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Home My WebLink AboutLUA99-071 (3)CIT: DF RENTON emit Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman August 12, 1999 To: Parties of Record Re: MAJOR AMENDMENTS TO LACOLINA PRELIMINARY PLAT FILE No. LUA-095-167,PP e r This office has received the attached letter of reconsideration regarding the above matter. Before making any decision on this request, this office would like to give all parties of record an opportunity to review the request and submit their written comments. Comments are due not later than 5:00 p.m., August 27, 1999. After that date and considering any additional submissions by any of the parties, this office will consider the matter and render a decision. If this office can be of further assistance, please feel free to write. Sincerely 001 Fred J. Kaufman Hearing Examiner FJK/mm 1055 South Grady Way - Renton, Washington 98055 - (425)430-6515 This paper contains 50%recycled material,20%post consumer II lg 1-1 AUG 5 1999 L-,1 HALINEN LAW OFFICES, P.S. A Professional Service Corporation n OF RENTON David L. Halinen,P.E. Bellevue Place/Seafirst Building EXAMINER ( 2 T454-8272 10500 NE 8th,Suite 1900 Fax(425)646-3467 Bellevue,Washington 98004 CITY OF RENTON is AUG 0 3 1999 RECEIVED 1` CITY CLERK'S OFFICE August 3, 1999 HAND-DELIVERED Fred J. Kaufman City of Renton Hearing Examiner 1055 S. Grady Way Renton, Washington 98055 Re: La Colina Major Amendment for Phasing, File No. LUA95-167,PP Applicant's Request for Reconsideration ee Dear Mr. Examiner: itOnbehalfoftheapplicants, I hereby request reconsideration of the following conditions that you recommended as conditions of approval in regard to the requested Major Amendment for phasing as set forth in your July 20, 1999 Report and Recommendation: Condition 2 The Applicants request that Condition 2 be withdrawn because (a) it is already a condition of approval of the plat and is thereby surplusage in regard to the major amendment (because all of the original conditions of approval remain in full force and effect unless specifically amended in relation to the proposed Major Amendment) and (b) the reference to "Tract E" is confusing and ambiguous since the tract lettering has changed with the major amendment drawing. ("Tract E" was the designation given to the tract along the steep slope above Maple Valley Highway on the original preliminary plat.) Conditions 3 through 6 These conditions were not discussed during the hearing on the Major Amendment and do not fairly relate to issues arising from the proposed Major Amendment. In view of the fact that conditions of approval imposed on Major Amendments should relate to issues arising from the Major Fred J. Kaufman City of Renton Hearing Examiner August 3, 1999 Page 2 Amendment at hand', the Applicants request that these conditions be withdrawn. Respectfully Submitted, HALINEN LAW OFFICES, P.S. David L. Ha'nen cc: Donald J. Merlino, Gary Merlino Construction Co., Inc. Katherine Russell, Triad Associates Ann Nichols, La Pianta Limited Partnership Peter Rosen, Renton Development Services Division 1RMC Section 080D.M.3 states: 3. Process for Major Amendments: If the Administrator determines that the proposed amendment is major, the Hearing Examiner shall hold a public hearing on the proposed major amendment in accordance with the requirements for preliminary plat approval found in subsection I of this Section provided, however, that any public hearing on a proposed major amendment shall be limited to whether the proposed major amendment should or should not be approved. Within thirty (30) days following receipt of the Hearing Examiner's written recommendation, the City Council shall approve or disapprove any proposed major amendment and may make any modifications in the terms and conditions of the preliminary plat approval to the extent that they are reasonably related to the proposed amendment. If the applicant is unwilling to accept the proposed major amendment under the terms and conditions specified by the City Council, the applicant may withdraw the proposed major amendment and develop the subdivision in accordance with the original preliminary plat approval (as it may have previously been amended). Emphasis added.) D:\CF\2009\009\PREL-PLT\KAUFMAN-LT1.F1.wpd AFFIDAVIT OF PUBLICATION Charlotte Ann Kassens first duly sworn on oath states that he/she is the Legal Clerk of the SOUTH COUNTY JOURNAL 600 S. Washington Avenue, Kent, Washington 98032 NOTICE OF PUBLIC HEARINGRENTONHEARINGEXAMINER RENTON,WASHINGTON a daily newspaper published seven (7)times a week. Said newspaper is a legal A Public Hearing will be held by the Renton Hearing Examiner at his regular newspaper of general publication and is now and has been for more than six months meeting in the Council Chambers on the prior to the date of publication, referred to, printed and published in the English language 7th floor of City Hall, 1055 South Grady continuallyas a dailynewspaper in Kent, KingCounty, Washington. The South CountyWay,AMR to o, ideWA on June 29. e1999 at 9 9:00 to consider the following petitions: Journal has been approved as a legal newspaper by order of the Superior Court of the APPEAL State of Washington for King County. La Colina Short Plat and Preliminary Plat The notice in the exact form attached, waspublished in the South CountyAppellant,American Memorial, rminappealstithenCity's administrative determinations Journal (and not in supplemental form) which was regularly distributed to the subscribers approving minor amendments to the approved during the below stated period. The annexed notice, a 136,SHPLLando preliminary plat(LUA96- 141,PP,ECF). Appcal LaColina Short Plat La Colina Preliminary Plat LUA-95-167,PP Major amendments to the original as published on: 6/18/99 approved preliminary plat. Location: 200 Block of Edmonds Avenue SE. All interested persons to said petitions The full amount of the fee charged for said foregoin publication is the sum of$37.38, are invited to be present at the Public charged to Acct. No. 8051 Hearing to express their opinions. Contact: Peter Rosen,425-430-7219. Publication Date: June 18,1999 Legal Number 6247 Published in the South County Journal June.18. 1999.6247 Legal Clerk, s Sou h unty J urnal Subscribed and sworn before me on this Z day of e,_19 c -1 t1 '''W 04 i t—L--,-- .\( ,---qo 2• 4'Pi,^"i`o. Notary Public of the State of Washington Y: qy ` J4•.? residing in Renton Ln_ King County, Washington o-- O pUBLlc O:. - j e'.•:`` Oro V AFFIDAVIT OF SERVICE BY MAILING STATE OF WASHINGTON ) ss. County of King MARILYN MOSES being first duly sworn, upon oath, deposes and states: That on the 20th day of July ,1999, affiant deposited in the mail of the United States a sealed envelope(s) containing a decision or recommendation with postage prepaid, addressed to the parties of record in the below entitled application or petition. II Signature: r 141 C1c2— U SUBSCRIBED AND SWORN to before me this a6 day of 1999. kk)"(9) /-PdIA(Ct{• Notary Public in and for the State of Washington, residing at A i therein. Application, Petition, or Case No.: Appeal to Amendments to La Colina PP Major Amendments to La Colina PP LUA99-071,AAD LUA95-167,PP The Decision or Recommendation contains a complete list of the Parties of Record. it Jr it I it HEARING EXAMINER'S REPORT July 20, 1999 ' OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT,DECISION and RECOMMENDATION APPELLANT: James L. Colt Appeal of Amendments to La Colina Preliminary Plat File No.: LUA99-071,AAD APPLICANT: Gary Merlino Construction Co. Major Amendments to La Colina Preliminary Plat File Nol LUA95-167,PP LOCATION: 200 Block of Edmonds Avenue SE SUMMARY OF APPEAL: Appeal amendments to LaColina Preliminary Plat SUMMARY OF REQUEST:To amend original application to develop project in three separate phases PUBLIC HEARING: After reviewing the Appellant's written request for a hearing and examining the available information on file,the Examiner conducted a public hearing on the subject as follows: MINUTES: APPEAL The following minutes are a summary of the June 29, 1999 appeal hearing. The official record is recorded on tape. The hearing opened on Tuesday,June 29, 1999,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 for the appeal: Exhibit No. 1: Yellow file No. LUA95-167,PP, Exhibit No.2: Yellow appeal file No.LUA99-071, containing the original application,proof of posting AAD,containing the appeal,proof of posting and and publication,and other documentation pertinent to publication, and other documentation pertinent to the the file. appeal. Exhibit No.3: Miscellaneous papers from Mr. Colt Exhibit No.4: Copy of approved site plan dated dated 6/29/99(4 parts) 4/9/99 from Mr. Colt(10 pages) Parties present: James L.Colt,Appellant Representing City of Renton P.O. Box 547 Larry Warren Renton,WA 98056 1055 S Grady Way 4 Renton, WA 98055 La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 2 Representing Applicant Gary Merlino Construction Co. David Halinen 10500 NE 8th,#1900 Bellevue,WA 98004 The Examiner explained that the appeal was an administrative appeal held pursuant to Ordinance 3071 and was the only administrative review to occur on the matter. The matter may be submitted back to the Examiner for reconsideration if the parties are not satisfied with the decision. He stated that the appellant had the burden of demonstrating that the City's action was erroneous,and would have to show clear and convincing evidence that the City's determination was incorrect. At that point the City could respond, if they chose to do so. James L. Colt,appellant herein, questioned the grading plan which was a part of the approved plans dated April 16, 1999. The grading plan indicated that along Lots 84 through 91 that there would be vertical cuts in the cemetery adjoining the northern boundary of Lots 84, 85, 86 and 87. Mr. Halinen objected to any testmony being offered relating to the merits of the proposal because appellant did not make objections to any substantive matters in his appeal letter. Mr. Warren asserted that the appeal is from an administrative determination of a minor modification to the plat, and whether there are any other court actions pending is irrelevant to the City's proceedings. Mr. Colt responded that the foundation for the basis for his appeal was the City's failure to follow its own written requirements to the applicant. This was with regard to what had to take place and had to be submitted prior to there being any activity on the site or approval of plans. He stated that the City did not require the applicant to comply with what a normal contractor would have to comply with,and that the City had approved the applicant cutting and removing vegetation and trees from the steep cemetery bank. As a result of the City's action the appellant received a temporary restraining order from bankruptcy court relating to a portion of the common boundary. III The appellant continued that they had not received any notice of a proposed minor amendment. He went to the City and was told that applicant could not be denuding the bank,that they could not be cutting trees until they submitted a tree cutting plan. He was shown a set of approved plans signed by the City which added rockeries, restructured the grading,changed the location of roadways,permitted vertical cuts on the cemetery's banks which don't follow code,changed setbacks and altered size of building lots. Applicant contends that the City did not follow its procedures,and that the result of the City's not following its procedures may result in work being done which does not comply with code. Applicant requested that the minor amendment either be referred back or that it be clarified as to whether or not the City of Renton permitted the work that it says it approved on Exhibit 4. If they did approve it and work is being performed,then appellant would submit that it is not a minor amendment but a major amendment that has altered the site substantially. Mr. Halinen pointed out that there was a formal approval issued by the City on April 27, 1999 approving the minor amendments and providing a 14 day appeal period. Appellant took the opportunity to bring his procedural argument,but brought no objection to any of the substance of the amendments,and is thereby barred in this proceeding from doing so. si La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 3 Neil Watts,Plan Review Supervisor,Development Services Division,City of Renton, 1055 S Grady Way, Renton, Washington 98055 testified for the City. He stated that the preliminary plat was approved many years ago which allowed proceeding with construction plans including site preparation and initial grading. The minor amendments had to do with adjusting the internal roadway system and also adjusting some of the internal lots— basically moving larger lots to the front as view lots and some of the small lots more to the back of the plat. The lot configuration adjacent to the perimeter of the plat generally remains the same. The number of lots remains the same,the access to the plat remains the same. There was no significant change to the grading plans approved as part of the minor modification as the grading relates to the boundary between the cemetery and the plat. Mr. Watts explained the procedure and qualifications for submittal of minor amendments. In response to questioning by Mr. Colt,Mr. Watts also explained different aspects of the approved plans. Closing arguments were given by the parties and their comments reiterated their previous statements. The Examiner called for further testimony regarding this appeal. There was no one else wishing to speak. The hearing closed at 2:50 p.m. FINDINGS,CONCLUSIONS&DECISION Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1.The appellant,James Colt,hereinafter appellant,filed an appeal of an administrative determination approving a minor amendment to a Preliminary Plat(File No.LUA95-167,PP). 2.The appellant represents Mt. Olivet Cemetery. The cemetery is located immediately north of the preliminary plat which is the subject of the proposed plat amendment. 3.The preliminary plat is generally located in the 200 block of Edmonds Avenue NE. 4.The challenged preliminary plat amendment would permit what were determined to be minor amendments to an approved preliminary plat. This was an administrative determination. 5.The amendments that were approved included realigning the interior streets and altering the lot sizes of some of the interior lots. The changes did not change the number or location of access points or emergency access points nor modify the total number of lots or size of lots along the perimeter of the site. Neither roadways,access points nor lot sizes abutting third party property, including property of the cemetery,were altered. 