The Rules of Appellate Procedure apply since this court is acting as an appellate body, reviewing the Renton City Council's reversal of the Renton Hearing Examiner's conclusion that Kennydale Creek flows perennially. See East Fork Hills Rural Association v. Clark County, 92 Wn. App. 838, 845,965 P.2d 650 (1998)2 RAP 9.11 (a) governs the admission of additional evidence on appellate review. The rule allows additional evidence when all six of the following elements are established: (1) additional proof of facts is needed to fairly resolve the issues on review; (2) the additional evidence would probably change the decision being reviewed; (3) it is equitable to excuse a party's failure to present the evidence to the trial court; (4) the remedy available to a party through post judgment motions in the trial court is inadequate or unnecessarily expensive; (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive; and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court. RAP 9.11 (a)(J)-(6). 2 The court there ultimately ruled' that the requirements of RAP 9.II(a) were not met because the party seeking to have additional evidence admitted failed to even mention any of the rule's six elements or suggest whether those elements might have been met. 92 Wn. App. at 846. Merely stating evidence was "newly discovered" and that it would "be expensive" to refile the application is insufficient. Id. PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - 4 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seanls, WA 98101 Phone: (206) 621·8868 Fax: 1206) 621·0512 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 .14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ------------------------------------------ RAP 9.11(a)(l) is met here because the WFC assessment helps resolve an issue central to resolution of this action on review: Kennydale Creek's stream flow during summer months. The assessment responds directly to concerns raised by Respondents regarding the importance of expeditiously obtaining independent review of the stream's flow. Consistent with RAP 9.1 1 (a)(2), the study also supplements evidence already in the court's possession, including first-hand observations offered by Petitioners, as well as earlier reports. It must be equitable to excuse a party's failure to present evidence to the trial court. RAP 9.11(a)(3). Conducting a stream study prior to Petitioners' appearance in front ofthe Renton Hearing Examiner was simply not possible. The Renton Hearing Examiner heard this matter on February 12, 2008, and issued a decision on March 27, 2008. Donckers Dec. at At!. C at p.l. The Renton City Council's Planning & Development Committee heard the appeal on June 5, 2008, and issued a decision on June 9, 2008. Donckers Dec. at Att Q. The WFC study was conducted on September 18, 2008, during the late, dry weeks of the summer. Petitioners here were constrained by the naturally occurring intervals of winter and spring: Kennydale Creek's summer flow could not have been assessed prior to either the Hearing Examiner's decision in March or the City Council's decision in June] Moreover, Petitioners endeavored to respond directly to Respondents' argument that a conclusive study assessing stream flow during the summer was not feasible to obtain. To meet the requirements of RAP 9.1 I (a)(4)-(5), the remedies of post judgment motions or granting a new trial must be inadequate or unnecessarily expensive. Permitting J Note also that Petitioners chalJenged another party's attempt to rezone the area. Petitioners had no way of anticipating the Gordleys' attempt to increase density beyond environmentalJy-acceptable limits until the Gordleys filed their application, and thus had no reason to conduct a study in previous summers. PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - 5 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle. WA 98101 Phone: 120S} 621·8868 Fax: (206) 621-0512 • • • 1 the attached study to supplement the existing record is the most efficient means of 2 conclusively determining whether Kennydale Creek flows perennially or intermittently. 3 Additionally, a post judgment motion or a new trial would impose unnecessary burdens on 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the City of Renton's administrative system, King County's judicial system, and result in exorbitant costs to Petitioners. Consistent with RAP 9.11 (a)(6), which requires further justification to supplement evidence already taken by the fact-finder, the WFC study reinforces evidence already in this court's possession, adding scientifically significant evidence showing that Kennydale Creek flows perennially. Recent case law interpreting RAP 9.11 (a) adds further support to Petitioners' motion. In East Fork Hills Rural Association v. Clark County, 92 Wn. App. 838, 842,965 P.2d 650 (1998), Division Two considered RAP 9.11(a) in connection with a subdivision application. Following denial of the proposed subdivision, the applicant appealed to the Clark County Board of Commissioners, seeking submission of additional relevant evidence. Id. Based on the additional evidence, the Board remanded and the application was approved. A neighborhood association appealed and Division Two ultimately ruled that the Board could not consider additional evidence in remanding the case. 92 Wn. App. at 845; see also, North/South Airpark Association v. Haagen, 87 Wn. App. 765, 942 P.2d 1068 (J 997). The East Fork Hills court ruled that the additional evidence was inadmissible because the party in that matter failed to brief the elements of RAP 9.11(a) and had ample opportunity to re-file the application and include the additional evidence. 92 Wn. App. at 846. Significantly, however, the court acknowledged that it "made sense" to apply PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - 6 GENDLER & MANN, LLP 1424 Fourth Avenue. Suite 1016 Seattle, WA 98101 Phone: (2061621·8868 Fax: (206) 621·0612 ----------------- • • • 1 RAP 9.11 (a) in the context of an administrative body. Id. Here, RAP 9.11 (a) has been 2 fully briefed and KCAA and Ms. Rider had no opportunity to submit the report before the 3 final decision was issued. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Consistent with the decision in East Fork Hills, supra, Washington appellate courts have refused to apply RAP 9.lI(a) where the offered evidence was irrelevant, readily available, or the elements of RAP 9.II(a) were simply not pled. In Exendine v. City of Sammamish, 127 Wn. App. 574, 586, 113 P.3d 494 (2005), Division One refused a request to supplement the record with additional evidence where the offered evidence concerned a subject which was not at issue in front of the Hearing Examiner and thus irrelevant. Moreover, the offering party provided "no explanation as to why the evidence could not have been discovered and the argument made earlier." Id. Other courts reviewing RAP 9.lI(a) have ruled similarly. See, In re Recall Charges Against Feetham, 149 Wn.2d 860, 72 P.3d 741 (2003) (party offering additional evidence under RAP 9,II(a) failed to argue how five of six criteria apply); In re Adoption of BT, 150 Wn.2d 409, 415, 78 PJd 634 (2003) (offered evidence simply "does not help resolve the issues before us"); Litowitz v. Litowitz, 146 Wn.2d 514, 532, 48 P.3d 261 (2002) (insufficient grounds presented for court to consider additional evidence on review); State v. Elmore, 139 Wn.2d 250, 303, 985 P.2d 289 (1999) (additional evidence repetitious and irreleyant and thus do not meet criteria of RAP 9.1 1 (a» State v. Zeigler, 114 Wn.2d 533, 541, 789 P.2d 79 (1990) (evidence available prior to trial). The circumstances here contrast sharply with those discussed above. The flow of Kennydale Creek is a pivotal issue underlying this litigation and the WFC assessment PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - 7 GENDLER 8. MANN, LLP 1424 Fourth Avenue, Sutta 1016 Seattle, WA 98101 Phone: 12061 621 ·8868 Fax: 1206)621·0612 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 provides scientific support to what Petitioners have directly observed for decades. Moreover, due to circumstances beyond their control, Petitioners could not have submitted the assessment prior to this court's review. IV. CONCLUSION The stream assessment responds directly to issues raised by the City and was obtained and reviewed as expeditiously as possible. For the reasons discussed herein, Petitioners therefore request this court to supplement the existing record with the attached stream assessment. DATED this 0 day of November, 2008. Respe~tfully submitted, GENDLER & MANN, LLP By: rL0,~ Brendan W. Donckers WSBA No. 39406 17 Attorney for Petitioners 18 \K.CAA(Den)\LUPA case'IMotion to SuppJ Record 11 0508 19 20 21 22 23 24 25 26 27 28 PETITIONERS' MOTION TO SUPPLEMENT THE RECORD - 8 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621·8868 Fax: 1206) 621·0612 ~. 1 2 3 4 '5 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22 23 24 is 26 27 28 o o The Honoru.bJ~ Jay V. White Trial Date: Monday, Dec. IS, 2008 . Trla1 Time: 9:00 a.m. IN THB SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FORKING COUNTY KENNYDALE CRITICAL AREAS ALIJANCE, a Washington non-prOfit , oorporation, and SUSAN RIDER. Petitionem, v. CITY Of' RENTON, II Washington Municlpai Corporation; and RJCHARD LAURALEE GORDLEY, lmsband and wife, ' '. NO.08-2·21823-6KNT t. Q"';W'C 1,..(, [I Ut !SCZI] ORDER GlVrl:: i iG PEITTIO~'MOTlONTO SUPPLEMENT TIm RECORD Res ondents. TInS MATI'ER having come on far bearing pursuant to the motion of Petitioners , ()E,Joc,,.1.- [llRefGiJl3!)] ORDBRQIWJ:mIO PETITIONERS' MOTION TO SUPPLEMENT THE. RECORD-1 OR\GtNAL GENOl6I a. MANN. UP '424 FlIOIth Avenue. 6\rJ'h.1Dta Seatt111. WA 9!MD1 P21onr. (zoe. 121 ..... fal rzoBl4Z't-osn , " 'k!If :. -....:, .. 1 2 3 4 S. 6 7 8 9 10 11 12 13 14 • 15 ·16 17 18 19 20 21 22 23 24 25 26 27 28 .~ god o o Dated Ibis ~ dayof N~· 2008. U~~t; THE JAYV. WHITE KING COUNTY SUPERIOR COURT JUDGE Pre ..... tedby: GENDLER & MANN, LLP By: ~1 ... 1r [PREll Sffi>J ORDER QP un 10 PETITIQNERS' MOTION TO SUPPLEMENT TIIE RECORD-2 XlJ=' 13rl!l3SlJ"l dH GENDLER '" MANN. Ll.P 1424 Fovl'lh AVIRI .... !:ult8 '01& Suttt.. WA aa101 PflcINI czoe, 621.asaa F .. : 12Q8J 8Z1-D512 ;. • • • ·1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 31 ._------- CITY O~ RENTON JUN 27' Z008 RECEIVED CITY CLERK'S OFFICE via ABt!. L~fJql eIJ/Hicr I).: go 1,/11, IN THE SUPERIOR COURT OF THE. STATE OF WASHINGTON IN AND FOR KING COUNTY KENNYDALE CRITICAL AREAS ALLIANCE, a Washington non-profit corporation; and SUSAN RIDER, Petitioners, v. CITY OF RENTON, a Washington Municipal Corporation; and RICHARD and LAURALEE GORDLEY, husband and wife, Res ondents. TO THE RESPONDENTS: NO. SUMMONS A lawsuit has been started against you in the above-entitled Court by Kennydale Critical Areas Alliance and Susan Rider, petitioners. Petitioners' claim is stated in the written Land Use Petition, a copy of which is served upon you with this Summons. In order to defend against this lawsuit, you must respond to the Land Use Petition by stating your defense in' writing, and serve a copy upon the undersigned attorney for the petitioners within 20 days if service of this Summons is made upon you within the State of Washington, or within 60 days if service is made upon you outside of the State of Washington, excluding the day of service, or a default judgment may be entered against you without notice. A default judgment is one where the petitioners are entitled to what they ask for because you have not responded. If you serve a notice of appearance on the undersigned attorney, you are entitled to notice before a default judgment may be entered. GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle. WA 98101 Phone: 12061621·8868 Fax: (206) 621·0512 CL ,OF RENTON COUNCIL AGENDA· ~LL I AI#: Submitting Data: For Agenda of: DeptlDiv/Board.. AILS/City Clerk July 7,2008 • Staff Contact.. .: .. Bonnie Walton Agenda Status i-n"7"'"----:--------------------j Consent. ............ . Subject: Public Hearing .. CRT-08-006; Court Case Correspondence .. Kennyditle Critical Areas Alliance, a Washington non-Ordinance ............ . profit corporation; and Susan Rider, Petitioners, v. Resolution ........... . City of Renton, a Washington Municipal Corporation; Old Business ....... . and Richard and Lauralee Gordley, husband and wife, Respondents Exhibits: New Business ...... . Summons and Land Use Petition Study Sessions ..... . Information ........ . Recommended Action: Approvals: Refer to City Attorney and Insurance Services Legal Dept ........ . Finance Dept ..... . Other .............. . Fiscal Impact: Expenditure Required .. . Amount Budgeted ...... . Transfer/Amendment ...... . Revenue Generated ..... , .. . Total Project Budget City Share Total Project. . • SUMMARY OF ACTION: Summons and Land Use Petition filed by Ashley A. Peck and David S. Mann, Gendler & Mann, LLP, 1424 Fourth Avenue, Suite lOIS, Seattle, 98101, on behalf of Kennydale Critical Areas Alliance and Susan Rider, each with addresses of 1835'NE 20th St., Renton, WA 98056, who seek judicial review and reversal of the City Council's decision of June 9,2008, regarding the Blueberry Haven Short Plat Appeal; File: LUA-07-131, SHP-A, ECF . • x • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 You may demand that the petitioners file this lawsuit with the Court. If you do so, the demand must be in writing and must be served upon the petitioners. Within 14 days after you serve the demand, the plaintiff must file this lawsuit with the Court, or the service on you of this Summons will be void. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time. - This Summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the State of Washington. ~ATED this '-z,11'tf--day of June,2008. \KCAA(Den)\LUPA case\Summons 6 25 OS.wpd SUMMONS -2 Respectfully submitted, . GENDLER & MANN, LLP By: WSBA No. 39254 David S. Mann WSBA No.2 J 068 Attorneys for Petitioners GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1016 Seattle, WA 98101 Phone: 12061621-8868 Fax: 1206162'-0512 --------- 1 '2' .' • 3 4 5 6 7 8 9 , erN OF RENTON 3UN 2 7'Z008 rlECEIVEO' CITY CLERK'S OFFICE IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY 10 KENNYDALE CRITICAL AREAS ALLIANCE, a Washington non-profit corporation; and SUSAN RIDER, • • 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioners, y, CITY OF RENTON, a Washington Municipal Corporation; and RICHARD and LAURALEE GORDLEY, husband and wife, Res ondents, , NO, LAND USE PETITION Pursuant to RCW 36,70C,070, the Kennydale Critical Areas Alliance ("KCAA") alleges as follows in support of its Land Use Petition, 1. NAME AND MAILING ADDRESS OF THE PETITIONERS Kcnnydale Critical Areas Alliance 1835 NE 20th Street Renton, W A 98056 Susan Rider , 1835 NE 20 th Street Renton, W A 98056 LAND USE PETITION - 1 I' GENDLER & MANN, LLP 1424 Fourth Avenuo, Sulte"'015 Seattle, WA"98101 Phone: (2061 621·8S68 Fax: 12061621·0512 ,----------- • • • 1 2. NAME AND MAILING ADDRESS OF PETITIONERS' ATTORNEY 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ashl ey A. Peck David S. MaIm Gendler & Mann, LLP. 1424 Fourth Avenue, Suite IO 15 Seattle, WA 98101 3. NAME AND MAILING ADDRESS OF LOCAL JURISDICTION WHOSE LAND USE DECISION IS AT ISSUE City of Renton lOSS S. Grady Way Renton, W A 98057 4. IDENTIFICATION OF THE DECISION-MAKING BODY 4.1 At issue is a decision by the Renton City Council on June 9, 2008, reversing the Renton Hearing Examiner's March 27, 2008 decision and therebyreinslating the Blueberry Haven Short Plat, SHP-07-131. 5. IDENTIFICATION OF EACH PERSON TO BE MADE A PARTY UNDER RCW 36.70C.040(2)(b) THROUGH (d) The applicants for the projectare identified as: Richard and Lauralee Gordley 2010 Jones Ave. NE Renton, W A 98056 In their appeal of the Hearing Examiner's decision, the applicants were represented by: Kevin T. Steinacker Dickson Steinacker LLP 1401 Wells Fargo Plaza 1201 Pacific Avenue Tacoma, W A 98402 LAND USE PETITION -2 GENDLER & MANN , LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: 1206)621·8868 Fax: (206) 621-0512 1 2 • 3 4 5 6 7 8 9 10 11 12 13 14 15 • 16 17 18 19 20 21 ·22 23 24 25 26 27 28 • 6. FACTS DEMONSTRATING THE PETITIONERS HA VEST ANDING TO SEEK JUDICIAL REVIEW UNDER RCW 30.70C.060 6.1. Petitioner Kennydale Critical Areas Alliance is a Washington non-profit corporation composed of neighbors who own property and reside in the Upper Kennydale Area near the subject site. Petitioner Susan Rider is the president of KCAA Ms. Rider owns propelty and· resiqes a~r~ss the street from the subject site and along Kennydale Creek. Ms. Rider and other KCAA members highly value Kennydale Creek and the neighborhood's wetlands for the wildlife habitat and aesthetic values they provide. As such, they have actively advocated for the protection of these critical areas, consisterit with the law, for several years. They have particularly advocated for the City of Renton to correctly d,esignate Kennydale Creek consistent with its perennial flow and applyappropriate land use protections. 6,2. The Blueberry Haven Short Plat applied minimal buffers for a Class 4 (intennittent) stream and Category 3 wetland. In graniing the short plat, the City of Renton waived a requirement thllt the applicant conduc\ a stream study to det~rrnine appropriate protections and did not require a supplemental wetland study. AS,a res,! It , the City fail eo to apply the appropriate protections for critical areas on the site, thereby significantly affecting Petitioners' interests. 6.3 The Petitioners have an aesthetic interest in the protection 9fKennydaie Cre~k and its wetlands.The Creek flows through several KCAA members' properties and alongside . . '. .. Ms. Rider's. Other members frequently pass the Creek on walks,· They regularly enjoy • observing wildlife that inhabits the area such as deer, herons, ducks and other birds. Buffers , serve to protect the functions and values of streams and wetlands by ensuring that development will be set back from the resource, and that riparian and wetland vegetation may remain intact LAND USE PETITION -3 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Pn~ne': i20al621·8868 '. Fax: (2.061621 -0512 • • • .. ------------------- 1 When appropriate buffers are not applied, degradation to these resources and the wildlife they 2 3 4 5 6 7 8 9 10 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 support may result. 6.4.. The Petitioners also have a practical interest in ensuring that their properties are not impacted by improper development in critical areas. In the past, development in the area has resulted in changes to the groundwater table and diversion of stonnwater from increased impervious surface, thereby impacting Petitioners' properties. Appropriate buffers also serve to protect functions such as groundwater recharge and surface water conveyance. 6.5. On behalfofKCAA, Susan Rider filed a timely appeal of the Blueberry Haven Short Plat decision to the Renton Hearing Examiner and defended the decision before the City Council. KCAA is significantly affected by the Council's reversal of the Hearing Examiner decision. 6.6. Petitioners fully participated in the Hearing Examiner's review ofthe short plat decision. Ms. Rider, and several other neighbors and KCAA members testified at the hearing that Kennydale Creek runs perennially and that they had never seen it run dry. Several more KCAA members submitted written declarations asserting the same. Ms. Rider also submitted written briefs and multiple exhibits for the record supporting her position. Ms. Rider, on behalf of KCAA, also participated fully in the City Council appeal of the Hearing Examiner's decision by submitting written briefs and through oral argument by her attorney before the Council's Development Committee. 6.7. Petitioners' interests are among those the City of Renton was required to consider when it made its decision. LAND USE PETITION - 4 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seet1le, WA 98101 Phone: (2061621·8868 Fax: (206) 62'-0512 • •• • 1 2 3 4 5 6 7 8 9 6.8. A decision in favor of Petitioners will redress the hann done to Petitioners by the City Council's reversal ofthe Hearing Examiner's decision and reinstatement of the short plat decision. 6.9. Petitioners have exhausted their administrative remedies to the extent required by law. There are no further administrative appe~ls for Petitioners to exhaust. 7. SEPARATE AND CONCISE STATEMENT OF ERRORS ALLEGED TO HAVE BEEN COMMITTED 7.1. The City Council's reversal is clearly erroneous and not supported by 10 substantial evidence. 11 12 13 8.1. 8. STATEMENT OF FACTS Applicants Richard and Lauralee Gordleyown property in the Upper Kennydale 14 neighborhood at 210 Jones Avenue NE, Renton, Washington. The Gordleys soughtapproval 15 from the City of Renton to subdivide the parcel into two lots. A stream, Kennydale Creek, 16 17 18 19 20 21 22 23 24 25 26 flows across the property, and there is also a portion of wetland on the northeast comer of the property. 8.2. In support of their application, the Gordleys submitted a "Critical Areas Study" prepared by a consultant on their behalf. The Study classified the onsite wetland as a Category 3 wetland under the City's code, but did not address the stream. The City did not require the Gordleys to submit a stream study as required by RMC 4-3-050(L)(3)(c)(ii), apparently waiving the requirement and relying on the City's interpretive water class map and prior studies in the area. 8.3. The Renton Municipal Code provides that no pennit should issue unless 27 consistent with critical areas regulations. The Code's critical areas regulations provide criteria 28 LAND USE PETITION - 5 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621·8868 Fax: (2061621-0512' • , \ • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ------------------------------~ • for four types of regulated water bodies and supply protective buffers based on the type. A "Class 3" water is defined as a non-salmonid bearing perennial waterway during years of nonnal rainfall, RMC 4-3-050(L)( 1 )(a)(iii), and a "Class 4" water is defined as a non-salmonid bearing intennittent waterway. RMC 4-3-050(L)(1 )(a)(iv). 8.4. The Code also prescribes buffers for wetlands based on their classification. A wetland located in the headwaters. of a watercourse is correctly classified a "Category 2" wetland. RMC 4-3-050(M)(l )(a)(ii). 8.5. The City's short plat decision applied buffers for a Class 4 stream and a Category 3 wetland. The City waived the requirement for a stream study and did not require a supplemental wetland study. 8.6. Ms. Rider timely appealed the City's short plat decision on behalf ofKCAA, arguing that the decision was in violation of the City's critical areas regulations because Kennydale Creek flows perennially and because the wetland is a Category 2 wetland under the City's code because it is located in the headwaters ofa watercourse. 8.7. On February 12, 2008, an appeal hearing was held before the Renton Hearing Examiner. Ms. Rider and her neighbors submitted extensive evidence showing that Kennydale Creek does not run dry in the summer months, including testimony, photos and declarations. They also pointed out that none of the studies cited by the applicants and the City found that the Creek was intennittent nor supported a Class 4 designation. The Applicants also testified at the hearing, arguing that the Creek was correctly classified and that a study was not required, but they did not testify that the Creek ran dry during the summer months. 8.8. The Hearing Examiner issued his decision on March 27, 2008, concluding that the City's issuance of the short plat pennit was in error, contrary to law and arbitrary and GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle; WA 98101 LAND USE PETITION - 6 Phone: (206) 621-8868 Fax: 1206162'-0512 • • • 1 2 3 4 5 .6 7 8 9 10 11 12 13 14 15 16 17 capricious. He found that the evidence showed the City erred in waiving the stream study requirement, applied the wrong designation to the stream pursuant to the code,. and failed to require· independent review of the applicant's wetland classification when it.conflicted with prior studies. 8.9. The Hearing Examiner specifically found that the studies relied on by the City and the Applicants did not substantively address whether the stream was perennial or intennittent and that the City had been made aware that there was a conflict as the Creek's designation. The very study relied on for the stream classification referenced reports of year-round flow and indicated that ifthe Creek flowed year-round, it was correctly categorized Class 3. 8.10. The Hearing Examiner found that the Code required a stream to be classified based on its characteristics, not the City's interpretive water class map. He found that the Code clearly dictates that if a stream flows year-round, it is a Class 3 stream. He further found that the evidence and reports showed evidence of perennial flow in a nonnal year, and thus the 18 City's classification was wrong. 19 20 21 22 23 24 25 26 27 28 8.11. The Hearing EXaJtliner also found that the City'S failure to require independent review of the Applicant's wetland study when it conflicted with prior studies performed on the same wetland for the City was in error. 8.12. The Applicants filed a timely appeal ofthe Hearing Examiner's decision to the Renton City Council. The Planning and Development Committee of the Council heard the appeal on June 5, 2008. The Committee's review was limited to the record, the submissions of the parties, and oral argument by counsel. Without making specific written findings, the LAND USE PETITION -7 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle. WA 98101 Phone: (206162'-8868 Fax: (2061621·0512 ,---------------------------------------------- • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Committee found that the Hearing Examiner committed a substantial error oflaw and fact and recommended reversal of the decision. 8.13. On June 9, 2008, the Renton City Council addressed the appeal in its regular Council meeting and the Planning and Development Committee relayed its recommendation. During the Council meeting, Councihnember Randy Corman stated that he had lived in the subject neighborhood for more than 20 years and had "never, ever seen this creek dry." He further stated that it was his own observation that Kennydale Creek was not intermittent, but perennial. Councilmember Connan was advised that because he had independent information, he should recuse himself from the decision. Councilmember Marcie Palmer also recused herself. 8.14. The Council s\!bsequently adopted the recommendation of the Planning and Development Committee, reversed the decision of the Hearing Examiner, and thereby reinstated the approval of the short plat. 8.15. KCAA files this Land Use Petition pursuant to chapter 35. 70C RCW seeking judicial review of the Council decision. 9. REQUEST FOR RELIEF Petitioners request the following relief: a. Issuance of an order directed to the City to produce its record so that the same 23 may be reviewed by the court. 