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HomeMy WebLinkAboutLUA00-107 6,e)„ , /- 4 Tharp Rezone DNS Appeal The City erred in its determination by: 1 . Limiting consideration of impacts to the administrative act of rezoning, alone; 2. Segmenting the action; 3 . Failing to consider probable impacts on the environment; and 4. Adjudging a precedent-setting act to be non-significant. Failed to consider the probable impacts • Viewed the rezone as solely an administrative change (no possible impact) — could never be a significant impact of rezoning — rezoning would have been Categorically Excluded under SEPA — KingCounty v. Boundary Review Bd Failed to consider the probable impacts (con ' t) • Master Application and SEPA checklist acknowledges future residential development • The current proposal depends on the future development for its justification • The rezone and future development are interrelated parts of a course of action The action has been segmented • Single-family residential development is a reasonably foreseeable outcome • A specific development proposal is not required • The impacts of single-family residential development are well understood (not remote or speculative) • The impacts of residential development at lox to SOX can be determined �--- - -- - - - - --- Even the administrative act (zone change) exceeds a threshold of significance . • Stafford Div. I facilitated and induced Stafford Div. II • Stafford Div II facilitated and induced Lazarus • The proposal would facilitate and induce other land use changes. Significant adverse environmental impacts are probable . — Noise — Exacerbation of school overcrowding — Traffic — Polluted runoff to a salmon-spawning creek — Loss of contiguous greenspace — Cumulative effect on greenspace of Stafford Div I, Stafford Div II, Lazarus Even the administrative act (zone change) exceeds a threshold of significance (con ' t) . • Conversion of Resource Conservation lands in the May Creek greenbelt to R- 1/R-5 sets a new precedent. • WAC 197- 11 -330(3) The City failed to consider alternatives which have less impact. • R- 1 for the entire property • Combination of RC and R-5 • The decisionmaker is not adequately informed of the consequences of approving the proposal nor the available choices. Remedy • Find that there are probable significant impacts • Issue a Determination of Significance • Prepare an EIS , addressing the reasonably foreseeable probable impacts of the interrelated parts of the proposal &7cIithtt INFORMATION IN SUPPORT OF VERBAL TESTIMONY given August 8,2000,by Wynnlee Crisp - in the matter of the Appeal of Tharp Rezone Determination of Non-Significance LUA00-107,AAD The following information supplements the verbal testimony of Wynnlee Crisp and the Appeal letter by Wynnlee Crisp dated July 31,2000. The City is requested to reverse the Determination of Non-significance (DNS) on the proposed Tharp Rezone,issue a Determination of Significance (DS),and prepare a SEPA Environmental Impact Statement on the basis that: 1. the City erred by limiting its consideration of impacts to only those resulting directly from the administrative act of changing a zone (i.e.,there exists no potential for impact) rather than considering the probable impact of reasonably foreseeable single-family residential development actions that are the basis for justification of the rezoning(WAC 197-11-060). 2. by failing to consider the entirety of the interrelated actions to the extent that they are reasonably foreseeable,the City improperly segmented the proposal. 3. when the proper scope of the action is considered,including the probable development that will result from the rezoning,significant adverse environmental impacts are found;requiring preparation of an Environmental Impact Statement. 4. even ignoring the probable physical and environmental effects of the larger action, the administrative act of rezoning Resource Conservation lands in a sensitive natural riparian environment exceeds a SEPA threshold of significance because it is precedent- setting. The City violated WAC 197-11-060 by failing to consider the probable impacts of reasonably foreseeable actions which are neither remote nor speculative and are the basis for justifying the proposed upzoning. The SEPA environmental review considers the upzoning merely an administrative change from one zoning classification to another...construing the proposal so narrowly that it could not possibly have a significant impact. By ignoring the impact of the residential development that the upzoning would allow,an erroneous determination of non-significance resulted. In King County v. Boundary Review Board 122 Wn.2d 648,860 P.2d 1024,the Court rejected the notion that a development proposal is needed in order to consider the broader effects of the proposal. The impact of single-family residential development is well understood. Consequently,the impact of residential development that is more dense than currently allowed can be reasonably predicted,and is therefore neither remote nor speculative. t •, Additionally,development of the property at higher density is the only justification for rezoning at all. WAC 197-11-060(3)(b)(ii) requires related parts of a proposal to be evaluated in the same environmental document. Closely related proposals are those which, (ii) "Are interdependent parts of a larger proposal and depend on the larger proposal as their justification or for their implementation." The proposed upzoning and the ultimate development to significantly higher density are interdependent parts of a larger course of action. The ultimate development at densities of one to five units per acre depends on the rezoning. And,the rezoning depends on the.ultimate development for its justification. By ignoring the reasonably foreseeable outcome of