6.The appellant alleged that when approving the amendments,staff neglected to analyze the impacts to the slopes along the northern portions of the subject site. La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 4 fI 7.The record demonstrates that the proposed amendments did not effect changes to the grading plans of the plat. Grading and slope issues were reviewed as part of the specific analysis of the development plans. CONCLUSIONS: 1.The appellant has the burden of demonstrating that the decision was either in error, or was otherwise contrary to law or constitutional provisions,or was arbitrary and capricious(Section 4-8-110(E)(7)(b). The appellant has failed to demonstrate that the decision should be modified or reversed. The decision is affirmed. 2.Arbitrary and capricious action has been defined as willful and unreasoningaction in disregard of thepg 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). 3.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). 4.The appellant has failed to demonstrate that the decision was founded upon anything but a fair review of the criteria permitting administrative review of minor amendments of approved preliminary plats. The appellant has failed to demonstrate with cogent evidence that a mistake was made. 5.This office has not been called on to rule whether the proposed amendments were minor as determined by staff,but merely to determine if the City reviewed the proposed changes appropriately if they were minor changes. The appellant seems to have directed this appeal at the applicant's amendments while the thrust of his objections are directed at grading issues along the boundary between the subject site and the cemetery. The administrative action which generated any appeal rights was the proposed amendments. The appellant is not truly attacking those amendments or staffs decision regarding them. The appellant's presentation consisted mainly of an attempt to show that the grading issues were not appropriately considered. 6.Since the burden of demonstrating error is on the appellant,this office can reach no other conclusion but that staff made the correct determination. The proposed amendments do not appear to be the real target of the appellant's indignation. The decision below must be affirmed. DECISION: The appeal is denied. La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 5 MINUTES: MAJOR AMENDMENT TO PRELIMINARY PLAT The following minutes are a summary of the June 29, 1999 major amendment hearing. The legal record is recorded on tape. The hearing opened on Tuesday,June 29, 1999,at 9:45 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: Exhibit No. 1: Yellow file containing the original Exhibit No.2: Vicinity map application,proof of posting,proof of publication and other documentation pertinent to this request. Exhibit No.3: Preliminary plat map with phasing Exhibit No.4: Revision of preliminary plat map with exclusion of short plat The hearing opened with a presentation of the staff report by PETER ROSEN,Project Manager,DevelopmentgP Services, City of Renton, 1055 S Grady Way,Renton, Washington 98055. The applicant is proposing a major amendment to the previously approved La Colina Preliminary Plat which was approved by the City Council in February 1996 for 138 single family residential lots. The applicant is now proposing to develop the project in three separate phases. The number of proposed lots and roadway access to the site boundaries are unchanged. The applicant will comply with all the SEPA mitigation measures and preliminary plat conditions of the original approval. There were minor amendments approved on April 22, 1999 for various road layout and lot changes. The proposed phasing would occur in three phases. Phase 1 is north of Road A and incorporates Lots 1 through 68 and the abutting roadways and associated tracts. Phase 2 covers the central portion of the site,Lots 69 through 101, abutting roadways and associated tracts, and Phase 3 is the east portion of the site,Lots 102 through 138. Phase 1 is scheduled to commence in spring/summer of 1999 and be completed in late 1999. Phase 2 is anticipated to start in 2000 or 2001 and be completed by the end of 2001. Phase 3 is expected to start in 2001 or 2002 and be completed by 2002. The previous environmental determination for the preliminary plat addresses the potential impact and a new environmental determination is not required for the major amendment.Mass grading of the 45-acre site has recently been completed and is appropriate for the proposed phasing and major amendments to the plat. The applicant is required by a SEPA mitigation measure to hydroseed or otherwise re-vegetate any portion of the site disturbed by the initial mass grading where no further construction activities will occur within 60 days of II the completion of the mass grading activity. A further mitigation measure requires applicant to hydroseed or otherwise re-vegetate all areas of steep slope that are disturbed by construction activities. This work shall be completed as soon after the completion of the construction activities as possible. It is staff's understanding that that requirement pertains to the steep slopes along the Maple Valley Highway,not all steep slopes on the site. II La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 6 A storm water detention vault and storm water lines to it along the Maple Valley Highway have been completed The preliminary plat approval is valid for five years and therefore it would lapse in February 2001 unless extended. The code allows an automatic one-year extension for the filing of Phase 2 to 2002 if approved, and approval of Phase 2 allows a further extension to 2003. Staff recommends approval of the major amendment to La Colina preliminary plat with no conditions of approval. David Halinen, 10500 NE 8th Street, Suite 1900,Bellevue,Washington 98004,applicant attorney herein, explained that the proposal was simple and was whether this proposed three-phased scheme should be granted or not. He noted from drawings that the first phase encompasses the main access at Edmonds Avenue and also encompasses the emergency access to Blaine Avenue. Phase 2 will encompass the internal loop roads except the far easterly one,therefore a natural progression of the phasing. In terms of the utilities the storm water and sewer requirements have already been completed for the site. He stated that this is the most appropriate sequencing that would be workable here. James Colt,P.O. Box 547,Renton, Washington 98057, an adjacent landowner,was concerned that this project could proceed to the year 2005. He noted that hundreds of units are being constructed on the NE 3rd and 4th Street corridor, and the conditions of traffic,access,parks and recreational facilities are all changing dramatically,particularly from the time of the initial approval of this project in 1996. In response to his queries, it was explained that each phase would be submitted to the City Council for final plat approval. Staff would review the plat as it is constructed and the City Council would approve the final plat by resolution. Mr. Colt asked for clarification regarding specific Fire Department comments in the May 24, 1999 letter in the staff report. Mr. Rosen responded that the comments were in error and the requirements had been met. Further questions regarding instructions from staff indicated in the report were responded to by the Examiner and Mr. Rosen. Mr.Colt requested that the phasing be denied on three bases: (1)that the conditions would change on this project and have changed since 1996;(2)the actual maps and grading maps do not address the difference in elevations,the required slope and grade between the Mt.Olivet Cemetery and Merlino property; (3)proposed road C is not fixed in stone and may be altered by the design plans being prepared by consultants which may adjust the depth of those lots,and which plans are not available at this time. Mr.Halinen responded to Mr. Colt's request for denial of the major amendment proposal. 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 10:35 a.m. La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 7 FINDINGS,CONCLUSIONS&RECOMMENDATION Many of the Findings below are adopted from the original Preliminary Plat decision. The background information,vicinity developments,history and general plat information have not changed. The applicant did receive administrative approval to modify some aspects of the proposal which were considered "minor adjustments". Those changes were processed administratively. There was also an attempt to create a short plat File LUA 97-136,ShPl)within the boundaries of the Preliminary Plat. That short plat application was withdrawn. A boundary adjustment was adjudicated in court between the Mt. Olivet Cemetery and the owner of the subject site. An administrative appeal(File LUA99-071,AAD)on the proposed major adjustment was filed by the President of the Mt. Olivet Cemetery. The public hearing on that application preceded the public hearing on the major adjustment. The decision on the appeal is contained within this document. Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1.The applicant,Gary Merlino Construction Company,Inc. and La Pianta Limited Partnership filed a request for approval of a major amendment to an existing approved 138-lot preliminary plat. 2.The yellow file containing the staff report,the State Environmental Policy Act(SEPA)documentation and other pertinent materials was entered into the record as Exhibit#1. 3.It was found that since the only request was to allow phasing of the existing preliminary plat,that the existing environmental determination adequately addressed the potential impacts of the proposal. The Environmental Review Committee's(ERC)original conditions remain applicable to the proposed plat with the phasing amendments. 4.The subject proposal was reviewed by all departments with an interest in the matter. 5.The subject site is located south of NE 3rd Street and east of Edmonds Avenueaue NE as extended to the south. The site is located south of Monterey Terrace and Mt.Olivet Cemetery and north of the Maple Valley Highway. The site includes a small area of level terrain below the bluffs,the steep bluffs themselves and the plateau area at the top of the bluffs. 6.The subject site was annexed to the City in November 1947,with the adoption of Ordinance 1293. 7.The site received its current zoning classifications with the adoption of the new zoning code in February 1995. The lower portion of the site immediately adjacent to the Maple Valley Highway is zoned COR(Center Office Residential). The upland portion of the site is zoned R-8(Residential; 8 dwelling units per acre). 8.The map element of the Comprehensive Plan designates the majority of the area in which the subject site is located as suitable for the development of single family uses,but does not mandate such development without consideration of other policies of the Plan. The steep slopes were generally La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 8 designated for residential rural while the flat area adjacent to the Maple Valley Highway was designated for Center Office Residential. 9.The site is surrounded by a mix of uses including the Monterey Terrace community to the northwest, the cemetery to the north,power lines and a proposed mobile home park to the east and the slopes above the Cedar River to the south. 10. Topography works to isolate the site from its southern neighbors and to a lesser extent from the Monterey Terrace community to the northwest. 11. The subject site is topographically complex as a result of the bluffs and the fact that the uplands area was extensively quarried in the past. There is an irregular mix of high points and excavated low points across the site. 12. The applicant proposes developing single family uses along the upper portions of the site and leaving undeveloped the slopes and an area adjacent to the slopes to prevent disturbing potentially unstable areas of the site. 13. The applicant proposes dividing the site into 138 single family lots,one(1) lot lying along the Maple Valley Highway and five(5)tracts to serve for access and open space and other non-building functions. 14. The parcel is approximately 45.6 acres in area and is roughly triangular in shape. The steeper portions of the site have slopes averaging 40 percent with some slopes actually overhung and exceeding 100 percent. 15. The minor adjustments approved by staff altered the size of lots of the two tiers of lots near the north edge of the site and shifted the east-west roadway in this vicinity to accommodate the lot size changes. 16. The applicant proposes phasing the proposal. The phasing was introduced after the preliminary plat was approved by the City Council. Under City regulations phasing proposed after a preliminary plat is approved is considered a major amendment. Major amendments require a public hearing before the Hearing Examiner. The public hearing is limited to whether the major amendment should or should not be approved. 17. The applicant proposes developing the site in three(3)phases. The first phase would encompass approximately the northern third of the site and include Proposed Lots 1 through 68. The applicant proposes developing this phase between Summer 1999 and the end of 1999. It would include all of the proposed roads that touch on its perimeter or run through its lot tiers and include the emergency access roadways to Monterey Terrace at its northern boundary. 18. The second phase would be the southwestern portion of the site. It would include Proposed Lots 69 through 101. It would be developed approximately between 2000 and 2001. Like Phase 1, it would include all of the roads along its perimeter and any interior roads through its tiers. 1 La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 9 19. The final phase,Phase 3,would include the southeastern portion of the site. It would include Proposed Lot 102 through 138. It would include all proposed remaining roadways. It would be developed by approximately 2002. 20. The Fire Department has reviewed access to the proposed phased project. They determined that emergency access would be preserved if the project were phased. 21. The applicant will be creating some stubbed roads that will connect earlier phases with the subsequent phases. Phasing will introduce gaps in the development process which means that roads at first will not connect to additional development. 22. The applicant has not proposed any significant changes to any of its grading plans. There will be modest changes to some road alignments and a shuffling of some lot sizes affected by the minor amendments that were administratively approved. Those are not subject to this review. 23. The proposed phasing will extend the period of construction disarray for residents of preceding phases as the new phases are developed. There may be some spillover affect on adjacent properties. CONCLUSIONS: 1.The original plat satisfied the public use and interest. The proposed phasing has not changed the result. The phasing merely offers the applicant an opportunity to phase developing the roads and infrastructure. These changes do not appear to be significant. The plat,phased or not, still appears to meet the objectives and goals of the Comprehensive Plan in a sensitive manner. 