24 25 26 27 28 b. Entry of an order reversing the City Council's decision. c. Such further relief as the court deems just and necessary. LAND USE PETITION - 8 GENDLER & MANN, LLP 1424 Fourth Avenue, Sulto 1015 Seattle, WA 98101 Phone: (2061621-8868 Fax: (206) 621-0512 r-------------~---------------------------------------.. ------------------------------------- • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17' 18 19 20 21 22 23 24 25 26 27 28 DATED this .. ~ 1 Ht-dayof June, 2008. Respectfully submitted, GENDLER & MANN, LLP BY:A~ WSBA No. 39254 David S. Mann WSBA No. 21068 Attorneys for Petitioners \KCAA(Den)\LUPA case\lAnd Use Pelition ANAL 6 27 08.wpd LAND USE PETITION - 9 , . GENDLER & MANN. LLP 1424 Fourth Avenue. Suite 1015 Seattle, WA 98101 Phone: (2061621·8868 Fax: 12061621-0512 ----------------------------- • • • I 2 3 4 5 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 32 The'Honorable Jay V. White IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY KENNYDALE CRITICAL AREAS ALLIANCE, a Washington non-profit corporation, and SUSAN RIDER, Petitioners; v. CITY OF RENTON, a Washington Municipal Corporation; and RICHARD and LAURALEE GORDLEY, husband and wife, Res oildents. NO. 08-2-00437-4 PETITIONERS' OPENING BRIEF 1. INTRODUCTION Urban streams, wetlands and other green spaces are becoming few and far between in fast-growing King County. Development has quickly gobbled up these environmentally valuable and sensitive areas as cities expand to accommodate growth. The scarcity of urban streams and wetlands has made those remaining all the more important for providing valuable ecological functions such as groundwater recharge, stormwater conveyance and habitat for urban wildlife. Protection these areas is essential to preserving our natural environment and maintaining natural elements in our landscape. It is also essential to protecting public health and safety by reducing the risk of floods, landslides and drinking water contamination. PETITIONERS' OPENING BRIEF - I GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 _,WA98101 Phone: (206) 621-8868 Fax: (206) 621.0512 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In order to strike a balance between growth and conselVation of these sensitive areas, the Washington legislature, through the Growth Management Act ("GMA"), has required all counties and large municipalities to adopt development regulations to protect "critical areas." RCW 36.70A.050(2); §l<!l ill§ll RCW 36. 70A.0 1 O. The Act mandates that the regulations for· critical areas protect all functions and values of those designated areas. RCW 36.70A.172(1); Whidbey Environmental Action Network (WEAN) v. Island County, 122 Wn. App. 156, 174- 175 (2004), review denied 153 Wn.2d 1025 (2005). Pursuant to the directive in the GMA, the City of Renton has adopted a critical areas ordinance and incorporated its regulations into its municipal code at Chapter 4-3-050. The stated purpose of Renton's critical areas regulations is to manage development activities to protect environmental quality and to assist city officials with information to evaluate development proposals. RMC 4-3-050 (A)(I). Another stated purpose is to protect the public from potential litigation on improper construction practices occurring in critical areas and to ensure that critical area functions are not impaired such that maintenance and replacement of public facilities is necessary. Id. In order to achieve these goals, the regulations require that protective buffers be applied for development next to streams and wetlands according to the particular stream or wetland characteristics and the corresponding classification in the code. RMC 4-3-050 (L)(I). The regulations also require that an applicant for a permit or property division submit a stream and/or wetland study when these features exist on a property in order to determine the appropriate classification for buffer purposes. RMC 4-3-050 (L)(3)(A). The City may not issue a permit unless it is consistent with the critical areas regulations. RMC 4-3-050(L)(7). . Critical areas protection under Renton's regulations does not call for a political PETITIONERS' OPENING BRIEF - 2 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206)621~ Fax: (20B) 621.0512 • • • I judgment call or application of an ad hoc subjective balancing test to accommodate 2 3 4 5 development. The regulations are quite simple: where a stream or wetland is located on a given piece of property, the City must determine its characteristics through the required , applicant-funded studies and apply the corresponding protections for any permitted 6 development. The City must apply the code as adopted. It cannot employ creative 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 interpretations and turn a blind eye to the obvious conditions. This appeal concerns a decision by the Renton City Council on June 9, 2008, reversing the Renton Hearing Examiner's March 27, 2008 decision and thereby reinstating the Blueberry Haven Short Plat, SHP-07-131. Because the City Council's decision is completely unsupported by the facts and is contrary to the applicable law, Petitioners Susan Rider and the Kennydale Critical Areas Alliance respectfully ask this court to reverse it and reinstate the Hearing Examiner's decision pursuant to the Land Use Petition Act, RCW 36.70C.070 . II. STATEMENT OF PERTINENT FACTS A. The Parties Petitioner Kennydale Critical Areas Alliance ("KCAA") is a Washington non-profit corporation composed of neighbors who own property and reside in the Upper Kennydale neighllorhood near the subject site. Ms. Susan Rider is the president of KCAA. Ms. Rider owns property and resides across the street from the subject site and along Kennydale Creek. . Ms. Rider and other KCAA members highly value Kennydale Creek and the neighborhood's wetlands for the wildlife habitat and aesthetic values they provide. As such, they have actively advocated for the protection of these critical areas, consistent with the law, for several years. They have particularly advocated for the City of Renton to correctly classify Kennydale Creek consistent with its perennial flow and apply appropriate land use protections. PETITIONERS' OPENING BRIEF - 3 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8888 Fax: (206)621.0512 • • • I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Respondents Richard and Lauralee Gordley ("Gordleys") own the property in the Upper Kennydale neighborhood at 2010 Jones Avenue NE, which is the subject of the short plat decision. The Gordleys sought approval from the City of Renton to subdivide the parcel into two lots. The parcel contains a stream and wetlands. Respondent the City of Renton ("City") is a municipal corporation and its Department of Community and Economic Development issued the land use decision at issue in this appeal. Both Respondents participated in the proceedings before the Renton Hearing Examiner and the City Council. B. Administrative Short Plat Decision The City approved the Gordleys' short plat application to divide their property into two parcels on December 10, 2007. A stream, Kennydale Creek, flows across the property, and there is a portion of a larger wetlands complex on the northeast portion of the property. .. '~Tl~Y".';jI~'~" ",'-'~.'''''-H~.':"'I (!i~l?jpi!ft~tI1Wl.:,} In support of their application, the Applicants submitted a "Critical Areas Study" prepared on their behalf by Steward and Associates, which determined that the onsite wetland was a Category 3 wetland under Renton's critical areas ordinance. f!!0ffilit@g:9i ~gal~o'!~Q!r£lThe City did not require the Gordleys to prepare an analysis of the stream, instead apparently relying on previous studies in the area and the City'S water class maps. HE, Finding 9. City staff applied buffers for a Class 4 intermittent stream and a Category 3 disturbed wetland in the administrative approval of the short plat, applying minimal buffer widths for development at the site. HE, Finding 10. In granting the short plat, the City waived the code requirement that the applicant conduct a stream study to determine appropriate protections' and did not require an independent wetland study despite discrepancy in the record. As a result, the City failed to PETITIONERS' OPENING BRIEF - 4 GENDLER & MANN, LLP 1424 Fourth Avenue. Suite 1015 Seattle, WA 98101 Phone: (206)621~ Fax: (2OG) 621.0512 • • • I apply the correct protections for critical areas on the site, thereby violating its own regulations. 2 3 4 5 6 7 8 9 10 1J 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Hearing Examiner Decision Ms. Rider filed a timely appeal of the short plat decision on behalf of KCAA, arguing that the decision was in violation of the City's critical areas regulations because Kennydale Creek flows perennially and is thus a Class 3 stream pursuant to the City code, and because the wetland is a Category 2 wetland because it is located in the headwaters of a watercourse. HE, Finding II. A hearing was held on February 12, 2008. Ms. Rider submitted extensive evidence showing that Kennydale Creek is a perennial stream that does not run dry in the summer months during normal years. See!W:. Exhibits 6- 10, 12, 17; HE, pages 3-5. In addition to Ms. Rider, six neighboring property owners testified at the hearing that they had observed KennydRle Creek on a regular basis for decades and had never seen it run dry. For instance, Mr. Paul Watt, who lives downstream from the Gordley property, testified that he has observed the stream run through his backyard nearly every day since the 1960s and has never seen it dry. HE, page 4. Larry Fisher of the Washington Department ofFish and Wildlife (WDFW) also testified that he has observed Kennydale Creek regularly during his 18 years as the local Area Habitat Biologist. He testified that the creek is perennial and is thus a Class 3 stream under the City'S code. Mr. Fisher also testified that he had attempted to bring this issue to the City's attention through comment letters on previous matters, but to no avail. HE, page 3; See also Exhibit 6. Ms. Rider testified that she and other neighbors had made extensive efforts for several years to bring this issue to the City's attention, and she submitted copies of numerous affidavits previously submitted to the City about the perennial nature of Kennydale Creek. PETITIONERS' OPENING BRIEF - 5 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621_ Fax: (206) 621~512 • • • I See Exhibits 7-9. One neighbor that has lived in the area for 92 years declared that the creek 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22. 23 24 25 26 27 28 Anotherneighbor that maintains the drainage grate on the culvert where the Creek flows under 1-405 visits the stream each day of the year, and reported in his declaration that there is always concerns were consistently dismissed by the City as lay observation at the hearing,just as they had been before, even though they demonstrated a conflict regarding the classification from Additionally, Ms. Rider submitted photos of water flowing in Kennydale Creek in the dry summer months at points directly upstream and directly downstream of the Gordley property. See Exhibit 10. She pointed out that the very study relied on by the City and the applicants did not support a Class 4 designation. It rnther stated that the creek would be Class 3 if it flowed year round, referenced prior findings indicating perennial flow and stated that the creek would be perennial if it was fed by groundwater. See Exhibit 18, see also HE, Findings 16-19. She also submitted severnl prior wetlands studies that had classified the wetland on the Gordley property as a Category 2 headwater wetland under the City's code. See Exhibits 14 -16. City Planner Jennifer Henning and Mr. and Mrs. Gordley also testified and submitted exhibits at the hearing. See HE, pages 5-11, After hearing aJl of the evidence and reviewing the submissions of the parties, Renton Hearing Examiner Fred Kaufinan concluded that Ms. Rider had demonstrated that the decision of City staff was in error, contrary to law, or arbitrary and capricious, and he reversed the decision. HE, Conclusion 1. SpecificaJly, he found the decision should be reversed because PETITIONERS' OPENING BRIEF - 6 GENDLER & MANN, LLP 1.tl24 Fourth Avenue, Suite 1015 Seattle. WA 98101 Phone: (206) 621-8868 Fax: (206) 621-G512 • • • 1 the evidence showed the City erred io· waiviog the stream study requirement, HE, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Conclusions 6, 8; applied the wrong designation to the stream pursuant to the code, HE, Conclusion 10; and failed to require independent review of the applicant's wetland classification where it conflicted with the City'S own prior studies. HE, Conclusion 9. The Hearing Examioer specifically found that the studies relied on by the City and the Applicants did not substantively address whether Kennydale Creek was perennial or iotermittent and that the City had been made aware that there was a conflict as the Creek's designation. HE, Findiogs 16-19;, Conclusion 6. The very study relied on for the stream classification referenced reports of year-round flow and indicated that if the Creek flowed year-round, it was correctly categorized Class 3. See Hadley Report (Exhibit 18). The Hearing Examiner found that the Code required a stream to be classified based on its characteristics, not the City's interpretive water class map. He, Finding 15; Conclusion 6. He found that the Code clearly dictates that if a stream flows year round, it is a Class 3 stream. Id. He further found that the evidence and reports showed evidence of perennial flow io a normal year, and thus the City's classification was wrong. HE, Conclusion 8. The Hearing Examioer also found that the City's failure to require iodependent review of the Applicant's wetland study when it conflicted with prior studies performed on the same wetland for the City was io error. HE, Conclusion 9. He thus reversed the City's approval of the short plat. E. City Council Reversal The Applicants filed a timely appeal of the Hearing Examiner's decision to the Renton City Council. The Planning & Development Committee of the Council heard the appeal on June 5, 2008. The Committee's review was limited to the record, the submissions of the parties, and oral argument by counsel. Without making any specific written findiogs, the PETITIONERS' OPENING BRIEF - 7 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone, (206) 621-86G8 Fax: (206) 621"()S12 • • I I • I 1 Committee found that the Hearing Examiner committed a substantial error oflaw and fact and 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 recommended reversal of the decision. The Committee did not in any way explain how the Hearing. Examiner had erred in determining the law. It did not assign error to any of his findings of fact. Its written decision consisted only of the following cursory conclusion: This Committee, after hearing the presentations by City Staff, the Gordleys and Ms. Rider and having considered the record below, finds that the Hearing Examiner made a substantial error of law and fact and recommends reversal of the Hearing Examiner's· decision. City Council Decision, page 1-2. . On June 9, 2008, the Renton City Council addressed the short plat appeal in its regular Council meeting and the Planning and Development Committee relayed its recommendation. QJi~?i!iii!1i!~Nifm±ili.~~.rt[fir&1i1igr!ff.!Remarkably, during the Council meeting, City Councilmember Randy Connan stated that he had lived in the Kennydale neighborhood for more than 20 years and had "never, ever seen this creek dry."m!£mw~~.~. He further stated . ,------_. ---_ .. --. that it was his own observation that Kennydale Creek was a perennial stream. Councilmember Corman was advised by the City's counsel that because he had independent information, he should recuse himself from the decision. City Councilmember Marcie Palmer also recused herself, presumably for similar reasons.i§tr~l The Council subsequently adopted the recommendation of the Planning and Development Committee, reversed the decision of the Hearing Examiner, and thereby reinstated the approval of the short plat. gjj@ The City Council's reversal is clearly erroneous, not supported by substantial evidence, and contrary to law, particularly where it is wholly unsupported and was even contradicted . . PETITIONERS' OPENING BRIEF -8 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206)621~ Fa: (206) 621,()S12 - • • • 1 by statements by recused councilmembers. KCAA and Ms. Rider have filed this action 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 pursuant to Washington's Land Use Petition Act ("LUP A"), chapter 35. 70C RCW seeking judicial review of the City Council decision. III. ISSUES PRESENTED 1. Is the City Council's reversal clearly erroneous and not supported by substantial evidence because the Hearing Examiner correctly interpreted the law and applied it to the facts in concluding that City staff decision to waive the stream study was arbitrary and capricious and/or clearly erroneous? 2. Is the City Council's reversal clearly erroneous and not supported by substantial evidence because the Hearing Examiner correctly interpreted the law and applied it to the facts in concluding that the stream classification and buffers applied by staff were contrary to the code and existing conditions? 3. Is the City Council's reversal clearly erroneous and not supported by substantial evidence because the Hearing Examiner correctly interpreted the law and applied it to the facts in concluding that staff erred by not requiring an independent wetlands study pursuant to the code where the Applicant's study conflicted with previous City-funded studies? IV. AUTHORITY AND ARGUMENT IN SUPPORT OF APPEAL A. Standard of Review Petitioners have the burden to prove that the City Council's decision was unlawful. RCW 36. 70C.130(l). Three ofLUP A's six possible grounds for reversal apply here. First, the decision is a "clearly erroneous application of the law to the facts." RCW 36.70C.130(1)( d). In determining whether an appealed decision is an erroneous application of the law to the facts, the court looks to the record before it to determine whether it is left with the firm conviction that a mistake has been committed. Cingular Wireless, LL. C. v. Thurston County, 131 Wn. App. 756, 768 (2006). The pertinent "law" involved here is RMC § 4-3-050 (L )(3)( a), which requires all app licants with streams on their property to submit a stream study to determine its classification; RMC § 4-3-050 (L)(l)(a)(iii), which classifies perennial non- PETITIONERS' OPENING BRIEF - 9 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 821-8688 Fax: (206) 621.0512 • • • 1 salmon bearing streams as Class 3 waterways; and RMC § 4-3-050(M)(I)(a)(ii), which 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 classifies headwater wetlands as Category 2 wetlands. The "facts" are that the City failed to require a stream study, that extensive evidence showed that Kennydale Creek in fact flows year round, and that the wetland on the Gordley property is located in the headwaters of Kennydale Creek. Second, the decision is not supported by substantial evidence. RCW 36. 70C.130(l )( c). The issue of whether the appealed decision is supported by evidence that is substantial is a question of fact which the court must determine based on review of the record before it. Cingular Wireless, l31 Wn. App. at 768. In performing the above analyses the court should normal defer to any factual determinations made by the highest forum below that exercised fact-rmding authority. Id, citing Citizens to Preserve Pioneer Park, LLC v. City of Mercer Island, 106 Wn. App. 461, 473 (2001). The Renton City Council decision is not supported by any evidence at all. The Council did not offer any justification for its reversal, make any findings of fact, or any conclusions of law. Because the Council did not make any factual determinations, any deference should be only to the Hearing Examiner. as the highest forum below. The record before this court provides substantial evidence to support the Hearing Examiner's conclusion that the City failed to follow its own code in approving the short plat without adequate buffers and without requiring sfudies to determine the adequate buffers. It provides no evidence to support the Council's reversal. Third, if the court assumes that the City Council interpreted the code provisions to not require the missing stream study and not to dictate the correct classifications of the stream and wetland, then the decision is an "erroneous interpretation of the law, after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise." RCW PETITIONERS' OPENING BRIEF -10 GENDLER & MANN, LLP 1m Fourth Avenue, Suite 1015 50_. WA 98101 Phon.: (~) 621_ Fa: (206) 621.QS12 • • • 1 36. 70C.130(1)(b). The issue of whether the appealed decision is an erroneous interpretation 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of the law is a question this court reviews de novo. Cingular Wireless, 131 Wn. App. at 768. Because the City Council failed to provide any legal justification for its reversal or point to any conclusions of law by the Hearing Examiner that it found to be erroneous, any assumed legal interpretation should not be accorded any deference. LUP A plainly does not call for the blind deference that would be required in this case. No deference is due to' a decision that entirely fails to address the issues and no deference is due to a decision that reverses, without any explanation, a carefully reasoned and well-supported decision by the Hearing Examiner. B. Renton's Critical Areas Regulations Require Applicant-Funded Stream Studies. Categorize Perennial Streams Class 3 and Classify Headwater Wetlands Category2 The Renton critical areas ordinance outlines criteria for four types of regulated water bodies and prescribes protective buffer requirements based on those types. Class 3 waters are described as follows: iii. Class 3: Class 3 waters are non-saimonid-bearing perennial waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 3.' RMC 4-3-050 (L)(l)(a)(iii) (emphasis added). Contrarily, the criterion for Class 4 waters is the absence of year-round flows: iv. Class 4: Class 4 waters are non-saimonid-bearing intermittent waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 4. RMC 4-3-050 (L)(l)(a)(iv) (emphasis added). The sole difference in the two water class designations is the presence or absence of water flowing in the stream year-round. Thus, if a stream does not run dJy in the summer during normal years. it is a Class 3 waterway pursuant to the code. The code prescribes PETITIONERS' OPENING BRIEF -11 GENDLER & MANN, LLP 1"24 Fourth Avenue. Suite 1015 Seattle, WA 98101 Phone: (206)621~8 Fax: (206) 621.0512 • • • SO 1 minimum buffer widths according to classification, requiring a !:i'-foot buffer for Class 3 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 streams and a 35-foot buffer for Class 4. RMC 4-3-050 (L)(5)(a)(i). The code also supplies a map, generally referred to as the "Q Map," which shows the "approximate location and extent of Class 2 to Class 4 water bodies with the City limits." RMC 4-3-050(L)(1)( c )(i). The current Q Map classifies the lower portion of Kenny dale Creek as a Class 3 perennial stream, but inexplicably classifies the upper reaches, including its classifications assigned in the Q map are intemretive only: rd. The map is to be used as a guide to the general location and extent of streams. Specific locations and extents will be determined by the City based uponfield review and applicant- fonded studies prepared pursuant to subsection L3 of this Section. Notwithstanding the map classifications, the actual presence or absence of the criteria spelled out in the ordinance "shall govern" stream classifications for individual sites. RMC 4-3-050(L)(I)(c)(ii). Administrative approval is required for the reclassification ofa water body to a lower class that assigned in the map, but is not required for a reclassification to a higher class: ii. Reclassification: Where there is a conflict between the Renton Water Class Map in Subsection Q and the criteria in subsection Lla of this Section, the criteria in subsection Lla of this Section shall govern. The reclassification of a water body PETITIONERS' OPENING BRIEF -12 GENDLER & MANN, LLP 1"24 Fourth Avenue. Suite 1015 Seattle. WA 98101 - Phone: (206)621_ Fax: (206) 621-0512 • • • I 2 3 4 5 6 7 ·8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 to a lower class (i.e. 2 to 3, or 3 to 4, etc.) requires administrator acceptance of a supplemental stream or lake study, followed by a legislative amendment to the map in subsection Q of this Section prior to its effect. RMC 4-3-050(L)(I)(c)(ii)(emphasis added). Accordingly, the regulations require applicants to conduct a standard stream study when a site contains a water body or buffer area or the project area is within one hundred feet (100') of a water body. RMC 4-3-050(L)(3)(a). The report is to be prepared by a qualified biologist and include a map identifying the ordinary high water mark (OHWM), the stream classification, topography of the site, flood plain, and vegetative cover. RMS 4-8-120 (D). The study must also describe the ecological functions provided by the waterway, observed fish'and wildlife that use the area, and measures to protect trees and vegetation. Id. The stream study requirement "[ m Jay only be waived ... when the applicant provides satisfactory evidence that .. , (a}pplicable data and analysis appropriate to the proposed project exists and an additional study is not necessary." RMC 4-3-050(L)(3)(d)(ii)(c) (emphasis added). The City may also require independent review of an applicant's report by another qualified professional, or request consultation with the state resource agencies or local tribes to determine accuracy. RMC 4-3-050 (F)(7)(a). The City must ensure that there will be no net loss of riparian area function as a result of the permitted land use. RMC 4-3-050 (L)(4)(b). The City'S critical areas regulations also outline protections for wetlands and specify that permits should only be approved where there is to be no net loss of regulated wetland area, value or function in the drainage basin where the wetland is located. RMC 4-3~050 (M)(2)(b). PETITIONERS' OPENING BRIEF -13 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621..Q512 • • • 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 " 17 18 19 20 21 22 23 24 25 26 27 28 Wetlands that meet one or more of the following criteria are correctly classified Category 2 wetlands: (a) Wetlands that are not Category I or 3 wetlands; and/or (b) Wetlands that have heron rookeries or osprey nests, but are not Category I wetlands; and/or ( c) Wetlands of any size located at the headwaters of a watercourse, i.e., a wetland with a perennial or seasonal outflow channel, but with no defined influent channel, but are not Category 1 wetlands; and/or (d) Wetlands having minimum existing evidence of human- related physical "alteration such as diking, ditching or channelization; and/or RMC 4-3-050 (M)(I)(a)(ii)(emphasis added)" The regulations require the applicant to prepare a wetland assessment when there are wetlands in the project area or within 100 feet. RMC 4-3-050 (M)(3)(a). The assessment must address the classification of the wetland based on presence or absence of the criteria for each wetland category. Id. The City may elect to conduct an independent review of an applicant's wetlands report when necessary. RMC 4-3-050 (F)(7)(a). Like the required stream study, the wetland study can be waived where applicable data and analysis appropriate to the project exists and an additional report is not necessary. RMC "4-3-050 (M)(3)(b). B. The City's Waiver of the Stream Study Was in Violation of the Code Hearing Examiner Kaufman correctly found that the City erred in not requiring the Gordleys to submit a stream study pursuant to RMC 4-3-050(L)(3)(a) where the record demonstrated a conflict as to the perennial'or intermittent nature of the stream. After review of the evidence, he found that the previous study relied on by the applicants and the City as evidence of Kennydale Creek's Class 4 designation (Exhibit 18, by Carl Hadley of Cedarock Consultants) did not conclusively address streamflow, indicated the Creek should be Class 3 PETITIONERS' OPENING BRIEF -14 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 SaatHa, WA 98101 Phone: (206) 621-8888 Fax: (206) 621~512 • • • 1 if it flowed year round, and even referenced other studies reporting year-round flow. HE, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 . 