upzoning, the proposal has been inappropriately segmented. • In the similar case,King County v.Boundary Review Board 122 Wn.2d 648,860 P.2d 1024,the Court wrote that,"There is also no doubt the development discussed in the environmental checklists will have a significant adverse impact on the environment.Such development would have a major impact on water drainage and quality,environmentally sensitive wetlands and wildlife habitat,open spaces,and the adjacent rural communities.Appellants do not contest that development would have such effects and,on the record in this case,the potential adverse effect of this development may be presumed. See Bellevue v.King Cy.Boundary Review Bd., 90 Wn.2d 856,868,586 P.2d 470 (1978).The proposals thus will result in significant adverse effects on the environment arising from the probable development of the annexation properties. Under the rule enunciated above,therefore,an EIS should have been prepared for the proposed annexations. The applicant's attorney(Rosemary Larson,May 22,2000) cited a contradictory case (Murden Cove Preservation Assn.v.Kitsap County,41 Wn.App.515,526,704 P.2d 1242 (1985)) contending that consideration of the impact of probable development is not required in a rezoning. This 1985 Murden decision was considered in the later(1993)King County case, which acknowledged that, "Our case law is divided on the appropriate analysis to be applied to impacts arising from possible future development in assessing the need for an EIS. " This more recent King County decision concluded that "A second line of SEPA cases has engaged in a broader analysis of the probability that land use changes will follow the proposed action,even if development is not the direct and immediate result of the government action. See Bellevue,90 Wn.2d at 868; Murden Cove Preserv.Ass'n v.Kitsap Cy.,41 Wn.App. 515,525-27,704 P.2d 1242 (1985);Juanita Bay Vly.Community Ass'n v.Kirkland,9 Wn.App. 59,72,510 P.2d 1140, review denied,83 Wn.2d 1002 (1973);see also Cheney v.Mountlake Terrace,87 Wn.2d 338,344,552 P.2d 184(1976) (applying a similar approach to reviewing the appropriate scope of an EIS).Under these cases,the fact that a proposed action will not cause an immediate land use change or that there is no specific proposal for development does not vitiate the need for an EIS. Instead,an EIS is required if,based on the totality of the circumstances,future development is probable following the action and if that development will have a significant adverse effect upon the environment. This latter,more fact-sensitive approach,represented by the Bellevue decision,is more consistent with the language and purposes of SEPA than is the categorical approach. • RCW 43.21C.031 mandates that an EIS should be prepared when significant adverse impacts on the environment are"probable",not when they are"inevitable". The absence of specific development plans should not be conclusive of whether an adverse environmental impact is likely." King County v.Boundary Review Board 663 122 Wn.2d 648,860 P.2d 1024(1993) In order to make a correct threshold determination,the City should have considered the probable impacts resulting from the larger proposal,of which the rezoning is an integral part. Had this been done,a Determination of Significance would have resulted for the same reasons given in the King County case. The action is improperly segmented. The applicant is not required to submit a development plan at this time. However,the City must consider the impact of the development to the extent that it can be ascertained. To do otherwise would segment the proposal into parts which can be found to have no significant impact,but which would have a significant cumulative impacts. The City may not look only to the"four corners of the application"in considering the impacts of the rezone,as found in Alpine Lakes Protection Society v. State of Washington, Department of Natural Resources, FPAB No.92-31. There the Forest Practices Appeal Board determined that SEPA required DNR to consider the impact of the ultimate logging which is the justification for the logging road application,even though there is uncertainty over the details of the future action. "Here,the logging road is dependent for its justification upon the timber harvest,and the consequences of the ultimate road and harvest can be assessed." So too is the Tharp rezone dependent for its justification on ultimately higher density residential development and the consequences of single-family residential development can be reasonably assessed without a specific development proposal. The City erred in segmenting the elements of the larger action which can be reasonably foreseen. In Charles R.Ullock v. the City of Bremerton, 17 Wn.App. 573,565 P.2d 1179 (1977),the court described how the reasonably foreseeable impacts might be assessed in the case of a nonproject zoning change: "When the major action is a nonproject zoning change,greater flexibility is allowed in stating specific environmental consequences and alternatives. It is sufficient,in such a situation,if the impact statement discloses the consequences of maximum potential development under the various uses allowed under the proposed zoning change." Furthermore,Alpine Lakes determined that, "The 'effects or consequences of actions'proposed in present applications may intensify when added to actions already approved.Nothing in SEPA or the Forest Practices Act compels DNR to consider the forest practice application in isolation from previously approved applications in the same vicinity. " "On remand,DNR should consider the entire road and timber harvesting proposal.These should be considered for cumulative effect together with past forest practices in the Cle Elum River Basin." Similarly,the significance of the Tharp rezone,combined