2.The phasing will not alter the development vis-a-vis the sensitive topography of the site. All original conditions regarding the work in and around the steep slope areas remain applicable to the proposed project even when phased. 3.The Fire Department has reviewed the proposed project and appropriate roads and access will allow emergency access to all developed sections of the plat as it progresses from Phase 1 to Phase 3. The appropriate roads and water lines will enable fire protection and police protection of the site. 4.As noted,phasing the project will extend the time during which construction will be occurring on and around the subject site. But this impact is no different than the impacts of developing any vacant parcel or parcels. These are not untoward or unexpected impacts and phasing would not change these impacts. If the parcel were three separate parcels,the development impacts would be no more nor less on adjacent properties. Normal construction practices such as hydroseeding and watering dusty areas should minimize any impacts. 5.Sometimes residents of an existing phase are surprised that additional development will occur on or near what appear to be dead-end roads. It is best to avoid this by providing appropriate signs noting that additional housing will be developed off of these stub roads. The applicant,with staff approval, shall develop such signs and post them prominently at any stub road that will be extended to serve additional development. La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP L. July 20, 1999 Page 10 6.In conclusion,the proposed phasing appears to be a reasonable amendment to the proposed plat without any untoward consequences and should be approved by the City Council. RECOMMENDATION: ill' The City Council should approve the Preliminary Plat subject to the following conditions: 1.The applicant shall comply with the conditions imposed by the ERC. 2.The applicant shall record a Native Growth Protection Easement for those portions of Tract E for which slopes are greater than or equal to 40%,or other slopes within Tract E that the geotechnical engineers find might be subject to slippage. 3.All haul routes and hours of operation shall be subject to review and approval of the City and the City in its discretion may alter routes and/or hours of operations over any of these routes. 4.The applicant shall create a homeowners association which shall be responsible for maintaining common open space,emergency access roadways, steep slopes and common improvements including the privately owned storm water system. 5.The applicant shall create easements and agreements which permit the City to enter and inspect all storm water facilities including those on common open space or private parcels within the plat and all emergency access roadways. 6.The applicant shall provide the City with the legal authority to fix,repair and maintain all storm water facilities and emergency access roadways and impose a lien or other obligation to assure that costs are charged back to the plat's individual property owners. 7.The applicant,with staff approval, shall develop such signs and post them prominently at any stub road that will be extended to serve additional development. ORDERED THIS 20th day of July 1999. it FRED J. KA MAN HEARING E MINER TRANSMITTED THIS 20th day of July, 1999 to the parties of record: 1 James L. Colt Larry Warren David Halinen P.O.Box 547 1055 S Grady Way 10500 NE 8th,#1900 Renton,WA 98057 Renton,WA 98055 Bellevue,WA 98057 La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 11 Neil Watts Peter Rosen Gary Merlino Construction 1055 S Grady Way 1055 S Grady Way 9125 10th Ave S Renton,WA 98055 Renton, WA 98055 Seattle, WA 98108 La Pianta Limited Partnership Robert C.Moore P.O.Box 18010 58 Monterey Place NE Tukwila,WA 98138 Renton, WA 98056 TRANSMI Fl ED THIS 20th day of July, 1999 to the following: Mayor Jesse Tanner Gregg Zimmerman,Plan/Bldg/PW Admin. Members,Renton Planning Commission Jana Hanson,Development Services Director Chuck Duffy,Fire Marshal Lawrence J. Warren,City Attorney Larry Meckling,Building Official Transportation Systems Division Jay Covington,Chief Administrative Officer Utilities System Division Councilperson Kathy Keolker-Wheeler Sue Carlson,Econ. Dev.Administrator South County Journal Pursuant to Title IV,Chapter 8, Section 15 of the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m.,August 3, 1999. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure,errors of law or fact,error in judgment,or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen(14)days from the date of the Examiner's decision. This request shall set forth the specific ambiguities or errors discovered by such appellant,and the Examiner may, after review of the record,take further action as he deems proper. An appeal to the City Council is governed by Title IV,Chapter 8, Section 16,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. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants,the executed Covenants will be required prior to approval by City Council or final processing of the file. You 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. La Colina Preliminary Plat Appeal and Amendments Hearings File Nos.: LUA99-071,AAD LUA95-167,PP July 20, 1999 Page 12 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. IMIIIIIIIMM driM .111111111 1.1111111.111111111.111.11.11111111.1111111!MINNIMIllar. 0% TIIIAD AM000=0 Z..-- . r'' >7;. 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N. ,.....4-----.. -..............1 1 ,,,._.....____...„.1. ..,....... ...., . ,I ' r.— I, 94-130 11, m 1.8• ii V:..f'..',- \• \\ Mbrit DETAIL •TRACT•DETAIL c 1 L City of Renton Department of Planning/Building/Public Works ENVIRONMENTAL & DEVELOPMENT APPLICATION REVIEW SHEET REVIEWING DEPARTMENT:autf.tccI W(LS Lila1.-COMMENTS DUE: JUNE 02, 1999 APPLICATION NO: LUA-95-167,PP,AMD rl DATE CIRCULATED: MAY 19, 1999 APPLICANT: Gary Merlino Construction Company and La PROJECT MANAGER: Peter Rosen Pianta Limited Partnership PROJECT TITLE: Major Amendments to La Colina Preliminary WORK ORDER NO: 7800k 12es Plat J 9 ? tiLOCATION: 200 Block of Edmonds Ave. SE SITE AREA: Approximately 45 acres I BUILDING AREA(gross): N/A SUMMARY OF PROPOSAL: Proposal for a major amendment to the previously approved La Colintpreliminary Plat. The plat was initially approved by the City Council in February 1996 for 138 single-family residenti4tots. The applicant now proposes to develop the project in three separate phases, and the phasing is considered a major amendment to the plat. The number of proposed lots and roadway access to the site's boundaries remains unchanged. A minor amendment was administratively approved to allow for various road layout and lot changes internal to the plat. These changes will not be considered as a part of the major amendment. A. ENVIRONMENTAL IMPACT(e.g. Non-Code) COMMENTS Element of the Probable Probable More Element of the Probable Probable More Environment Minor Major Information Environment Minor Major Information Impacts Impacts Necessary Impacts Impacts Necessary Earth Housing Air Aesthetics Water Ugh t/Glare Plants Recreation LancYShoreline Use Utilities Animals Transportation Environmental Health Public Services Energy/ Histork/Cuitural Natural Resources Preservation Airport Environment 10,000 Feet 14,000 Feet B. POLICY-RELATED COMMENTS De t (lure S t(S7`P wl ate( 516 144 I),Le o(o w4 -to It (JA//ry /vc h- j cowlp/e-ter, ite develorwrrktt, C. CODE-RELATED COMMENTS JJo ac iti ul 6olMwfe . We have reviewed this application with particular attention to those areas in which we have expertise and have identified areas of probable impact or areas where additional information is needed to property assess this proposal. 0 5%oA r r MAT OF MoNICOFY TERatcl: .,, OF 5If lea.a.GOV.LOT 7&5 OF SEVyr4.1.1.it!le!Ir'7.61!... r ..-.-.4. I-,..,...1 .. r.: .,..'..• It.,..itt. t. . ,,. .,..14/.,arI • - IN..%., -.......'‘,..,'''..s.,.• .."-; s. ,..) : 4 : 1 -.-,..:.".:.J.... :::.%K.-W..;?,..'..214.4*..... - '4. ..: ,1 :-.-."-...„ I.';;"..... -"'.'.-'..i.:::...,. 1 s, f., 1 ;J 4 : .' ' 1, i ... N,...' '•-.'' ' ' . ..'' Itt. - ' ——."--'' :7.1- 1-,•^A- - -- ' .: . N„,N....'.,,,. .....:„--......-."...."..'-'.„1... ?....\. '.. ‘...5'::.'.....,........ . . .'''''',?..,;*f.,.' ; . 1'4 ci': ,.i'..-:;::.f:'..--..' 1 ; i li.. 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ME- suave raw or NW • .....• CONTI.'MONKNONll•••I•••• Colle#MON AT INCOMM r • 101 SUN Ilre•2'COMM.SIMI P•Ml MrIKWNOMONK NM • SWIP MON7.—.swat Pt 0/0, # 0.#1•11.VELCRO! crow*my ba VW. RI Of NW SOS .• •••••• INA MOW IN. 1 1.•01• MNIMMINMEMM r.` -. . • ' • •.. t•NINN lao7v o .AftwOO MA • • SM•dft?P.00011, G00372321 ANOI•M 41,. aeM04.1. 101101.••• •••••••• 41# Ma. • 47 :de..•f'erf'AIOL w._.....= INN MIR••10=2 INNINIMIEMNIN•• 94-13 3.8 i I1 7 CIT.OF RENTON Planning/Building/Public Works Department Jesse Tanner,Mayor Gregg Zimmerman P.E.,Administrator June 16, 1999 Mr. James Colt 0 Mt. Olivet Cemetery and Funeral Homes P.O. Box 547 Renton, WA 98057 SUBJECT: La Colina Short Plat Project No. LUA-97-136, SHPL-A Dear Mr. Colt: We have received a letter from David Halinen, attorney representing Gary Merlino Construction Company, that indicates boundary line agreements have been recorded with King County thus eliminating the need for the proposed La Colina Short Plat. The applicant has therefore withdrawn the short plat application. ii The appeal hearing scheduled for June 29th will therefore not pertain to the appeal of the short plat application. The appeal hearing will cover your appeal of an administrative decision for a minor amendment to the La Colina Preliminary Plat. If you have any questions, please contact me at (425) 430-7219. Sincerely, 1Q(_ _,\,Zu__ Peter Rosen Project Manager cc: David Halinen Fred Kaufman Jana Hanson shplwidr.doc 1055 South^ Grady Way-Renton, Washington 98055 PF]This oaoer contains 50%recycled material.20%post consumer CIT' OF RENTON Hearing Examiner Jesse Tanner,Mayor Fred J.Kaufman May 11, 1999 Mr. James L. Colt Mt. Olivet Cemetery and Funeral Homes II P.O. Box 547 Renton, WA 98057 Re: Appeal of Short Plat and Preliminary Plat of La Colina Appeal File No. LUA99-071,AAD I Dear Mr. Colt: We received your appeal dated May 6, 1999, and the hearing will be scheduled for Tuesday, June 29, 1999, at 9:00 a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Should you have any further questions, please contact this office. Sincerely, Fred J. Kaufman Hearing Examiner cc: Mayor Jesse Tanner Jay Covington, Chief Administrative Officer Larry Warren, City Attorney Peter Rosen David Halinen 1055 South Grady Way - Renton, Washington 98055 - (425)430-6515 This paper contains 50%recycled material,20%post consumer 30I33O S.M8319 A110 a3AI3C3a J CITY OF RENTON il4136p.m. 666t L 0 AN il`` a• MAY 0 7 1999 1 MT NO1N38 dO A11C RECEIVED II OLIVET C TY LF-,,,.., CMCF CEMETERYANDFUNERAL HOMES May 6, 1999 Hearing Examiner City of Renton 200 Mill Avenue South Renton, WA 98055 File#: LUA-97-136, SHPL& LUA95-167 & LUA96-141 Dear Sirs: This is our formal request to the Hearing Examiner for the appeal of the April 22, 1999 letter from the City of Renton indicating that requests for Modifing the Short Plat and Prelimininary plat of La Colina have been acted upon and that the administrative decisions represented to have been made there-in have been made. (4/22/99 ltr. attached as Ex.A). Attached hereto is a letter indicating that as of 4/23/99 the application and the check had been returned for both the Short Plat& Preliminary Plat amendments. The Letter from Laureen Nicolay of the City of Renton also states in it's first sentence that the City needs multiple changes made to the application in order to be accepted by the City. Our basis for the appeal of any administrative decision represented in the 4/22/99 letter setting the appeal period and referencing alledged decisions is in error as there was no application accepted by the City to be reviewed and that any application was incomplete. In furtherance to our appeal I have attached a letter from the City Administrator, Mr. Zimmerman which indicates that as of April 14, 1999 "there have been no formal applications for modifications to the Short Plat or the Preliminary Plat." even submitted, and as of 4/23 any submittel had been returned. We request that the examiner note our appeal and based on the attachments determine that no administrave determination has or had been made as of the date of the Notice mailed to parties of record 4/22/99. Respectfully 1 1 MT. OLIVET / . ER Q„INC. 1 1 arif i Aelf 1 alp40.roir r40, ,,,F 1 Funeral Home, Mausoleum, Crematory and Gardens Box 547 • 100 Blaine Ave. N.E., Renton, WA 98057 • 425-255-0323 j = CITA. JF RENTONtry, 1‘7Planning/Building/Public Works Department Jesse Tanner,Mayor Gregg Zimmerman P.E.,Administrator May 7, 1999 4 Mr. Jim Colt American Memorial—AMFD ,NWLINK.COM to your May5 1999 letter sent to the Cityvia e-mail n rningSubject: Response g Removal/Incomplete application La Colina." Dear Mr. Colt: I am writing to respond to your above-referenced letter. First, the portion of Mr. Zimmerman's April 14, 1999 letter to Kevin Hanchett that you quoted was correct. However, subsequent to that letter, the applicant's engineering consultants, Triad Associates, submitted minor amendments to the layout of La Colina's previously approved internal streets and lots. The Development Services Division's development engineering review team reviewed those minor amendments and concluded they were minor and should be acceptable to the City. With respect to those minor amendments, my April 22, 1999 letter was a formal administrative determination approving those amendments (reflected on the preliminary plat amendment drawings that Triad submitted to the City on April 16, 1999). As set forth in my April 22, 1999 letter, a 14-day appeal period was established for any appeals to that determination. (Note that the Renton Municipal Code does not set forth a formal application process for minor amendments to preliminary plats.) Second, with respect to the proposed minor short plat amendment, Laureen Nicolay's April 23, 1999 letter to Triad Associates should have better differentiated between the submittals necessary for acceptance of the major amendment to the preliminary plat and the submittals necessary for the recording of the revised short plat. The letter should have clearly stated that, while the amended short plat application materials that Triad Associates submitted on April 16, 1999 were adequate for making the administrative determination of revised short plat approval, additional information would need to be provided to the City prior to recording of the short plat. The 14- day appeal period noted in my April 22, 1999 letter applies to appeals of my decision to approve the minor short plat amendments as well. Third, as explained in my April 22, 1999 letter, a proposed major amendment for phasing of the La Colina subdivision (with its already-approved minor amendments) has been proposed by the applicants. Laureen Nicolay's April 23, 1999 letter to Triad Associates sets forth items that