17 18 19 20 21 22 23 24 25 26 27 28 Findings 16-19. The Gordleys' Critical Areas Study by Steward and Associates discussed only the wetland and did not evaluate the stream at all. See HE, Finding 4; Exhibit L The City received several letters from neighbors pointing out that the stream flowed year rourid in response to the short plat application. See Exhibit 1; HE, Conclusion 7. The issue had also been brought to the City's attention repeatedly by both neighbors and the WDFW through previous processes. HE, Conclusion 7; See Exhibits 6-9. The City clearly had notice of a conflict between the water class map and actual conditions. In light of such uncertainty, the required stream stUdy "might have helped finally decide an issue that has been raised by the appellant and neighbors for a number of years." HE, Finding 6. The Hearing Examiner found that the City not only erred in waiving a stream review by the Applicants' expert, but also by not seeking an independent study that could have resolved the contradictions raised by neighbors. !l!. The applicants and the City contended that waiver of the stream study was appropriate due to other studies that had been conducted in the area. But while several studies had been conducted mainly on wetlands in the area to support previous development, there certainly wasn't "applicable data and analysis" supporting the stream classification for the Gordley property sufficient to render an additional study unnecessary. RMC 4-3-050(L)(3)(d)(ii)(c) In truth, !!Ql.l& of the previous studies in the record provides analysis supporting the Class 4 designation applied in the short plat, and the majority conflict with the stream and wetland classifications applied. The first report by Entranco (Exhibit 15) was an early wetland delineation that classified the wetlands on the Gordley property as Category 2 headwater wetlands.~"[eJ:;~b!f12;.P.lig~i2JlThis study did not evaluate the creek at all or classify it GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle. WA 98101 PETITIONERS' OPENING BRIEF -15 Phone: (206) 621-8868 Fax: (206) 621..0512 • • • I according to the code. A 2004 report by Ellisport Engineering (Exhibit 14) supplied another 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 wetland delineation and did not substantively address the stream classification at all, but it did swnmarily state: "The Gordley property does have a Class III stream crossing it north to (Exhibit 19) was written on behalf of developer Terry Dutro in support of his request to reclassify Kennydale Creek to a Class 5 umegulated, manmade waterway .. Again, it does not address whether the stream flows year round and thus does not at all substantively support a Class 4 intermittent designation for Kennydale Creek. S~i~"~l\hl~!HI~~Moreover, the City Council conclusively rejected Mr. Detro's request for the downgrade. HE, Finding 13. Other studies in the record tend to indicate that Kennydale Creek flows year round. A 2005 study conducted by the· Watershed Company (Exhibit 17) again reviewed only whether the stream should be downgraded to a Class 5 waterway (in response to the Dutro request) and did not specifically analyze the perennial flow issue. Of note, however, the ecologist observed water in the stream in late July, which indicates perennial flow. §lf~ gIilliE~iti7;. The letter most cited by the City and the applicants as supporting their position was a letter from Carl Hadley of Cedarock Consultants. Exhibit 18. However, Mr. Hadley again concluded only that the stream should not be downgraded to a Class 5 manmade waterway and did not substantively support the City'S conclusion that it should be classified as intermittent. In fact, Mr. Hadley specifically stated that if the stream flows year round, it . should be Class 3 and he pointed out that more information is needed to make this deterniination. g~11!tI~rp~g~1:1 He cited other studies as reporting flow in dry months and explained that the stream is likely fed by groundwater, in which case it would be perennial. PETITIONERS' OPENING BRIEF -16 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle. WA 98101 Phone, (206) 82,..1868 Fax: (206) 621-0512 • • • I Id. at page 3. The applicant's Critical Areas Study conducted by Steward and Associates 2 3 4 5 6 7 8 9 10 11 12 \3 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 addressed only the wetland and did not evaluate stream class at 1111. See Exhibit I. In sum, none of the studies in the record provides any substantive evaluation of whether Kennydale Creek flows perennially or intermittently, the main issue before both City staff, the Hearing Examiner, the City Council, and now this court. The majority of the in don't address the creek at al\, and the ones that do only analyze whether it is or is not a manmade waterway, a contention that was already conclusively rejected by the City Council in a previous process. The most pertinent study by Carl Hadley was inconclusive, and should have encouraged the City to seek such an evaluation. The City's decision to waive the stream study requirement where the only studies in the record clearly were not applicable to the underlying issue and where an additional study was indeed necessary to resolve the issue was arbitrary and capricious. The Hearing Examiner was correct to fmd that the City's waiver of the code requirement was in error, and the City Council's reversal of this conclusion without explanation was contrary to law, clearly erroneous and not supported by substantial evidence. C. Kennydale Creek is a Category 3 Perennial Stream Pursuant to the Code and . Extensive Evidence in the Record A stream that flows year-round is a Class 3 stream pursuant to the Renton Municipal Code. RMC 4-3-050 (L)(I)(a)(ii), regardless of how it is classified in the Q Map. After reviewing the evidence presented by the Gordleys, the City, and Ms. Rider, the Hearing Examiner rightly concluded that the record demonstrated that the City's short plat decision was in error and arbitrary and capricious because it was inconsistent with the City's critical areas ordinance: The record before this office demonstrates that the stream PETITIONERS' OPENING BRIEF -17 GENDLER & MANN. LLP 1"~ Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fa" (206) 821.0512 • • • I 2 3 4 5 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 flows oerennially as it enters a culvert under NE 20th street and appears to flow as it begins entry into the subject site, the Gordley property. The record further demonstrates that tbis same stream flows perennially nortb of the subject site. The record does not directly show how the stream flows once it disappears from view looking nortb of the subject site. But the Hadley report coupled with the lay testimony allows one to draw reasonable conclusions. HE, ConClusion 6 (emphasis added). The GorJeys and the City argued below and are likely to argue to this court that some evidence in the record is not relevant because it does not directly concern the exact portion of Kennydale Creek that flows through the Gordleys' property. SeeU,;::Xppi!b'alii~~1i~t considers how streams flow. All of the evidence was directly relevant to determine how the stream flows irmilediately before the Gordleys' property and immediately after the Gordleys' property. The applicants did not present evidence refuting the obvious presumption that the section of the stream on their property also flows accordingly. The Hearing Examiner responded to this issue directly at the hearing and in his decision, determining that the evidence was indeed relevant to show the characteristics of the stream. Responding to the City and the Applicants' contentions that neighbors could not· observe the entire length of the stream on their property, Mr. Kaufman thoughtfully concluded: [T]here are probably sections of the Cedar River. that flow through private property that may be harder to observe and would be hard to verify. Clearly, in those instances, the Cedar River is seen flowing toward a property and seen flowing away but might be hidden beyond view on private property. Logic allows some leaps of faith and logic suggests that it might be flowing even where it cannot be observed. PETITIONERS' OPENING BRIEF -18 GENDLER & MANN. LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone; (206) 62._ Fax: (206) 621-0512 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HE, Conclusion 7. Accordingly, the Hearing Examiner found: "The current facts, the anecdotal evidence and the Hadley report show evidence of perennial flow in a normal year. Code proclaims streams with those characteristics a Class 3. This office has to conclude therefore, that the City was wrong based on current knowledge." HE, Finding 10. The Hearing Examiner correctly found that pursuant to the code, the City's water class maps are not dispositive proof of stream class and that the actual characteristics of a stream are to determine classification. He found that the small size and poor detail of the water class maps and the code provisions indicate that they are interpret interpretive only and that a stream's classification depends on its character. HE, Finding 7. Specifically, he found: The map is not conclusive -rather how a stream flows determines its class. A wrong map designation does not make a stream a Class 4 if it in fact flows per the defmitions . Responding to the City's contention that the water class maps are proof of stream class, he interpreted"the code as requiring that a stream be classified based based on "its real characteristics and not some supposition." Id. He went on to fmd that the code clearly directs that a stream that flows year round is a Class 3 stream. "It is a simple proposition -perennial flow, Class 3. Intermittent Flow, Class 4 ... The Map is not conclusive -rather how a stream flows determines its class." Id. In situations where the actual criteria conflict with the map, the criteria prevail and the higher classification is automatic. See RMC 4-3-050(L)( 1)( c )(ii). Because the evidence showed that Kennydale Creek flows perennialJy, adnUnistrators were wrong to apply buffers for an intermittent stream. The City and the Gordleys did not PETITIONERS' OPENING BRIEF -19 GENDLER & MANN, LLP 1.24 Fourth Avenue, SuIte 1015 Seattle. WA 98101 Phone: (206) 621-8868 Fax: (206) 621.0512 • • • I provide any evidence refuting neighbors' testimony that the creek flows year round, I and the 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 report that they apparently relied on (Exhibit 18) also cites reports of year round flow. Accordingly, pursuant to the code, Kennydale Creek is a Class 3 stream. HE, Conclusion 10. The Hearing Examiner did not "reclassify" the stream, but rather determined that the short plat decision was in error and must be reversed because it was not consistent with the critical areas regulations in the code. RMC 4-3-050(L)(7). D. The City Erred in Not Conducting an Independent Review of the Applicant's Wetland Study Where it Conflicted with Prior Studies Curiously, while City staff waived the requirement for a stream study where there was no prior analysis of perennial or intermittent stream flow to support their classification, they did not waive the wetlands study requirement when the same wetland had been classified several times in previous studies conducted for the City. HE, Finding 9. The applicant's Critical Areas Study by Steward and Associates (Exhibit 1) classified the wetland as a Category 3 disturbed wetland. It did not analyze its connection to the headwaters of Kennydale Creek and contained factual errors regarding the Creek. 2 ID. underestimating the Creek, the Study overlooked that the wetland is located in its headwaters, a criterion for a more protective designation as a Category 2 headwater wetland. The Report also fails to review several previous wetland delineations conducted for the City that consistently classified the wetland as Category 2. For instance, the Entranco study, The record shows that the applicants were careful to avoid directly contending in their 24 estirnony that the stream was perennial, instead disputing how far neighbors could see onto eir property and claiming that the stream was a "ditch." See HE, pages 6-8. 25 26 27 28 2 The report calls Kennydale Creeka "seasonal drainage ditch" throughout without any evidence of this, and also notes that the Creek "flows north and eventually meets up with May Creek." (Page 7) This statement is incorrect. Even the City's basic Water Class Map shows that Kennydale Creek flows from its headwaters near the Gordley property to Lake Washington, not into May Creek. PETITIONERS' OPENING BRIEF -20 GENDLER & MANN, LI.P 1424 Fourth Avenue. Suite 1015 Seattle, WA 98101 Pho .... (209) 621-8868 Fax: (206) 621.0512 • • • I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ------------------ Exhibit IS, was conducted for the City's installation of a sewer system and identified ~d delineated a 5-8-acre wetland located on the Gordley property and several surrounding properties. (Exhibit 15, Figure 5) The report concluded that this wetland was "directly connected to the creek corridor and fed by surrounding seeps in several locations." (Page 14) It therefore concluded that the wetland, including the disturbed portions on the Gordiey property was a Category 2 wetland. Id. TheEntranco delineation and classification has been consistently upheld in subsequent studies performed by the City. It was reviewed by Entranco again in 1999 and the consultant again concluded the wetlands were Category 2 headwater wetlands. See HE, Finding 20. The classification was reviewed again by the Watershed Company in 2005 to check the accuracy for the City. Exhibit 17. The consultant concluded the wetlands were Category 2 because they are "the headwaters of a stream system." (Page 2) The City employed the Watershed Company again the same year the applicant's study was conducted to review previous consultant reports to determine the status of wetlands on a parcel located immediately northeast of the Gordley property. Exhibit 16. Yet again, the consultant concluded that the wetland was' correctly classified Category 2 because it is located in the headwaters of a watercourse. M., Page 7) Given the City's own extensive previous analysis and Classification of the same wetlands located on the Gordley property, the City arguably would have been justified in waiving the wetland study because this analysis and data was both applicable and appropriate to the proposed project. RMC 4-3c050 (L)(3)(a). When the applicants submitted a study that conflicted with these previous studies, the City should have at minimum conducted some independent analysis to ensure its accuracy. RMC 4-3-050 (F)(7)(a). Instead, where a new PETITIONERS' OPENING BRIEF -21 GENDLER & MANN. LLP 14U Fourth Avenue. Suite 1015 Seattl., WA 98101 Phone: (206) 621-8888 F'ax: (206) 621-0512 1------- • • • I study favored the applicant because it applied a lesser classification and narrower buffers, the 2 3 4 5 6 7 8 9 10 11 12 13 14 IS 16 17 18 19 20 21 22 23 24 25 26 27 28 City apparently turned a blind eye to the contradictions in the previous studies. The Hearing Examiner correctly found that the City's failure to require independent review of the applicants' wetland classification where the applied Category 3 classification conflicted with prior studies performed for the City on the same wetland was arbitrary and capricious. Specifically, he found: [H]ad the City compared the results of the applicants' recent wetland study with results of reports it had on file, as it supposedly . did with . the creek, it might have foimd contradictions that may have encouraged it to seek an independent assessment. Studies or reviews in three cases called the wetland a "headwaters wetland" and that means it should be a Category 2 Wetland ... The lack of such independent review was erroneous unless one concludes that the earlier reviews for City projects or other purposes were independent and then those reviews found it a "headwater wetland, a Category 2 wetland." HE, Conclusion 9. The Gordleys assigned error to this conclusion on appeal, but did not address the issue in their brief. Likewise, the City Council did not discuss it or assign error to any findings or conclusions regarding this issue. The record; including various prior studies conducted for the City, strongly supported the Hearing Examiner's conclusion regarding the wetland classification. HE, Finding 20; Exhibits 15-17. The City Council's unsupported decision on this issue should be reversed. PETITIONERS' OPENING BRIEF -22 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621_ Faa: (206)621-0512 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V. CONCLUSION For the foregoing reasons, the City Council's decision should be reversed and the Hearing Examiner's decision should be affinned and reinstated. DATED this ___ day of October, 2008. Respectfully submitted, GENDLER & MANN, LLP By: David S. Mann / Keith P. Scully WSBANo. __ _ Attorneys for Petitioners PETITIONERS' OPENING BRIEF -23 GENDLER & MANN. LLP . 1424 Fourth Avenue, Suite 1015 Seattl., WA 98101 Phone: (206)621~ Fax: (206)621-0512 • • o • P' EXHIBIT 33 21823. TXT 1 1 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 2 IN AND FOR THE COUNTY OF KING 3 4 5 ) 6 KENNYDALE CRITICAL AREAS ) Cause NO. 08-2-21823-6-KNT ALLIANCE, ) 7 ) Pet; ti one rs , ) 8 ) vs. ) 9 " ) CITY OF RENTON', ) 10 11 ) " , Respondents, ) ) 12 13 , TRANSCRIPT OF PROCEEDINGS 14 Before the HONORABLE JAY WHITE, presiding, on Tuesday, January 6, 2009. 15 16 COURT'S ORAL RULING 17 APPEARANCES: 18 For the Petitioner: 19 20 For the Respondents: 21 22 REPORTED BY: 23 RHONDA K. SALVESEN, RPR, CSR, RMR 24 STATE OF WASHINGTON 25 BRENDON DONCKERS ANN NIELSON KEVIN STEINACKER 1 THE COURT: I think everyone is agreed as 2 to the applicable law in terms of this court's pagel 2 • • o • 21823.TXT 3 responsibility on review of the city council's decision 4 under the Land Use Act, RCW 36.70C.130. And in this case 5 the petitioners are seeking review of the City council's , , . 6 decision under either subsections b, c or d contending the " , 7 land use decision is an erroneous interpretation of the law 8 after allowing for such deference as is due the 9 construction of the law by a local jurisdiction 'with ,-' 10 .. ~xper~ise. or, c/, ,tile land~~e, de~.ision~.is ,not supported 11 by evidence that a substantial --in view in 'ligheof~the l 12 whole record before the court": irideedthat the land use " " 13 deci si on is a cl ear and erron,eous app 1 i cati o'n of the l,aw to 14 the facts. 15 The court understan'ds :that the context here • j !. - , .. ~ 16 is a little bit complicated in the sense that strictl~ 17 speaking, the Court is reviewing the decision of the ci.ty \' "J' :'.:'~:. ".-'). . (' t.. . 18~ouncn, and the CiF co~ncil,:? decist9,n in, turn wa? a. 19 '. revi ew of a deci si on of the heari ng exami ner . 20 '" The cO!lncil:s finding basicallY or legal 21 conclusion was that ,the City council fin~s that,the hearing 22 examiner made a substantial error of fact in finding that 23 the 'city' staff did not follow the applicable citY'codes by 24 waiving the stream study and not requiring an independent i. ' . .: ~ '. ': ~ .. " , 25 wetland analysis, and the substantial error of law in that 3 1 it found city staff's·decision to be cl~arly erroneous .and 2 arbitrary and capricious. 3 Although the hearing examiner's decision 4· may be a bit of· a mix of findings of fact and conclusions 5 of law, it appears to the court that the principal issue 6 before the city council in turn befo~e this .court is 7 whether or not the hearing examiner was correct as a matter page'2 • • o • --------------------- 21823. TXT 8 'of law in ruling that the city staff was arbitrary and 9 capricious in declining to order an additional study of the 10 characteristics of the stream which the staff had concluded 11 based on prior studies to be a class 4 stream. 12 The petitioners in this case argue that 13 based upon significant testimony from people living in the 14 area, that there is a conflict between what is called the 15 Q-Map, the Renton water class map, and the conditions on 16 the gro'und, I guess to use the court's words on thi s. And 17 it's basically undisputed that class 3 waters are perennial 18 waters during the years of normal rainfall, whereas class 4 19 waters are intermittent waters during the years of normal 20 rainfall. 21 It doesn't really appear to the court that 22 there's any specific findings of the hearing examiner that 23 is at issue here. I see it more as just his legal 24 analysis. And I make that reference because my 25 understanding of the clearly erroneous standard relates to 4 1 findings of'fact, and that the hearing examiner and 2 vis-a-vis the city staff, and to the extent that it can be 3 seen as applicable to this court in relation to the City 4 council, but that's where it's a little bit concept~ally 5 difficult because the City council really didn't make any 6 findings. They used the'word finding but I don't see them 7 as factual findings. 8 It was basically a determination of whether 9 there was an error by the hearing examiner they said in 10 finding that the staff did not follow the applicable city 11 codes by waiving the stream study and not requiring Page 3 • o • • 12 13 14 15 16 17 18 19 20 21 22 23 ".) , 24 21823.TXT independent wetland analysis. But I think in turn is the hearing examiner himself says that he refers to what he calls his conclusion 11. He accurately comments the decision below should be the city's decision in the first place. The staff action should not be reversed without a clear showing that the decision is clearly erroneous or arbitrary and capricious: And I may be getting into too much detail " , here, but I keep being distracted by the clearly e,l'r9neous . : ) -, ',:-, st'~ndard ~nderstanding that it ,has to do with the factual r determination, in which case that determination should be " set aside only if the reviewing tribunal with good reason " ,_ ; • ' ~ .' ~ , ,"ft. , .". '."\ ,~ has a definite and firm conviction that a mistake of fact ~ . "' '" 25 has been committed. I have trouble applying ·that to ", . 5 1 anything that the city council did or for that matter 2 anything that the hearing examiner did. 3 So I think it really comes down to an issue 5 6 7 8 4 of whether or not the hearing examiner was --whether we use the term clearly erroneous or arbitrary and capricious or both. But it appears to this court that the issue just is, was the staff arbitrary and capricious, in effect accepting the cedarock report, c-e-d-a-r-o-c-k, of 9 10 11 12 13 14 15 16 February 17th, 2006, which the court acknowledges was not a report written in the context of determining whether or not the stream should be elevated from class 4, which is what's shown on the map to class 3 but whether it should be in effect downgraded to class 5. That report concluded that in the absence of conclusive evidence supporting a change from the existing class 4 water classification,,,it is my recommendation that this classification stands. page 4 • o • • 21823.TXT 17 SO in effect cedarock is a fairly recent 18 study that reaffirms and concludes that the stream in 19 question here is a Class 4. 20 It does acknowledge and it's pretty candid 21 because it describes, and I think that Mr. Addley 22 (phonetic) acknowledges at one point in the report 23 personally observing --well, I'm getting into too much 24 detail. He indicates that he observed the property really 25 about the same month we're in now, January 27, 2007, and 1 2 3 4 5 6 7 8 9 10 11 6 said that the weather was dry and an unusually hlgh amount of rainfall had fallen. It says "I reviewed the Gardley property here in question today and said that the water course in question was flowing strongly in all area visited and much of the area adjacent of the water course was saturated." And then he also references the water shed company report which did inspect what it was referred to as a ditch on July 18th, 2005. A normal but very dry year, and indicating the report indicates standing water was present in the pond and in the main ditch stream. 12 The Cedarock report also acknowledges that 13. there had been two recent reports during the years of 14 meeting. The definition of normal rainfall reported 15 observations of water in the ditch during two summers. One 16 was made relatively early in the season, the other 17 relatively late. However, no observations were made during 18 19 20 the driest time of the year, and it is possible the stream dried up at some point one or both years. The hearing examiner characterizes this Page 5 • o • • 21823.TXT 21 report as inconclusive probably because of the language 22 where Mr. Addley indicates in the report'that the perennial 23 stream issue class 3 versus class 4 can only be answered by 24 direct observations of flow characteristics in the channel 25 during the summer. These data could take a few years to 7 1 gather if this winter's heavy rainfall pattern continues. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I think that the law is clear that action is " ". ,~ ~. not arbitrary and capricious as there is room for two opinions. Even if this court were to disagree with the deci sion reached, arbi trary and capri ci ous action • 'I) .. l' .. _.r· , • references willful and unreasoning decision-making in disregard of the facts and circumstances. \ , ~ ~ ,; This court determines as a matter of law that the hearing examiner misapplied the law in concluding that it was --that the city acted arbitrarily and capriciously in deciding that no additional reports were necessary. The cedarock report and, as the court understands it, of the several studies that have been done relating to this stream, none has ever classified it as a class 3 stream. All have said 4 or 5. There was one report done before the LUPA law was passed that indicated it was a 3, but my understanding was that it was subsequently corrected to be a 5. The court can't say it's unreasoning or in disregard to the circumstances where the ,city decides to tell the Gardleys that we will accept this cedarock report and treat this stream as a class 4 stream rather than going to the expense and time delays of the additional studies which the hearing examiner candidly basically says may not necessarily solve the problem anywhere. The hearing page 6 I ------. I • 21823.TXT 8 . examiner just.says the City inappropriately waived the study that might have helped in finally deciding the issue that has been raised by the stream flows perennially excuse me --that has been raised by the appellant and neighbors for a number of years. And later on he talks about in his conclusion seven that perhaps an independent review could have established what happens out of view, basically referring to the conditions on the stream where it flows over the Gardley property as opposed to going in and coming out where many of the observations have been made. The Court accepts the fact that there is evidence that people did see year-round presence of water inasmuch as the Gardley property as they were able to observe. But there is conflicting evidence on that, and the fact that there is a conflict of evidence on whether or not it's' a perenni a 1 stream or not does not consti tute a conflict between the stream's conditions, its characteristics and the map itself. So I think we're in a situation where we've got the map it controls absent a conflict. There's conflicting evidence about the conflict, but it's not arbitrary and capricious under the circumstances here where no studies have rendered the stream a class 3. And the more recent study, the cedarock study does retain the 9 1 classification of 4. 