with the ultimate development,needs to be considered together with the effects of complete vegetative removal in the greenbelt at this same location resulting from the City's approval of Stafford Crest Division I,followed by approval of Stafford Crest Division II. The cumulative effect of the proposal and previously approved actions is highly significant in this natural environment. The City failed to consider the extent to which the proposal is precedent-setting. Even ignoring the probable physical and environmental effects of the whole proposal,the adminstrative act of rezoning exceeds a SEPA threshold of significance. In accordance with WAC 197-11-330 (3), "in determining an impact's significance (WAC 197-11- 794),the responsible official shall take into account the following,that: (e) a proposal may to a significant degree: (iv) Establish a precedent for future actions with significant effects..." In making the threshold determination,the City did not consider that the current proposal is the third in a series of incursions into the May Creek greenbelt,each of which was induced and facilitated by the one before. Approval of the current proposal would likely encourage further conversion of adjacent greenspace to residential use. More significantly,of the three sequential proposals,this is the first to involve conversion of Resource Conservation lands. Upzoning the Resource Conservation lands to more dense residential classifications establishes a precedent that was neither acknowledged nor evaluated. Had it been considered,a Determination of Significance would have resulted. The City failed to consider reasonable alternatives to the proposal which may have less significant impact. By presuming that an upzoning is merely a paper exercise,and has no impact on the environment(in the absence of a contemporaneous development proposal),the City did not even consider reasonable alternatives to the proposal. As described in King County v. Boundary Review Board, 122 Wn.2d 648,860 P.2d 1024(1993),which addressed a nearly identical situation and found that an EIS was required, "one important function of an EIS would be to identify alternative annexation possibilities so as to assist the Board in making its decision. The point of an EIS is not to evaluate agency decisions after they are made,but rather to provide environmental information to assist with*making*those decisions.Norway Hill,87 Wn.2d at 279;Sisley v.San Juan Cy.,89 Wn.2d 78,86-87,569 P.2d 712(1977)." An EIS is needed to allow the City to consider alternatives that may have less significant impacts in this sensitive natural environment(e.g.,upzoing the entire property to R-1;upzoning the lesser slopes near the northern border R-8 and making no other change;applying a combination of RC and R 1 zoning based on topography;or applying a combination RC and R 5 zoning based on topography). Absent these options,and comparison of their impacts,the decisionmaker is not adequately informed of the consequences of approving the proposal. ABSENCE OF A DEVELOPMENT PROPOSAL IS NOT AN ACCEPTABLE REASON FOR FAILING TO CONSIDER THE PROBABLE EFFECTS OF RESIDENTIAL UPZONING AND PREPARING AN ENVIRONMENTAL IMPACT STATEMENT King County v.Boundary Review Board,122 Wn.2d 648,860 P.2d 1024 (1993). In this case the environmental"checklists indicate there is no existing proposal to develop the annexation properties. Palmer Coking's [the developer]checklist,however,indicates the preferred use of its property is"Single family residential"..." King County argued that the DNS was "clearly erroneous"and should be reversed. Appellants contended the DNS was proper because consideration of the environmental effects of future development of the annexation properties would be premature and speculative. The Court decided in favor of King County, concluding that"a proposed land use related action is not insulated from full environmental review simply because there are no existing specific proposals to develop the land in question or because there are no immediate land use changes which will flow from the proposed action. Instead,an EIS should be prepared where the responsible agency determines that significant adverse environmental impacts are probable following the government action." "The DNS issue in this case turns largely on the extent to which Black Diamond should have evaluated the effects of potential development of the proposed annexations.Appellants argue that any future development of the property is speculative and thus is not suitable for full environmental review.Particular reliance is placed upon the contention that no official proposals have been submitted to Black Diamond for the development of the annexation properties.For this reason,appellants believe there is no"probable significant,adverse environmental impact"of the sort necessary to trigger the preparation of an EIS." "See Bellevue,90 Wn.2d at 868;Murden Cove Preserv. Ass'n v.Kitsap Cy.,41 Wn.App.515, 525-27,704 P.2d 1242 (1985);Juanita Bay V1y. Community Ass'n v. Kirkland,9 Wn.App.59,72, 510 P.2d 1140,review denied,83 Wn.2d 1002(1973);see also Cheney v. Mountlake Terrace,87 Wn.2d 338,344,552 P.2d 184 (1976) (applying a similar approach to reviewing the appropriate scope of an EIS).Under these cases,the fact that a proposed action will not cause an immediate land use change or that there is no specific proposal for development does not vitiate the need for an EIS. Instead,an EIS is required if,based on the totality of the circumstances,future development is probable following the action and if that development will have a significant adverse effect upon the environment." "RCW 43.21C.031 mandates that an EIS should be prepared when significant adverse impacts on the environment are"probable",not when they are"inevitable". The absence of specific