she believed necessary to complete the application for the major amendment. This letter will supercede her letter. In the context of the proposed major amendment for phasing, the paragraph on page 2 of that letter, asserting that, "you will need to [submit] a tree cutting plan indicating the locations and sizes of all trees to be removed/retained and detail the phasing of any tree cutting," overstates what is actually required in this case. As part of the original La Colina application, the applicants disclosed their intention to mass grade the upper portion of the site while protecting vegetation along the steep slopes that comprise the site's southwestern edge. (Those steep slopes 1055 South Grady Way- Renton,Washington 98055 Mr. Jim Colt May 7, 1999 Page 2 are within what the approved preliminaryplat refers to as "Tract E".) As a result, the only restriction relating to tree-cutting for the project site was set forth in Hearing Examiner Condition of Approval No. 2 (as amended) as follows: 2.The applicant shall record a Native Growth Protection Easement for those portions of Tract E for which slopes greater than or equal to 40%or other slopes within Tract E that the geotechnical engineers find might be subject to slippage. Accordingly,because tree-cutting on the entire upper portion of the site has been previously approved, such tree-cutting cannot be affected by the proposed phasing amendment and a revised tree cutting plan will not be required. No reason exists for the City to prevent the applicants from tree-cutting the upper portion of the site. We have been advised that Triad Associates intend to provide us with an updated submittal package for the proposed major amendment within the next few days. Once we have deemed it to be complete for processing,you will receive notice and a public hearing will be scheduled before the Renton Hearing Examiner on the major amendment.) Fourth, we understand that a notice for the proposed major amendment has been posted at the sound end of Blaine Avenue at the site's north boundary. That location provides proper notice and is acceptable to the City. Fifth, the last paragraph of your letter makes a vague reference to "the RCW" and refers to a 10- foot area outside of the Cemetery. The reference provides insufficient information to allow me to ascertain your concern. Finally, as we notified you yesterday via e-mail, your letter addressed to me does not constitute an appeal. S• ely, a Hanson, Director Development Services cc: Donald Merlino, Gary Merlino Construction Co., Inc. David Halinen, Halinen Law Offices, P.S. Neil Watts Peter Rosen File CITE OF RENTON o Z:11-)1-.1 art ,` Planning/Bc ig/Public Works Department qv Gregg Zimmerman P.E.,AdministratorJesseTanner,Mayor April 23, 1999 i Brian Darrow Triad Associates 11814 115th Avenue NE Kirkland, WA 98034 Subject: La Colina Short Plat and Preliminary Plat Application Revisions LUA97-136, SHPL and LUA95-167 Triad Job Number 94-130 Dear Mr. Darrow: This letter is sent to clarify the changes needed in order to accept your short plat and preliminary plat revisions as complete. We will need you to revise your short plat application in following ways: a The legal description listed in the Transnation subdivision guarantee is different from the legal description on the short plat drawing, these will need to be reconciled and revised documents submitted. Please provide three copies of the documents referenced in the subdivision guarantee related to legal proceedings: 99-2-05834-KNT and 98-2-27101-9/98-917356-0. Amend master application forms to reflect revised acreage numbers. Provide an opaque photographic reduction (PMTs, not reduced plots or photocopies) of each sheet of revised plans. We will need you to add to and/or revise your preliminary plat application in following ways: Provide a notarized "affidavit of installation of public information sign". The legal description listed in the Transnation subdivision guarantee is different from the legal description on the preliminary plat drawing, these will need to be reconciled and revised documents submitted. Additionally, the Transnation guarantee covers a `parcel b". Is this parcel to be included with the preliminary plat application? Additionally. since the starting" legal description for the preliminary plat will change upon recording of the short plat, we will need you to provide us with a revised final legal after recording of the short plat in order to take the preliminary plat forward to public hearing. R 1055 South Grady Way-Renton, Washington 98055 aN This paper contains 50%recycled material,20%post consumer 411 Mr. Brian Darrow April1 923, 99 Page 29 q Please provide three copies of the documents referenced in the subdivision guarantee related to legal proceedings for the preliminary plat file: 99-2-05834-KNT and 98-2-27101- 9/98-917356-0. The project narrative needs to be revised to address the proposed project phasing in detail . explain timing relative to each phase/lot, road and utility installation plans, etc.) and the rest of the narrative should explain briefly what was previously approved and clarify that the only issues for reconsideration are those relative to the phasing. Also the project acreage listed in both the narrative and master application has not been updated since the original application. Neighborhood detail map, indicating subject and surrounding parcel lines, needs to reflect the revised northerly site boundary (as if short plat had already been finalized). Provide an opaque photographic reduction (PMTs, not reduced plots or photocopies) of each sheet of revised plans. Colored display maps need to be provided. On the preliminary plat plan, please highlight the phasing. Prior to presentation of the preliminary plat modification to the Hearing Examiner, you will need to a tree cutting plan indicating the locations and sizes of all trees to be removed/retained and detail the phasing of any tree cutting. Also, after recording of the La Colina short plat, we will need two copies of the final legal description for our preliminary plat file. Short Plat: Please provide us with the above information so we may be begin processing your short plat amendment as soon as possible. We will retain the short plat submittals at the front counter until receipt of the additional information. Preliminary Plat: Since we cannot accept your preliminary plat revision at this time, we must return your package and check (attached) pending resolution of the above issues relative to the preliminary plat application. Attached are instructions for revising applications to assist you in structuring your resubmittal. If you have any questions regarding this letter please feel free to contact me at (425) 430- 7294. Sincerely, 6 -r-y vLaureen Nicolay Associate Planner c: Peter RGsett Jana Hanson CIT: JF RENTON4. § 4 Planning/Building/Public Works Department Jesse Tanner,Mayor Gregg Zimmerman P.E.,Administrator April 22, 1999 Ms. Katherine Russell Triad Associates 11814 115th Avenue NE Kirkland, WA. 98034 SUBJECT: La Colina Preliminary Plat- LUA96-141 La Colina Short Plat - LUA97-136, SHPL Dear Ms. Russell; We have reviewed your requests to modify the approved La Colina Short Plat and La Colina Preliminary Plat. Short Plat Revisions The requested revisions to the La Colina Short Plat (LUA97-136, SHPL) are as follows: 1. A minor modification to proposed "Tract B" to reflect a recorded boundary line agreement that clarifies and confirms the existing property boundaries between the subject property and the proposed "Tract B" property. The boundary line agreement relates to Lot 16, Block 4, Monterey Terrace, according to the plat recorded in Volume 50 of Plats, at Page 36, records of King County Washington. 2. Elimination of "Tract C" from the short plat application. "Tract C" involved a fence encroachment from the adjacent Mt. Olivet Cemetery. Subsequent to the short plat approval, the U.S. Bankruptcy Court in Seattle awarded the property to Mt. Olivet Cemetery. Therefore the continued inclusion of that property in the short plat is unnecessary and superfluous. The extent of these proposed revisions are minimal. The overall intent of the short plat application is to create tracts which will then leave the balance of the subject property free of unresolved encroachments prior to completing the La Colina Preliminary Plat. The short plat was originally approved administratively and the proposed minor revisions are hereby approved. Preliminary Plat Amendment The proposed amendments to the La Colina Preliminary Plat (LUA96-141, PP, ECF) are as follows: 1. Changes to the internal street pattern and lot layout. 2. Request to construct the project in three (3) phases._ 3. Request to extend the duration of the preliminary plat approval by three (3) years. The City's Subdivision Regulations were amended in November 1998 to distinguish between major and minor amendments to a preliminary plat approval. The Administrator of the Department of Planning/Building/Public Works has the authority to determine whether a proposed modification is considered a major or minor amendment. Code section 4-7-080M lists several criteria or thresholds for major amendments. If the Administrator (or his designee) determines that a proposed amendment is major, the LACOLREV.DOC 1055 South Grady Way - Renton, Washington 98055 Hearing Examiner will hold a public hearing in accordance with the requirements for preliminary plat approval. Staff has reviewed the proposed modifications to the internal street pattern and lot layout and has determined them to be a minor amendment to the approved preliminary plat. The proposed revisions do not increase the number of lots that were initially approvedanddonotmodifyanyroadwayaccesspointstoanexteriorstreetfromtheplat. The configuration of the lots on the exterior of the plat (where adjacent to other properties) remains unchanged. The request to construct the project in three phases is a major amendment under code section 4-7-080M because it was not included as part of the original application. Major amendments are required to meet the requirements for preliminary plat approval. Therefore, public notification (i.e. notices to record owners of parcels within 300 feet of the site, posting of the site, etc.) will be required as well as a public hearing before the Hearing Examiner. The request to extend the duration of the preliminary plat approval is directly linked to the phasing of the project and therefore will be considered as a part ofthemajoramendment. The code states that any public hearing on a proposed major amendment shall be limited to the content of the major amendment and whether the proposed major amendment should or should not be approved. Therefore, the public hearing before the Hearing Examiner shall be limited to consideration of the proposed phasing of the preliminary plat. All of the above decisions on major and minor amendments are administrative determinations. A 14 day appeal period shall follow the decisions, the appeal periodendingonMay7, 1999. All parties of record will be notified. Please contact me, at (425) 430-7218, if you have any questions. Sincerely, q7A---- na Hanson Development Services Director cc: Donald Merlino, Gary Merlino Construction Co., Inc. David Halinen, Halinen Law Offices, P.S. Parties of Record 44y CITY 1 - F RENTON Planning/Buildingirublic Works Department 7 e Tanner,Mayor Gregg Zimmerman P.E.,Administrator April 14, 1999 Mr. Kevin Hanchett Lasher, Holzapfel, Sperry & Ebberson 2600 Union Square 601 Union Street Seattle, WA 98101-4000 SUBJECT: Mt. Olivet Cemetery, Inc./La Colina Preliminary Plat/ La Colina Short Plat Dear Mr. Hanchett;II There have been no formal applications submitted for modifications to either the La Colina Preliminary Plat (LUA96-141) or the La Colina Short Plat (LUA97-136). The Subdivision Regulations were amended in November 1998 to distinguish between major and minor amendments to a preliminary plat approval. A copy of the ordinance is attached. The Administrator of Planning/Building/Public Works has the authority to determine whether a proposed modification is considered a major or minor amendment. The code lists several criteria or thresholds for major amendments. If the Administrator (or his designee) determines that a proposed amendment is major, the Hearing Examiner will hold a public hearing in accordance with the requirements for preliminary plat approval. Your client, Mt. Olivet Cemetery, would then be notified of the application as the property is within 300 feet of the La Colina site. The Administrator has the authority to administratively approve amendments deemed to be minor and notification of surrounding property owners would not be required in this case. However, parties of record would be notified of an administrative decision to approve a minor modification. Please contact Jana Hanson, at (425) 430-7218, if you have any questions. Sincerely, Gregg Zirnm rman Planning/Building/Public Works Administrator cc: Jana Hanson Peter Rosen attachment: Ordinance No. 4751 ll- 1055 South Grady Way - Renton,Washington 98055 This paper contains 50%recycled material,20%post consumer 136 5 MT. OLIVET CEMETERY CO. INC. U.S.BANK Oh .rASHINGTON 100 BLAINE AVE.,NE. RENTON HILLS BRANCH P.O.BOX 547 (425)255-0323 RENTON,WASHINGTON 98056 RENTON,WA 98057-0547 19-10-1250 5/7/99 PAY TO ORDER T E City of Renton 75,00 OSeventy-Five and 00/100************************************************************** DOLL RS City of Renton OP ATING ACCOUNT Appeal Of Adm. Decision LUA97-136 SHPL-A MEMO II 0 360 511' L 2 5000 LO 5I: 86 7 008 MT. OLIVET CEMETERY CO. INC. City of Renton 5/7/99 13 6 5 75.00 s lEN OyY*k:. TV MAY 0 7 1390 RECEIVED C)TY CLERK'S OFF(CF Cash- US Bank 153 Appeal Of Adm. Decision LUA97-136 SHP 75.00 MT. OLIVET CEMETERY CO. INC. City of Renton 5/7/99 nl 5 Cash - US Bank 153 Appeal Of Adm. Decision LUA97-136 SHP 75.00 5 DELUXE BUSINESS FORMS 1+BOO-328-0304 NOTES REC E I P DATE 7 9 No J1.459 RECEIVED FROM "/1-- C1.11,1,, yy-,,1 41-41—MIO l- o. '-"i ADDRESS WO gitel-1-44-1 FOR i , ;7aim (2 #.,1_.e " LQ/9-97136 -S//PL-fl ACCOUNT HOW PAID " AMT.OF CASH ACCOUNT AMT. PAID CHECK Q J//p BALANCE MONEY L41ili U{l?t .. DUE ORDER 1998 R FORM®8L802 MT. OLIVET CEMETERY CO. INC. City of Renton 5/7/99 13 6 C 5 75.00 y 0 7 1999 RECEIVED CITY CLERK'S OFFICE Cash - US Bank 153 Appeal Of Adm. Decision LUA97-136 SHP 75.00 MT. OLIVET CEMETERY CO. INC. City of Renton 5/7/99 4m 0 5 Cash - US Bank 153 Appeal Of Adm. Decision LUA97-136 SHP 75.00 51 DELUXE BUSINESS FORMS 1+800-328-0304 4111146r Iry MT. OLIVET CEMETERY AND FUNERAL HOMES June 28, 1999 CITY OF RENTON 8:S0a.n+ JUN 2 9 1999 The Hearing Examiner City Of Renton RECEIVED WY CLERK'S OFFICE Hand Delivered Time Date Dear Mr. Examiner, The Attorney for the Applicant, Gary Merlino Construction has caused the restoration designs and final plat plans of the La Colina Development,which are both the subject of Mt. Olivets appeal today and the final plans for the development of the La Colina Project which is the subject of the Major Amendment hearing on those plans to be withheld from Adjoining property owners, Mt. Olivet Cemetery Co. Inc., and myself. Specifically Last Friday 6/25/99 after normal business hours(5:37PM)Mr. Halinen sent the attached letter to Mr, Hanchett, Mt. Olivets Attorney. It specifically sets out that the design( Engineered Design)being prepared pursuant to a Court Order is not available, and that they are still evaluating the"existing slope conditions on the entirety of the slope along lots 86 through 89" The required engineering design based upon the sketch attached to the letter clearly depicts a rock wall over 12 feet in height, (requiring and engineering as well as City approval, and also indicates that the buildable area in lots 86 through 89 may not be as depicted on the plans provided to the City and which are the subject of todays hearings. If there are no final City approved Engineering and Designs covering this Phase of the project then I would appear that approving and Plans, or Phasing related to this project would be premature and in error. You will note on page 2 of Mr. Halinen's letter that he specifically instructs Mt. Olivet Attorneys not to "release them(Design Plans, sent be mail) copy them or use them." as of Friday at 5:37 PM. I have not seen nor do I believe that the City has reviewed or approved them, and That until the final design for the Northern Boundary of this project is SUBMITTED & APPROVED by the City,this Hearing on any amendments to'the original approval should be denied and or the hearing postponed until such final plans are available to be approved. Funeral Home, Mausoleum, Crematory and Gardens Box 547 • 100 Blaine Ave. N.E., Renton, WA 98057 • 206-255-0323 Cxk 3 June 28, 1999 Page 2 Do to the fact that the letter of the 25th.,was not received until late on the 28th. Mt. Olivet has not had an adequate time to respond. In brief response I have attached the relevant documents referenced in Mr. Halinens letter for entry into the record and will provide oral testimony in the event the hearings both go forward. For the record attached hereto are the following: 6/25/99 Ltr from David Halinen 6/4/1999 Temporary Restraining Order Copy Map of La Colina indicating vertical cuts at lots 84 through 92 . 