2 Even though the Court understands that the page 7 ,. ---- • • o • 21823.TXT 3 issue ,there was whether to downgrade rather than upgrade, 4 the fact of the matter is that I think the City is not 5 arbitrary and capricious in accepting that report in terms 6 of the appropriate classification for the stream. 7 The other thing that in terms of looking at 8 what the City actually did here, if I can get it in front 9 of me, but I have the note. 10 In any event, that the city did not act 11 willfully and unreasonably in disregard --in a willful and ',' ,,' .' 12 unreasoning manner in disregard.to the facts and .. 13 circumstances because it did a~knowledge the dispute over 14 whether or not the stream was misclassified. And did not . , 15 totally disregard it because it did seek to provide some , .:", 16 mitigation by providing for a native growth protection 17 easement with fencing, with signage in an attempt to make a 18 reasonable effort to preserve whatever the nature of the 19 stream may be . 20 That's the more difficult issue, but 21 that's --I just don't thinkthat'the hearing examiner was 22 correct as a matter of law in characterizing the City's '23 actions arbitrary and caprlcious. 24 I think the issue with the wetlands itself 25 is an easier one. There were prior studies in the record 10 1 indicating that the wetlands were category 2. That perhaps 2 they should be seen as category 2 because of an indication 3 that the area in question was head waters of the stream 4 system. That itself is in some controversy, but I do not 5 believe the City is arbitrary and capricious in accepting 6 the report of Steward and Associates, which was the report 7 that the city required the Gardleys to get in order to page 8 ------- • • 0 • 21823. TXT 8 determine what the wetlands were specific to their property 9 and is the most recent report, although other reports were 10 pretty --the last one rather was pretty close in time as 11 well. But I think it's not arbitrary and capricious for 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the city to accept that. So even though I guess the counsel for the peti ti oners and to extent the court has to attempt to discuss the evidence, I don't believe the court's undertaking an evidentiary ruling, but the court is trying to provide the framework for these various levels of decision-making, where as I understand it, the city staff decision is where the area of expertise lies. The hearing examiner is a fact finder. The hearing examiner did not enter any,findings of fact that would be inconsistent with the decision made by the city. The hearing examiner's call was with whether or not there was arbitrary and capricious action or clearly erroneous action if you want to characterize it as an action rather 11 1 than some sort of a finding of fact. But as the hearing 2 examiner said, that would not be a basis to reverse what 3 the City 'did without a clear showing that the decision is 4 clearly ~rroneous or arbitrary and capricious. 5 The hearing examiner's findings to the 6 extent that he does have findings do not support his legal 7 concl iJsi on's. ' 8 9 10 11 Accordingly, the Court is' ;atisfied that the I . council in turn did not violate the applicable city standards that I think everyone has agreed are similar to those applied by this court. page 9 • o • • 21823.TXT 12 Although, again, I think we all understand I 13 have to necessarily talk about the evidence that was before 14 the hearing examiner. I necessarily have to talk about 15 what the staff did which was a decision before the hearing 16 examiner, but if you reduce it down to strictly asking the 17 question of whether or not the decision that the city 18 counei 1 made fall s i nto an~ of the categori es under 19 . RCW 36.70c.130 that woul d requi re thi s court to reverse the 20 deci si on, none of them appl y .. 21 The court does not believe that the city 22 Council's action is an erroneous interpretation of the law. . , ' '. 23 I think it's the correct interpretation of the law, ., '. . , . \ '. , l? 24 particularly allowing for deference that is due to the 25 construction of .the law by the ci~y council itself on its 12 1 own code, and in turn as it was applied by city staff. At 2 least in terms of the City council. 3 What I'm attempting to do here because I've 4 been reminded in argument several times and briefing that 5 I'm to be revi ewi ng the acti ons of ci ty counei 1 . I guess 6 that's the way to look at it. There's just nothing here 7 that would suggest that they made an erroneous 8 interpretation of the law allowing deference to them in 9 applying the law of their own jurisdiction. 10 There is nothing that suggests that the 11 decision of the City Council is not supported by evidence 12 that is substantial when viewed in light of the whole 13 record. On the contrary, the evidence which the city had 14 the right to rely on and the city staff had the right to 15 rely on does support the decision of the city that there is 16 no reason other than speculation that new evidence would page 10 • • 0 • • 17 18 19 2ei 21 22 23 24 25 21823.TXT result in a more conclusive result that was written necessary to conduct any further studies in this matter. And then, again, these are all somewhat overlapping but just to touch on it. The third one, land use decision. clearly erroneous application of the law to the facts. The court does not believe that's the case. I think the city council has accurately applied the law to the facts. Most succinctly this court finds that the hearing examiner did 13 1 not accurately apply the law to the facts. 2 So with regret but perhaps that may not have 3 been as clear as I might have liked it to be, but that's 5 6 7 8 9 10 4 the way it is. I try to keep in mind simultaneously these four levels; the action by the city, the fact that the highest fact finder is the hearing examiner, then the City Council basically sitting in a role similar.to this court, and then this court reviewing the City council's action to a determination ·if there's been any violation of the LUPA requirements. 11 12 13 14 15 16 17 18 19 20 I'm satisfied that the city council's action is supported by the law, is not arbitrary and capricious, and is not clearly erroneous to the extent that there may be some factual determination by the City, and accordingly, the court would dismiss the LUPA petition. I will give counsel a chance to just review and agree to a form and order and I will sign it in chambers. (proceedings concluded.) page 11 • 0 • • 21823.TXT 21 22 23 24 25 14 1 STATE OF WASHINGTON ) 2 KING COUNTY SUPERIOR COURT ~ ss. 3 4 I, RHONDA K. SALVESEN, RPR, CSR, RMR, An Official 5 Court Reporter for Ki ng County superi or Court, ,Stat,e o,f .'!. " 6 washington, hereby certify that,the foregoing pages, 1 '. 7 through 14, inclusive, ~omprise a full, true and correct transcript of the proceedings in the above-entitled cause. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated this **** day of *1r*1r*** , 2009. RHONDA K. SALVESEN, RPR, CSR, RMR Official Court Reporter Page 12 EXHIBIT 34 • ATTORNEYS-AT-LAW · Michael W. Gendler' (206) 621-8868 Fa> (206) 621-0512 ashley@gendlermann.com www.gend!ermann.com David S. Mann Ashley A. Peck 1424 FOURTH AVENUE. SUITE 1015 SEATTLE WA 98101 *Also admitted in Oregon • • Renton City Council 1055 S. Grady Way Renton, W A 98057 April 24, 2008 CITY OF RENTON APR 2 5 2008 RECEIVED CITY CL~RK'S OFFICE RE: Appellant Susan Rider's Response to Gordley Appeal, Blueberry Haven Short Plat LUA-07-l31, SHPL-A, ECF Dear Council Members: We write on behalf of Susan Rider and the Kennydale Critical Areas Alliance and provide the following response to Richard and Lauralee Gordley's appeal of the Hearing Examiner's reversal of their short plat decision. Because the Hearing Examiner's decision is strongly supported by the record and applicable provisions of the Renton City Code, Ms. Rider respectfully requests that the Council affirm the decision and dismiss the Applicant's appeal. I. BACKGROUND This appeal concerns application of the City of Renton's critical areas regulations. The City approved the Applicants' short plat application to divide their property into two parcels on December J 0, 2007. A stream, KennydaJe Creek, flows across the property, and there is a wetland on the northeast portion of the property. I In support of their application, the Applicants submitted a "Critical Areas Study" prepared on their behalf by Steward and Associates, which determined that the onsite wetland was a Category 3 wetland under Renton's critical areas ordinance.2 The City did not require the Gordleys to prepare an analysis of the stream, instead apparently relying on previous studies of the area and the City's water class maps.3 City staff applied buffers for a Class 4 intermittent stream and a Category 3 disturbed wetland in the administrative approval of the short plat.4 Hearing Examiner Report and Recommendation, Finding 7, page 12 (March 27, 2008) (hereinafter "HE"). 2 HE, Finding 9; see also Exhibit J. J HE, Finding 9. 4 HE, Finding 10. Renton City Council April 24, 2008 Page 2 Ms. Rider filed a timely appeal of the short plat decision, arguing that it was in violation of the City's critical areas ordinance because Kennydale Creek is perennial and thus a Class 3 stream pursuant to the City code, and that the wetland is a Category 2 wetland because it is located in the headwaters ofa watercourse.s A hearing was held on February 12,2008. Ms. Rider submitted extensive evidence showing that Kennydale Creek is a perennial stream that does not run dry in the summer months during normal years.6 In addition to Ms. Rider, six neighboring property owners testified at the hearing that they have observed Kennydale Creek on a regular basis for decades and have never seen it run dry. For instance, Paul Watt, who lives downstream from the Gordley property, testified that he has observed the stream run through his backyard nearly every day since the 1960s and has never seen it dry7 Larry Fisher of the Washington Department of Fish and Wildlife (WDFW) also testitied that he has observed Kennydale Creek regularly during his 18 years as the local Area Habitat Biologist. He testified that the creek is perennial and is thus a Class 3 stream under the City's code. Mr. Fisher also testified that he had attempted to bring this issue to the City's attention through comment letters on previous matters, but to no avail. 8 Ms. Rider further testified that she and other neighbors had made extensive efforts for several years to bring this issue to the City'S attention, and she submitted copies of numerous affidavits previously submitted to the City about the perennial nature of Kennydale Creek 9 Neighbors' concerns were consistently dismissed as lay observation even though they demonstrated a conflict regarding the c1assification.lo Additionally, Ms. Rider submitted photos of water flowing in Kennydale Creek in the drr summer months at points directly upstream and directly downstream of the Gordley property. I She pointed out that the very study relied on by the City and the applicants did not support a Class 4 designation. It rather stated that the creek would be Class 3 if it flowed year round, referenced prior findings indicating perennial flow and stated that the creek would be perennial if it was fed by groundwater.12 She also submitted several prior wetlands studies that had classified the wetland on the Gordley property as a Category 2 headwater wetland under the City'S code. I] , HE, Finding II. 6 See,~, Exhibits 6-10,12,17; HE, pages 3-5. 7 HE, page 4. B HE, page 3; see also Exhibit 6. 9 See Exhibits 7-9. 10 See HE, Finding 12; Conclusion 7. II See Exhibit 10. 12 See Exhibit 18, ~ also HE, Findings 16-19. 13 See Exhibits 14 -16. • • • • • • Renton City Council April 24, 2008 Page 3 City Planner Jennifer Henning and Mr. and Mrs. Gordley also testified and submitted exhibits at h h . 14 t e eanng. After hearing all of the evidence and reviewing the submissions of the parties, Hearing Examiner Fred Kaufinan concluded that Ms. Rider had demonstrated that the decision of City staff was in error, contrary to law, or arbitrary and capricious, and he reversed the decision.ls Specifically, he found the decision should be reversed because the evidence showed the City erred in waiving the stream study requirement,16 applied the wrong designation to the stream pursuant to the code,17 and failed to require independent review of the applicant's wetland classification where it conflicted with prior studies.18 II. APPLICABLE LAW A. Protection of Critical Areas Renton's Comprehensive Plan states an objective to "protect and enhance the City'S rivers, major and minor creeks and intermittent stream courses." Renton Comprehensive Plan, Objective EN-C. The City's critical areas ordinance limits the issuance of a permit on property that is on or near regulated streams or wetlands, and specifically provides that a permit may only issue where it is consistent with critical areas regulations. RMC 4-3-050(L)(7). The ordinance outlines criteria for four types of regulated water bodies and prescribes protective buffer requirements based on those types. Class 3 waters are described as follows: iii. Class 3: Class 3 waters are non-salmonid-bearing perennial waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 3. RMC 4-3-050(L)(I)(a)(iii) (emphasis added). Contrarily, the criterion for Class 4 waters is the absence of year-round flows: iv. Class 4: Class 4 waters are non-salmonid-bearing intermittent waters during years of normal rainfall, and/or mapped on Figure Q4, Renton Water Class Map, as Class 4. 14 See HE, pages 5-11. 15 I-IE, Conclusion 1. 16 HE, Conclusions 6, 8 . 17 HE, Conclusion \0. 18 HE, Conclusion 9. Renton City Council April 24,2008 Page 4 RMC 4-3-050(L)(I)(a)(iv) (emphasis added). The sole difference in the two water class designations is the presence or absence of water flowing in the stream year-round. Thus, if a stream does not run dry in the summer during normal years, it is a Class 3 waterway pursuant to the code. The code prescribes minimum buffer widths according to classification, requiring a 75-foot buffer for Class 3 streams and a 35-foot buffer for Class 4. RMC 4-3-050 (L)(5)(a)(i). The code also supplies a map, generally referred to as the "Q Map," which shows the "approximate location and extent of Class 2 to Class 4 water bodies with the City limits." RMC 4-3-050(L)(I)(c)(i). However, the code clearly explains that the classifications assigned in the Q map are interpretive only: Id. The map is to be used as a guide to the general location and extent of streams. Specific locations and extents will be determined by the City based upon/ield review and applicant-funded studies prepared pursuant to subsection L3 of this Section. Notwithstanding the map classifications, the actual presence or absence of the criteria spelled out in the ordinance is to govern stream classifications for individual sites. RMC 4-3-050(L)(I)(c). Administrative approval is required for the reclassification of a water body to a lower class that that in the map, but is not required for a reclassification to a higher class: ii, Reclassification: Where there is a conflict between the Renton Water Class Map in Subsection Q and the criteria in subsection LI a of this Section, the criteria in subsection Ll a of this Section shall govern. The reclassification of a water body to a lower class (i.e. 2 to 3, or 3 to 4, etc.) requires administrator acceptance of a supplemental stream or lake study, followed by a legislative amendment to the map in subsection Q of this Section prior to its effect. RMC 4-3-050(L)(l)( c)(ii)( emphasis added). • • Accordingly, the ordinance requires applicants to conduct a standard stream study if a site contains a water body or buffer area or the project area is within one hundred feet (100') of a water body. RMC 4-3-050(L)(3)(a). The report is to be prepared by a qualified biologist and include a map identifying the ordinary high water mark (OHWM), the stream classification, topography of the site, flood plain, and vegetative cover. RMC 4-8-120. The study should also • • • • Renton City Council April 24, 200S Page 5 describe the ecological functions provided by the waterway, observed fish and wildlife that use the area, and measures to protect trees and vegetation. Id. The stream study requirement "[m]ay only be waived ... when the applicant provides satisfactory evidence that". [a ]pplicable data and analysis appropriate to the proposed project exists and an additional study is not necessary." RMC 4-3-050(L)(3)(d)(ii)(c) (emphasis added). The current interpretive Water Class Map classifies the lower portion of Kennydale Creek as Class 3, but inexplicably classifies the upper reaches, including its headwaters, as Class 4. See Renton Water Class Map, Figure Q, RMC 4-3-050. The City's critical areas regulations also outline protections for wetlands and specify that permits should only be approved where there is to be no net loss of regulated wetland area, value or function in the drainage basin where the wetland is located. RMC 4-3-050(M)(2)(b). The code also requires applicants to submit a wetlands study to determine classification. RMC 4-3-050(M)(3)(a)(I). Wetlands that meet one or more of the following criteria are correctly c1assi fied Category 2 wetlands: (a) Wetlands that are not Category 1 or 3 wetlands; and/or (b) Wetlands that have heron rookeries or osprey nests, but are not Category 1 wetlands; and/or (c) Wetlands of any size located at the headwaters of a watercourse, i.e., a wetland with a perennial or seasonal outflow channel, but with no defined influent channel, but are not Category 1 wetlands; and/or (d) Wetlands having minimum existing evidence of human-related physical alteration such as diking, ditching or channelization; and/or RMC 4-3-050(M)( 1 )(a)(ii) (emphasis added). B. Authority of the Hearing Examiner The Renton Hearing Examiner has the authority to review and act on appeals of administrative decisions. RMC 4-8-11 O(E)(1 lea). The Hearing Examiner may reverse the administrative decision where the appellant has shown it to be in error, otherwise contrary to law, or arbitrary and capricious. RMC 4-S-110(E)(7)(b). A decision is arbitrary and capricious where it is willful and unreasoning, without consideration of the facts and circumstances. Bishop v. Houghton, 69 Wn.2d 7S6, 794 (1966). "[T]he Examiner shall have all of the powers of the office from whom the appeal is taken insofar as the decision on the particular issue is concerned." RMC 4-8-11 O(E)(1 )(c)( emphasis added). Renton City Council April 24, 2008 Page 6 The City Council should only reverse or remand the decision of the Hearing Examiner where it finds that "a substantial error in fact or law exists in the record." RMC 4-8-11 0(F)(7). III. ARGUMENT Hearing Examiner Kaufman correctly found that City staff erred in waiving the code requirement for a stream study where there was a known discrepancy as to the stream's classification and no prior study supported the classification applied. He correctly interpreted the City's code as requiring that streams be classified by their characteristics where there is a conflict with the City'S basic interpretive map. He reviewed the evidence in the record and concluded that according to the code, Kennydale Creek is properly categorized a Class 3 perennial stream. He also correctly found that because the wetland on the applicant's property had been classified a Category 2 headwater wetland by previous studies, the City erred by not requiring an independent analysis. These decisions were within the authority of the Hearing Examiner, and because he did not commit a substantial error in fact or law, his decision should be affirmed. A. . The Hearing Examiner Correctly Found that the City's Waiver of the Stream Study Requirement Was in Error Hearing Examiner Kaufman found that the City erred in not requiring the Gordleys to submit a stream study pursuant to RMC 4-3-050(L)(3)(a) where the record demonstrated it had been made aware that there was a conflict as to the perennial or intermittent nature of the stream. After review of the evidence, he found that that the previous study relied on by the applicants and the City as evidence of Kennydale Creek's Class 4 designation (Exhibit 18, by Carl Hadley of Cedarock Consultants) did not substantively address whether the stream was perennial or intermittent, indicated that if it flowed year round it should be Class 3, and even referenced other studies reporting year round flow.19 The applicant's Critical Areas Study by Steward and Associates did not evaluate the stream at all.2o The City received several letters from neighbors pointing out that the stream flowed year round in response to the short plat application.21 The issue had also been brought to the City's attention through previous processes by both neighbors and the WDFW.22 The City clearly had notice of a conflict between the water class map and actual conditions. In light of such uncertainty, Mr. Kaufinan found that the required stream study "might have helped finally decide an issue that has been raised by the appellant and neighbors for a number of 19 HE, Findings 16-19. 20 See HE, Finding 4; Exhibit I. II See Exhibit I; HE, Conclusion 7. 22 HE, Conclusion 7; see Exhibits 6-9. • • • • • • Renton City Council April 24, 2008 Page 7 years.,,23 He found that the City not only erred in waiving a stream review by the Applicants' expert, but also by not seeking an independent study that could have resolved the contradictions raised by neighbors?4 The applicants erroneously contend that the City was correct to waive the requirement for a stream study due to the "numerous prior studies" that "dealt with similar issues and contained relevant analysis for stream designation.,,25 They further claim that "only one out of seven studies classified the stream as anything other than a Class 4. ,,26 They include a chart listing four of these purported studies in their brief and refer to three additional studies later on (one of which is duplicated in the chart). A review of these six studies proves that the applicants are wrong. None of them provides analysis supporting the designation applied in the short plat. A brief summary of each of the six referenced studies and their failure to address the streamflow issue is provided below: I. Entranco -(Exhibit 15) -The Entranco report is a wetland delineation that classified the wetlands on the Gordley property as Category 2 headwater wetlands. See Exhibit 15, page 12. This study does not evaluate the creek at all or classify it according to the code; indeed, the current stream classifications had not yet been adopted. 2. Ellisport Engineering (1012004) (Exhibit 14) -This study is another wetland delineation that does not substantively address the stream classification at all, but only summarily states: "The Gordley property does have a Class III stream crossing it north to south." Exhibit 14, page 5 (emphasis added). 3. Ellisport Engineering (4/2005) (Exhibit 19) -The second Ellisport Engineering letter referenced, Exhibit 19, was written on behalf of developer Terry Dutro in support of his request to reclassifY the stream to a Class 5 unregulated, manmade waterway. Again, it does not address whether the stream flows year round and thus does not substantively support a Class 4 intermittent designation for Kennydale Creek. 4. Watershed -Hugh Mortenson (Exhibit 17) -Likewise, the Watershed Company Study listed in the table, presumably Exhibit 17,27 reviewed only whether the 2J HE, Finding 6. 24 1d. 25 Applicant's Brief, page 2. 26 Id. 27 The chart in the applicants' brief lists the date as 4/2005. Ms. Rider assumes the appellants are referring to Exhibit 17, a July 19,2005 letter from Hugh Mortenson of the Watershed Company to Nancy Wei!. Renton City Council April 24,2008 Page 8 . stream should be downgraded to a Class 5 waterway and did not analyze the perennial flow issue. Of note, however, the ecologist observed water in the stream in late July, which indicates perennial flow. Appellants refer to this report later on in their brief, Appellant's brief at 5, as supporting the Class 4 designation, but it does no such thing. Indeed, Exhibit 18 cites it as an indication that the stream does flow perennially. 5. Cedarock Consultants (Exhibit 18) -This letter from Carl Hadley to Jennifer Henning only concluded that the stream should not be downgraded to a Class 5 manmade waterway and did not substantively support the City's conclusion that it should be classified as intermittent. In fact, Mr. Hadley concluded that if the stream flows year round, it should be Class 3 and he pointed out that more information is needed to make this determination. Exhibit 18, page 2. He cited other studies as reporting flow in dry months and explained that the stream may be fed by groundwater, in which case it would be perennial. Id. at page 3. 6. Steward and Associates (Exhibit I) -The applicants' Critical Areas Study only addresses the wetland classification and does not substantively evaluate the stream at all. In sum, none of the six studies referenced by the Applicants provides any substantive evaluation of whether Kennydale Creek flows perennially or intermittently, the main issue before both City staff and the Hearing Examiner. The majority of them don't address the creek at all, and the ones that do only analyze whether it is or is not a manmade waterway, a contention that was already conclusively rejected by this Council in a previous process.28 The most pertinent study by Carl Hadley was inconclusive, and should have encouraged the City to seek such an evaluation. In light of the lack of any substantive support for the Class 4 designation and the conflict raised by neighbors, the Hearing Examiner was correct to find that the City'S waiver of the code requirement for a stream study was in error. B. The Hearing Examiner Did Not "Reclassify the Stream." But Rather Interpreted the Code as Written and the Facts Presented to Determine that the City'S Decision Was Erroneous 1. The Code requires stream classifications to be determined by characteristics. not solely the "0 Map" The Hearing Examiner correctly found that the City's water class maps are not dispositive proof of stream class and that the actual characteristics of a stream are to determine its classification pursuant to the code. He found that the small size and poor detail of the water class maps and the 28 HE, Finding 13. • • • • • • Renton City Council April 24, 2008 Page 9 code provisions indicate that they are interpret interpretive only and that a stream's classification depends on its character29 Specifically, he found: The map is not conclusive -rather how a stream flows determines its class. A wrong map designation does not make a stream a Class 4 ifit in fact flows per the definitions.3D Responding to the City's contention that the water class maps are proof of stream class, he interpreted the code as requiring that a stream be classified based on "its real characteristics and not some supposition ... 