development plans should not be conclusive of whether an adverse environmental impact is likely." "Decisionmaking based on complete disclosure would be thwarted if full environmental review could be evaded simply because no land use changes would occur as a direct result of a proposed government action. Even a boundary change,like the one in this case,may begin a • THE LEAD SEPA AGENCY IS NOT PERMITTED TO CONSIDER ONLY THE NARROW EFFECTS OF THE SPECIFIC PROPOSED ACTION SO AS TO SEGMENT IT INTO INSIGNIFICANT ACTIVITIES. IT MUST ALSO CONSIDER THE ULTIMATE ACTION FOR WHICH THE CURRENT PROPOSAL IS NEEDED. Alpine Lakes Protection Society v. State Of Washington, Department Of Natural Resources, FPAB No.92-31,Final Findings of Fact,Conclusions of Law,and Order In ruling on an appeal of a logging road approval classified as exempt from the State Environmental Policy Act,the Forest Practices Appeals Board determined that the lead agency (DNR)was not permitted by SEPA to consider only the application to construct a road,but must also consider the ultimate timber harvest that was the basis of justification for the road. No plan had been submitted to harvest timber. "On remand for SEPA review,DNR must not consider only the end of the logging road but also the beginning and middle,as well as the timber harvest for which the road is being built.In briefing,DNR has urged that the Forest Practices Act allows an applicant to submit an application for a single forest practice or a number of forest practices.RCW 76.09.060(6). That is so.Yet the State Environmental Policy Act does not permit environmental review to proceed on the same segmented basis.That is why we held that: "The Department cannot only look to the four corners of the application in determining what constitutes its environmental impact.Pilchuck Audubon Society v.Department of Natural Resources and Custom Communities,FPAB No.92-7(1992).To do so inevitably results in seeing no environmental impact from each application while the cumulative effect of all applications may adversely affect an entire area such as a watershed or basin. "In this case,the Department of Natural Resources looked only within the four corners of an application for the end of the logging road.In doing so it failed to comply with rules for determining whether there is a potential for a substantial impact on the environment.As set forth in Seattle Audubon Society v.Department of Natural Resources and Scott paper Company,FPAB No. 87-5 (1989): "Under WAC 197-11-060(3)(b)(i)or(ii) of the SEPA rules both harvest and transportation should have been discussed in the same environmental checklist and threshold determination and now should be addressed in the same environmental impact statement. "Thus,whether the beginning,middle and end of a logging road leading to a timber harvest would present four exempt actions if viewed separately is not the point.Here the logging road- -beginning,middle and end--depends for its existence upon the harvesting of timber.The timber harvest depends on the road.The impacts of this road building and timber harvest must be considered together.See also Save the Yaak v.Peterson,840 F.2d 714 (9th Cir.,1988) and Thomas v.Peterson,735 F.2d 754(9th Cir.,1985) treating similarly the federal consideration of logging roads and timber harvest under the National Environmental Policy Act." • -•%i 4 I CITY OF RENTON DETERMINATION OF SIGNIFICANCE AND REQUEST FOR COMMENTS ON SCOPE OF EIS APPLICATION NUMBER(S): LUA-00-051,Rezone,EIS DESCRIPTION: The applicant,Lazarus Land Corporation has requested a rezone of approximately 10.3 acres of property from Resource Conservation(RC)to Residential 1 (R-1)and Residential 5 (R-5). The property consists of two(2)tax parcels. PROPONENT: Lazarus Land Corporation LOCATION: In northeast Renton,between Lincoln Avenue NE and Aberdeen Avenue NE and between NE 31st Street and NE 33rd Place. The property is located in the May Creek Basin and May Creek is located just south of the subject site. EIS REQUIRED: After an appeal of a Determination of Non-Significance issued by the City's responsible official,the ERC(Environmental Review Committee),the Hearing Examiner determined to grant the appeal and require the preparation of an EIS. An EIS is required under RCW 43.21C.1030(2)(c)and will be prepared. An Environmental checklist of other materials indicating likely environmental impacts can be reviewed in Development Services Division. LEAD AGENCY: The Environmental Review Committee, City of Renton,shall be the agency in charge of further environmental review. The Hearing Examiner on appeal found the following areas for discussion in the EIS: earth(steep slopes),water resources, (storm water drainage/runoff/flooding, Groundwater, Water Quality); Plants and Animals(Shoreline and Wetland Habitat;Fisheries. Noise;Land and Shoreline Use; Socioeconomic(Population,Housing Density)Aesthetics,Light and Glare; Cultural Resources; Transportation;Public Services and Utilities(Fire and Emergency Medical Services;Police Services, Schools; Parks; Water;Wastewater; Solid Waste). SCOPING: Agencies,affected tribes, and members of the public are invited to comment of the scope of the EIS. You may comment on alternatives,mitigation measures, probably significant adverse impacts, and licenses or other approvals that may be required. Your comments must be submitted in writing and received before 5:00 p.m. on November 17,2000. Responsible Official: Environmental Review Committee,Development Planning Section, Planning/Building/Public Works Dept., 1055 South Grady Way,Renton,WA 98055,425-430- 7382. THERE IS NO AGENCY APPEAL: This determination of significance was the result of an appeal decision after a public hearing. No appeals of this determination were filed. No further appeals of this determination may be