6/9/1999 Order extending TRO order in full force and effect until 7/6/99 6/2/1999 Complete transcript of testimony and court ruling as described on page 3 These documents are submitted for the record . Mt. Olivet requests that these hearings both be continued until complete,Final and City approved plans are provided. In the alternative the application for any amendments be denied until actual plans depicting the proposal are available. Sincerely, Mt. Olivet metery Co. Inc. Jam . Colt Pre dent CC:Kevin Hanchett HALINEN LAW OFFICES,P.S. A Professional Service Corporation David L.Halinen,P.E.McCarver Square Tacoma(253)627-668( 2115 N.30th Street,Suite 203 Seattle(206)443-4684 Tacoma,Washington 98403 Fax(253)272-987( CITY OF RENTON JUN 2 9 1999 CITY RklS ED OFFICE, June 25, 1999 VIA TELECOPIER(206-340-2563) AND CERTIFIED MAIL,RETURN RECEIPT REQUESTED Kevin Hanchett, Esq. LHS & E 2600 Two Union Square 601 Union Street Seattle, Washington 98101-4000 Re: Mount Olivet Cemetery, Inc. v.Merlino Construction, Inc., United States Bankruptcy Court for the Western District of Washington, Seattle Division(Honorable Karen A. Overstreet) (In re:MT. OLIVET, Debtor, Chapter 11--Bankruptcy Court Cause No. 96-01370, Adversary Proceeding No. 96-01370) Dear Mr. Kevin: I am herewith forwarding to you a proposed preliminary rockery and slope section for restoration of the Sloughing Zone as prepared by Earth Consultants, Inc. for review by you and Mr. Colt. This section, which is based upon the June 9, 1999 topographic survey drawing prepared by Ringel& Associates, shows the proposed condition at the boundary line between proposed Lots 87 and 88 of La Colina. Please let me know if this proposed design concept is acceptable to your client. I have several comments as a follow-up to the e-mail letter that you sent me at 4:40 p.m. yesterday. First, please note that my asserted representation to the court was made prior to the preparation and entry of the TRO on Friday, June 4th. You will recall that the urgency of the situation was addressed by construction of a temporary restoration (a temporary slope) along the Sloughing Zone" as set forth in the TRO. Our initial efforts were focused on getting that slope in place,which was done by the evening of June 4th. The following week, we had Ringel & Associates perform the topographic survey of the slope. Last week and this week,Earth Consultants has worked Kevin Hanchett, Esq. LHS &E June 25, 1999 Page 2 on an evaluation of the existing slope conditions on the entirety of the slope along Lots 86 through 89 and on the design of the enclosed restoration proposal. This has been a diligent response to the situation and the proposed TRO, which as you know was extended to July 6, 1999 by stipulation. Second,as I expressed to you by phone earlier this afternoon, your e-mail letter is unclear as to the"7-1/2 feet of material to be removed along [the] boundary". (We assume that you are talking about removal of Mt. Olivet's fill along the top of the slope. That removal may have some bearing on the final design of the slope and we need to know about it.) You indicated during that phone conference that you would get for me from Mr. Colt the name of Mt. Olivet's contractor doing the work so that Kyle Campbell can call the contractor directly and get more information on what is actually going to be removed. (When we spoke by phone again around 4:30 p.m. today, you told me that Mr. Colt has sent Mr. Campbell an e-mail message addressing this subject and that you will be forwarding a copy of it to me as well.) Third,as to your e-mail's assertion that Mr. Colt gave permission for the surveyors to come on the cemetery property "based on the assertion [by someone] that he would be provided with copies of the plans and calculations the following week", that is news to me. We had, however, planned to get Mr. Colt a copy of the new topographic survey and, as you will recall from our several phone calls during the afternoon of June 11, my assistant was in the area of Mt. Olivet Cemetery that afternoon on other errands and was prepared to stop by and trade a copy of the survey for both (1) the cemetery's plot plans and burial maps concerning the entirety of the southern edge of the cemetery and (2) the cemetery dedication instrument(s) for the dedication of the "Former Encroachment Area(the"Items Promised by Jim Colt"), all of which items Mr. Colt had repeatedly promised to provide me copies of. Finally that afternoon, you indicated to me by phone that those items were not available yet and we agreed that you would inform me when they were available, at which time we would arrange an exchange through your office. Per our phone conference this afternoon, in good faith I am herewith forwarding to you a copy of the new topographic survey(two sheets of the same survey printed out at two different scales)with the understanding that you will not release them, copy them or use them until I receive from you copies of the Items Promised by Jim Colt. Fourth, my client is concerned about the crypts that Mt. Olivet is installing along the south boundary of the cemetery. It seems to me that Mt. Olivet may be trying to precipitate a slope failure by doing so. Please be aware that (1) GMCC has no duty to provide lateral support to artificial structures that create unnatural loads and(2)the installation work itself on the edge of the slope may itself precipitate a slope failure, for which would Mt. Olivet would be liable. Also, as I explained to you during our last phone conference this afternoon, I made an inquiry this afternoon to the City of Renton (to Development Services Director Jana Hanson) regarding whether the installation of the crypts along the boundary must conform to the City's zoning setback requirements. She did some checking and told me that she believes that the crypts (even if totally buried) must meet the City's Kevin Hanchett, Esq. LHS &E June 25, 1999 Page 3 setbacks for the single-family residential zone in which the cemetery lies. She told me that she intends to send out a City inspector to check further on the matter and take appropriate action. As I expressed to you, you should make Mr. Colt aware of this right away so that he does not further violate the City's setback requirements. Fifth, we deny your assertion that there may be a"permanent loss of many of the dedicated graves" due to anything my client has done. I look forward to your comments concerning the proposed restoration design. Sincerely, HALINEN LAW OFFICES, P.S. David L. Ha'nen Enclosures cc: Gary Merlino Construction Co., Inc. Attn: Gary M. Merlino, President Attn: Donald J. Merlino, Secretary-Treasurer Douglas W. Harris, Esq. (via telecopier) MU"V 009W 41 W AN C HrTT.LT l.wpd sent ay. C,,,i... w /K'. u' COMPUTED BY DATED lIIICHECKED BY DATED I' \ III J. gn ,n....cl.r...• .•ttnSY.a•it 1.1..w.•...J>nwf. PROJECT NO. SHEET OF PROJECT SUBJECT 1 2 U . 3 q Q. 4 lv 2 5 1,5 e J I a z XIz s c jp 0 0 6-1J 0 a 2 4+__` 3 J 14 s 2• e e 19 1 i • 1 4 oL 20 f t 22 01141 4 Oil 23 24 I • 25 I 3 26 2 r. 27 I 1 la y , i Y+..••..flM••.A • .. •y ..•...+ ..... j • .. ......... M•r . ..,. Imo.. ‹n vw.•fr.m....r •. O 31 i,. 4 • 1 • 4 T v..• . t• Y • 1i , I.. - . . J-. .. • -.VI. . • . 32 I S. , ( j - .• •.. .. l.. 35 1 .....•. • • w.. .. nl '• r 1/ . 1 38 37 I 38 30 40 41 42 O O 43 tad 0 C` 1 44 4S CITY OF RENTON JUN 2 9 1999 CEVED CITY CLERK'S OFFICE" 1 David L. Halinen Judge: Karen A. Overstreet HALINEN LAW OFFICES, P.S.Chapter: 11 2 2115 North 30th Street, Suite 203 Tacoma WA 98403 3 206) 443-4684 4 253) 272-9876 (fax) 5 6 UNITED STATES BANKRUPTCY COURT7 WESTERN DISTRICT OF WASHINGTON, SEATTLE DIVISION 8 In re 9 No. 96-01370 MOUNT OLIVET CEMETERY, INC., 10 91-0724686 11 PO Box 547 Renton WA 98057-0547 12 Debtor. 13 14 MOUNT OLIVET CEMETERY, INC. ADVERSARY NO. 96-01370 15 Plaintiff TEMPORARY RESTRAINING ORDER 16 v. 17 MERLINO CONSTRUCTION, INC. and 18 DOE CORPORATION, 19 Defendants. 20 THIS MATTER having come on regularly before the Court on June 2, 1999, upon 21 plaintiff's Motion to Shorten Time and Motion for a Temporary Restraining Order; the Court 22 having considered the file and record herein, including plaintiff's Motion for Temporary 23 24 Restraining Order, a supporting declaration of James Colt and an unsworn letter from Mark 25 HALINEN LAW OFFICES,P.S. TEMPORARY RESTRAINING ORDER- 1 A Professional service Corporation McCarver Square 2115 N.30th Street,Suite 203 Tacoma,Washington 98403 253)627-6680 1 K. Dodds, and defendant's response memorandum and supporting declarations, the Court 2 having heard testimony and argument of counsel and finding that, based upon the evidence 3 presented, immediate and irreparable harm may result if the Court does not restrain the 4 defendant and its officers, directors, employees, agents and attorneys and any subsequent 5 y transferees from excavatingcompa ting material, removing vegetation and or trees, along the6 7 approximately 20-foot wide portion of the boundary-straddling slope (the slope that exists 8 along the boundary between the two properties in the vicinity of lots 86 through 89 of the La 9 Colina subdivision as those lots are depicted on Exhibit A, attached) where geotechnical 10 engineer Kyle Campbell orally testified on June 2, 1999 that some sloughing of the slope 11 recently occurred as a result of a removal of a tree from the slope near the north edge of the 12 and 4 /07 j7,2 b4 G+c42, Col/LC- ' 49iyy/ 07.- 8c nsubjectportionoftheMerlinoProperty (the "Sloughing Zone") tgigou?Rirther finding13 14 that immediate and irreparable harm may result if lateral support is not restored to the south 15 edge of plaintiff's property along the Sloughing Zone, and for good cause shown; and 16 pursuant to 11 U.S.C. § 105(a) and FRP 65(b); now, therefore, 17 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the defendant, Gary 18 Merlino Construction, Inc., its officers, directors, employees, agents and assigns are hereby 19 restrained through June 10, 1999 from removing or grading any soil, compacting any soil,20 a to i f ,A- 21 removing any vegetation or cutting any trees on the exist g s ope, except to the extent necessary to comply with the other 23 provisions of this Order. 24 25 HALINEN LAW OFFICES,P.S.TEMPORARY RESTRAINING ORDER- 2 AProfessional Service Corporation McCarver Square 2115 N.30th Street,Suite 203 Tacoma,Washington 98403 253)627-6680 1 IT IS FURTHER ORDERED that defendant, at its own expense, shall forthwith, take 2 all necessary measures to restore the lateral support of the Sloughing Zone pursuant to a 3 restoration plan to be prepared by Earth Consultants, Inc. (7 py.0,. ,-r fe S fo vs4'u h 4 s l( cm,,..,,,ehc e. i 1.-,1•-t eeQiv`4 te./y ato f Z. S7 jcj i my 6-c.,P, IT IS FURTHER ORDERED that the debtor is not requirtsd to pdst any bond relating 5 to this temporary restraining order, but that the argument for the requirement of a bond is 6 7 reserved for the hearing on preliminary injunction which is set for June 10, 1999 at 2:00 PM. rletiiv ITX n2*r1rcG .C4G //6e__ fdt fk4_ 'csc.v'fCr 8 SO ORDERED this ( day of June, 1999. -f-a fZ Fe/r,` s- 4'S 6 7z : l•on q Ill 9, 9 KAREN A. OVERSTREET10 Honorable Karen A. Overstreet 11 United States Bankruptcy Judge Presented by: 12 HALINEN LAW OFFICES, P.S. 13 14 BY 1, 15 David L. Ha en, WSB #15923 Attorneys for Defendant Gary Merlino Construction Co., Inc. 16 17 18 19 20 21 22 23 24 25 HALINEN LAW OFFICES,P.S.TEMPORARY RESTRAINING ORDER- 3 A Professional Service Corporation McCarver Square 2115 N.30th Street,Suite 203 Tacoma,Washington 98403 253)627-6680 IF EXHIBIT A Excerpt from Sheet Number 2 of 10 of the "Grading Plan" set for the La Colina" residential subdivision prepared by Triad Associates and signed by Professional Engineer Michael L. Matheson on April 9, 1999 (with special notations added by legal counsel for purposes of this exhibit). I North Approximate scale: 1-inch = 50 feet Boundary Line Approx. 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N. 4 ..---.""' \ r t tii h Rai.,_ »_..„_ -----.. t: oc- s 1 r l t r t g 4. \ :: - fT_ L `" C11Y OF RENTO~I UNITED STATES BANKRUPTCY COURT 2 WESTERN DISTRICT OF WASHINGTON JUN 2 9 1999 RECEIVED 3 AT SEATTLE C4TY CLERK'S OFFICE 4 D(Wir 5 In re : 6 MT. OLIVET CEMETERY, INC. , Case No . 96-01370 7 Debtor . 8 9 MT. OLIVET CEMETERY, INC. , a Washington corporation and 10 debtor-in-possession, 11 Plaintiff, 12 vs . Case No . A99-06505 13 MERLINO CONSTRUCTION COMPANY, INC . , a Washington 14 corporation, 4Q%. 15 Defendant . 16 17 TRANSCRIPT OF A PORTION OF THE PROCEEDINGS BEFORE THE HONORABLE KAREN A. OVERSTREET 18 WEDNESDAY, JUNE 2 , 1999 19 THE TESTIMONY OF MR. KYLE CAMPBELL 20 AND THE COURT' S RULING - MOTION FOR TRO 21 22 23 Reported by: Hope J. Yeager CCR # YE-AG-EH-J404M9 24 25 AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** v 2 APPEARANCES For the Plaintiff : MR. KEVIN P. HANCHETT Attorney at Law LASHER HOLZAPFEL SPERRY & EBBERSON 600 Union Street, Suite 2600 Seattle, WA 98101-4000 206) 624-1230 For the Defendant : MR. DAVID L. HALINEN Attorney at Law HALINEN LAW OFFICES 10500 N.E . 