31 He went on to find that the code clearly directs that a stream that flows , year round is a Class 3 stream. "It is a simple proposition -perennial flow, Class 3. Intermittent Flow, Class 4 ... The Map is not conclusive -rather how a stream flows determines its class.,,32 The applicants contend that the Hearing Examiner did not have authority to "reclassify" the stream on appeal of a short plat application. They further argue that in order for the stream class to be changed from the classification outlined in the Q Map, Ms. Rider must have made a formal application to the Planning Department33 These arguments are foreclosed by the code sections directing such administrative interpretation and granting the Hearing Examiner the same power as administrators. The applicants cite the very sections providing such authority to administrators to review and determine a stream's classification based on its characteristics where there is a conflict with the designation in the maps. See id (citing RMC 4-3-050(L)(c)(l)). They also acknowledge that the Q Map is only a guide to the general location and extent of streams. Id. Because the code gives the Hearing Examiner the same authority to review and interpret the code as administrators had in making their decision, he did indeed have the authority to determine there was a conflict with the map and apply the correct code classification to the stream. See RMC 4-8-110(E)(l)(c). Ms. Rider was not required to submit a formal request for a reclassification. The code does not require or even allow her to do so. Rather, the code directs that a formal application is only required where an applicant seeks a downgrade from the class assigned in the map and does not provide such a requirement for upgrades. Rather, in situations where the actual criteria conflict with the map, the criteria prevail and the higher classification is automatic. See RMC 4-3-050(L)(1)(c)(ii). Moreover, the record demonstrates that Ms. Rider and neighbors have attempted repeatedly to dispute the map classification of Kennydale Creek. 29 HE, Finding 7. 30 Id. Jl Id . J2 HE, Finding 7. J3 Applicant's Brief, page 7. Renton City Council April 24, 2008 Page 10 2. The evidence in the record demonstrates that Kennydale Creek flows year round, thus creating a conflict with the 0 Map classification After reviewing the evidence presented by the Applicants, the City, and Ms. Rider, the Hearing Examiner concluded that the record demonstrated that the City's short plat decision was in error and arbitrary and capricious because it was inconsistent with the City's critical areas ordinance: The record before this office demonstrates that the stream flows perennially as it enters a culvert under NE 20 th street and appears to flow as it begins entry into the subject site, the Gordley property. The record further demonstrates that this same stream flows perennially north of the subject site. The record does not directly show how the stream flows once it disappears from view looking north of the subject site. But the Hadley report coupled with the lay testimony allows one to draw reasonable conclusions.34 The Applicants again contend on appeal that the evidence in the record is not relevant because it does not directly concern the portion of the stream on the Applicants' property.35 However, the evidence was indeed directly relevant in determining how the stream flows immediately before and after the Applicants' property. The Applicants did not present evidence refuting the obvious presumption that the section of the stream on their property also flows accordingly. The Hearing Examiner responded to this issue directly at the hearing and in his decision, determining that the evidence was indeed relevant to show the characteristics of the stream. Responding to the City and the Applicants' contentions that neighbors could not observe the entire length of the stream on their property, Mr. Kaufman thoughtfully concluded: [TJhere are probably sections of the Cedar River that flow through private property that may be harder to observe and would be hard to verifY. Clearly, in those instances, the Cedar River is seen flowing toward a property and seen flowing away but might be hidden beyond view on private property. Logic allows some leaps of faith and logic suggests that it might be flowing even where it cannot be observed.36 Accordingly, the Hearing Examiner found: "The current facts, the anecdotal evidence and the Hadley report show evidence of perennial flow in a normal year. Code proclaims streams with J4 HE, Conclusion 6 (emphasis added). J5 See Applicant's Brief, pages 3-4, 6. J6 HE, Conclusion 7. • • • f' • • • Renton City Council April 24, 2008 Page 11 those characteristics a Class 3. This office has to conclude therefore, that the City was wrong based on current knowledge."J? Because the evidence showed that the creek flowed perennially, administrators were wrong to apply buffers for an intermittent stream. The City and Applicants did not provide any evidence refuting neighbors' testimony that the creek flows year round,J8 and the report that they relied on, Exhibit 18, also cites reports of year round flow. Accordingly, pursuant to the code, Kennydale Creek is a Class 3 stream.39 The Hearing Examiner did not "reclassify" the stream as the Applicants contend. He rather determined that the short plat decision was in error and must be reversed because it was not consistent with the critical areas regulations in the code. RMC 4-3- 050(L)(7). C. Requiring a Native Growth Protection Easement Does not Make the Decision Consistent with the Critical Areas Regulations Again, the City's critical areas ordinance limits the issuance of a permit on property that is on or near regulated streams or wetlands and provides that a permit may only issue where it is consistent with critical areas regulations. RMC 4-3-050(L)(7)(emphasis added). The critical areas ordinance also requires the creation of a Native Growth Protection Area for projects on or near Class 2-4 waterbodies. RMC 4-5-050(L)(7). Granting a conservation easement over a buiTer area is one of the ways an applicant may comply with this requirement. RMC 4-5-050(E)(4). The Applicants argue that the City's imposition of a Native Growth Protection Area on the Gordley property demonstrates that the City was "cognizant of the stream issue.,,4o While this condition may show that the City was aware that there was a stream on the property, it does not allow the City to misclassify the stream and apply minimal buffers. Indeed, the Native Growth Protection Area is required by the code for Class 2-4 streams and does not have any effect on stream classifications or buffers. It is simply an additional requirement that does not absolve the City from the other express requirements of the code pertaining to streams. 37 HE, Finding 10. J8 The Applicants' appeal brief makes the claim that they testified that the stream is intennittent. In fact, they were careful to avoid such a direct contention in their testimony, instead disputing how far neighbors could see onto their property and claiming that the stream was a "ditch." See HE, pages 6-8. 39 HE, Conclusion 10. 40 Applicant's Brief, page 3. Renton City Council April 24, 2008 Page 12 D. The Hearing Examiner Correctly Determined that the City Erred by Not Requiring Independent Review of the Wetland Classification Where it Conflicted with Prior Studies The Hearing Examiner also found that the City's failure to require independent review of the Applicants' wetland classification where the applied Category 3 classification conflicted with prior studies performed for the City on the same wetland. Specifically, he found: [H]ad the City compared the results of the applicants' recent wetland study with results of reports it had on file, as it supposedly did with the creek, it might have found contradictions that may have encouraged it to seek an independent assessment. Studies or reviews in three cases called the wetland a "headwaters wetland" and that means it should be a Category 2 Wetland ... The lack of such independent review was erroneous unless one concludes that the earlier reviews for City projects or other purposes were independent and then those reviews found it a "headwater wetland, a Category 2 wetland. ,,41 • The Applicants assign error to this conclusion, but do not explain why it was in error in their • brief. The record, including various prior studies conducted for the City,42 strongly supported the Hearing Examiner's conclusion regarding the wetland classification and it should be affirmed. IV. CONCLUSION For the foregoing reasons, the Hearing Examiner's decision reversing the short plat should be affirmed and the applicant's appeal should be dismissed. AAP:dab cc: Client Kevin T. Steinacker 41 HE, Conclusion 9. 42 HE, Finding 20; Exhibits \5-17. Very truly yours, GENDLER & MANN, LLP ~~W1P- Ashley A. Peck Attorneys for Sue Rider and the Kennydale Critical Areas Alliance • Before Castle was built 7/30/20062:32:00 PM Farmhoose replacement Kennydale wetlands 41212008 3:00 :12 PM From: Valued Sony Customer To: lauralee Gordley Date: 5/17/05 Time: 6:03:02 PM •• -~ MASTERBUILDER CONSTRUCTION 107JJ SE 30TH ST BELLEVUE. WA 98004 Phone (425) 454-6340 May 17, 2005 City of Renton 1055 Sf Grady Way Renton, WA 98055 Re: Reclassification of drainage ditch on proposed Blueberry Meadows plat In the late 1950's, Raymond and Virginia Dykes, owners ofa blueberry fann on NE 20 th Street in the Kennydale area of Renton, wished to drain water runoff from their property with a ditch running from their property, into a culvert beneath NE 20 th, and ending in a pond on a 'parcel across the road. On December 12, 1957, Charles and Winifred Pohl granted a Quit Claim Deed to Mr. Dykes for a drainage ditch easement running through their property (currently owned by Lauralee Gordley). On January 31, 1958, Burnell and Delphine Larson also granted a Quit Claim Deed to Mr. Dykes to continue the ditch . through their property (currently owned by Jeffrey and Charlyn Unbedacht) and into a pond. Although the Deeds were granted to the Dykes's, Charles Pohl and his foster children dug the ditch for them by hand. In a Wetland Delineation Report from Ellisport Engineering, Inc., dated October 20, 2004, Anne Seethoff concludes that the area in question is not a wetland. A Stream Classification Report; dated April 26, 2005, also by Ms. Seethoff concludes that, according to the Critical Areas Ordinance, this ditch would be classified Category Five, which is non-regulated and has no buffer. Page 1 of I June 30, 2005 MASTERBUILDER CONSTRUCTION 10711 SE 30m ST BElLEVUE, WA 98004 Phone (425) 454-6340 City of Renton 1055 S. GradyWay Renton, WA 98055 To Whom It May Concern: Re: Request for stream reclassification. t! ·E)( l-if B{ I :3 7 ..•. ....• Please review the following reports to determine if this stream qualifies as a Category Five under· the Critical Areas Ordinance. Thank you, J~~ Terry Dutro o'\A'i'-"'.Sl ,?"J"j.. ~ \.<;:, '\-.\",*,.Q w~~~. ~ Q's-_~ ~oc..~ O-~. DEVELOPMEriT PLANNING CITY OF RENTON JUN 3 0 2005 RECeIVED Ellisport , Engllieering, Inc. Teriy Dutro Mas~uijderConstruction 10711 SE 30" St Bellevue, WA 98004 RE: Parcels 3343903203, 3343903201 and 3343903563 Critical Areas Evaluation June 29, 2005 DearTeny, .., The above parcels have been evaluated to determine if thare are any critical areas on them and if· so what classification they would be under the City of Renton's new Critical Areas Ordinance. These parcels are located east of Jones Ave NE and north of NE 2rf' St. All of Parcel 3343903201,and portions of Parcels 3343903203, 3343903563 are being considered for subdivision. This subdivision would Includeapproxlmately 4 acres. This land slopes very gently from the south to the northWest A stream flows the-length·of it to a pond in the northwest comer and then onto·the north. Directly to the east of Parcel 3343903201 is the new CemWest subdivision, Westchester Kennydale. North of this subdivision is the completed Stone Castle subdivision. West of the Stone Castle subdivision and north of the proposed subdivision are a mixture of single family. residences on approximately 1 acre lots and a 1.65 acre parcel that is undeveloped. The east side of Jones Ave. is single family lots that border the east side 1-405. South across NE 20" St. is a blueberiy farm on a 3.43 acre parcel. This farm dates back to the late 1940'5. Surface water and groundwater draining to this parcel has been collected and drained to a ditch along the east side of the parcel for almost 60 years. This ditch ends along tile south side of NE 20111 St. where it is piped under the street to the north, and flows into another channel going north across Parcel 3343903563 and 3343903203. Last October, Parcel 3343903201 and a portion of Parcel 3343903563 were inspected to determine if a wetland was on.thase lots. It was determined that due to the recent housing <levelopmentto the. northeast and east and construction of a Sewer line through this area, these properties have becOme significantly drier and no wetland exists in this area. Much of the groundwater and surface water that used to flow to this area is now intercepted and piped south to NE 20" St. to discharge next to the culvert under NE 2rf' St coming from the blueberiy farm. There Is a wetland on Parcel 3343903203, crossing the northwest comer of the proposed subdivision. The Wetland Delineation Report dated June 2, 2005 describes it in detail. The wetland is a Class 3 wetland under the City of Renton's new Critical Areas Ordinance. The channel crossing the proposed subdivision flows into this wetland. The outfall from the wetland continues on to the north across the next two lots for approximately 400 feet into another pond. This pond's outfall is into the stOrm drai~e system for a new short plat at the southeast comer of the intersection of Jones Ave and NE 24 St The outfall from this system is piped west across Jones Ave. and into a ditch flowing to the northwest The channel crossing the proposed subdivision was previously considered a Class 3 stream by the I~. -t' City of Renton .. Based on the City's new Critical Areas Ordinance this channel meets the criteria for a . 20501 Slst Ave. S.w. Vashon, WA 98070 Telephone (206) 463-5311 FAX (206) 463-2578 E-Mail: EllisDorti@aol.com . ~ " .... . , ',,; . ~ , • } I " " .~ . -.. ,-,.; . ;~:~ . :.~ .. Ellisport • Engineering, Inc. Class 5 stream. The reasoning for this determination was discuSStid in our letter dated April 25. 2005 to laur1ee Gordley. The ordinary high water mark (OHW) for the channel crossing Parcels 3343903563 and 3343903203 varies from 2 to 5 feet apart on either side of the 'channel and 2, to 3 inches up frori1 the bottom at the sides of the channel. The southern half of the channel is grass lined. The northern half flows underneath a dense growth of the willows. Spiraea. and Salmonberries until it enters the wetland. There is no grass in the in this portion of the channel. The outfall from the weiland is over a conaete weir to a grass lined channel that continues north as already discussed. If you have any additional questions concerning the Critical Area evaluation of these parcels, please call me at (425) 747-1799. Sincerely, Anne Seethoff project Engineer ......... '" "~' 20501 81st Ave. S.W Vashon, WA 98070 Telephone (206) 463-5311 FAX (206) 463-2578 E-Mail: EHisvort1@aol.com -.~. ',' ':: . . :,'; .... . :., .. " . . , .:~ .. .'. "('~'. • • • DATE: TO: 'SX\-fIB{T ~4 PLANNINGIBUILl PUBLIC WORKS DEPARTMENT MEMORANDUM November 10, 2005 Terri Briere, Council President Members of the Renton City Council j~KathY Keolker-Whe~Mayor ¥~ Gregg Zimmerm~mW Administrator VIA: FROM: STAFF CONTACT: SUBJECT: ISSUE: Jennifer Henning, Principal Planner (x7286) Reclassification of a Category 4 Stream in the Vicinity of . Jones Avenue NE & NE 20 th Street Should a mapped stream be reclassified from Class 4 ( 35-foot buffer required) to Class 5 (unregulated) through properties in the vicinity of Jones Avenue NE and NE 20 th Street? RECOMMENDATION: Approve the stream reclassification for the subject property (APN 3343903201, 3343903203 (portion), and 3343903563 (portion) in the vicinity of Jones Avenue NE and NE 20th Street. The stream classification would change from Class 4 (35-foot buffer required) to Class 5 (unregulated). BACKGROUND SUMMARY: Recently adopted Critical Areas Regulations (RMC4-3-050L) classify stream types within the City as Class I through Class 5. The inventoried streams are shown on a Water Class Map (Exhibit A). A property owner has property with a stream designated as Class 4 (35 foot buffer required). They have requested that the stream be reclassified to a Class 5 (unregulated). This requires administrator approval and a legislative amendment approved by City Council. The five-tier classification system and map were adopted for the purposes of regulating streams and lakes in the City. Corresponding buffer widths are based on the rating system. The approximate location and extent of Class 2 to 4 water bodies within the City limits are indicated on a map that is used as a guide. The specific location and extent is determined through field studies. Where there is a conflict between the Water Class Map and criteria listed in the RMC, the criteria govern. • • • Category 4 Stream Reelas. . ation Page 3 of3 November 10, 2005 ditch. A residential development near the blueberry farm empties a storm drain into this ditch. The developer concluded that the surrounding area drains into a man-made ditch, where no previous natural watercourse existed. Based on this supplemental information, and the administrator's deCision to forward the request for stream reclassification onto Council, the appeal was withdrawn. CONCLUSION: New information provided by the developer, including aerial photos from 1946 and interviews with the previous landowner support the developer's request for reclassification of the stream through the property. Because the ditch is a non-salmonid bearing water flowing within an artificially constructed channel where no naturally defined channel had previously existed, it qualifies for the Class 5 stream designation, and is therefore unregulated. ~--------------------------------------------- • November 28, 2005 Community Services: City Center Parking Garage Artwork, Richard C Elliott AUDIENCE COMMENT Citizen Comment: Johnson - Senior Center, Thanksgiving Dinner CONSENT AGENDA Renton City Council Minutes Page 422 * The Washington State Department of Transportation will host an open house related to the Renton 1-405 Nickel Improvement Project on December 8th at the Renton Housing Authority. Mayor Keolker-Wheeler pointed out that on December 3rd, commissioned art at the City Center Parking Garage will be dedicated at 5:00 p.m., followed by the annual tree lighting celebration at the Piazza. Arland "Buzz" Johnson, 334 Wells Ave. S., #306, Renton, 98055, expressed his appreciation for all those who assisted with the Thanksgiving Day dinner that was served at the Senior Center. Items on the consent agenda are adopted by one motion which follows the listing. Council Meeting Minutes of Approval of Council meeting minutes of 1111412005. Council concur. 11/14/2005 Developme~t Services: .Stream I' Development Services Division recommended the reclassification of a stream Reclassification, Jones Ave located in the vicinity of Jones Ave. NE and NE 20th St. from Class 4 to Class NE & NE 20th St Lltjlf -117-131 5. Refer to Planning and Development Committee . . CAG: 04-103, 2004-2005 Utility Systems Division recommended approval of an amendment to CAG-04- Waste Reduction & Recycling 103, King County Waste Reduction and Recycling Grant interlocal agreement, Grant Agreement, King which provides $104,296 in funding to implement Special Recycling Events, a County Business Recycling Program, the Natural Yard Care Program, and costs associated with the Reuse It! Renton event. Council concur. (See page 424 for resolution.) • UNFINISHED BUSINESS . MOVED BY BRIERE, SECONDED BY CORMAN, COUNCIL APPROVE THE CONSENT AGENDA AS PRESENTED. CARRIED. Finance Committee Chair Persson presented a report regarding the Issaquah School District mitigation fee. The Committee recommended that a public hearing be held on 1211212005 to consider adoption of a $5,115 impact fee for new single-family homes within the Issaquah School District in the City of Renton. MOVED BY PERSSON, SECONDED BY NELSON, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. • Finance Committee Finance: Issaquah School District Impact Fee Finance: Vouchers Lease: Renton Housing Authority, Edlund Property House Finance Committee Chair Persson presented a report recommending approval of Claim Vouchers 243018 -243439 and two wire transfers totaling $2,962,435.44; and approval of Payroll Vouchers 60885 -61085, one wire transfer, and 599 direct deposits totaling $1,897,829.78. MOVED BY PERSSON, SECONDED BY CORMAN, COUNCIL CONCUR IN THE. COMMITTEE REPORT. CARRIED. Finance Committee Chair Persson presented a report recommending concurrence in the staff recommendation to approve a five-year lease with the Renton Housing Authority for the house on the City-owned Edlund property located at 17611 103rd Ave. SE at a lease rate of $1.00 per year. The Committee recommended that the Mayor and City Clerk be authorized to sign the lease.* Councilman Persson stated that the Renton Housing Authority will pay to improve and maintain the house, and a family of ten will live there. --------, Submitting Data: DeptlDivlBoard .. Staff Contact... ... --------------------~ c, .. { OF RENTON COUNCIL AGENDAdlLL (J '-lr'-'A.,-;I;;Z#.:..:-_-_-_-.=~~:~I~i9~~:'===========.:::: PlanninglBuildinglPublic Works Department -Development Services Division Jennifer Henning For Agenda November 28, 2005 Agenda Status 1-:::-;-:---------------------1 Consent.............. X ect: Public Hearing .. Reclassify a Stream in the vicinity of Jones Ave. NE Correspondence .. and NE 20 th St. from Class 4 to Class 5 Ordinance ............ . Resolution ........... . t-;:;-;-~---------------------i Old Business ....... . Exhibits: New Business ...... . • Issue Paper with Exhibits A - E Recommended Action: Refer to Planning & Development Committee Fiscal Impact: Expenditure Required .. . Amount Budgeted ...... . Total A N/A N/A N/A SUMMARY OF ACTION: Study Sessions ..... . Information ........ . Approvals: Legal Dept... ..... . Finance Dept... .. . Other. ............. . Transfer/Amendment. ..... . Revenue Generated ........ . N/A N/A N/A Recently adopted Critical Areas Regulations (RMC 4-3-050.L.) classify stream types within the City as Class I through Class 5. The inventoried streams are shown on a Water Class Map. The owner of a property with a stream designated as Class 4 (35 foot buffer required) has requested reclassification of the stream through parcel numbers 3343903201, 3343903203 (portion), and 3343903563 (portion) in the vicinity ofJones Avenue NE and NE 20th Street from Class 4 to Class 5. STAFF RECOMMENDATION: Council reclassify the stream through the subject site from Class 4 to Class 5 . Rentonnetlagnbill! bh • • • December 5, 2005 ADMINISTRATIVE REPORT AUDffiNCE COMMENT Citizen Comment: Hicks - Stream Reclassification, Jones Ave NE & NE 20th St \ \)A A ()1'-\; Citizen Comment: Cook - Mosier II Annexation, 140th Ave SE & SE 136th St Renton City Council Minutes Page 432 growing in the community, and it provides opportunity for the preservation of the community'S character and quality of life. Garrett Huffman, South King County Manager of the Master Builders Association of King and Snohomish Counties, 335 I I 6th Ave. SE, Bellevue, 98004, stated that extending the moratorium has consequences in that he is . aware of one particular developer who wants to develop a property, and does not know whether Renton or King County development standards will apply. Mr. Huffman asked the City to expedite the process. Fred Herber, Bennett Development, 12011 NE 1st St., Suite 201, Bellevue, 98005, indicated that he is the developer referred to by the previous speaker, and stated his preference for developing to Renton's standards. Mr. Herber expressed concern regarding the amount of time needed for the annexation process, which delays his project. In response to Councilman Clawson's inquiries, Mr. Herber stated that sewer hook-up should be available for his project by next summer, and he confirmed that the project delay is also a result of not knowing on which development standards to base the design. There being no further public comment, it was MOVED BY CLAWSON, SECONDED BY NELSON, COUNCIL CLOSE THE PUBLIC HEARING. CARRIED. (See page 437 for resolution.) Economic Development Administrator Alex Pietsch reviewed a written administrative report summarizing the City's recent progress towards goals and work programs adopted as part of its business plan for 2005 and beyond. Items noted included: * Join in the holiday spirit and share in the Angel Tree Program, which helps children and families who are less fortunate. Trees with tags representing requests from families screened by the Renton Salvation Army are available this year at City locations, including the Community Center, City Hall, and Carco Theatre. * The annual Candy Cane Canine Fun Run'and Walk will be held on December II th at the Community Center. Barbara Hicks, 1835 NE 20th St.~ Renton, 98056, spoke on the topic of the proposed stream reclassification, located in the vicinity of Jones Ave. NE and NE 20th St., that was referred to Planning and Development Committee on 1112812005. She stated that reclassifying the stream to Class 5, which is an artificial stream where no natural channel existed before, is inconsistent with her personal knowledge of that stream. Ms. Hicks noted the lack of notification regarding this matter and another matter related to the NE 20th St. area. She requested that action not be taken on the stream reclassification without further study. F. Jay Cook, 14012 SE 133rd St., Renton, 98059, stated that he lives in the Puget Colony Homes area, for which Renton's R-8 zoning is proposed as part of the Mosier II Annexation. He indicated that he submitted an application to change the zoning from R-8 to R-4, and requested a waiver of the associated fee. However, Mr. Cook pointed out that the subject ordinance establishing R- 8 zoning is scheduled for second reading this evening . • • • December 5, 2005 Citizen Comment: Finnicum - Stream Reclassification, Jones Ave NE & NE 20th St [).LA -~ ~---.