filed at this time. DATE: SIGNATURE —1; Fred J.Kauf ,Hearing Examiner PUBLICATION DATE: October 27, 2000 • Waft CIT: OF RENTON NAL Hearing Examiner Jesse Tanner,.Mayor Fred J:Kaufman September 25, 2000 • • Ms. Rosemary Larson Ms. Elizabeth Higgins Attorney at Law City of Renton Development Services • 777 108th Ave NE,#1900 1055 S Grady Way Bellevue, WA 98009-9016 Renton, WA 98055 Re: Reconsideration Request for Tharp Rezone Decision File No. LUA00-107-AAD Dear Ms. Larson and Ms: Higgins: This office has received two requests for reconsideration regarding the above matter. The first request was from the City and the second:requestrwas from the applicant. The City was concerned about'the following language: • "The lead agency is directed to prepare an Environmental Impact Statement for the-subject:proposal.? ..,:;• They want clarificatiorr;that..the"applicant"isrthe,responsible party for such document. . This office believes that the Environmental:;'Impact<:Statement(EIS) is the lead agency's responsibility (WAC 197-11-420(1)): This`decision does=not change-that,nor is it intended to alter the City's normal process for delegating or charging on such preparation (WAC 197-11-420(4). The applicant has raised two primaryissues:>(1)whether,the decision should be a remand to the ERC to allow mitigation of the application; (2)'clarification of the proper appellants. This office will deal with the matter of defusing the appellants first. This office received two separate appeal letters. Mr. Crisp filed a letter of appeal and paid the fee: He is an appellant. • Mr. Mapili and others (Randal Barger,Rose Falaniko,Wanda.Look,Karen Stein,and . . - Sheri Waddington) submitted their separate letter arid the appeal fee was paid by Mr. • Mapili. The applicant cites RMC 4-4-110C.4 as requiring "each"appellant to pay the appropriate fee. In this second appeal multiple parties joined together'and signed:and submitted an appeal letter but only one fee.was-paid. RMC 4-8-110C.1 specifies the - = - form and content of an appeal. While that-section uses the singular"appellant" it does . - riot appear to preclude multiple parties submitting an appeal.. The code specifically states that the singular and plural are interchangeable. Nothing in code requires a legal 1055 South Grady Way Renton,Washington 98055 -.(425)430-6515 • • Mr. Kaufman • . September 25, 2000 : Page two association by or between parties signing such letter. The parties appear to have standing - as neighbors of the subject application who will be affected by the action. Further,this office is.not aware of any prejudice,against the applicant, either at the hearing or subsequently, created by recognizing the signatories as appellants. Therefore;this office will recognize each of the signatories of the second appeal letter as an appellant;in addition to the two parties who submitted checks,Mr. Crisp and Mr. Mapili: • Regarding the question of whether the Examiner should have remanded thematter back to the ERC for their studied deliberation;°this`o'ffice,is not required to do so. RMC 4-8- 110E.1.c provides the Examiner4.with the autl brity to.at‘t>in their stead. The applicant also raised two other_issues of procedure.,"One deals with prior environmental or, at least,informational documents. Clearly,any information submitted to the City may be consdered,in`furt4erreview-+'=The ability to use those documents does ..;sit s: not judge their completeness or'appropriatenessfor;environmental purposes at this stage. _, : >e.. .•.:.3j'-•�'4�F f�,�.s:ti $'�li aa.: e b: ti ..vr Finally,this office is now aware that,there<appear to b e"conflicting:provisions regarding an appeal of the.Examiier's de cisiong<This:-office has:discussed this matter with the City Attorney. It would appear.prudent at ttii's`Juncture for thef4illicajit to file an appeal with both the City Council and.Supenor-.Court. While this�office tends to agree with the applicant's reading of the conflicting code:provisions and believes that the full text might prevail over the Table,this off ce.believes the codeeneeds claarification and again, prudence would suggest the dual appeal route:' The requests for reconsideration and this response will serve to extend the appeal period. The appeal or appeals should be filed within 14 days of this decision. • If this office can be of further assistance,please feel free to write. Sincerely, • • Fred J. Kaufman - Hearing Examiner • • FJK:jt cc:' Parties.of Record • •P CITX OF RENTON • Planning/Building/Public Works Department Jesse Tanner,Mayor Gregg Zimmerman P.E.,Administrator September 15,2000 CITY OF.RENTON SEP 1 5 2000 RECEIVED • • CITY CLERK'S OFFICE Mr.Fred Kaufman,I tearing Examiner City of Renton City Hall,7th floor 1055 Grady Way. Renton,WA 98055 Re:LUA00-107,AAD,Report and Decision Dear Mr.Kaufman :. This letter is written to request,a:RECONSIDERATION of the of August 31,2000;in the matter of the appeal (referenced above)of an envirommental determination associated with.the . Tharp Rezone, LUA00-051:' In your Report and Decision of August 31,2000 fliefollowing decision was made: "The lead agency is directed to prepare an Environmental Impact Statement for the subject proposal" The Development Services Division hereby requests a clarification thatthe APPLICANT shall bear the responsibility for preparation,of an Environmental Impact"Statement should one be required. Thank you for your reconsideration of this ma• tter. Sincerely Elizabeth Higgins,AICP Senior Planner • • • • 1055 South Grady Way-Renton,:Washington 98055 • NEIBEOWVi CITY OF RENTON 2000 P.n,. 