8th, Suite 1900 Bellevue, WA 98004 425) 454-8272 and MR. DOUGLAS W. HARRIS Attorney at Law 12100 Northup Way, Suite B Bellevue, WA 98005 425) 882-2929 AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 3 1 INDEX 2 Mt . Olivet Cemetery, Inc . , Debtor Case No . 96-01370, A99-06505 3 Date : June 2 , 1999 4 5 TESTIMONY 6 PAGE NO. 7 Mr. Kyle Campbell 8 Direct Examination by Mr. Halinen 4 - 21 Cross-examination by Mr. Hanchett 21 - 25 9 Re-Direct Examination by Mr. Halinen 25 - 28 10 Ruling by the Court 29 - 39 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 4 1 SEATTLE, WASHINGTON; WEDNESDAY, JUNE 2 , 1999 2 10 : 00 A.M. SESSION 3 00000- - 4 OTHER PROCEEDINGS WERE HAD ON THIS DAY 5 BUT ARE NOT TRANSCRIBED AT THIS TIME. ) 6 7 8 KYLE CAMPBELL, 9 being first duly sworn, 10 was examined and testified 11 as follows : 12 13 DIRECT EXAMINATION 14 15 BY MR. HALINEN: 16 Q. Would you please state your full name for the record. 17 A. Kyle Campbell, K-y-1-e, C-a-m-p-b-e-1-1 . 18 Q. Mr. Campbell, what is your profession? 19 A. I am a geotechnical engineer. 20 Q. Are you licensed in the State of Washington? 21 A. Yes . 22 Q. Who is your employer? 23 A. Earth Consultants, Inc . 24 Q. Are you a part owner of that firm? 25 A. Yes . AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 5 1 Q . How long have you been in the employ of Earth 2 Consultants? 3 A. Nine years . 4 Q. How long have you been in the geotechnical engineering 5 field? 6 A. Fourteen years . 7 Q . Mr. Campbell , explain the type of work that Earth 8 Consultants does? 9 A. Soil engineering from new development; preliminary 10 studies; services during construction, where we monitor 11 the construction process ; density tests ; forensic work; 12 land slide mediation; that type of thing. 13 Q . What is the role of Earth Consultants in the La Colina 14 subdivision project? 15 A. We were hired by Gary Merlino Construction for the 16 purpose of providing geotechnical services during 17 construction, monitoring the earth work that ' s going on. 18 Q. Mr. Campbell, what is your involvement with respect to 19 the slope area that ' s the concern of this proceeding? 20 A. Yesterday I received a call from yourself to meet on 21 site to take a look at this slope . I 'd been on site -- 22 I 'm not sure exactly what day, but probably about three 23 weeks earlier just as a walk through with Kirt -- 24 Q. Kirt Camins? 25 A. Correct . Just as an overall site visit to take a look AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 6 i at what kind of soil was there and what they would be up 2 against . I didn' t specifically do a recon of that slope 3 at that time . 4 Q . Did you do a recon yesterday? 5 A. Yes . 6 Q . Did you find that grading work had been done recently on 7 this slope? 8 A. I wouldn' t say grading. It was -- as previous testimony 9 was stated, it was cleared, grubbed to a certain extent . 10 Although, I would say it wasn' t completely grubbed, 11 because all of the debris and garbage and such had not 12 been removed yet . 13 Q. I take it that had the garbage been removed, that would 14 have been more evidence that they had done more work on 15 the slope; is that what you are saying? 16 A. Correct . 17 Q. Mr. Campbell, was the toe graded out or undermined in 18 any way by the work that had been done? 19 A. No. 20 Q. Did you take photos yesterday of the slope? 21 A. Yes . 22 Q . I refer you, first, to photo No. 3-D already in 23 evidence . Was this one of the photos you took? 24 A. Yes . 25 Q. Can you explain generally what this depicts in terms of AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 7 1 the slope . 2 A. Well, you can see the crest of the slope on the right 3 side is the slough area that we've had previous 4 testimony about today. The left side of the picture, 5 you can see there' s a stake . I believe that is one of 6 the property line markers before the lath was put up 7 next to it . 8 On the left side you can see clearly visible 9 there' s organic debris that remains on the face of the 10 slope . Most of the green vegetation has been removed. 11 So there' s -- it just hasn' t been completely cleared 12 off . 13 Q . If it had been completely cleared, would the organic 14 debris have been removed? 15 A. Yes . 16 Q . Mr. Campbell , from your observations at the site, have 17 you formed an opinion as to whether the upper portion of 18 the exposed soil is an old fill? 19 A. In my opinion, most of the material at the crest of the 20 slope is old fill that ' s been placed there . It appears 21 to be over the years . The photos clearly show that 22 there' s debris, grass clippings, tree branches, soil in 23 some instances . Most particularly, the most significant 24 area was to the east of where this slough occurred. 25 There' s a fairly large pocket of debris and fill dirt AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 8 1 that is clearly that . There ' s also an area where there 2 are some tension cracks about eight to ten feet from the 3 crest, which is in the fill . That is an indication that 4 that area would be unstable . And, as a geotechnical 5 engineer -- and I pointed it out yesterday to Mr. Camins 6 that that would be something, even though it is off of 7 their property, would need to be addressed due to the 8 potential of that material that ' s -- 9 THE COURT: So which part of this are you looking 10 at ; where this line is here? Is that what you are 11 talking about? 12 A. No. It ' s off of that picture . 13 Q. (BY MR. HALINEN) Do we have another photo that better 14 shows that? 15 A. Yes . This one does . 16 THE COURT: Which picture is that? 17 MR. HALINEN: This is not marked yet . 18 THE COURTROOM DEPUTY CLERK: This will be 3-E . 19 Q . (BY MR. HALINEN) Mr. Campbell, I 'm handing you a copy 20 of 3-E . How does this photo relate to 3-D? 21 A. It ' s basically adjacent to the right of the previous 22 photo. 23 Q. So that would be to the east? 24 A. To the east, right . And in 3-E, you can clearly see 25 this lobe of material that extends down the face of the AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 9 1 slope . You can see some gaps at the bottom. You can 2 see -- 3 THE COURT: Can you show me where you are looking? 4 Right in here? 5 A. Yes . Right in there and to the right of that . And then 6 there ' s another photo that continues on that shows the 7 main portion of that fill deposit . 8 Q. (BY MR. HALINEN) So there is fill that continues 9 westerly into photo 3-D as well ; is that correct? 10 A. Yes, there is . You can see on 3-E, extending up, it ' s 11 kind of a diagonal in the middle of the photo where that 12 material then extends across the face of this sloughed 13 out area . 14 MR. HALINEN: Would it be helpful, Your Honor, if 15 he marked these with a felt pen or something? 16 THE COURT: Well , do they go like this? 17 A. Yes . 18 THE COURT: So you can see this line extending 19 across here? 20 A. Well, it ' s actually -- 21 THE COURT: So do you know what we ' re looking at, 22 Mr. Hanchett? 23 MR. HANCHETT: I do. And there ' s a drain pipe at 24 the bottom of the left-hand side of the first photo. 25 The right-hand side and left-hand side of the second AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 10 1 photo you can line up? 2 A. Correct . 3 MR. HANCHETT: At the toe of the slope . 4 THE COURT: Right . 5 Q. (BY MR. HALINEN) Mr. Campbell, you were mentioning a 6 moment ago an area where you thought that something 7 should be done . 8 Could you now, with these two photos together, 9 explain the limitations on the area that we were talking 10 about and what your thoughts are on what might be done 11 there . 12 A. Well, my concern would be that this lobe of fill soil 13 that you can see, the western portion on 3-E, it 14 continues on to the right of that picture, given the 15 tension cracks that are up at the top of the slope, 16 that ' s in danger of failing. And that, as the 17 geotechnical consultant -- and I did yesterday -- 18 informed my client, Gary Merlino Construction, that 19 something would need to be done there because of the 20 danger of that material sliding downhill . 21 Q. Now, Mr. Campbell, that ' s not the area of the tree 22 removal that we've been dealing with along the slope 23 earlier; is that correct? 24 A. Yes, that ' s correct . There' s also some trees that are 25 located in that area that clearly had soil placed around AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 11 1 the trunks . And I have a photo of that also . 2 THE COURT: So when you say you've recommended to 3 Merlino that they do something about this to prevent the 4 slide, what does that mean? They bring in -- 5 A. Well, it wasn' t necessarily for Merlino to do anything, 6 because I think most of that is off their property. 7 It ' s more of a situation to bring it to their attention 8 so that they can begin discussions with the adjacent 9 property owner and say, Hey, we 've got a situation that 10 needs to be taken care of . 11 THE COURT: That ' s why we' re here . 12 Q . (BY MR. HALINEN) Mr. Campbell , you call this a lobe of 13 fill , is that correct? 14 A. Correct . 15 Q. So that was a fill that was placed by Mt . Olivet 16 Cemetery on their property? 17 MR. HANCHETT: Objection. Lack of foundation, Your 18 Honor. 19 MR. HALINEN: I ' ll withdraw then. 20 Q. (BY MR. HALINEN) Mr. Campbell, that lobe of fill is on 21 the Mt . Olivet property; is that correct? 22 A. I believe that the majority of it is . There are some 23 other photo sites down that line, but most of it is 24 based on the stakes that were out there yesterday. 25 MR. HALINEN: Could we go back to 3-A or B, Your I AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 12 1 Honor? 2 THE COURT: I 've got 3-B . Let me see if I can find 3 3-A. What does 3-A look like? 4 MR. HALINEN: That was one of the shots showing 5 the three line stakes to the west . 6 THE COURT: Because I 've got 3-B and 3-C. 7 MR. HALINEN: 3-C then. The one to your right . 8 THE COURT: 3-B . 9 MR. HALINEN: 3-B . 10 Q. (BY MR. HALINEN) All right . Mr. Campbell , I 'm handing 11 you now 3-B. Can you find the lobe of fill depicted in 12 this photo? 13 A. Yes . The edge of it looks like it ' s right on the line . 14 So pretty much all of it would be on the adjacent 15 property. 16 Q . Do you see any that ' s actually going beyond it? 17 A. Some sticks or branches are hanging out from it, yeah. 18 Q. But in terms of the dirt part of the fill, is it 19 entirely on the Mt . Olivet side? 20 A. It appears to be based on this photo, yes . 21 Q. Given the configuration of that fill, can you fathom 22 that this was placed recently in conjunction with the 23 Merlino construction operation? 24 A. Oh, no. It' s been there for a long time . 25 THE COURT: How can you tell? Which color is the AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 13 1 fill that you' re looking at? 2 A. In this picture? 3 THE COURT: Yes, 3-B . Where is it? 4 A. Right here, going out like this . You can tell based on 5 there ' s other photos that show -- you can see soil on 6 top of the blackberries . It ' s just a clear case of 7 debris fill at the top of a slope . I 've seen it 8 numerous times . 9 Q . (BY MR. HALINEN) Can you tell whether that was properly 10 compacted and left in an appropriate angle for 11 stability? 12 A. Well, you couldn' t properly compact that material 13 because it ' s not proper fill . Most of it, it ' s got a 14 bunch of organics in it . It ' s not suitable as 15 structural fill . " And, in fact, one of our 16 recommendations that we always, always provide on new 17 construction is that no fill be placed in an 18 uncontrolled manner at the top of the slope . 19 Q. So do we fairly conclude that whoever placed it, whether 20 it is Mt . Olivet Cemetery, Inc . , or someone else placing 21 that on the property, did not set that fill in a stable 22 condition? 23 A. Yes . 24 THE COURT: So it ' s just somebody dumping stuff 25 there over the years, whatever? AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 14 1 A. Correct, right . 2 THE COURT: As you said, grass clippings, it ' s old 3 tree trunks, it ' s garbage, it ' s whatever happened to be 4 in your way, you push it off? 5 A. Right . 6 Q. (BY MR. HALINEN) So up on top of the slope, there, in 7 this fill area in question, when you referred to tension 8 cracks earlier, I believe, those are cracks that are 9 really the result of the improperly deposited fill ; is 10 that correct? 11 A. Yes, it could. Any time you have fill like that up 12 there, those cracks will occur at some point just from 13 the fact that it ' s loose, it ' s organic fill . At 14 sometime it will slide . 15 Q . Does it appear to you from your observations at the site 16 that the fill was placed, at least in part, to sort of 17 level off the top edge of the Mt . Olivet property? 18 MR. HANCHETT: Your Honor, I object . It calls for 19 speculation. 20 MR. HALINEN: I will withdraw it . I ' ll rephrase 21 the question. 22 Q. (BY MR. HALINEN) Mr. Campbell , was the effect of the 23 fill, the geometry of the top portion of the fill, such 24 that it essentially leveled off the edge of Mt . Olivet ' s 25 property in this area? AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 15 1 MR. HANCHETT: Objection. Again, Your Honor, 2 unless we have foundation and he saw the slope prior to 3 the sloughing occurring, he can' t testify as to that . 4 THE COURT: Let me ask the question this way. You 5 wouldn' t normally use grass clippings, garbage and stuff 6 like this to level off your property, would you? 7 A. I wouldn' t . 8 THE COURT: I wouldn' t . 9 Q. (BY MR. HALINEN) But is that what they did along the 10 portion of the top edge? 11 A. Well, the condition at the top edge in that area is, 12 there is a layer of soil on the surface, so it looks 13 like it ' s soil . 14 THE COURT: Up above? 15 A. Up above, on top . So there is soil there . So, in 16 essence, created a level area that ' s got soil on 17 it . Now what ' s underneath that isn' t anywhere near -- 18 Q. (BY MR. HALINEN) Is there grass or lawn or anything on 19 top? Once you get over the crest of the slope in that 20 vicinity, is there a lawn right up to the crest? 21 A. No, I don' t think so. In that area, the lawn is on the 22 north side of the tension cracks . 23 Q. The north side of the tension cracks, okay. All right . 24 Does it look like a downward -- southerly tension 25 cracks? Does it look like an area that had been - - from AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 16 1 your judgment - - sited appropriately for burials? 2 A. In my opinion, no . It ' s not competent material . You 3 dig into it, it ' s just going to be organics and 4 decomposing organics and that type of material . 5 Q . All right . Mr. Campbell , have you had an opportunity tc 6 review the letter that was attached in the papers 7 submitted by plaintiff from Dodds Geosciences, Inc . , 8 dated May 24 , 1999, addressed to Mt . Olivet Cemetery? 