-~-------~--------------~~ Renton City Council Minutes Page 433 Economic Development Administrator Alex Pietsch explained that the Puget Colony Homes development is part of the expanded Mosier II Annexation area, and Mr. Cook has submitted an application for a 2006 Comprehensive Plan Amendment to change the area's land use designatiori to Residential Low Density which allows R4 zoning. Noting that the Comprehensive Plan designates the subject area as Residential Single Family, which only allows R-8 zoning, Mr. Pietch stated ihat by law, the area can only be annexed to Renton if it is consistent with the Comprehensive Plan's land use designation. Mr. Pietch pointed out that Council does have the ability to waive the $3,000 application fee. Mr. Cook said that it is more difficult to first establish R-8 zoning for the area, and then change the zoning to R4. Councilman Persson noted that the roadways are not designed to handle R-8 zoning. Stating that he does not want to delay the annexation, Mr. Persson suggested further discussion about R4 zoning at a later time.· Mr. Pietsch explained that if the annexation is adopted this evening, the next step is for either Mr. Cook to pay the fee or the City waive the fee for a possible Comprehensive Plan Amendment to downgrade the zoning. He noted the presence of restrictive covenants for most of the homes in the development that limit the ability of the homeowners to subdivide. Discussion ensued regarding the restrictive covenants, Council's ability to waive the Comprehensive Plan Amendment fee, and the setting of a precedent by waiving the fee. Mayor Keolker-Wheeler asked that staff compile more information regarding this matter in time for next week's meeting. Karen Finnicum, 1302 Aberdeen Ave. NE, Renton, 98056, also commented on the proposed stream reclassification, stating that she grew up at a house located at 2001 NE 20th St. She pointed out that the house backed up to wetlands that helped feed the blueberry fanm and Kennydale Creek, and she described how the area has changed over the years. Ms. Finnicum emphasized that the stream runs year-round and is natural, and she asked for further review of the matter. Councilman Clawson reported that the Planning and Development Committee met on this issue on December 1st, and he indicated that this is not the type of action that requires notification. He stated that he plans on leaving the item in committee for further review, and inquired about the urgency of the matter. Jennifer Henning, Principal Planner, stated that the developer is eager for an answer; however, she acknowledged the interest of the community members. She explained that the City recently adopted critical areas regulations that classify streams as Class 1 through Class 5, and the inventoried streams are shown on·a Water Class Map. Ms. Henning noted that each stream class has a different buffer requirement. Ms. Henning reported that the subject stream is located on three properties, and a pre-application meeting was held to discuss possible subdivision of the properties. The properties contain a water feature that is considered to be part of Kennydale Creek, and Kennydale Creek is mapped as a Class 4 stream in this area. She indicated that the developer has requested a reclassification of the stream from Class 4 to Class 5 through these properties, and has submitted evidence showing that the stream qualifies for Class 5 designation . • D~ember 5, 2005 Citizen Comment: Rider - Stream Reclassification, Jones Ave NE & NE 20th St Citizen Comment: Nelson - Stream Reclassification, Jones Ave NE & NE 20th St Citizen Comment: Gordley- Stream Reclassification, Jones Ave NE & NE 20tli St CONSENT AGENDA • Council Meeting Minutes of 1112112005 Council Meeting Minutes of 11128/2005 Community Services: Tiffany Park Recreation Building, Fund 316 Reallocation Community Services: Tri-Park Master Plan, JGM Landscape Architects Utility: King Conservation District Grant Renton City Council Minutes Page 434 In response to Councilman Corman's inquiry, Ms. Henning confirmed that a Class 5 stream has no setback requirements. Susan Rider, 1835 NE 20th St., Renton, 98056, emphasized that the Kennydale wetland system is dying, and the stream reclassification is yet one more blow to the system. She stated that no one profits from this action but the developer. Pointing out that the regulations are supposed to protect the environment, Ms. Rider stressed that the creek does not meet the definition of a Class 5. She requested further study, and notification of upcoming related meetings. James Nelson, 1905 NE 20th St., Renton, 98056, stated that he grew up in the area of the subject stream reclassification, and noted that he has never seen the creek run dry. He expressed his concern that future development will destroy the entire natural area. Laura1ee Gordley, 2010 Jones Ave. NE, Renton, 98056, stated that she is the property owner of the stream reclassification area. Ms. Gordley pointed out that a lot of work has been done for the reclassification, and all of the critical area regulation requirements have been fulfilled. She reviewed the reports that were prepared, and noted that aerial photographs show the creek was not present before the ditch was dug. Ms. Gordley acknowledged people's concerns, but stressed that the area has changed in many ways and cannot return to the way it was. Mayor Keolker-Wheeler stated that the concerned parties will be notified of the next committee meeting. Councilman Clawson reiterated that this issue merits further review. Items on the consent agenda are adopted by one motion which follows the listing. Approval of Council meeting minutes of 1112112005. Council concur. Approval of Council meeting minutes of 11128/2005. Council concur. Community Services Department requested authorization to reallocate $95,220 from Fund 316, Major Maintenance Public Buildings, to support the replacement of the Tiffany Park Recreation Building. Refer to Finance Committee. Community Services Department recommended approval of a contract in the amount of $84,190 with JGM Landscape Architects to develop a tri-park master plan for the integrated use of Liberty Park, Cedar River Park, and the Narco property. Council concur. Utility Systems Division recommended approval of an agreement with King Conservation District Number 9 to accept the City's share of the King Conservation District's 2002-2005 assessments in the amounfof $59,953.85, and approval to use $4,869 for the Black River Channel Restoration Project sponsored by the Black River Watershed Alliance. Council concur. (See page 437 for resolution.) MOVED BY BRIERE, SECONDED BY CORMAN, COUNCIL APPROVE THE CONSENT AGENDA AS PRESENTED. CARRIED. • • Creek ·Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for . 'fB years. Signed: ~~ ~ . Date: Bj? / D13 ,--------------------- • Creek Affidavit . I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. I have been in this neighborhood for !ffp years. ------------------------- • • Creek Affidavit I am familiar with the stream, known locally as Kennydale . Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. I have been in this neighborhood for '-It ~ years. . . /J' Signed:/J f{ W~ Date: ;). -q -or ~-----------------------------------------------, • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. -I have been in this neighborhood for 41 years. Signed:~ ~~~ Date: cZ-+-O~ ~"K\.~ • Address: -2 ~o 9' 9~ ~ A7Je. ~, , K~ ~ Lv~. c::;f" s-t" C\(ee...k • ~oes +~~~h i-k~~v-p V-Of' e v-fy MI[', Z'€..v~v+-IYtciA')'\-tQ-l hS J y ed..'v-~0U.V\o\. • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. ~ . I have been in this neighborhood for 3:9-. years. Signed: -,..c:;::+--- ~L)O/ ;7.4rM!z::& ~~_«!7J 43~eJn~1a~ zt-~ ~c2eJ-eaV/ .. ~ ~~~CJd~/ i"\r. kod.ts ~l'l\\<\iV'>.s V· . /.:). +\0. e.~ 'f 0.+12..> C Y'\ -tl-le..... Ea ~lde, of I-.i[CJS' 0'h\c.~ is L0\'eK~ I t\A€/ C ~ee k opec::, ltll\d«. Ir -\:tAe. ~e. e uA y. J:,is 1.De~{Vlc\ hIs holkSeJ I • • • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for 10 y years. Signed: !~R,Y;~­ ~-q!.( Date: 1'.JL/r, (~ 08" Address: J 9 0 S n, t, d, D!tJ J.i;tw;r j9 ~I W~, CJ-foo~_ • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for :5JL years. Signe~~~-?' U!~-""-Date: c:;2 -S -06' • Address: /1" t?' S A/ 2, :L or/; 0' 7 . ~t<-/<t-._ • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for . ,30 years. \lVI-./lIII'/1I/ O;f~rJDate: ;l-7~c:e • Address: ,1.5ofjJ3h)f1e AJe po/, ~. • 9aaS-G l~S~ 70 picK 8klt &rry 5 .4J101 !IT waS al/v/ayS ~tLcJ;­ We. fey! Eve;/( ; vi -1 tf"L . ~{flkV­ i/;11f- • • • --------- Creek Affidavit . I am familiar with the stream, known locally. as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. . I have been in this neighborhood for . 13.!Z, years. Signed: ~C . Date: / -'1-[)g R, ~Lr,.j C, Ke,l~'IJr{ Address:2e;m IVE ;2f}-t-'-5f, . /Jr;-!?/7 /' fA/ A 9g(!J?6 ;206'-SltJ -{JCj'f-'f -:£11 //v/'13 ,,/ 'ih,'.> ql"ee'1 I jr:v:'!,j by I 1v4Jk/~1 by -/'t7 r -J-l~_ /&;51 /3+ yt7?/r.>' e7,¢/ ~/~~1':5 5ee/n:; /f wei-ern"! l'unYi ,'MJ vv'Afe,r. I .kntJ ~ ;'/-h,q:; .&/We;Y'!> b,:-<,-,;, I:-./e.-ff'ro/?l el/t?/·c;?~ 12 ~(.z co( /...s.C'. . '. Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. , I have been in this neighborhood for '6L 0 years. Date: • • • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for (p years. Signed: g~ tlIdz- • • • Creek Affidavit . I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for?0 years. Signe~~ . Date: ,.J-j?-<Jg-' Address: dd.O / /lc /6 P- . . ~;;J~ • KENNYDALE CREEK AFFIDAVIT: I LIVED IN mE VIC~ OF KENNYDALE CREEK, ON OR NEAR JONES AVE, FOR ~I ';) YEARS. . IN THAT TIME, I OBSERVED THE CREEK RUNNING FULLY IN THE SUMMERS. IT S NEVER DRY DURING THAT ENTIRE TIME. _ .... SIGNED: DATED: tJJ-O 1-(-0;--- ADDRESS: cJ.oo I i2~ • • • Creek Affidavit . I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the ~~r . . I have been in this neighborhood for ~ years. Signed: . nate:*/Cf3 • Address:::2?01 A.!C. ) r;j7 y-: . • . ;,' . • • • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has· NEVER dried up.in the aero . . . I have been in this neighborhood for· years. L1 "t CI'1&L-l) Signed:~ . Date: {)-;2 -o<l -08 . I \ I grew up playing in the creek and the swamps near my parents' house on NE 16th and Blaine. My brother and I and our friends practically lived down there in the summers. We • caught squawfish and crayfish in that creek when we were kids. When I got older, I was . the caretaker of the blueberry farm for Mr. and Mrs. Knotts in the summers, so I still saw the creek all the time. I met my wife when she asked to speak to me about my memories of the creek. At that time, I was living half a block from it, so I saw it every day. Now that we are married, I live within several feet of the creek where it runs behind our house. I believe that when I say this creek has never gone dry in the 44 years I have been observing it, my testimony should be considered first hand knowledge of the facts. • • ·1 • • • Creek Affidavit I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for . Lf.5 years. Address: ~CJ()/ '-oc c:2o-r~ S.f. . ':;Ye,..,b w;x! 9Jb..56 In the 45 years that I've been a resident of Renton on what is now NE 201h Street, the Kennydale Creek has never run dry. I used to cross it nearly every weekday on my way to • school. Now, I walk NE 201h St. for exercise and cross the creek. It is always running. There are wetlands in the vicinity of the Kennydale Creek on NE 201h Street, with the creek running through them as it makes its way to Lake Washington. The idea that recent building in the area has altered the nature of the creek to where it is now dry is false. The area around the creek is stiD wet also. Last summer, a new property owner on NE 201h Sl found that when he dug out his lot for the foundation of his new house, the lot instantly transfonned into a lake. He tried hard to pump out the lot, but the underground water kept on coming. He could have literally rowed a boat around the property. Ducks gathered for quite a while as he tried to figure out how to get rid of the water. I've attached a picture I took of that piece of property last summer to give you a visual of how wet the area really is. The stream is very close by to the lot, and it runs year round ... fall, winter, spring, and even in the heat of the summer, which is when I took the attached picture. The same groundwater springs that feed the creek are the ones that fill this hole with water, therefore I felt it was quite relevant to include this. As a resident of this street, I see the creek on nearly a daily basis. Not once has it ever been dry. Kennydale Creek is a year round stream. Please treat it as such. • • • • • . Creek Affidavit . I am familiar with the stream, known locally as Kennydale . Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood for Z.6 years . . Date: 2 -~ ~O 2( . . J / ,--/lJ e z..--o..:rla Address:SO? /;JellS .folie. N/lf{)'c;, . ,I) WA-q8'()~7 /f-tAlo",/JA-~~cJSb I<"c"liz;v. . J(v~ ~ '\ec.(2 .. r ~"ve.l l"t,.;. tv tl-u... l1ovs-e.. c-,+- -\-~ e.~e 6~ W.L.c::6ek. 7I s.pe M + e.\JI::tt-y 'JuWl~ ~I(h{'~ . ,'/l. ~~f ",~¢t J. tevtvy.1-le CV?:.eeV-- Uiit;{ :+ ~Wl( Of\!' Ad-v \ -\-, $1'-'7c...e +ke/1 .r h61""S OUT tIledZ-+t-.e.. gj~y~ b+ tk. C-f(ee fL 0 ... 6. Ite..-\£A.,K.. dvrt'~:; -\-k $,u~ 0-'1o"".\.L-?S _ I1b t-oV!L.e.. (VI fhe>e 2.6 yeufL 5 ~lJ-€. . ..L- eve...-r .Se&t +k c~~\~ dry -o() eVeVl (~. +he-hel-f.es1-yeoft. S (We-use.cl J.o c~J-c~ .. LJ2-t.-W~(S~ f"l~~+-~+--Yk-cdSe. ot fhe bl&ek:/ry' ~r I""l-. ()//I 2...o-:!l", /" 61v'e.. /-kl' 6/1 S S..j-; 1\ It\t>'\~ -0 u t ih. +L.e.. SJ:;'. ~ Le/Pfert-eft-~ bl~r't't:('.4"'-0 C\. -\-+trc... I4&-6. /;Vc.lr-ettS ~< ,. , jl~ . , • • Creek Affidavit , I ain familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This 'creek has NEVER dried up in the summer. , I have been in this neighborhood for ,1<2:: years. ~RL;) ::;:' 0NNICU/Yl Signe : ~~~:::: Address: I 3tJ;;Z ~~J~E;) 4l1~ J£.- R<:NTV 0 _I u.J>1 9Jt15G 19*--t ~ c7~tj~ -----d LJV / 10£ CkJ 7A Sf. h,."J -Cd A.J 1 W ~ '7.1056 :73/~~ ~/.~ , , ~ ~~~---6 ~~ ~~7dvC£Vt3~ ~~~-;~]~ ) . 4~a ~ 6VE//0~ .~~ ?flc/Av ,~/7'tf3~ ~. • • • Creek Affidavit . I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE20 ST and Jones Ave. This creek has NEVER dried up in the summer . . I have been in this neighborhood forth;=«' years. \, \ \ \' L. -{-l Signed: tJ.~~~ i\J\Oc,~~ Date: r~ L, '2-3C)g Address: tJ..c., lA. ~ oc~.\. \ c---'\. C> ~ ~r 1-lc.., L lw W\l..v'\~(. {)frv.J'~.\-l~ .-k" wOJ'~ l-,\. -+ ~l ~ 0w-~: t-J' \ trf cJ~ ( (") \ v -e.. ~~ r;y-C. c..v "'" I"') : ~'(..~ ,,) .... .J'.f' C9..;M0,~'5 '). I. c-~">+-~ ~ c..-J"-~\.'1 {'-LJ' M C--A('J\..l-~ lv 0 --------------- • • • \I COlI ... ' I .... TO: The Hearing Examiner for the my of Renton RE: Blueberry Haven Short Plat Appeal ,",VV"T I I IvV' I, Barbara P. Hicks have been a city of Renton Resident for 25 years. In 1986 I lived in Kennydale on 20th Street for a period of two years. ' During this time my son and his friends would go out of the back of my house which was east of Kennydale Creek to get frogs to bring into the house and also to float small rafts and boats down the creek towards the north. The creek was a source of irritation to me all year long, it was always filled with water which was a constant lure for small boys to wade in, jump bikes across, and float things down it. I do not remember a time during this period that this creek was ever dry or appeared to have dried up. After I moved up into the Highlands my daughter and son in law remained In that house for a few more years until the property was sold, and I would go behind the house to pick berries with my son to pick wild blackberries. ' In more recent years I again lived on NE 20th St (2004 & 2005), again the creek was year round and did not dry up or appear to dry up even during the summer. I have given testimony on several different occasions at City Hall Meetings concerning this issue. I have also questioned the claSSification of the stream and have long felt it should , have been afforded more protection. 100 city seems to have neglected their responsibility for protecting this stream and the adjacent Wetlands . . Sincerely, 'v?j" " ~tJ!;u:~ -P. fft/c£J Barbara P. Hicks 10402 151st Ave NE Renton, WA 98059 ---------- • • Creek Affidavit .. I am familiar with the stream, known locally as Kennydale Creek, which is in the vicinity ofNE 20 ST and Jones Ave. This creek has NEVER dried up in the summer. . I have been in this neighborhood for P'N 6 years. Signed: LJJA..-· ~6 ~ Date: h:b 5, 200 11 • Creek Affidavit .c. '1'· ith the stream, known locally as Kennydale I am laml lar w , , , 20 ST d Jones Ave, Creek, which is in the vlclmty ofNE . an . This creek has NEYE:Rdried up in the s~er, ears . . I have been in this neIghborhood for .:::c y Signed: . Date: 2 -'1-C>Y- • Address: Is? y 3 ~ /:2 a/I-! .4;/'£ 5£ • Z !--(4~ jJL,4Y6.D /1\/ 11115 Cl?~EK WllelJ L LJ#5 ;1 KID 4/l/D {z1C!E0 UP / /l/ rile.-II C)u SL:: fJ £/ T /0 I r -II /1/£1/£;2 DlZlfD uP IfJ J/IE SUtvlML/2 ,0-'(OA/TI/.>· <'-olliG 4P'c-;2 1-Qu IT F"i 4'( I Ale IN IT. • • • AFFIDAVIT I have lived near the property at #1733 E 20'" Stree~ Renton, Washington, also kIiown as the Kennydale Blueberry Farm, for;;; ears. I am familiar wHh the waterway known as Kennydale Creek which crosses N 20'" Street north of the Blueberry Farm. . . dJ;d~AYl1~{~1 ~LJm/t/S-1!cJT#~ ec£t~ /. 7;';:;7--u-x.tz~-VAflA£;7~ 02?JJrC ~ /~1Vb /--1't5S-~4ba1-'dcJ-~ ,~U~~aw If~~ -_ /~ c/'cE£>5a~.~%A/~ /2£VY) ~ .~ Cl/Yf4/ --z1m -e oJ . I declare -under penalty of perjury under the laws'of the state of Washington that the foregOing is . trueandcorre~ ~ / } • /. / _ '. //--/ Signed at '~V41 . , ?dLU'/Zt.7"bJ1) ,Washington on 0/ ~ ~.i6 (C8IiC?State) . (j . (Date) .~ ./'~/~ /~ ~~~_ -0) "';-0~~ ./ • AFFIDAVIT I have lived near the property at #1733 NE 201h Street, Renton, Washington, a/so known as the Kennydale Blueberry Farm, for S7 years. I am familiar with the wat~rway known as Kennydale Creek which crosses NE 201h Street north of the Blueberry Farm. . / / J-?e-~ ARo , ~ ~ Dr..)!, t +-h'~~-c3c-?~ ~~/{,~ P--~~~~ +/t:~~ ~~~;r;.~~~.l/ 7k~declareunder nal~~~:t~fw::n=gi~{ • true and correct. . Signed at ___ ---,;:::-::-..:.fb....e,...;=.,..:c"c.......:f.~c_"<Y1..~L__, Washington on '1-/ ? -t? 6 (City ~na State) (Date) . • ( • • • • AFFIDAVIT I have lived near the property atID33 NE 20" Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for ~'7 years. I am familiar w~h the watl;lrway known as Kennydale Creek which crosses NE 20" Street north of the Blueberry Farm. I declare under penalty of perjury under the laws of the ,state of Washington that the foregoing 'is, true and correct. ' Signed at E:eN.1O"-' \ 1 jA$!-t ( '!.Ys:7£t1ashi~gton on _'1--1-~_{:....,<g=--:-:6=;' __ , (City ~nd State) , (Date) Type or Print Name, G?BJ \533'MfSf WR~ Address efu\~ \o\Rr~ ,---------------------------------------------------------- AFFIDAVIT • I have lived near the property at #17.3?~E 20th Stree~ Renton, Washington, also known. as the . Kennydale Blueberry Farm, for ~'"1 years. I am familiar with the waterway known as J. Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm . .;;;if<-€..-~ ~ /U-<.J-UL ~ ~ ~ 'f& L/3 ~c"-VO() .• J 'ue ~ .~_. ~~~ ak ~ ~ c:L ~rn~ a-uL~ ~~tU4~~7I-~ ~A~O vdkitoi~ 4~.; I de~lare under penalty of perjury under the laws of the state of Washington that the foregoing is true and :=co~rr!.5<WJ,"-_ Signed at _./-~:::zJ<::,f~~=:-'t~J~>...!...-1----" Washington on --:-_..t;.9..:;-_·..:,/;:2;:g':;----"'O;..<h=-·_ ( (Date) , eorPr" tName • J/' 7'11 ~ c:g.a?/ A/C;:'dtJ ~ • • AFFIDAVIT I have lived near the property at #173 NE 20th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for ears. I am familiar wah the wat~rway known as Kennydale Creek which crosses NE Oth Street north of the Blueberry Farm. ' .' I declare under penalty of perjury under the laws of the.state of Washington that the foregoing is true and correct. . . . Signed at t",,· /.1'--W+ (City ~nd State) Type or Print Name . I tg 2-() IV C 17.,-t. I' (. • Address ~ INA-9~Q~ • • • AFFIDAVIT I have lived near the property at #1733 1//20th Stree~ Renton, Washington, also known as the Kennydale Blueberry Farm, for L/ years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. I declare under penalty of perjury under the laws of the state of Washington that the foregoing is tnue and correct.'-7 /,/ ""-" Signed at ty.,..k 1.6-4 . (City and State) . ,Washington on 67-/7 -I t;. (Date) Signature & '-< I !?, IN"" it-- Address v . !?..vau n .vV ~ q r(),;?-, J • • • AFFIDAVIT I have lived near the property at #1733 NE 20th Stree~ Renton, Washington, also known as the Kennydale Blueberry Farm, for 6 -2: years. I am familiar with the wat~rway known as Kennydale Creek which crosses NE 20th Street north cif the Blueberry Farm .. J~ ~./'tk ~~ I ..):i~ ~'7AJM t;U1-tk~~~30~' ~.-~ ~~$O~i?~;2k ~~ I declare under penalty of perjury under the laws of the .state of Washington that the foregoing is true and correct. . Signed at ____ =-::::;=-jlfi;...:....:: .. eu~'_!Ic~o:.....:...t/t__=_._" Washington on z-/ ? -0 h (City ?nd Slale) . (Dale) Type or Print Name / rcJ '!:; . All' 1-0'76, Address . fJ~ /-(J I.-, s1: (' • ' • • AFFIDAVIT I have lived near the property at #1733 NE 20th Stree~ Renton, Washington, also known as the Kennydale Blueberry Farm, for H7years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. ,7-~ ~u ...... rs~--c.Yl +"'-e." Kel'1~ych(e (YI'-e-e/c:1I a;o cW-U1 • J-k(!N'e be-e V\ ~ \....t-r-e. ~p ~ r 5 one:... / Ir . ~"r-~ "y. !..Its d-:s J..o J-Le~vOlV'-f I"/Of' 'I-a I<MJ,*,r- '~Y I /It~1 1-/ 4="' v S-e.d.. .l-o tnMU 11/Z(jc...; ~-c: t..e......, '" I;'" lit """ C&> ~ s h 1I ( I ue I"J -€Cc ,... I .j-~ S-e-e. 'l J-a. ( I~· I declare under penalty of pe~ury under the laws of the state of Washington that the foregoing is true and corre~ Signed at ~~Y"I ,Washington on 2'-1.5""'"-0 "- (City and State) (Date) eU~ k ,d~uL Signature J' . f3 ..... I t!L """ 1< ~~ I"/¢Ph Type or Print Name 1 . J2-~, /I I:;--! ~ ~'" 1> r- • • • AFFIDAVIT I have lived near the property at#1733 NE 20th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for 35 years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. ~~~ ~~ ~\~\~ \)E:" . \.)\~\~ -\.~ Q~o-.~\\~ ~~, '" \~I/\"\,,,<io1<LC~ ~~~~~ , ~~ ~.~~~ ,~~ I declare under penalty of perj~he sta e of Wa i gton that the foregoing is true and cor Signed at ---'-''C''''''-'>.~::-:::::-;;;:::7::;-'''''-''''''''''''-+:-'i''''t±:'::::'-''''-' Washington on %~ l \0-Db (Date) e,,; Type or Print Name . c-A '\ g \3 hlf-, 2i--I'" cS , • • • AFFIDAVIT I have lived near the property at #1733 NE 20" Street, Renton, Washington, also known as the Kennydale BlueberrY Farm, for ''K5: years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20" Street north of the Blueberry Farm,' • 7~-';;--yo~ ~ --71!1!!yft-..~~~ ..:c:z. ~1!'01Nl:.~s-r; ~ --r y--,~ 4<~ 7eVo ~. .......... ff'2:4. ~ ;t-~~~~~~~~~ ~ ~,,..,...:2~~~~a..,,..d ~ .y~~."-~~~'~~~"fJ,~~~ .' ~/\., .... " '1 Z--~~~~ ~.tl{..d-.._-.--• ~. ---7 ' {/ --. ......-,,~ 19S-/ ',' I declare under penalty of perjury under the laws of the state of washington that the foregoing is true and correc Signed at,...t tC~~~~~W~J.~::::..---, Washington on _-Lt_·..;../.-'(f.;,-·..,..a----'~=___ (Date) Ty e or Print Name ~ ~ '3 691 4$-FF:i) 'J/£ Address • • • AFFIDAVIT I 'have lived near the property at #1733 NE 20th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for @ years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farin. JIV 'foe lJ~'()J J t:u6u.t-o II~ /~ A-;s (! I2a:k / i<-1J~ &;-# /H L;7(., , to IE' tV ~ k(J (}/llU q/ 1"/"If) lite;:: ;j;mtP/J1/j#~ ~;MI /~I?j T;k7 , '.pt>~S, '.z ttJ"~tiV L/%;f tu~ rJ7vP /./ 0"0// /bI/VJ H// ~"'/IIL7G, I declare under penalty of perjury under the laws of the .state of Washington that the foregoing is true and corr~ , . Ir Signed at ~1l»<t /V1Js/t'iPr7(l)r' , Washington on _----:;:_-;;:;= __ _ , (City ~nd State) (Date) Address • • • AFFIDAVIT I have lived near the property at #1733 NE 20th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for '20 years. I am familiar with the wat~rway known as Kennydale Creek which crosses NE 20 th Street north of the Blueberry Farm. o ~~"~'~'iL ~ ~11~ O~ 0--~ QJ .~ ~ cJjJ . I declare under penalty of perjury under the laws of the .state of Washington that the foregoing is true and correct. ' . Signed at . Re.YthX1 . lLJCL (City ~nd Siale) , Washington on 9 / alo( 0 , I(Date) CY'u A.I/Y\ClM, IkAle.r 6 I • AFFIDAVIT I have lived near the property at 1733 NE 20th Street, Renton, Washington, also known as the Kennydale Blueberry Farm for approximately 18 years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. Between raising either dogs or a child (or both) the last 18 years, I have walked past this creek on NE 20th Street at least daily. There is always flowing water there that my dog(s) would immediately jump into. As my son got older, he would throw twigs and leaves into it to watch them float down to the culvert. This was not dependent on the season; there is always water in the creek/ditch. Even during this, the driest summer in recent history, there is water in the creek. Based upon the maps open for public viewing in the Public Works Department on the 6 th floor of City Hall, the City has designated the Blueberry Farm as a wetland. As a long time resident I am at a loss as to why the City has suddenly decided it is not and I am vehemently opposed to it. This is a unique treasure within the City that should be preserved I declare under penalty of peIjury under the laws of the State of Washington that the foregoing is true and correct. • Signed at Renton, Washington on September 18, 2006. Signature :JlJ\ \ e X>l'O{ Type or Print Name Address . . ' • • • AFFIDAVIT I have lived near the property at ~1733 NE th S eet, Kennydale Blueberry Farm, for . I am Kennydale Creek which crosses N 20th Street north of the Blueberry Farm. ~~~~~~ '-n~d}yJ-f-....Ah ~ ~ ~ y-.,f-..-i/?<,~~ ~, J) ~ ~ ~ UL ~ vn.R.o/U tfU-, ~ ~~,;~-' I declare under penalty of perjury under the laws of the .state of Washington that the foregoing is true and correct. ' Signed at --~J.f:::&l~Y~' ::::;-;;:fI.c~J,C!-/'tJ.o.f~""~~Q2!;;';' '.<.' _, Washington on ---=Cj'fy....:/~gf.6~{):::::....:C:>~- (City ~nd State)(} 7 (Dflte) Signature .E3 ,41?!e A .e fA e II l4J(s Type or Print Name 1$35 A/ e ,;z~ c.I S;- Address ~ ~ "M-9!tJ56 • • • AFFIDAVIT I have lived near the property at #1733 NE 20 th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for 3" . years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20 th Street north of the Blueberry Farm. ~ ~ ~ .::d.-d-.~-1t-'v J'ch-~~ ~ ~ ~\v-J... ~ ~, I declare' under penalty of pe~ury under the laws of the' state of Washington that the foregoing is true and correct. . Signed at ES ~ I "') w\.,' Y't)~, (City and State) ,Washington on S ~'\-' l'1. ;;l....oo" (Date) . ~e~,~Am.~ Shw\w Mf\-K."e.. 2.e...v~..:\ Type or Print Nam~ a,s,o 9 -:3'""0 h e...s. A-'-l e.. . \(\' E.. Address· R.~-+OV"\.1 WA-.' 990Sb-2..'2..''- • AFFIDAVIT I have lived near the property at #1733 NE 20·h Street, Renton, Washington, also known as the Kennydale Bluebeny Farm, for et;:) years, I am familiar with the waterway known as Kennydale Creek which crosses NE 20 th Street north of the, Bluebeny Farn:: _:tJ'J f) /.-1..-77-1 <:. ,/~I})?.5 71--1 f} I 1-I-Jft V L. Ir I V e-D ~) L 1\ 'L. T-t-)) 5 HI!) j:} /rW#Y.$ Burl J4- IiJ H~T l--fJ 1'10 ~JYD A-W' J.. D}....7 FC }~ L P-P1.lLO£.:., THi-CR~cjA\ -I II J 1'11) V r..," r"{ 1'9 N (J IA 'l :r 'r 11 fil..-l..-l: i? ~::fl. :'e.}:/..;' /l fI/) P 5 CA. "1c:!. <I:ltfD;; 14 11 9 9i> 0-1-. (J 8 I: PA L?· . 'If' C-! /.