1 SAP I 8 3:VG SEP 1 4 2000 �RENTON�� : ._„:': RECEIVED 2 CITY CLERK'S OFFICE 3 4 CITY OF RENTON 5 OFFICE OF THE HEARING EXAMINER 6 7 In the Matter of an Appeal from the 8 Issuance of a Determination of NO. LUA00-107, AAD Nonsignificance on a Rezone Application 9 Filed by Lazarus Land Corporation, LAZARUS' MOTION FOR 10 RECONSIDERATION AND Wynnlee Crisp, et. al., Appellants. CLARIFICATION 11 12 Lazarus Land Corporation ("Lazarus"), the applicant, submits the following Motion for 13 Reconsideration of the Hearing Examiner's August 31, 2000 Decision in this matter. 14 15 I. RELIEF REQUESTED 16 Lazarus requests that the Hearing Examiner revise the August 31, 2000 Decision in this 17 matter (1) to remand to the City's Environmental Review Committee ("ERC") the issue of 18 whether a Determination of Significance or a Mitigated Determination of Nonsignificance is 19 appropriate for the Lazarus rezone application, and (2) to include a decision on the issue of 20 the identity of the proper Appellants in the appeal. 21 In addition, Lazarus requests clarification that the August 31, 2000 Decision does not 22 • preclude the use of existing environmental documents, to the extent deemed appropriate by 23 the ERC. Lazarus also requests clarification as to whether any appeal of the Examiner's 24 . decision would be to the City Council, or to the superior court, and whether the time for filing INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION "'-108th Avenue N.E. Ste P.O.Box C-90016 FOR RECONSIDERATION - 1 n n� Bellevue,Washington 98009-9016 DOCS\356902\002\0205427.01 F� �'i 1425)455-1234 1 any appeal runs from the decision on the motion for reconsideration. 2 3 II. GROUNDS FOR RECONSIDERATION 4 A. The Environmental Review Committee Should Make the Initial Decision on the Issue of Whether a Determination of Significance or A Mitigated Determination of 5 Nonsignificance Should Be Required. 6 In Conclusions No. 26 through 28,the Hearing Examiner concludes that an environmental 7 impact statement must be prepared for the Lazarus rezone application. In essence, because 8 the Examiner required that an environmental impact statement be prepared, the Examiner 9 converted the City's Determination of Nonsignificance into a Determination of Significance. 10 The Examiner dismissed the possibility of a mitigated determination of nonsignificance with 11 a single sentence: "a DNS, even a mitigated DNS, would be inappropriate for this rezone 12 action." Conclusion No. 27. 13 The ERC is the City's responsible official for purposes of environmental review under the 14 State Environmental Policy Act ("SEPA"). RMC 4-9-070G. The ERC is charged with 15 making environmental determinations, including decisions as to whether mitigated 16 determinations of nonsignificance are appropriate,or whether an determination of significance 17 should be required, meaning that an environmental impact statement will be prepared. RMC 18 4-9-070G. 19 The ERC determined that because the Lazarus proposal only involved a rezone application, 20 and not any specific development proposal for the property, the ERC could not determine the 21 impacts of the proposal or impose any mitigation at this time. The Hearing Examiner's _ 22 decision to require an environmental impact statement is based on the conclusion that as a 23 matter of law, the City and the ERC were improperly "segmenting" the proposal, and that the 24 City and the ERC'should have considered all probable impacts that could result from the _ INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777-108Sh;Avenue N.E. FOR RECONSIDERATION - 2 Bellevue,Washingt n 98009-90,8 (425)455-1234 DOCS\356902\002\0205427.01 1 growth allowed if the rezone is granted. 2 Assuming that the Hearing Examiner is correct, then the matter should be remanded to the 3 ERC with direction for the ERC to reconsider its decision to issue the unmitigated 4 Determination of Nonsignificance, in light of the Examiner's decision on this legal issue. If 5 the ERC believed that it had the authority to address these environmental issues at the rezone 6 application stage, it is not clear whether the ERC would determine that an environmental 7 impact statement is required, or that a mitigated determination of significance should be 8 issued. 9 The ERC is the City agency with specific expertise in environmental matters. The ERC 10 has access to all prior environmental review performed by the City, such as for the City's 11 comprehensive plan and for the development regulations. The ERC has particular knowledge 12 (or can obtain that information from City staff) regarding the City's development regulations 13 and the effect of the regulations on potential development that could be allowed under the 14 Lazarus rezone application. The ERC has already made certain conclusions regarding 15 potential impacts of development under the rezone. The ERC's staff report clearly indicated 16 that the ERC was aware of a number of environmental issues that will be raised by potential 17 development of the subject property. 18 Given the Hearing Examiner's conclusion on the legal issue of whether the ERC had the 19 authority to consider impacts that could flow from potential development proposals allowed 20 under the requested zoning and related mitigation requirements, the ERC should have the 21 opportunity to fully analyze the factual environmental issues, as well as the effect of the - 22 pertinent City development regulations on the subject property. With the Hearing Examiner's 23 direction to consider these potential impacts that could result from the rezone, the ERC may 24 determine that a determination of significance is appropriate. However, the ERC could also- INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION "'-10 Ie 1900 Avenue en e N.E. FOR RECONSIDERATION - 3 Bellevue,Wa h ng 98009-9016 (425)455-1234 nnrcV1SfQn)\nn9\n905a97 01 • • 1 determine that a mitigated determination of nonsignificance is appropriate. The ERC is the 2 most appropriate City agency to make this initial determination. 