9 A. Yes . 10 Q . Let me refer you to some specifics in there . In 11 Paragraph 2 , the first sentence reads, Apparently, 12 massive excavation and grading has occurred in the slope.. 13 due to activities by a contractor on the adjacent 14 property. 15 Does it appear that there has been massive 16 excavation and grading on this slope in conjunction wit 17 the La Colina project? 18 A. Not in conjunction with La Colina. Obviously, there wa 19 some mass grading that occurred back when the area was 20 being mined, which was, to my understanding, at least 2 21 years ago. So, in essence, the slope has probably been 22 in near that configuration for at least 25 years . 23 Q. All right . I drop you down further into that second 24 paragraph. "We observe tension cracks along the top of 25 the slope indicating future and imminent failure . AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 17 1 Burial sites are now within ten feet of the slopes . " 2 Is this an area that you were just describing in 3 terms of fill lobe? 4 A. I think that section that he' s talking about there was 5 actually west of there . 6 Q . Could you explain that section. 7 A. That ' s where the slough occurred that we' ve been talking 8 about . In some of the pictures I reviewed that have 9 already been admitted, you can see there ' s tension 10 cracks that appear along the edge of the main slough 11 that really weren' t there yesterday and probably have 12 moved a little bit more; but one point I ' d like to make 13 is that that adjacent grave that ' s within about ei - 14 feet of the top of that slough now, based on the 15 geometry of that slope, probably two to three, mayl 16 four feet of material level area was lost in that 17 slough. So essentially that grave was within about 18 eleven, twelve feet of the crest of that slope anyi 19 So in my opinion, you have a one-to-one slope with 20 a grave ten, twelve feet away that would have been a 21 concern. Although, the slope at the time was heavily 22 vegetated, it probably wasn' t as obvious that it was 23 that steep. 24 Q. So your point to that is that that grave perhaps wasn' t 25 properly placed there when it was placed; is that your AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 18 1 point? 2 A. Well , the concern would be if there is concern now that 3 there ' s graves that are close to the crest of the slope, 4 where we 've only had one area that is sloughed, and it 5 appears that there ' s maybe two to four feet lost, that 6 that ' s not a big difference between the current set 7 back. 8 If it were, say, a house, and I was called out to 9 look at the condition now and see that condition 10 there, there wouldn' t be a lot of difference of opinion 11 in recommendation based on the condition now, as opposed 12 to what it was then. 13 Q. All right . Mr. Campbell , from your examination of the 14 slope over the entire course of what has been questioned 15 from the easterly edge of 83 through lots 89, is there 16 generally a stability problem as you see it and a 17 concern that -- or most of that that the parties shou' A 18 have? 19 A. Well, I think there are three issues . One, that the 20 fill along the crest is one regarding potential 21 instability because of the fill that ' s at the crest o 22 the slope . 23 Two, the area of the slough, which has a near 24 vertical face or a vertical face that is about, maybe, 25 four or five knee high that is within about eight feet AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 19 1 of the graves; that would need to be addressed. 2 And third, is that the slopes have been there for 3 25 or 30 years in their current conditions, other than 4 the blackberries being removed. In essence, they are in 5 a stable condition. The surface soils are somewhat 6 loose in some areas . The reason why it can still be 7 stable with the loose soil is because it ' s so sandy. 8 It ' s a gravel pit . The sand just doesn' t allow the 9 water to purge and cause instability. 10 So those are the three issues . The fill at the 11 top, the sloughed area that has occurred, and the fact 12 that the slope -- other areas have been stable for that 13 long. 14 Q . In the stretch of the slope that you' re referring to as 15 the slough, do you have a professional recommendation asi 16 to what would be some ways, possible ways to address the 17 concerns you would have as a geotechnical engineer? 18 A. Well , what my recommendation would typically be in a 19 situation like that is, you would remove loose soil 20 underneath it . You'd basically buttress that section by 21 placing and compacting fill up to the point where you 22 re-support that vertical stretch, that vertical slough 23 area . 24 Q . Could there be some combination of a rockery with 25 compacted material brought up and sloped up behind it to AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 20 1 achieve that? 2 A. Yeah. A retaining wall could be constructed at the toe 3 of the slope to create some more area on the lots, some 4 more flat area on the lot; but the end result should be 5 that that near vertical face is supported. 6 Q. Do you have any estimate of lineal length of such a 7 filling regime in order to satisfy your concerns? 8 A. Well , you' d want to go a few feet beyond the edge on 9 each side . 10 Q. Do you have a rough idea of how wide the slough is? 11 A. Well, it ' s probably 20, 25 feet, maybe . You' d probably 12 want to go a total of 30, 35 feet wide . 13 Q. All right . In terms of the fill that has been placed on 14 the top of the slope on Mt . Olivet ' s property, should 15 that be removed at this point to eliminate that risk? 16 A. That would be my recommendation. 1 17 Q. Do you have any other comments you'd like to make about 18 Mr. Dodd' s letter. 19 A. Just one point that on the second page in the first 20 paragraph -- not the numbered paragraphs -- but the 21 statements are made such that the massive over 22 excavation of the slope was a miscalculation. That 23 statement to me implies that the author of the letter 24 thought that that had just been done, and it ' s clearly, 25 clearly out there that it was not; that all that ' s been AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 21 1 done is vegetation has been removed, and that slope has 2 been there for a long time . 3 Q . Aside from dealing with that one slough area, and in 4 terms of having the fill placed on Mt . Olivet ' s property 5 in the past removed, the rest of the slope in your 6 opinion is, in fact, stable as currently configured? 7 A. As currently configured. You would want to remove the 8 garbage that is on there and compact the face and take 9 some measures to reduce erosion, that type of thing; 10 fairly standard construction procedures . 11 Q. Anything else? 12 A. No. 13 Q . Thank you. 14 CROSS-EXAMINATION 15 BY MR. HANCHETT: 16 Q . Mr. Campbell, have you taken any core samples on the 17 Mt . Olivet property? 18 A. No . 19 Q. Have you taken any core samples on the Merlino property? 20 A. No. 21 Q. So other than your visual observation of the surface 22 dirt, you don' t know what the composition is of the 23 substrata? 24 A. Other than what ' s exposed on the slope . 25 Q. So the tension cracks that exist ten feet from the crest AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 22 1 right now, within eight to ten feet of the grave site, 2 you have no idea if that ' s fill or if that ' s stable 3 soil? 4 A. No. I think we ' re mixing things up here . The tension 5 cracks that I observed were east of where the slough is, 6 where the gave is close -- about eight feet, I 7 understand. That ' s what it looked like yesterday. 8 I didn' t notice that there were any graves adjacent 9 to that tension crack. There may be, but I don' t think 10 any of them were within eight feet . 11 Q . Of course, now, a tension crack, you don' t know what the 12 composition of the soil is in that area, do you? 13 A. Well, based on what is exposed on the face of the slope, 14 you can tell that it ' s pretty much debris and appears to 15 be fill dirt . 16 Q. You' re assuming that it continues through back to where 17 the tension cracks exist ; is that correct? 18 A. That ' s correct . Based on the soil conditions at the top 19 that do not match what ' s exposed on the face of the 20 slope in the sloughed area. 21 Q . Now, you've testified that this slope has been in this 22 configuration for 25 to 30 years . What do you think 23 caused the failure that we now are encountering? 24 A. Likely, the disturbance on the face from the clearing 25 operation. Even if there was a tree there -- which it ' s AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** i 23 1 my understanding that there was -- pulling the tree out, 2 pulling the roots out, you would end up removing some of 3 the material that was supporting that section of the 4 slope . 5 Q . So as a consequence of the grubbing and the tree 6 removal, we now have this slope failure and the tension 7 cracks; is that correct? 8 A. Not necessarily the tension cracks . Those could have 9 occurred without any help from any clearing. I don' t 10 know when those tension cracks appeared -- if they had 11 been there before . If they had been there previous to 12 the clearing, then, obviously, they weren' t caused by 13 the clearing. If they appeared afterward, they could 14 have been caused by the pulling of blackberries, or 15 pretty stout blackberries could have caused that . 16 Q. You've testified that even from yesterday to today, the 17 tension cracks were more evident in certain areas? 18 A. Say that again. 19 Q. You've noticed in the past few days, in your sequential 20 to the site, that the tension cracks have increased; is 21 that correct? 22 A. No. I 've been on the site twice; one, about three weeks 23 ago -- and I did not do a recon on the slope - - and once 24 yesterday. 25 Q. Showing you Exhibit 3-C, which is a photograph that AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 24 1 depicts the apparent alder tree about a 45 degree angle 2 to the slope . Does that appear to be a recent change 3 the position of that tree? 4 A. Based on the picture, you can' t really tell, but that 5 tree wouldn' t typically grow like that . 6 Q . All trees that are involved in areas that have slow 7 slides, don' t they tend to have bowed stumps? Don' t 8 they tend to go back to a 90 degree point? 9 A. They do to a certain extent . This tree looks like its 10 dead too from that picture . 11 Q. So based on the appearance of this tree, this appears tc 12 be a recent change in the angle of that tree to the 13 slope? 14 A. Obviously. it wouldn' t grow that far off of vertical . 15 Q. Indicating a recent failure? 16 A. Well, not necessarily slope failure . It could have been) 17 yanked. It ' s at the top of a pretty steep slope, so if 18 you have blackberryvines wrapped around it, and if it ' s 19 yanked by an excavator, and it ' s already got some looser 20 material around the bottom, it could conceivably yank it 21 over that far or displace it . 22 Q. With regard to the letter from Mark Dodds that was 23 submitted by plaintiff, do you have any objections or 24 criticisms of the recommendations that he has made in 25 that letter? AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 25 1 A. Let me take a glance at it real quick. 2 I don' t think that the slope would need to be 3 covered completely with visqueen. If anything, just the 4 area where the slough occurred. 5 The buttressing, I 've already talked about . 6 No . 3, he wouldn' t have to have a soldier-pile 7 wall . I assume that ' s for cutting into the toe, is what 8 he ' s talking about there or creating more level area. 9 You wouldn' t need to have a soldier-pile wall to do 10 that, but you would need some sort of retaining 11 structure . 12 Q . If you went with a non-retaining structure or non- 13 soldier piles, wouldn' t your fill dirt have to be more 14 two-to-one grade in order to get structural stability of 15 the slope? 16 A. Not necessarily. You can create one-and-a-half to one 17 fills with reinforcement fabric or a geotech -- 18 Q. So you have the geotech fabric underneath or the 19 layback fabric that keys into the hillside, correct? 20 A. Right . You put in the fill every couple of feet, three 21 feet, whatever the design would be . 22 MR. HANCHETT: Thank you. I have no further 23 questions, Your Honor. 24 RE-DIRECT EXAMINATION 25 BY MR . HALINEN: AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** J 26 1 Q . Mr. Campbell , referring then to Mr. Dodd' s letter . 2 Could you elaborate as to what a soldier-pile wall is? 3 A. A soldier-pile wall is a wall system where vertical 4 steel members or concrete - - it ' s typically steel -- are 5 put into the ground into drilled holes, typically -- 6 sometimes they' re driven, but usually drilled holes on a 7 certain spacing, four, six, eight feet . And the area 8 between the piles is lagged with typically wood, timber. 9 And that ' s basically the wall system. 10 Q. So as you were mentioning before, that was probably not 11 necessary unless you were actually going to cut into the 12 slope itself? 13 A. Correct, to a certain extent . At some point you would 14 need some sort of retaining structure . Whether you 15 would need a soldier-pile wall is the question. 16 Q. Is it fair to say there are a number potential design 17 solutions that could accomplish appropriate stability? 18 A. Yes . 19 Q. So this was just one that Mr. Dodd suggested? 20 A. Right . It ' s applicable if there are other options . 21 MR. HALINEN: Thank you . 22 Your Honor, I have two more photos, and I don' t 23 know where my other copies are . 24 Those are not identical . 25 THE COURT: So are there copies? AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 27 1 MR. HALINEN: Yes . 2 THE COURT: After Phyllis marks them, why don' t you 3 show them to Mr. Hanchett and Mr. Colt . 4 MR. HALINEN: Absolutely. 5 Q. (BY MR. HALINEN) Mr. Campbell , I now show you photo 6 3-F. Can you identify in the photo the tree that is 7 growing out of the ground at a slant, somewhat at slant . 8 A. Yes . 9 Q . Is the upper portion of that photo continuing, then, up 10 more vertically? You may need to look at 3-F and 3-G 11 together to get the -- 12 A. What was your question? 13 Q. Is the upper portion of the tree that starts out coming 14 out of the ground at somewhat of a diagonal or at an 15 angle, does that tend to start growing up straight as 16 you get towards the end of the tree? 17 A. Towards the very top, yes . It looks like it does . 18 Q . Is that suggestive that that angular orientation has 19 been there for some time? 20 A. Yes, it could. Although, it was kind of windy out there 21 yesterday. 22 Q. Would you expect there would have been that much of a 23 vertical orientation at the end of the tree if that was 24 just a recent disruption to the tree? 25 A. If it was recent, it wouldn' t be that pronounced, if AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 28 1 that ' s what that is . 2 Q. So you would conclude that probably a recent clearing in 3 the last few weeks has not been the cause of that angle? 