-" • I declare under penalty of pe~ury under the laws of the state of Washington that the foregoing is true and correct. Signed at R <£.. N'i 6 rY LJI4, , Washington on "'f -/ ~ r-0 6' (City and State) (Dato) gM-u:~~~ ~naturo v~NJtt ;J.i-JJi it' FINN! CU.M Type or Print Name ITS 16 !9W,4C087'Lt S' cJ l/. Address Af:HiOt'-l k//l-q.$ 65~1 AFFIDAVIT • I have lived near the property at #1733 NE 20th Street, Renton, Washington, also known as the Kennydaie Blueberry Farm, for ~ears. I am familiar with the waterway known as Kennydale Creek which cro~i5fls NE 20 th rtreet north of the Blueberry' Farm. . :Jr. M Wr ~ :J( ItS (l' , r~ <)Xeer(Z1 ~ dJ. ~c:J.l J-~ 0""'""-~ ~ I declare under penalty of pe~ury under the laws of the state of Washington that the foregoing is trueandC~} . Signed at~...J L>?-==....... , Washington on l::: I ~ -~ (City and State) ............... (oil • -+ • • • • AFFIDAVIT I have lived near the property at ~E 20" Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for ~ years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20" Street north of the Blueberry Farm. l G(l .... £W ~ ~I<.l(.\~~ ~v1f~~~;t1::;, ,).-ft.(\£' f'.~ P.'? lo!-.lVt A,'S Ct\N \LEh~I\.($d-... 11/"5Ug!} SWf\hf'1. TH\\oJCtn OJ! 'Tv(~ WKOC[' fLAC~ WI'\'K. A C{t[€k flJ~~\~Gt I'l-to0 ~J-\. (f. ~v,£.N l N .<jJ{~ c:x.;M.fI/l ~~ I declare under penalty of perjury under the laws of the state of washington that the foregoing is true and correct. Signed at_---'Q~€~N~~~N:,....:::...---- (City and Slate) Signat Type or Print Name !.?.D-e&¢::Wfi:<:N Au~ h.>C Address • • • AFFIDAVIT I have lived near the property at #1733 NE 20th Street, Renton, Washington, also known as the Kennydaie Blueberry Farm, for ..3 /) years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. Jiu C..ec:zA.<VJ .A~~ 0Z' .. ~ ~da-.-~/ Wu. ~. -7/fJ -.J CC0<.J ~ ~ Y?~ ~d.:v ~?~ ~o .~~ ~d:-fb. ¥~ t:t-C~ ~;t I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. Signed at £~) t!I --u!/1 (City and. S Ie) Signature , Washington on -'''''''' f~=-'-'/:.,...,<7-,<,,----=.2.::;:0::........0 t:, ~ (D~I.)i Type or Print Name 02(/,/9 ::ft:;aes Aut!-AJt • • • AFFIDAVIT ~'. , .' C~..u",~ . ~ . ave lived near the property at #1733 N.-E 20'" Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for 1'V years. I am familiar with the waterway known as Kennydale Creek which crosses i<JE 20 th Street north of the Blueberry Farm. J~~~'eA~'~ .~~.~ ~~e:t..~~~ ~7~~~~~ • • • AFFIDAVIT I have lived near the property at #1733 NE 20" StreeL Renton, Washington, also known as the Kennydale Blueberry Farm, for $2", years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20" Street north of the Blueberry Farm. I declare underp~ of perjury under the laws of the state of Washington that the foregoing is true and correcW"'~ ?C/~. /" Po~;; Signed at· ~ ~~ , Washington on ~;"1z.., /71 ~G (City and e) (Date) , . Signat~ K'$~ Type or Print Name ;2.0 '7 WolVe s-.190 A/£ Address • • • AFFIDAVIT I have lived near the property at #1733 NE 20 th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for if-years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. ~ /%3-/9'¥~ ;1!:;1cA/ e- I declare under penalty of pe~ury under the laws of the state of Washington that the foregoing is true and correct. Signed at _~~~::::::;"...,..-.,..,,,...,-.,..------.;...,,,......lC!. (City and State) Type or Print Name 02,,0 ( ,lve. ?4> or-< "i'- • • • --------------------------------- AFFIDAVIT I have lived near the property at #1733 w: 20th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for t.J ~ years. I am familiar with the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. ..J2A. ~ ~ ~~ -t~ ~ c~ ~. ~1re' tUR..-~ ~ ~.~ ~. ~hJ -~ .~ ::e.;:6 I declare under penalty of perjury under the laws of the state of Washington that the foregoing is true and correct. . Signed at ,{~ I iA/'''I/ (C'1ty and State) , Washington on _.:.CJ_-_/_/;;::-O~(..--­ (Date) Sigre (/ A ) 11-).) c..¥; TYPe or Print Na 2.?f 5 3' ~R.Q" < a1bL)tS Address ~d~ I '-~.a..JU '2eOs-6 . • • • AFFIDAVIT I have lived near the property at #14 NE 20th Street, Renton, Washington, also known as the Kennydale Blueberry Farm, for 4 years. I am familiar with the watElrway known as Kennydale Creek which crosses NE 20·h Street north of the Blueberry Farm. . I declare under penalty of perjury under the laws of the.state of Washington that the foregoing is true and correct. Signedat~ J~ ,Washington on 9-/g-6~ . . '~~ e)~. . • (Date) /[~ Ld t;.. .. ~U ~ Si~ .n . reS3Tb Difl oLJ)... \ Type or Print Name Ad~~J:> ,A6gP1~j ~ns-~ ~ \.9)A:.~ ~----------------------------------------------------------------- • • AFFIDAVIT I have lived near the property at #1733 NE 20th Stree~ Renton, Washington, also known as the Kennydale Blueberry Farm, for /<;( -t years. I am familiar wnh the waterway known as Kennydale Creek which crosses NE 20th Street north of the Blueberry Farm. I declare under penally of perjury under the laws of the.state of Washington that the foregoing is true and correct. . Signed at . ~-+OJ-... {)./ ,A (City ~nd State) , Washington on S'eA t 17 ;; 00 (p I (Date) ~ Iork1-~ Signature I Ke-V'-TO r keA S"tl/IL- Type or Print Name I ~o ;tJE /7 -th-Pi Address f2e+.e-t (yA.-W /l '3 g-0 S-c:P :J= t,.J evI £ fIAt 0I6) 0 h--~""-' Av { WOs! dee.-D It ~a--)i"5 (411" Il-e-~/da)"C--~II/-e-6e..rrj -fa--.r~1 ::r Vvev..,u.-I/;€-Je-r-5' ~ i' t....~ c.., /' ~ I'" viA..-d...r(, :I-f h,~ 4/1 Wa--I S /va-c1 flow i v.-; u/J~ =.-16'7 -fA--e...-f:'A:.-'r JM-.f~c..e....,.. /;V'-<-Ie"t/~ ,.""-'-fL....e.-d-r J c.-;1' . 6.f ~ U fi'LIA cf 5 . a.--; ."... i'-'" ~f/ e.r () f -f =-<:.... --t ;:r o LA-<::.R:....-.5 CL!.--0 t:J2.-' c:.--r 4-j -r ,/ s L /"'---f t... G 01' ~ k-, • • • • 'To D ~V\ Cl~0So'n I Ck~l-V'm~n ~ r-p! c\ Yl n L n5 {o lJ e~ e.l () p YY) eD + . . COWl VY11H-€.->~ 10 od YY\ e../ ! ~ So c. "\I ~l<de.x- ~cldl{e SS' l"i( 3 'S Nt:.> 2.0 Sf ''ReY\+oY\ I wA "'1'il'oS'(p \:J ~" ,". e.....: ('I 'Z. S) 2. 7..-'0 -'O~r (I' ole;\v " '\)e.ce"Y\~ex l5" I zoos' ,------------------------------------------------------------ , • • • cJ\ 0'1. Y-yYj a, V\ C ( d wS 6Y'. ~ rv l d'll n l Y) 0) Co 'Tn 'YY1: if e.-e.J '; , 1) d~ vex''] COYlceJrf'\.d c1\oOut:' '('~cen+ d'€veiormer;tJ _ iV\vok';V\3 \:Jprey\<enn~0L~(e..,L{ee~. '1 kef +L~..-. 'le.Com'rr>eVld"t,(on C 'Ie-ci.l..s-s;f:'cAIDh }y\ciallL b'j -;-D("velofl'>1el')t-S'CVCurce..-S Sfd-l'fwdS ~~sed on ',ev-v-o i1 eDUs, dYlo\ U,h Su bsra nh ,;,ted ~'~fOY-M c..k~'h p'('o<Jlded \ol) Ale., ?'("ospec~lJe.) d€ve(o, e..-c b ~~ IJ~ kved OYl No 20 s, S{nc,e.-) I q 77 d 1'\ d '<;reY\i-'~l~EU tV> -Hu'~ Yle~~~l,oYhoool ?n'ov 'k 'm00lVlS ~ev-c---, <i.L"-oJ/ -+~es~ ':)~oY-'::> I ~clV~ . ''N r::; \J E.>R Se.;: II\. t<en n~ c\e. te .. 'c~v-e eJ", w J,k OLA ~ -flo <D \ V) 3 ._ w~{e.v-'no Vv-.,otte.Ar-ko0 k<:>+ + d'llj the. u)ed.-thVr-;- .'fLs e~'h \".'e..J cx-e6. l\ e. '2:, h,'~toXc 'colL j \b~e..V'\ ,ouey..- V-:\.;lV" W I ~ (' xe e k:s + S fH YI~S ~-k\G~ -+k-L--', ~<,W\ex-s c..--rLeVY\pte..d 4-c, CoY\{"o( wJh clA"cJl.es tv\' f)y-cAev -~u.--t:L -Cd +~e..;; fI{Of<2--ch j . , --1<8.-dt--cecklA') ?eV'ye..-,n\.ol c.:'e<e.J.s ltA-+O Vv\..~v\'-, ; YV\~d-e.... eJ\.C-VtY'\els (M No LJAY VvLeefs ·U,~ CrJ~Yl~ • .kv-d. Closs 5" des('3nd4loh I dsLklS LUOL-<.IJ kJ-e._ 6; \JLotd.-t~V\ or 1(~iA.-tOV\/s CAlC'J AY'e;..s Oy-cll~l>Y\c:..L->. 'TE:s C...-eek 0av-vc\t.\..+S C(dSS 3 p'Iote.c...LoY> .\.I-\J 1 :v-e ~e :o,~~k,J -\li's ~e... [Wt P \ E'.w\~ v\..-1 ~d 1M Me,d dte.I J ' : S~d, dc::.+to~wC:>\A~d be eY'\~-\Y-:-lj cl'fl{0fnJ-~ .. ~\IJ~\JJ ,-t~~ l~.('C"VV\cl+ lOY, PV-00loled loL~ -thE-0tj 's : Oc0Y\ ~YlSuJ{~yJ.lte.. 0ex-1.)~ det,,-~leJ Ye~ol("".+ ,GovY\.... +l\e. vJ o.-\~'f' sked Co Vnp<hlLj I tV C'~~"\ LV ~ 'S 'Y~ ,-o\ -Gv--.~'-"J \AS ~h.x7c~Qy'sl shoVvlct. \0<2 '+~e.. ~6SlS -fov 6-n~ dec.\'sl'DY\,S CDI\Cev--i-c~lil~ ,+k:s <,:,V\d~VI.~<Q.J\('ed ,w~t-e.YWd.y' 1t\6DK YOlvl-6r ~Du..'f' ('onSu::i.eKdJ(OY\ or tllS \v\rtL~-.v. • City of Renton Attn: Planning & Development Committee 1055 S Grady Way Renton, WA 98055 December ,'!:J 2005 -' Dear Planning & Development Committee: I have lived in the Kennydale area for 4--~ years and I would like to bring to the attention of the Planning and Development Committee my personal knowledge that Kennydale Creek is a natural year-round stream. As such, it should be protected by all the laws and regulations pertaining to nearby development. It is not a drainage ditch, and so does not meet the criteria for a Class 5 designation • Thank You, rV\\( 1--.\ AI\IW: ["0 t..1Z-lSl~0 12-0 -.J}oj \1(\1\, 4-3. }\I ~ L, \J.tSO \-1-v;. V __ -L A ~ yY\ '-I LI Fe A:s \)..ll;LL) fV''' H lJS~ \0 H A'3 .1-1 e:S S-O. ) r vJ~~, -to ~t:: ~N'i IJA-LE G(j;= tvtt'"0, f'«.-y) V\!1 (l t-t-.I \cs\-t -:r (\1\\ DOlC-~-\{OCC A'\.1.0 R~'N-co\..J H l~\-\ 5C\{~-hl€ 6\0"-" TwO \-tDI.Yb~~· oi-..1 Ae)\;;;;R.\JiS~1--S> {\V(;;. "-\-\,,,-, HA'\J~ ~ l~ VVL Y -\-\'\.bt>AIJ.ct:, ~A-\VI\LY S\NQ.G -n--IEY \y~R..~ 001L'-( I~ It\C 'OD'S. \..J-t, 0b\", \2.E~\y\e,~ f:::£Tl-.1C:s '100~6-A~D ?l~N{i At: I<-€~~'\ Of\\£ (J:e;@1( A,-,\ O\f'--l~~~ -IlmB-'S C'f'\lR\J- o,0-c TI--IS '-I ~~«-I D\JQ..I)...':,(::r b 0 Q.. Ckt K.J)I-lCOCS ) CNCQt""':~- 'Pl2...b8S AWO \AOrOLeS IN -1l-t£ S,\/~\NEs' DQ. QAGAC-t..I~t5 T\-\t; IQ£: L0 \\ +-l ebut. 5 I ~ -rH C \}J ( tS-C-e:-t.. T D Clf"f;:>S \ rr:-. i- '1'\-\.1."'::, C)~.~I(. IN -r.\-1~ (yA~ CA--r9\.G;ae.y A'S A p((A1~{ 1)1"\0\-1 l~ 51~~LY A?PI\L\J~(S J ~T GAND\f)\--t A't0!\) ,,-t;'lC ... :--I e'D 1ctr,\.J\2..e, (~t:s i 5 IVY\.Pl..-'-/ Q'.) '\ . rC<. -~ ::W\.(I;£IC..L-i ;.;:~ pt~ D ~A-""'lLy 47.S--'77 b -d--( '::>3 ---------------- • City of Renton . Planning &Development Committee 1055 SGrady Way Renton, WA 98055 Date: DEc..,fJiD Be,,£: 13). (£ RE: Kennydale Creek Re-Classification • (Printed Name) \ OS 33 A 0'G:I<J)gt;::y,J A\Jf5 rNfS . (Address) ~q,.\ W~ Cl,(St:Db (City) (State) (Zip Code) • • City of Renton Planning & Development Committee 1055 SGrady Way Renton, WA 98055 Date: RE: Kennydale Creek Re-Classification . £r/2.-~:,v.eJ TJ,P/ (Printed Name) '2/7R,<:1_Y &£·,-t"/D (Address) , ~ .. ".~ /V . frt./ ..; UN'.( ~ (City) (State) (Zip Code) --------------- City of Renton Planning & Development Committee 1055 SGrady Way Renton, WA 98055 Date: ~, ;ti:;)uoS- RE: Kennydale Creek Re-Classification· I . t. n ;:; t,,~">v~ I/~ ;11'--rt-e-. J'l.cJjL /0 or ~od fOY dO (r<;, c:uJ. uJa-({L{/'-'-'! c-..).07 dC4-.'ly cz/(OoA-/ 1k /0 I rJ -e-hef ri -f' ez...-r~, ::c tvcv ~ fl "€..-Ve..r .5 <az-",,-~e.-;' "'-1""'/'*'-) e...-- c-,re.-!c vU~ fL... D J -r vt/lA.-vvllA..1. w~-b-C-.A" e.v.e-",,-/~ -ti--. z:..... oer 1 e-<-f7 j e/,:;--' r <; • -:z:; V'----f'"cv3' ;1" su t f"IJr-/{ cL-Iff IA C0f, '0 V\...- O~ C-_r,A.1.f/rL 4/(oWJ ;Vb. ';)O-tt--S r: • .f~ Ii e ote--i f f/J OJI j) b e.-eVV'-c=-r r 0 r =-'-"-J UI a (a..--t i Ov-. 0 -f (c<-{)I. -10 . r-c--~(~$ <; ~ -f-" '! -fL. S r t> r 1, 0"'-0 --f -t L e-s -t r e-cvtA/"--f" 'f\:ll/l/\. .a...-' c-( =-S 5 '$ -f 0 ~ c--I C?--$' ~ '1" 0" CL-cj~.:; S-J:f'c--{'\....-., I! .... =~l /OJ . -f"or ,.Your C--() ~<; '>c/ c::..r Jt Ov--..... (Signature) K e <,/'--ror Ie-( S; 0 ""-- (Printed Name) 1'i:~O Nt: C7-1'h ft., (Address) (City) (State) '7 7c)·n~ (Zip Code) ------------------- • -,;l " • • o City of Renton Attn: Planning & Development Committee 1055 S Grady Way Renton, WA 98055 December J'I , 2005 Dear Planning & Development Committee: I have lived in the Kennydale area for ;;) 0 years and I would like to bring to the attention of the Planning and Development Committee my personal knowledge that Kennydale Creek is a natural year-round stream, As such, it should be protected by all the laws and regulations pertaining to nearby development. It is not a drainage ditch, and so does not meet the . criteria for a Class 5 designation Thank You, ~eA-~,Us 0"'- 1'6') 0 Pt 17 f1--pI- f2e."" +J "'--1 W {/. Cf 8"'O~ &- • • • December 14,2005 City of Renton Attn: Planning & Development Committee 1055 S Grady Way Renton, W A 98055 Dear Planning & Development Committee: RE: Kennydale Creek Re-Classification 1700 NE 20th ST. Renton, W A 98056 I have lived in the Kennydale area for over 5 years, 3 years at the current address. Our house overlooks the stream which is in question for re-classification. Over the years we have seen several deer wondering up and down the stream area, blue herons have frequented the stream to catch the frogs that live in the area, and ducks migrate back to this area. It is my personal knowledge that the Kennydale Creek is a natural year-round stream. As such, it should be protected by all the laws and regulations pertaining to nearby development. It is not a drainage ditch, and does NOT meet the criteria for a Class 5 designation. . I am submitting photos taken in the last year that overlooks Parcel 3343903563, one of the stream areas up for reclassification, and also the new construction, Parcel 3343907777, on 24th and Jones that rerouted the pond area. The construction photos are of what use to be a pond that was along this stream. The photos show the ducks coming back from migration and what they found upon their return. Their home was destroyed. There were ducks found dead in the streams after this. I have not seen any ducks return to this area, they have mostly moved to the neighboring property, parcel 334390360 I, that still contains a pond. I know that the city must look at infill but we need to protect our waterways while we still have them. I would like to see better protection made for this area, not less. There are definitely animals living and using this stream year round. Please keep this area protected from further developmental destruction. Please also consider that with the eventual widening ofI-405 natural wildlife areas need to be maintained to compensate for the additional loss of wetland and green space due to further expansion. This area is being encroached upon quickly and needs to remain protected. In looking at aerial photos of Renton, this is one of the last natural areas remaining. Thank you, Deanna Dobak 1700 NE 20th St. Renton, W A 98056 . . . . . . . . . . . . . . . . . . . . . . . . . . . • --------------------- ----==-~::::::---.- ,------------------ . :>: :.: Robert Cave,', "12518 E17th Sti'eet ..•. Bellevue, WA 98005 .. CITy')F RE·NT()N ... ~lanning/BuildingJP~biicW orks Department 'Gregg,:limmermlloP.E., Administrator ':', . RE: BhieberryHmnSiiortPlat(LUA07-1Jl,SHPL-A;ECF) .' . . ' -' -'" ,'. · . . . ' . ": . . • Dear,Mr. Cave: .,' .', .' Thankyotiforyou(commentietiet; dated Nove;nbet 21 ,2Q07, regarding the above . ,- -"refere)1~ed proj¢ct y otircomments"hav~b(;en.iticltisledin theBl~elierryHayim offiCial .·'filearidyou,havebeeri m~cle aPartY;()ffec§tdforthisproj~(it Asa party,ofrecord you · 'viP receive copies ofany?ecisioni thai are made on. this prpj ecf Y OUf ,comments will., ' alsb be i,ncl\l(l¢dwith ~othei-;c9ITI111ents ihatFve receivedQn thisprojeciforcol1sideration , '., ..... _ .. by the decisi~nim;kers{Etivirol1ri1#ntarkeyiewCqm/ll,itteean4DiI'e6t6r of Di?velppmertt . • '.' S. er-vic.es.)," " -. -.' :',,' .. .",.y-. "', '.->" .-" '" .. :-.-.. ' .... ,:~~-.. , . " ., ••.. , ",Ii1yo~r lWeryou co¥ente~inihecla~s;~c~tjoh6f K6nnYdaleCiee,k asa;Cias~ 4 ._ , .. ' •. · .' intermittedt 'stream, Y<)\:iiiidicatedtiiatth¢streaill'i~riotintertnitteht; .bulis iMact a "-. ,,;~erenrtlalstr~affi~ijdsh~iddberegulated:~ccord,l'1gIyas{qI!lss3'~treari1, :This •. .". ' ".-"", . . '. '. :i,nfoITJ1.ationwiUbe pnisel)ied toljle,EIlVir6iunentalReyiewComrnittee:and the . '.' . .• , " peveIopinehtSerVice~.Dir~ct~*.pri()r,t~) anydeci~iOnsbeiiig)ssuedoilJhe proposed; ,.' . ,!" develppirieht .. ,' • ',' . .." '"," .' , ' .'". " ,'-,. '. ".'" .: --,',. . . : . ,. -' • • • j .' , . ',' . ·,.··The prop~~e~sho;t~iatwiIl,berevi~wed'b~:;~~,Cltyt'~"E~~iipnnlentat'Rd~iew:Cominittee , ,6hDe~ember3rd,Once'a~ecisiorii!imade;ilft tI1eptopo-saIacopywil)beIl1<iiledtqyo\l,·. ' .. ' .. '. and.aI 4~dayallpeill pe1j.odwill.be lield, If YOllhaveany fllftller ;questi6n's,fe~lfree to .. ' .•.. ' contaclll1eat(425) 430ml9, . ...... . . .." '. • . . " . . . . . --" , .. -. . ,,' .'",- ",'\ :S:ihC¢~~iy~ .... .' ," .. ' . .... ~. , , C." • ~#1C.~6 . . Senior. Pliln]1ef ... ,' . . , . ' .. ',' "-::' . :-, ',-. . ' , . . "-' .. . ' '" .... ' ".---.-' . .-; . :\, . ;. 'c. •• ~ ". 'J .. ", .-.' . . ', . . ;-, • • • November 21, 2007 Ms. Jill Ding City of Renton LUA-07-131 Hello, Ms. Ding. NOV 2 , 2007 I would like to take this opportunity to comment on the proposal for the Blueberry Haven short plat. Many neighbors have taken the time to provide the City with affadavits verifYing that Kennydale Creek has never gone dry iil their lifetimes. Many of them have lived near the creek for most of their lives. To this day, we have never received a satisfactory response on this matter from anyone at City Hall. Kennydale Creek is used as an EXAMPLE of a Class III stream in Renton's own stream classification criteria! Yet, they were ready to grant Mr. Gordley's request to downgrade the creek to a drainage ditch on the flimsiest of hearsay evidence, with no meaningful investigation of the facts. Now, the City seems ready to accept this misleading and inaccurate wetland study as the basis for granting permission to build directly adjacent to the creek. The report continuously refers to the creek as a "seasonal un-named drainage ditch" and downplays the fact that this spring-fed wetland valley is a significant wildlife corridor. The authors repeat verbatim many ofthe Gordley's unscientific opinions as facts, which I am amazed would be allowed by a professional wetland expert. There are also discrepancies in the total square footage of the reported wetland area, much documentation seems to be missing, and the Creek is misclassified. Thank you for considering these issues . Susan Rider . ~ ~{;J I 835 NE.. 4!l. s+ 'Ren-\vI q~ . . '~." ••••••• . '" . . ; . Susari Rider (835NE 20th Street· Retiion~ W A98056 . CITY 'JFRENTO~:' I'lanning/B~ijding/ptiblicwor~s Department' Gregg~iI1tmerinim P.E., Administrator '.' . . .'. . . . . . .. RE:Blueberry Havel1 ShortPiat(WA07 -131; SHPL-A,~CF) .' . ,-: . . Dear Ms. Rider: , ',: . {' :' .', '. ~-. ' .• Thank you for your COnlll~erlt letter, dated l'{oveinber21,2007;regardingthe above: .. referenced project Yout comments Qave beenillc!udedin the Bluebep'y Haven OffiCial' file and you have beef! made it party oftecord for this project. As <lparty'of recor.dyou . wiU. receive cbpiesof any decisions thatare.made on thisproj ec(YoUr. commel1tswill .' .' also be included with other comments that I've received on this project for consideration by the. decision m~kers (EnVironmental Review committee a~d pirector of Development Services).··., '. ; " > •• ' • ' •• " ',; .:: /-. .. : .' :"'", ,. . '/ ... ,: ' '-.. :{- " .' . ,,' In yourJett~ryoucoinineitted Ol1s.evemlissued\vilh.reg~rdsto the propos'ed . :, ..•.. development. I' wi 11.' attemptt{jitddressthoseiss!leobased on. informatioriprovided in the" City' sDevelopmen.t Regulations as.weJl~: iriformati6~ contai)1e4'whhinqiyfiies: . . . ". . ,. ,;;, . ;,: .. ~'. ". ", . ., ,,';" ," .. ". '-. -. .. , ' .,' . _. -, . ,-:' ~'. '.. " .Iriyourletieryou Wal1teddarirtciltioriastothe co~r~ctsiieohhewetland. :The12,632 .: ....... , square foot area provided' in the table of the.wetland report is' an e~timati~n that was "proyided by the w~tland biologist and was estimated,b.efore a: sur-veywas cond!lcted.The 9,601 squareJoolarea Was the arei!'provided orice a survey.pftne delineatedwetlarid .was .... ,cbnqucted.As the 9 ,601 squarefooiarea isba~edon a surVey that is th~a:rea thai IS used , .; . .', , forth~revle",of!heproposed development: .'. .... .' •... '," .:'" '.::' :;-..... : ," .. '. ,", -'" ", ;,' ',,, ·youalsocomrileriiedontheslaSsifi2atlonofKennydaleqee.kasa9assAirlte,TJittemt .....•.... \ .... . . ..stream. Youiridicitied that. the stream is not intermittent, buds jri~fa:ctaperennialstreain· ..... . and.shouldbert:;gUlat~d~ccqrdinglyas. aClass)siream.thi~ infoi1iiatiori"IVill.b~· '. ..' ..... . pre~ellt~d to the Envirotiri1ental Review C6mrriitteearid the.DeveIQP'merit~erVices· ",- Ditectbr prior to anydecisionsbeiriglssued on the proposed development: .•. . ., .. ',,' '. ,", .. ,". ", . , . ':. ;,,' '.," '." ..... , .•. ~.' ;.' ", " . . : :~' , .' . . ,', '" , :' ,'; .~,' . ,':, .... '.: ~ .. '-". ,'. '.', ".<.,;,' .' '; '.-".-,,- "" ... ' -.~ , . , , .... , :J ....... ":.-. • •••• • < ••• ~. .•.. .,' . .. -', . 'i .' >: , .. ,' ; ,,'. ,'.' " ." . -'-'., -~.' ,'-., . ": ... " , .,' '<" ' .... ';-;', . " " ','. ' .. I' ~:. .: ~', . "',, • November 21, 2007 Jill Ding, Sr. Planner City of Renton 1055 S Grady Way Renton, WA 98057 Dear Ms Ding: ------------~---------------- This letter is to address public comments on the proposed SEPA Determination of Non- Significance for the Gordley Short Plat LUA 07-131, property at 2010 Jones Ave NE. I have reviewed the Critical Area Study for the property); the copy of the report available for purview is lacking Figure 3, which the report noted as locating the identifYing wetlands. I also note that no licensed land surveyor's map delineating the wetland is available in the project file? Was a licensed land sllrveyor used as is required? There is no way to correlate the field observations with the alleged wetland boundary. In Table 3 a listing of 12,632sq ft of wetland is identified, in the narrative posted for public notice there is a 9,601 sq. ft wetland noted; why the discrepancy of 3,031 sq. ft. There are declarations on file that the stream previously designated a Class IV is not seasonal, no evidence has been provided except for a statement by the current owner that the stream dried up once decades ago. • It appears that the critical areas review is lacking on several important items botl] to the extent of the wetlands and the classification of Kennydale Creek. I would request that the applicant be required to provide supplemental information so that these issues can be totally resolved. • Sincerely, . -Y3~-p'~ Barbara P. Hicks 10402 151 51 Ave SE Renton W A 98059 ,-----~~--~----~~----~--------------------------------------~----~-------------------- . ',.' , . '. Kathy Keoiker, Mayor Barbara Hicks.··· . '10402151 st Avenue SE ··Renton, WA 98059 'CITY,)PRENTON Pianning/BuildingIPublicWorks Department . GreggZimmerman P.E., Administrator .' · .. ·.RE: Blueb~iTy Haven Short Plat(LUA07.1Jl; SHPL·A, ECF) .' '. ~-. .' ",.-,. . " . , ',.,'. '. DeaiMs.HickS: . . ". ~ .. Thank you forYbur c6mrri~nt I~ttet, dated.November 21, 2007,rt;garding tneabove .. ' ....... . . . teferencedproject. Your commeiits havebeeIiincludedin the.BlueberrYHavenoffiCial . file imdyou;havebeenl)1a<je a~al1y:6frecord for this proj~ct. AS.<I> p~rtyofr~cotd you. c. . wil1receiv~copiesofanydecisionsJhatare maqe on., thisPfojeC(: Yourc0n'nrtents will ....•. ... ." also be iIidu¢edwithothercommentsthatl'vereceiveddn this.project for consideration ' .. " . . .I>Y th,e decision miikers (EhVItomilentai Review Qommittee· and Director ofPeveiopznenf . · '.: .......... : .Se. rvic.es)·. . .... ..•.. . .' ..... ..;. . . ' . J:;;'.' ~. :.::, '.~~; \. ,," ...• . ..Ir;ybur lette~ y;u conmwnted o:;l~~v~\!li'i~~!J.~dWitli~egaidHo.t~~proposed . . .... .' .... . .' '. ·.deVelopment. twill attempt toaddiess .. tho.se issuedbasedoninfo\"friationproyided ·in. the . " ,",- · .~ . '. 'CitY'sDevelopri1eniRegu\ationsa;;\y~!I'a~:i~f6rtn~tioncontained,witliin City files: ......... ' . "'"." .. ~, .' • . • " . ·c· • <. , c,,~.:.. " . " . . . in your leiter you commented on·th,e w~tlalld de1ineati91l:that~assubll1itt¢dand ..... . ..... . · ;'requestedas\n:veybfihe\~ethind;Thewet1a:ndreportpreparedby Steward and < ....., ... . ·.:A.ssbciaie~thar.wR$subrniited·.~~hthe·~pplicatibn~as9riginall)'s~bIlliited asPattofihe .. GordleyiDenzlerLottineA~jusfu1~ntthanspelrgniviewedcon.cuITe~tly.,The wetlai'id . ··.,.wassurVeYedby a licensed land sutYeyor anct isincltHled on th~,Gord1~y!benzlerLdt . . ··.LineAdjustmentmap. (see ih6WAQ7 "090Jile ).Asthe irifortn:ation that Was submitted • .' • .••.• : wIth theshort:platapp1icationwascor1sist~nt:with th~surveyec!~~Iineatlon', the materials."" •.. wereacceptedfor revi.ew:" .,,:,,:' ", .,. "; .' 'J, ",. ' • ..,'" _. : :,.': _ .C' ':." ,"_';' -' ' .. ' _ "_,'"', " , ',' .,' " _ ", , .: .,: ',_ ' _:' ,: 'L' ':,.' •.. ' ,'-",.'" " •. . . : Ybualso wanted Clarific'ation'as (othe correct sizeofthe'wetrarid;Y ouiridic~ted iliere' .....•.•. . .... :. *asa discrepahcy:b~tWeeh.ih~12,63i squaiefeeii~diF~\ed on Tab1e~ofthereport·.· .. ". versus ilie9;601squarefeetasindicated per theNoticeofApp1icatiolJ,' the 12,632 ;' . , , ' square foot <tIea provldedihthetabieoftlie wetland report is;ari~sHmatibnthat was '. ...• • ' .. providedliythe wetl<iiid blologistarid was estimated befo~e a sUrvey Was Conducted. The . ...., .. : 9;60Lsquare fQcituieilwas the area providedol1ce a s\.l!'Vqofihe delirieated'wetland was..... . .... conduded.As the 9;601 square foot area isbasedona survey that is the area that is used>· [otthereviewot'ili'epropos<;:d dev~lopm~rlt. '.: ...•..... '. ..•. ..... '.' <: .. . . ':. ~. . .. " -.'. '-. . L-___________ ._._ ,,' ~' : ',', . -.; . :', ' , ,.' ..... You also commented on tne.classification otK~mnydale Cre~kas aChiss4interrriittent •• · stream. You indicated that the stream isno(intermitt~nt, but is in~fa~t apereni1ialstre~ '. iuidsho~ldbereg~hlt~d ~ccordirigly a~ a Class 3Str~al!i.Thisiilf<:)tmatioti·wiil be' ......•.. .' presented to the Environmental Review Committee and the Development Services ,' .. ,"" .. ' ::::, .. ' " '.-' . :., Director prior to any decisions being issued on the"proposed development.' .. ' .. , ~. .,' ~ . · :rhe proposed short plat will be reyiewed ,byiheCity's En~ironmentan~eviewCommittee· .• · onDecember3rd. Once a decision is inade on theproposaiilcopy.·wllibe lnailed:tciYou •• ,'.' and a 14-day appeal period will be held. If you have any furtherquesti{)!1s: feel free to' . coriiactine at (42'5)430-7219. ' ........ .. · , ~, ·· .. ···Sincerely, . , '. ' .. 'jfffl.:", .. ?f;:""" ..... . " \.' '. . .... JiiJ'K:birig' ., .••.... ' .•. ," · Senior·J>Iap'nei,. . . \. '. ,. ;, ,\, . " .-' " , " "/': .,.', ....... " ::.'" . . ~, i" . ",,' . ','; ",' ,"', '-. :': l,. .,,' :. .' ' .. ' . . ',',' .... ,:".~. : ~"".' '. ,'~' .. . ',,', .' .. .;,' . ..... .. ~-.' -;" ~ .. ' . ,.' . '~ . ., " . , ",,' . <' •• < .. ' .' ',' '. >.'