3 The Hearing Examiner summarily dismissed the option of issuing a mitigated determination "" 4 of nonsignificance for the rezone application. Conclusion No. 27. There is nothing in the 5 Examiner's decision that indicates that the Examiner considered whether mitigation could be 6 imposed on the rezone application, that would mitigate any significant adverse impacts so that 7 a mitigated determination of significance would be appropriate. For instance, the Decision 8 does not even reference the geotechnical report submitted by Lazarus, at the ERC's request, 9 which states that the property could be developed under the requested zoning with no adverse 10 impacts to the steep slopes on the property. Likewise, the Decision does not reference the 11 wildlife biologist's report, submitted by Lazarus at its own initiative, that states that 12 development of the property under the requested zoning would not impact wildlife 13 significantly. The Appellants did not submit any expert testimony to counter these reports. 14 In light of the Examiner's direction that it was erroneous to perform the environmental review 15 for the rezone application without considering potential development that could result from 16 the rezone, it is respectfully submitted that the ERC is the appropriate entity to make the initial 17 decision as to whether an environmental impact statement or a mitigated determination of 18 nonsignificance is appropriate. The ERC could be directed to consider possible contract 19 rezone options as a part of this determination. 20 It may be that the ERC did not obtain all information from Lazarus that it believes is 21 necessary in order to determine appropriate mitigation, because the ERC thought that it did _ 22 not have the authority to impose mitigation at this stage. In that event, the ERC could obtain 23 the necessary information from Lazarus, in order to make a fully informed decision as to 24 whether a mitigated determination of significance is appropriate. Lazarus has fully complied INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777 10 th h Avenue N.E. FOR RECONSIDERATION - 4 Bellevue,Washington 98 09-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 with all prior requests for information from the City. 2 In the Hearing Examiner's Decision, the Examiner noted that an environmental impact 3 statement serves the purpose of providing environmental information to the public and the - 4 decision-maker on the underlying application. Conclusion No. 15, 20, 22, 23, 25, 27. While 5 an environmental impact statement can serve this purpose, a determination of significance 6 should only be issued where potential significant adverse impacts can not be adequately 7 mitigated. WAC 197-22-340, 197-22-350. There has been no meaningful analysis as to 8 whether such mitigation can be imposed. The applicant should not be penalized with a 9 determination of significance, simply because the ERC did not believe that it had the authority 10 to consider and impose mitigation as part of the environmental review for the rezone 11 application. 12 13 B. The Hearing Examiner's Decision Should Address the Issue of the Identity of the Proper Appellant in this Matter. 14 One of the appeal statements in this matter was signed by six separate individuals. The 15 City raised the issue of the identity of the proper appellant for that appeal statement. At the 16 hearing, the Hearing Examiner indicated that the Examiner would rule on this issue at a later 17 time. Lazarus believed that the Examiner would address the issue in the written decision. 18 In the August 31, 2000 Decision, the Hearing Examiner noted that the issue was raised, 19 and stated: "The Examiner stated he would make his determination at a later date and the 20 matter could proceed." Decision, p. 2. The Examiner did not otherwise address this issue 21 in the Decision. 22 The City code requires that each appellant in a matter pay an appeal fee to the City for 23 processing his or her appeal. RMC 4-8-110C.4: Thus, payment of the appeal fee is 24 jurisdictional; the City has no authority to process the appeal without payment of the fee. INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777-108th Avenue N.E. Suite 1900 FOR RECONSIDERATION - 5 Bellevue,Washington°98009-9016 Tlflf, G 41111'11nmtn,1ncn�'7 n1 (425)455-1234 • 1 Based on the City's comments at the hearing, the City interprets this code as requiring that 2 each individual appellant file a separate appeal and pay the appropriate appeal fee. The City's 3 interpretation of its code is entitled to considerable judicial deference. Mall, Inc. v. Seattle, - 4 108 Wn.2d 369, 377-78, 739 P.2d 668 (1987); Grader v. Lynnwood, 45 Wn.App. 876, 728 5 P.2d 1057 (1986)(City's interpretation of an ordinance is entitled to substantial weight). 6 While in some instances a neighborhood association may be able to be an appellant, no person 7 signed the appeal statement on behalf of an association. 8 To make the record clear, Lazarus requests that the Hearing Examiner amend the Decision 9 to include a decision on the issue of the proper appellant in this matter. Because Mr. Mapili 10 is the only person to have paid an appeal fee to the City for the appeal statement signed by six 11 individuals(Decision,p. 2),the Examiner should determine that Mr. Mapili is the only proper 12 appellant with respect to that appeal statement. 13 14 C. Lazarus Requests Clarification that the Hearing Examiner's Decision Does Not Preclude the Use of Prior Environmental Documents, to the Extent Approved by 15 the ERC. 16 The State Environmental Policy Act and its implementing regulations clearly authorize the 17 use of environmental documents that have been previously prepared. WAC 197-11-600 18 through 197-11-640. Under the City's SEPA regulations, the ERC has the authority to 19 determine the extent to which a prior environmental document may be used, either through 20 adoption, incorporation by reference, or the preparation of a supplement or an addendum. 