4 A. Of this particular tree . 5 THE COURT: Can I see the tree that you are 6 referring to. 7 That ' s the same tree that you think is in the other 8 photo? 9 A. No . Is it? I don' t think it is . No, it ' s not . I 10 don' t think it is . 11 Q. (BY MR. HALINEN) Let ' s go back to the other photo . I 12 thought it was . 13 THE COURT: This one? 14 A. That is up at the top of the hill . That other one was 15 down there . 16 MR. HALINEN: I see, all right . Thank you. 17 I have no further questions . 18 MR. HANCHETT: No further questions, Your Honor. 19 THE COURT: Mr. Campbell, you can step down. Thank 20 you. 21 THIS CONCLUDES THE TESTIMONY OF MR. CAMPBELL. ) 22 3 r4 OTHER PROCEEDINGS WERE HAD ON THIS DAY 5 BUT ARE NOT TRANSCRIBED AT THIS TIME . ) AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 29 1 2 RESUMING WITH THE COURT' S RULING. ) 3 4 THE COURT: Well, what ' s happened to the tree has 5 happened. And I don' t deal with that kind of thing on a 6 motion for a temporary restraining order. The only 7 thing I deal with, especially given the short notice 8 here, is whether there are any emergency situations that 9 would require me to address them. And the only thing 10 that I 've heard so far, and I guess I agree with 11 Mr. Halinen, is in the area of the Sloughing. I didn' t 12 find 13 Mr. Colt ' s description of where these burial sites are 14 very precise . I really don' t have any idea, based upon 15 the evidence here, except for the one that I can see in 16 the photograph, I don' t know where they are . And if 17 they were burial sites without physical markers on 18 them, it ' s pretty difficult for me on this record to say 19 that any of them are in danger. 20 Looking at the elements that I have to look at witl 21 respect to the TRO; risk of immediate injury. I think 22 even with respect to the sloughing area, it doesn' t 23 appear to me that there' s a risk of an immediate injury 24 Although, Mr. Halinen, I am going to order that 25 your client do what it has to do on that site to do wha. AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 30 1 Mr. Campbell has described. I think it needs to be 2 shored up, because it would be very unfortunate if we 3 had anybody, whether they' re involved in Merlino' s 4 construction process or whether there' s some stray 5 visitor to the cemetery who ends up on the edge of that 6 and ends up falling. I think it would be unfortunate 7 for everybody. 8 I don' t think that includes, as you said, removal 9 of the fill . The fill ought to be, at least at this 10 point -- I 'm not foreclosing damages after a trial , but 11 at this point based upon this record, I would say that 12 Merlino needs to deal with that slough, except for 13 removing the fill that is on top . 14 The likelihood of success on the merits is 15 difficult for me to evaluate the tree removal . I think 16 the slough is another issue . To me, it seems pretty 17 obvious that the slope was stable, and but for whatever 18 has gone on there, how minor it is in that one place, it 19 does not appear to be stable . So that ought to be 20 shored up . 21 The rest of it looks like to me like a damages ' 22 lawsuit . There ' s a dispute of fact as to whether trees 23 have been removed on the debtor' s property. And I think 24 we' re going to have to have the surveyors come in here, 25 especially the surveyors who were previously there, to AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 31 1 testify about where the line was, where the trees were, 2 and we can figure out whether or not the debtor is 3 entitled to compensation as a result of activities that 4 have taken place; but there ' s nothing I can do about it 5 now. 6 MR. HANCHETT: Your Honor, all we ' re requesting now 7 is that no further cutting take place until we - - 8 THE COURT: And they've agreed to that . They've 9 already said there isn' t going to be anymore cutting, 10 and they've said there isn' t going to be anymore 11 grading. That ' s all I really see on this record. 12 Mr. Halinen, with respect to your last statement 13 that the debtor ought to be required to remove the fill 14 on top, it seems to me that comes by way of your answer 15 and a counter claim. 16 MR. HALINEN: Exactly. 17 THE COURT: And with respect toP jurisdiction, today 18 Mr. Harris, I ' ll just say this; because I think we ' re 19 dealing with a problem, the slough, that affects the 20 debtor' s property, the safetyof that property and the 21 potential that we may have some kind of an accident that 22 would affect the debtor or its assets, I ' ll say I have 23 jurisdiction to enter an order on today' s hearing to 24 deal with that . 25 With respect to the rest of it, the Merlino' s right AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 32 1 to argue on a motion that I don' t have jurisdiction to 2 hear this damages ' dispute, if there is one, is 3 reserved. You can go ahead and make that . I haven' t 4 really thought about it before today, looked at any of 5 the cases or anything like that . 6 MR. HARRIS : Your Honor, that also may be affected 7 by any potential counter claims that are filed by way of 8 the answers . 9 THE COURT: I think that ' s right . I did a quiet 10 title action here . I wouldn' t call it a trial , but I 11 did it . If it ' s a non-court proceeding, though, it 12 requires consent to a final order, it gets certified to 13 the Court . I ' d like to see this case conclude from a 14 bankruptcy standpoint at some point . I have no doubt 15 that the conflict between these two land owners will 16 continue for some time in the future . And it certainly 17 would be my preference that the bankruptcy part of this 18 thing be wrapped up. And what you all do in the future 19 with respect to your own arrangements as adjacent lands 20 owners is up to the clients here . So I ' ll enter an 21 order. 22 I guess, Mr. Hanchett, it should also make clear in 23 that order that there won' t be any grading in this area, 24 in this immediate area . i assume there ' s going to be 25 grading on the rest of the property. AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 33 1 MR. HANCHETT: It ' s this boundary area that we ' re 2 concerned about . We ' ll define the lots in our order. 3 THE COURT: I assume they' re grading the rest of 4 it . 5 MR. HALINEN: That ' s correct, Your Honor. We need 6 to be very careful in the framing of this order so that 7 more restriction isn' t imposed than is absolutely 8 necessary. 9 THE COURT: I agree . 10 MR. HALINEN: The order that had been proffered by 11 plaintiff is not appropriate and certainly needs some 12 tailoring. And we would like to have an opportunity to 13 participate . 14 MR. HANCHETT: I agree with that, Your Honor. 15 THE COURT: Well , the other thing is, a TRO lasts 16 for ten days . Unless you all want to stipulate that 17 it ' s just going to continue for some period of time, you 18 all get to come back here in ten days to do the whole 19 thing over again so I could decide whether or not the 20 TRO ought to be turned into a preliminary injunction. 21 If you are going to agree that there isn' t going to 22 be any grading, that there isn' t going to be anymore 23 tree removal in the area, then maybe it doesn' t matter; 24 but i don' t know what the long-term construction plans 25 are here . AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 34 1 MR. HANCHETT: Your Honor, in regard to the fix for 2 the area that is unstable, I 've worked with Earth 3 Consultants before, and I have no problem with their 4 qualifications . What I recommend in the order is that 5 they propose a resolution to stabilize this slope and 6 stamp it with their stamp and that plan be implemented 7 by Mr. Merlino. 8 THE COURT: It ' s up to them. What I 'm interested 9 in, obviously, a retaining wall like the ones they put 10 on the side of the freeway doesn' t sound like that ' s 11 necessary; but it sounds like, when Mr. Campbell was 12 saying, bring some fill in and shoring it up ought to be 13 sufficient . 14 MR. HANCHETT: As long as we have engineering plans 15 for stabilization of this slope for crafting the order 16 because we have to define the zones, and we' ll have to 17 define the means of implementing the procedure and 18 timing. 19 MR. HALINEN: As a practical matter, during these 20 ten days, that ' s probably a time frame during which we 21 could work out the design really. I don' t think it ' s a 22 time period in which we could both have a design and 23 structural -- 24 THE COURT: And get it done . 25 MR. HALINEN: Since we have no pressing need to do AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** G 35 1 anything else with the slope during this period anyway. 2 We ' ll simply agree not to go on the slope and do any 3 grading work or any other type of work on it, say, any 4 emergency that is posed by the slough. So during this 5 ten days, Mr. Campbell can prepare a design and route it 6 to Mr. Hanchett for consideration. 7 THE COURT: Now, normally, when I 'm ensuing an 8 injunction I require a bond. I haven' t heard anything 9 today that would tell me that the injunction preventing 10 grading, tree removal, the other things that we 've 11 talked about is going to cause Merlino any damage at 12 this time . 13 MR. HALINEN: Not during the short-term period. 14 THE COURT: Well, that means that we would then -- t 15 I would then want to set a hearing for that . It ' s 16 required. 17 MR. HANCHETT: Well, actually it ' s not, Your Honor, 18 under 7065 . 19 THE COURT: If you agree . 20 MR. HANCHETT: We have an exception to -- the 21 debtor is opposed to the bond. 22 THE COURT: Well, that ' s definitely not automatic . 23 That ' s for me to decide whether you get to post a bond. 24 As the estate, we are not going to incur potential 25 liability to Merlino as a result of my -- AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 36 1 MR. HANCHETT: But based on the order you've 2 crafted, based on your findings -- 3 THE COURT: Well , they haven' t shown any damages in 4 the short term. 5 MR. HANCHETT: Exactly. 6 THE COURT: But if there are going to be damages to 7 them past the ten-day period, that ' s why I 'm talking 8 about the need for a preliminary injunction hearing, 9 which gets set ten days after the issuance of a TRO. 10 And if they want to come in and prove there are going to 11 be future damages, then I think we need to talk about 12 it . 13 MR. HALINEN: We have not had time to even -- 14 THE COURT: Even think about it? 15 MR. HALINEN: Exactly. I would mention beyond the 16 toe, on the lower portion of lots 83 to 85, the approved 17 construction graves call for approximately two feet of 18 fill to be placed in that entire area . And we would 19 hope there' s no -- 20 THE COURT: Approved fill . 21 MR. HALINEN: Let me -- the plans call for filling 22 to be done . And those plans are approved by the City of 23 Renton. When I say -- I don' t know if I said approved. 24 In any event, what I 'm talking about is there' s 25 contemplation in the design to the lower area to be AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 37 1 filled, which will not cause any problem to the slope 2 whatsoever. And I just want to make sure that the TRO 3 doesn' t enjoin us from doing that . 4 In other words the higher the bottom comes up, the 5 more stable everything is anyway. 6 THE COURT: The only issue would be whether or not 7 you had to bring in heavy machinery to do that and drive 8 along the slope part of it . 9 MR. HALINEN: We would not . During the ten-day 10 period, we would not have any compaction equipment down 11 in there . And in the meantime, we will work out the -- 12 THE COURT: Well, then I want the order to provide, 13 Mr. Hanchett, that a hearing will be set in ten days to 14 determine whether the TRO is going to be turned into a I 15 preliminary injunction. And that during this ten-day 16 period, there will be no bond, but it ' s without 17 prejudice to the defendant ' s right to request a bond and 1 18 prove the need for a bond at the next hearing. 19 And what we will do with the order is, 20 Mr. Hanchett, you can go ahead and try to draft it . 21 And then, Mr. Halinen, if you can agree to it, 22 that ' s fine . You can send it up to me . If you can' t, I 4 23 probably ought to see it on my motions calendar on 24 Friday at the latest . 25 MR. HANCHETT: Did you want to set a hearing on the AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 38 1 preliminary injunction at this time, Your Honor? 2 THE COURT: I do . 3 Phyllis, have you got the book? 4 THE COURT: Let ' s see where we ' re at; the 2nd. So 5 it would probably be the llth. I might just put it on 6 Friday after my motions calendar. 7 MR. HANCHETT: So would that be 11 : 00 on the llth? 8 THE COURT: No. You don' t want to be on that 9 calendar. There ' s a lot of stuff on my calendar. So 10 probably the better thing to do would be to make it 11 Thursday, the 10th, maybe in the afternoon. 12 MR. HALINEN: Afternoon would be better. 13 MR. HANCHETT: At 2 : 00? 14 THE COURT: 2 : 00 would be fine . So 2 : 00 on June 15 10th would be the hearing on the preliminary injunction. 16 MR. HANCHETT: Unless we have a stipulation. 17 THE COURT: Unless you have a stipulation. And 18 then the next thing, either, Mr. Harris, you move to 19 dismiss on jurisdictional grounds . We get to 20 jurisdiction, or the next thing that happens when your 21 answer gets filed, and I set a pretrial conference to 22 talk about how we' re going to resolve the issues . 23 MR. HARRIS : I don' t think a summons has been 24 issued yet . 25 THE COURT: No, because it was just filed on AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 39 1 Friday. 2 THE COURT: Anything else? 3 Do you want your report back, your drawing? 4 MR. CAMINS : Yes . 5 THE COURT: That ' s fine . 6 Phyllis, can you give him his drawing back. And 7 I 've got a copy. Just take my copy and put it with our 8 exhibits . What about the photos? Can we keep all of 9 that? 10 MR. HALINEN: Yes . 11 MR. HANCHETT: You can keep all of the photos we 12 submitted. 13 THE COURT: And make sure the documents that you 14 have that you' re taking out of the courtroom, that you 15 don' t have any of our original exhibits other than his 16 drawing, he' s free to take . 17 We' ll be at recess . 18 19 THE PROCEEDINGS IN THIS MATTER WERE CONCLUDED . ) 20 21 22 23 24 25 AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** 4 40 1 CERTIFICATE 2 r 3 I , Hope J. Yeager, CCR hereby certify that : 4 5 the foregoing pages represent an accurate and complete 6 transcription of a portion of the proceedings before The 7 Honorable U. S . Bankruptcy Judge presiding in the 8 aforementioned matter; and 9 10 that these pages constitute the original or a true copy 11 of the transcript of the proceeding. 12 c 13 Signed and dated this J day of 1999 . 14 15 uiii)Urj 17 1 i+ v)+ 7 4 ..: 3) .,. i. 18 A ),, , t., ,,`o, ,,•',`,,,ti 19 1,,,,,,, t, 20 21 by: 9)10-1:9Hopege 22 Courtter CCR # YE-AG-EH-J404M9 23 24 25 AHEARN & YEAGER, CERTIFIED COURT REPORTERS 206) 405-3812 *** I Y 4„ ,,it.,Airlift.... .,iL K'i.3 i.t r