. : ".',:' .' .. '. :,,' . . ... , \' "-, ' ..... ,', ~ ". --- •• • • ( ; ... November 21st, 2007 Jill Ding, Senior Planner City of Renton 1055 South Grady Way Renton, W A 98057 Dear Ms. Ding I I NOV 2 \ 2007 RECEiVED This letter is intended to provide comments on the proposed SEPA Determination of Non-Significance for the Gordley Short plat LUA 07-131, involving property at 2010 Jones Ave NE. On November 20'\ I visited your office and attempted to review the Critical Area Study for the property. The copy of the study available for public viewing did not include Figure 3, which the report noted as locating the area noted as identified wetlands in the report. The lack of this figure or some other method of locating the sample points made it impossible to fully evaluate the wetland delineation. It was also noted there was no map of the wetland area, prepared by a licensed land surveyor, available in the project file. Other maps in the file were confusing as they noted a new Lot "c" which apparently is not included in the proposed short plat. The Study also mentions a "lined pond" to the southwest. I was unable to determine where this pond might be located. The area to the southwest would apparently be the uplands along Jones Ave NE. I surmise that they may have meant to the southeast, which would possibly be the excavation of the foundation for the house presently under constmction at 1824 NE 20'h Street. That excavation revealed an extremely high water table which required a very expensive foundation to allow continuation of the house constmction. The existence of the high water table supports my belief that the low area both north and south of NE 20th Street supports storage of large amounts of water. This leads into my contention that Kennydale Creek, mentioned in the Study as an "unnamed seasonal drainage/stream" is clearly misclassified as it is not seasonaL There is considerable evidence on (he record that the creek flows year around, and NO first hand evidence that the creek has ever dried up. Since 1988 when this area was subdivided (see recorded map 8805099006) the City has recognized that the Kennydale Creek is a cre.ek requiring a defined easement through the property. Also it is clear from that 1988 action that the City felt that the majority of the property was not suitable for development and should be retained as an open area. If there has been degradation of the property since that time I would feel that the City was negligent in their obligation to protect this "jurisdictional wetland" as noted in the Study; In conclusion, I would request that the missing documentation be obtained from the applicant, any ambiguities be removed from the existing maps, the issues I have raised SEPAComments • • • regarding the stream classification and the extent of the wetland area be resolved, and then the public comment period for this project be reopened for an additional 10 days . Thank you for allowing me to comment on this matter. I understand I will be made a party of record for further actions involving this property. Sincerely ~~TO~ William E. O'Connor 10402 151" Ave SE Renton, W A 98059 SEP AComments , :'" :; ", ,"',:, ' " " ' .. ,," "-". ",,' '" <,: ,'" " '-. ", .' '. ).., . crry )F.RENTON. '. Philliling/Building!PubliCWorks Department . Gregg Zimmerman P.E., Administrator ' .. William E.O'Connor IP402 l51't Avenue SE Renton, W A 9805,9 . , . . .. .': .., , . '. RE:BlueberryHaven Short Plat {LTJA07-l31, SHPLCA, ECF) .' '. , " . ..' .. Dear Mr.O'Connor:;· Thank youfor your comment iett~r,dateci Nove~be~2l :.2007, regardingthe.~bove .' refer~nced project Yo.ur coipirt.ents!i.avebeenincluded in the Bluebetry Haven official file and you have been made apartYo(re~cirdfor.thisproject. Asa,pm"tyof record you···. 'will receive copies of any ciecisionsthatirre:madeol1.thi~projetfY our cominentswill· . ····.also be included with()t!i.~(coinment.s'ihatTverec~ived bnthis project for consideration ·.bY thedecision:makers (phvirOnrll~nthIReview C;olrllllitteeandJ)ire.ctor;of Development' Services). '. ,>-:.,....., ;." .. , ; " Ie:' ',. '., ··:In.your letteiyoucomrriented·onse\lerl,lri~.sJe~.\i.iithtegards~t9the propoied .... ' .··~developinerlt. I willatteinpt" td.addresstb:?,sei#~ea·based<i~inrorinati9n pr,?~idediilthe .: .. ' , City'S Development Regulation~as~el1a$info#natiol1 col1 tained.within Cityfiles. .' ". .' -, . ,,". .... .... " .': .:?' ," ,.' ',. " .. :-: .. -,. .:.',". 'In your letter:Y()u.comillent~donthewetland deiineatiqlit\1at ~issubciitted and ··requesteda:surveyofthewetlanq.Thfwetlan~ repottpreparedby Ste\'{ard and; .. ' . ..' Associates that was. submitted with the applicadonwas Qriginally submitted. as part· of the · GordleymenzIerL6tLitieAcljusfirie~ftha{i'sbeing jevi e\Vedc0nc~rie~tiy,:The ~etlimd '. . '. " . · ~assm';ey~d by alicensedlanclsurVeyoi;andiiincl~dedoniheGordl~yfDenzierLot .... pneA"djustmeriiinap (seethe LUA\l7 0 09Q filej. Asthemforp1atii?n thatwas:stibmitted . '.' witll the short plat .applicationwasconsistentwiththe surveyed delineation; t!i.e inaterials·. '.' · wereacceptedfor~eview," '. '.; '" '<>;... .. ' " .' .', .' 'Y oualso indicated that" y~uwereimsureas to wI1atLotCwa~as ;d~~tifiedonthe short. '. . plat map, Lot C is the proposed lott!i.atwill result once the Gordhiy/Dimzler L&t Line . ' •. ,Adjustmentis,.recojded, Ihepdrtidrt oftheOordley's property located ea~t otKeniIydaJe Creek. will becomepartoftheI)enzler.'sbackyard.· . .. . . , -. ; .' ".,.,", , You also corllin;dted~nihe \\'her~aboutsofthe loca~lon~fthelined po~dthat Was' .... discussed in ·the s~bmitted .wetlaiidreport,··The, linedp~ndis ,locatedsduthwest of the. . . · delineated wetland within the' re\lryardareas of ~:meOf the. abutting lots :frohii~g6ri Jones ." .'. , ". . " . ..... ' : : .... ':, . '-:', . :. ..•.. .. .. , -~.; ~ . - '. -: .' " : .," Avenue NE.As itisalined,(lrtificial pond it would not beconsidei~da regulated ~~: . '., .. : .;' . . ~'-" ~ . : ·· .. t··, . Y ciualso coinmentedon the Cl<issjfication.ofKennydale Cre.t:k as a,ClassA )ntelT!littent. st~eahi.. You indiCai'el:ithaithe stream.is not. intermittent,.biitiS irt~ faCtapeie'nnial s(r~arti and should be reguliliedaccordinglyas aClass,3 stream: This,infomationwill be" •.... , : presented f<ithe, Environ;U~ntal Review Comini (tee imd.th~ D~velo~mentS~ri;ices' . Director prior to any decisions being issued on the proposed development:. ,','. . , j-' •.... .• ," . ,': ;' .• In addition, your final request Was fcir a lo'd~yextens;onofihec<iniinenfperiod.the .···.c· comtnentperiod wjllnot b~ex;terid~das the.14~daYcommenJpericid.that wliS heidi '.' 0.., compiied\vi ihthe GitY'sadopled regtilatiohs regardirig ,public .notifi~ati<in: .; .........• .. ., . '. . . ." ,'. . ,', --" ... Theproposed ~hort platwii]:lierevi~wedby th(~,City '. C;n I)~cehi.ber· . ,. '.. cin,thl.e:]JrCipcisa.hi b)P:yvvill and {I , .. ,Sirice~ely, : -.. . '" ~ ~-": :.'. " ..: .', ' . ' ... " .,',: ,,: .: .'~ ":" . :":', . -> ,"~; • . :' - "', .', -... " '. ,'. : ;,., . 'H ,". _ .. :-"':,' . ., ": ..... ,., " : .. • • • April 23,2008 Renton City Council 1055 S Grady Way Renton, W A 98057 Re: Blueberry Haven Short Plat LUA-07-131 Dear City Council and Planning Committee: "We do not inherit the Earth from our ancestors. We borrow it fr(,m our children." If this sounds familiar, that is because it is the opening page of the City's website, urging citizen involvement in protecting the environment. The irony is not lost on those of us who have spent the last five years begging the city to enforce the laws pertaining to the creeks and wetlands in our own neighborhood. We have attended every bearing, Planning Committee meeting, Planning Commission meeting, countless City Council meetings, one-on-one meetings with Planning and Development staff, and several conversations with Mr. Clawson, who was the P&D connnittee chairman at the time. We have complained as the city allowed Cam-West to divert an underground stream away from the wetlands in this valley; called city inspectors and their bosses to no avail while Terry Dutro excavated the wetlands on his property; watched helplessly as a tiny farmhouse on a beautifully treed lot was replaced with a buge, out of place mega-mansion, every tree cut down and the wetlands bulldozed to the property line. The foundation dig for this home was one of the exhibits we submitted in our appeal to the Hearing Examiner. It shows the bole filling to the top with groundwater, faster than they could pump it out. We all have similar groundwater levels in this area; even while planting a rosebush, the water rushes in to fill the hole. It is interesting to note that Mr. Carl Hadley's report (Cedarock Consultants) not only says the City should evaluate the stream in tbe summer months, he says definitively that "if the stream is groundwater-driven, it WILL BE PERENNIAL." We have pres'(l1ted the City with historic photos showing this peat wetland system before any significant development took place. It is spring-fed, and the entire wetland and headwaters of the creek are groundwater driven. We have, contrary to the Gordley's assertion, asked the City numerous times for a formal process by which we could establish the correct cIasssification of Kenny dale Creek. We were told by Mr. Clawson in 2005 "not to worry", because a Class IV was just as good as a Class III, . and besides no one could build until they did a stream study. We were told by Jennifer Henning that there was NO process to have the stream upgraded, but we could apply for a "comp-plan amendment" and maybe that would work. It was not until we spent thousands of dollars of our own money to hire a lawyer that we learned what they should have told us from the beginoing-when the creek is perennial, the map is supposed to be changed. The evidence is right there; all they had to do was look at it in the summers, see that it never dries up, and classify it accordingly. The Hearing Examiner is hired by the City to arbitrate these matters of evidence professionally and impartially, and that is what he has done. Tbat is what the City Planning Department should have been doing for the last five years, instead of ignoring everyone except the potential developers. Now that the evidence has finally been considered and judged to be credible, we ask that the decision be upheld, and the "wink-wink" policies ofthe past be rejected. These waters are directly connected to Lake Washington and they are vital to the health ofPoget Sound. The peat wetlands are the most efficient filter system for runoff in existence. All we have to do to benefit from their remarkable storrnwater capacity is to protect them, by enforcing the codes as they are written. Anything less makes a mockery of our commitment to the planet and to our beautiful City. No house is worth the sacrifice of our children's future home . • • • The Gordley's knew their property was a wetland when they bought it, and they should not expect the City Council to ignore the evidence in order to further the destruction of this rare and precious valley. This wetland is home to deer, herons, ospreys and, just up the street today, a bear. We have sacrificed a great deal fmancially in order to give them a voice, and we beg you to consider them in your decision . The WRIA 9 report done by Washington Trout found that AT LEAST 94% of the urban streams they studied were misclassified, almost always with less protection than was warranted. Please uphold Mr. Kaufman's decision, and decide in favor of optimism and citizen involvement, in opposition to the cynicism of "politics as usual." You will be doing the right thing. . Thank you for your consideration. S.Rider 1835 NE20 ST Renton, W A 98056 Kennydale Critical Areas Alliance • • • Denis law Mayor September 21, 2011 Susan Rider 1835 NE 20th Sttreet Renton, WA-98057 Department of Community and Economic Development Alex Pietsch. Administrator SUBJECT: JOEY'S SHORT PLAT, LUAll-066, ECF, SHPL-A Dear Ms. Riiler: Thank you for your letter regarding Joey's Short Plat, LUA11-066, ECF,.SHPL-A that we received on September 9, 2011. Your comments have been added to the file for the decision-maker to consider. While I appreciate the history and background, as well as the supplemental materials, you provided on Kennydale Creek, this project is for the subdivision of land to create one additional lot In the Residential-4 dwelling units per acre (R-4) zone. The classification of Kennydale Creek is not at issue. The project would maintain the minimum 35-foot buffer area required for a Class 4 stream . I will include you as a Party of Record for Joey's Short Plat, LUAll-066, ECF, SHPL-A. You may contact me at (425) 430-7382 or gwasser@rentonwa.gov. Gerald C. Wasser Associate Planner (' Renton City Hall • 1055 South Grady Way • Renton. Washington 98057 • rentonwa.gov • City of Renton September 28, 2011 Planning and Development Mr. Gerald Wasser- I am curious about the logic used in your response to my comment letter, in which I was objecting to the continuing misclassification'of Kennydale Creek. The proposed Joey's Short Plat on Jones Avenue NE. refers to the creek as a Class IV, which is demonstrably incorrect. I sent you a copy ofthe stream studY,which states categorically that the creek could not possibly go dry in the summer months, as evidenced by the numerous types of living organisms which would not survive if the creek was not perennial. Inexplicably, you state that the classification of the creek is not at issue, since the 35 foot buffers are adequate for a Class IV stream. I find this statement to be disingenuous, at the very least. The ENTIRE issue is the classification of the creek, and the appropriate buffers which would be imposed if • it were correctly listed as a perennial Class III stream. • Please refer to the correspondence from the State Fish and Wildlife Department, Depaitment of Ecology, and numerous eyewitnesses who are longtime residents of our neighborhood, if you need corroboration of the stream study done by the Wild Fish COriservancy. Thank you for your attention to this matter. Susan Rider and the KennydaleCritical Areas Alliance Denis Law, Mayor January 10,2008 Susan Rider 1835 NE 20th Street Renton, W A 98056 RE: Blueberry Haven Short Plat LUA07-131 Dear Ms. Rider: CITY OF RENTON Hearing Examiner Fred J. Kaufman This office has received your appeal letter on the above referenced matter. Please be advised that the appeal hearing has been scheduled for Tuesday, February 12, 2008 at 9:00 a.m. The hearing will take place in the Council Chambers on the seventh floor of the Renton City Hall. The address is 1055 S Grady Way in Renton. If this office can provide any further assistance, piease address those comments in writing. • Sincerely, • ·'1;1.-UL t~h.'-I~ Fred Kaufman Hearing Examiner City of Renton Ene!: Copy of Appeal Letter cc: Ann Nielsen Assistant City Attorney Neil Watts, Development Services Director Stacy Tucker, Development Services Parties of Record: Denise Blackmau Sue Larson-Kinzer Robert Cave Barbara Hicks William O'Connor Richard & Lauralee Gordley ~ ----10-5-5-S~ou~th-G-ra-d-Y-w-a-Y---R-en-t-on-,-w-as-h-in-gt-o-n-9-80-5-7---(4-2-5)-4-30--6-5-1-5--~ R E NT 0 N' ~ This paper contains 50% reCYcled material. 30% DOst ~nsumer AHE(l.D OF THE CUlI.IiE ----------------------------------------------~-~------, • • • Dec 26, 2007 Mr. Fred Kaulinan Hearing Examiner City of Renton RE: LUA 07-131 Blueberry Haven Short Plat Mr. Kaulinan DEC J 6 ZU!l7 .£.{I~-(rI'1 ()'V-- rtcCEIVED CITY GI_~RK'S OFFICE I am appealing the erroneous decision by City administration to grant a short plat application presented by ~ Mr. and Mrs. Gordley at 2010 Jones Ave NE I believe the City has failed to follow it's own guidelines in the granting of this MDNS and short Plat, due to the fact that Kennydale Creek remains mis-classified as a Class N stream, even though it is perennial and is classified correctly as a Class III a short way downstream. The City has ignored a request by the jurisdictional state agencies that the Creek and wetlands be reclassified correctly 10 reflect their status as headwaters of the state. The City has offered no process to upgrade the classification, while receiving support for a downgrade has been ridiculously easy for the prospective developers. The City has not followed up on numerous statements, photos, affidavits, wetland slodies, anecdotal evidence or visual proof that the creek runs year around, even in the driest of summers. They have failed to ascertain the status of this creek by using Best Available Science, which would include an objective assessment by a qualified expert at the driest times of the summer. They have accepted a wetland report provided by the applicant, which refers pejoratively to a "seasonal drainage ditch" when referring to this section of Kenny dale Creek, when there is abundant proof that this is incorrect. City staff has failed on two different occasions (2006, 2007) to provide any evidence supporting the original Class IV designation of this creek. Due to the fact that Class III creek buffers, and Class II wetland buffers are significantly large, the importance of this issue cannot b ignored. The City's own policy states that when there is a conflict between the mapped designation and the criteria, the criteria rules. It is time to step up and follow the criteria, classify the creek and wetlands correctly, and ~tJ:ying to appease the builders w~ would prefer the less stringent designations -;> -.......-?~ ~.,,~:--.....-~::,,--, Susan Rider 1835 NE 20" Street Renton, W A 98056 (425) 228-8711 ~c 6.,,-'( \J.:tLM ...... \., C.::..~~'( f\~Q ~.~lJ-~ ~'-'UL- ~\J.:'-'L~\iu.LtL'~1 ~. ~u.i b~,~c-00"-~-\;v.,., ~~ (~~~F, • • ( • [oi~~ ..11. -Kathy Koolker·Wheeler, Mayor CIT\. OF RENTON PlanningIBuildinglPublic Works Department Gregg Zimmerman P.E., Administrator CITY OF RENTON Augusl31,2004 SEP 03 2004 RECEIVED Sue Larson-Kinzer 1733 NE 20" Street Renton, W A 98056 CITY CLERK'S OFFICE SUBJECT: WATER LEVEL ISSUES -KENNYDALE CREEK Dear Ms. Larson·Kinzer: At the August 2nd meeting of the Renton City Council, you spoke of your concerns regarding fluctuating water levels in Kennydale Creek and ponds in the area. You noted that construction was occurring in the vicinity, and inquired as to the effect that dewatering was having on the groundwater system. I understand that you were also concerned about the effects future plat developinents will have on groundwater levels in the area. Let me respond to. your comments and lell you what is behlg done to address these concerns.· Heritage Glen, a 37-lot residential subdivision is currently being' developed north of your property, the Kennydale Blueberry Farm. As part of this plat, an underground vault is being constructed to retain and release stormwater at pre-construction levels, consistent with.the King County Surface Water Design Manual (1990). There is a high water table on site, requiring that the waler level be temporarily drawn down to construct the vault and other site utilities. Pumps were broughl on-site in early July to lower the.groundwater levels iii the area where vault .construction was occurring. As noise impacts were anlicipated, the contractor used "whisper" generators, and uiilized other muffling techniques to decrease the noise level. Groundwater was brought to the surface, then spread oil the site via sprinklers, allowing the water to percolate into Ihe soil and recharge the groundwater. An added benefit of this approach was suppression of dust during ho~ dry weather. The contractor estimated that the 'dewatering would need.to continue for a minimum of three weeks. On July 15", staff received a complaint of falling water levels in the ponds south of the Heritage Glen. The City's construction inspector was notified immediately and investigated the complaint, confirming the declining water levels. The quantity and duration of dewatering activity combined with warm, dry weather conditions apparently caused the water levels in local ponds to drop noticeably in a short period of time. . . Within a few hours of receiving the complaint, staff contacted the developer, Cam-Wesl, and the State of Washington Department of Ecology (DOE) in an effort to determine jurisdiction for. any possible violations, and to coordinate an appropriate response. Cam-West alerted the contractor and voluntarily ceased dewatering operations. They consulted with the project geologist to 'produce a strategy to dewater the site in a way that would allow construction to continue, and diminish the impact on local ponds .. City construction inspectors met with local property owners . 'and the contractors in an effort to confirm the effects of the dewatering and to coordinate a plan to recharge the ponds. . --~n=:=~~----;-;-;-".---;-~;:----\~R EN 'T' 0 N' 1055 South Grady Way· Renton, Washington 98055 * This paper contaIns 50% recyc:Ied material, 30% post oonsumer AHEAD OF THE CURVE -------------------:-- • • • Sue Larson·Kinzer August 3). 2004 Page 2 During this time. City of Renton staff continued consulting with DOE. which concluded that the . impact was temporary and that dewatering could resume. The developer agreed to explore ways provide water to recharge the affected ponds, including trucking some water to the ponds. We understand that Cam-West or their contractor asked indi vidual property owners whether they. would accept trucked water to recharge ponds. In addition, on July 29'", the City's inspector reported that the developer had placed stakes on the blueberry farm, in the creek near the farm, and in the pond east of the farm to allow. the property owners to monitor the water levels . . Subsequently, the dewatering has concluded, and the water.table has stabilized. Recent storms have helped to further recharge the water table, and the problem of water draw down appears to have been resolved. . For future de~elopment proposals in this immediate area, s;aff niay ~equest additional hydro- geological studies, if construction activities require extensive dewatering. I encourage you to stay involved in the public process for4e~idol'iftent proppsals i'n your' neighbOrhood: Please feel free to contact Development Servi~,es staff an!l,reqmisl 10 bemade a "party of record" when you see notices posted stating thaI applicwdil has lieen made for larid,use'or enviroilmental permits. Each notice will list a contact persall' or YoulllllycallJeniiifer •. Henlling, Principal Planller, at (425) 430·7286. and she will direct Y'otito the project mailager.> . S~elY' ~._. , .' ••.• ".;;,i,;.·.'·:: . v..Jqe11.')~~.': Gregg Zimmerman, Administrator. .' .':"';~ . Planniilg/BuildinglPublic WorkS'))ePartment . Refena11lO4053·C cc: Neil Watts . leunifer Henning Ron Straka CityOterk :: .. '. .,' ' ... - / I. ! . _.-_. • • • .. +' '<~ ... CITY OF RENTON , . ...;.:.-_ .. _:"-'" .. -, ._----,- Barf Clymer, Mayor June 13, 1990 Darrell and Sue Kinzer Kennydale Blueberry Farm 1733 N.E. 20th St. Renton, W A. 98056 SUBJECT: DRAINAGE PROBLEMS AT CULVERT CROSSING OF N.E.20THSTNEAR1733 Dear Mr. and Mrs. Kinzer, PUOItc WorkS Department LYnn Guttmanu. Director Thank you for taking the time to come in yesterday to express your concerns with the .drainage problems .you.are experiencirig. The Public Works Department and the City share your concerns. The local flooding that occurs on your property also impacts the City's Higate sanitary sewer lift station and the roadbed of N.E. 20th SI.. I have authorized several actions to address this drainage problem as fOllows: (I) The Street and Storm Maintenance Section have inspected the existing culvert crossing and have determined that this crossing cannot be effectively repaired and confirmed that it has inadequate capacity. They have prepared a ·Work Request" to install a larger new culvert to replace this existing crossing and to perform some removal of debris on the channel downstream. (2) The Storm Water Utility Section have been instructed to assist the Maintenance Section in obtaining a Hydraulic Project Approval permit from the Washington State Department of Fisheries for the proposed work and to conduct a drainage study of this problem. This study will evaluate the existing conditions, analyze the causes' of this problem, to identify the implications' of the proposed culvert crossing replacement on solving the problem and to the downstream system. Per your request, the Street and Storm Water Maintenance Section will' be in contact with you to coordinate the culvert installation work to follow yciur blue berry harvest season. You will also be informed of the progress on the drainage study by the Storm Water Section . 200 Mill Avenue South -Renton, Washington 98055 -(206) 235-2631 Darrell and Sue Kinzer +-"··""·'~~~··=·~·"'J"'u=ne 13, 1;.99.;;O;::...:::==------~------ • • • ,:-," Page 2 Thank you. once again for expressing your concerns. Should you have any additional questions regarding the drainage study or the proposed work, please contact Randall Parsons, P.E., Utility Supervisor· of the Storm Water/Waster Water Section, at 277 -SS48. Very truly yours, ce. Jaek Crumley, Manager, Maintenance Dlvilion Admini.tration John Stein, SUperviaOf, Maintenance Divilion/Se,wer Attn: ,Gary Kennlaon, Foreman, Maintenance Diviaion/Sewer Richard. Andenon, P .E., Man.rtf, UtlUty Systems ..a.m!.afHtam:rnsl"P.E., Utility SUPervl'Of, Storm Water/Waite Water Section ':"" " . • • DATE: TO: FROM: STAFF CONTACT: SUBJECT: CITY OF RENTON MEMORANDUM July 18, 1990 Environmental Review Committee Don Erickson, Principal Planner, Current Planning Section Attention: Mary Lynne Myer, Senior Planner 'j(J-Pr[;iCk Anderson, P.E., Manager, Utility Systems Division . vkandall L. Parsons, P.E., Utility Supervisor ~ Storm and Waste Water Utility Section /" ( N.E. 20th Cross Culvert Replacement Please find enclosed the environmental checklist for this project to be performed this September by the City's Storm Maintenance Section. We are requesting your review and processing of the threshold determination as required by the State Environmental Protection Act (S.E.P.A.) process. The purpose of this project is to installalarger cross culvert under NE 20th, near the Kennydale Blueberry Farm in order to reduce significant localized flooding which can impact residences on both sides of NE 20th, the roadway, and the HiGate Sanitary Sewer Lift Station.. This project will also include the removal of some in-stream debris from the stream channel downstream of the cross culvert which currently severly restricts flow and creates stagnant condition&; This debris (,;moved will be performed by hand work only and will not involve dredging and will extend approximately 300 feet downstream from the proposed culvert. Note, the completion of the S.E.P.A. process is required prior to issuance of a Hydraulic Project Approval (HPA) permit by the Washington State Department of Wildlife (WSDOW). The WSDOW typically will not allow work to continue in a stream past the end of September so we are ,requesting your assistance in expediting the S.E.P.A. process for this minor project. Please contact us if we can provide any assistance in answering any questions regarding this project or in the S.E.P.A. review process. Enclosures cc Lynn Guttmann, Director, Department of Public Works Jack Crumley, Manager, Maintenance Services Division John Stein, Supervisor, Street and Storm Maintenance Kim Scattarella, E.I.T., Engineering Specialist ----~------ • , .' L AI , STONE CASTlE , t ill SCAI£ 1"=100'. i· SUBDMSlON r---------,tT------------.---------~-.. r' c------------------,--------.. +~r=-'--", ------1 I ' i i---_ ", I ' , , " .... ,PARCEl. NO. /' , , POND f L_ I ,'3343903203 " , ,EASaoIENT ~~ I . , , (APPROX. 1> ( . j' , , LOCATlON) 9t>' _...; W.ul<nJ EJ.r" 1 , , , PARCEl. NO ", ~ ~/O!> I ' i i 3343903203 ---.. -~./ ~~ " i i l-----------==i·-t-,1 1 I , . i , i 2'36UfFrtZ l!1 j I CORE PROPERTY i ... i .' I : PARCEL NO ' Z i ! 111 I i 3343903201 , ~ i PARCEL NO.,' If I~i ! ~ i .3343903561, I' I, ~;(hal-e-, ~ , , Gil WtJ\:16 ~1b I " i, 51l 1-\1.",/.1.; -rlUv1D~~ L-_-C-..._-i-'___ : 4/o?J J . _r I '. . I ,~, !.OCAAl)tl "I I -; "";0' lMJl,fef-4!tO,;; i PARCEL NO. iii· . I L _ I Y. \<I~"f~r iW'""",",,, Rod-i 3343903563 ii, i GORDLE.Y i i 7\ ,,.-If ) , I •' i /NPROPERTY i. I '(t-'~?"'" " , : .. :. ; i 1"I'~~nt I ,t~'bllJ.'~ , \~ERPlAT ii" I I '11\ ,'\ j PARCEl. NO, i II I I ,', i ) i 3343903562 i lir I ! Ii·' j ," 'I i , l,r , If, i • , ,'" i , , t, I ' '" 1-------., , PARCEL NO.,' r , PARCEL NO, I , r'ARCEL NO., ' , 3343903560 i ,! i 3343903200 I i 3J4.3903202 i I I ,1~ i I I :. , I I , i , i i , , i ! j' 14'~tuI I, .. ; . L _L_______ ---.-.(;v:e:e....f-..:: .. ~ ... _ .... _____ ..J z ... ~·~}e4~~#-,.f'itl<> . NE 20tH -AVE;' n r----------T----r----..... ~. ~i=___#_~-=~----D\J ~~ 7\ \ DW ~ -I---T , ii' ~. , I I II \.'. V,7.k lOG k . I " "I' BLUEBERRY FARM ~ " , i i . J I i 'OW) --jo'€.y/S i • 5/?