21 RMC 4-9-070G, L and O. 22 Environmental review has already been performed by the City at least for the City's 23 comprehensive plan and development regulations, which resulted in an environmental impact 24 statement and an addendum(s)to the environmental impact statement. Lazarus recognizes that INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777 'Suite 19 a N.E. FOR RECONSIDERATION - 6 Bellevue, Washington ashingttonon 98.Bon 6 009-9016 (425)455-1234 DOCS\356902\002\0205427.01 • 1 if the Hearing Examiner does not grant its motion for reconsideration and remand the matter 2 to the ERC for an initial decision as to whether a DS or a MDNS should be issued, the 3 Decision requires the preparation of an EIS for the rezone proposal. However, some of the- 4 prior environmental work may be useful to the environmental review in this matter. Lazarus 5 simply requests confirmation that the Examiner's decision does not preclude the use of the 6 prior environmental documents, to the extent approved by the ERC. 7 g D. Lazarus Requests Clarification as to the Appropriate Entity to Hear Any Appeal of the Hearing Examiner's Decision on this Appeal of the ERC's Environmental 9 Decision, and of the Time in Which an Appeal Must Be Filed. 10 In the August 31, 2000 Decision, the Hearing Examiner included a paragraph regarding 1 1 appeals of the Decision that indicates that an appeal, if any, would be heard by the City 12 Council. Decision, p. 14. However, the City code seems to require that an appeal of the 13 Examiner's Decision would be to the superior court. In Lazarus' post-hearing discussions 14 with City staff, staff indicated that they thought the appeal was to the City Council. In a post- 15 hearing discussion with the City Attorney, the City Attorney indicated that the City code 16 required that any appeal be filed in superior court. 17 RMC 4-8-110C.8 states: "There shall be no more than one appeal on a procedural 18 determination or an environmental determination such as the adequacy of a determination of 19 significance, non-significance, or of a final environmental impact statement." RMC 4-8- 20 110E8.b. states: 21 The action of the Hearing Examiner in the case of appeals from administrative determinations and environmental determinations shall be final and conclusive, 22 unless within the time frame specified by subsection G.5 of this Section, an aggrieved party or person obtains a writ of review from the Superior Court of 23 the State of Washington for King County for purpose of review of the action taken. 24 - These sections are consistent with SEPA, which allows only one agency appeal proceeding on INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777 1S ite 1900 a N.E. FOR RECONSIDERATION - 7 Bellevue,Washington ox °98009-9016 (425)455-1234 DOGS\3569117\002\0205477.01 1 a procedural determination (the adequacy of a determination of significance/nonsignificance 2 or of a final environmental impact statement). RCW 43.21C.075(3);WAC 197-11-680(3)(iv); 3 see also RMC 4-9-070N, adopting WAC 197-11-680 by reference. The appeal of a -- 4 determination of significance may occur prior a final decision on the underlying permit. Id. 5 Because this matter involved an appeal of an environmental determination, the adequacy 6 of a determination of non-significance, the City code and state law appear to require that any 7 appeal of the Examiner's decision be filed with the superior court. Therefore, Lazarus 8 requests clarification of the paragraph of the Examiner's Decision that indicates that an appeal g would be to the City Council 10 In addition, given the conflict between the paragraph in the Examiner's Decision and the 11 City code and SEPA provisions, and given the fact that the Examiner's Decision on this 12 motion for reconsideration may affect the necessity or scope of any appeal and the proper 13 parties to the appeal, Lazarus requests that the Examiner's decision on this motion for 14 reconsideration state that the time for filing any appeal of the August 31, 2000 Decision, or 15 the decision on this motion for reconsideration, shall run from the date of the decision on the 16 motion for reconsideration. 17 This may already be the case. However, the City code does not appear to address this 18 issue. When Lazarus asked City staff whether a motion for reconsideration "stayed" the time 19 for filing an appeal until after the decision on the motion for reconsideration, City staff was 20 unable to provide an answer. Lazarus understands that in the past, the Examiner exercised 21 discretion to either stay or not stay the time for filing an appeal when a motion for 22 reconsideration is filed. Logically, the time for filing an appeal of a decision on a motion for 23 reconsideration should run from the date of the decision on that motion. Lazarus requests 24 either that the Examiner exercise his discretion to stay the time for filing an appeal of the INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION "'-108thh Avenue N.E. 1900 FOR RECONSIDERATION - 8 P.O -90016 Bellevue,Was(ng on 98009-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 August 31, 2000 Decision until after the decision on the motion for reconsideration is issued, 2 or clarify that the stay occurs as a matter of course. 3 4 IV. CONCLUSION 5 Based on the foregoing, the Hearing Examiner should reconsider the Decision dated 6 August 31, 2000, and amend the Decision to remand this matter to the Environmental Review 7 Committee for a determination as to whether an environmental impact statement or.a mitigated 8 determination of significance is appropriate for the Lazarus rezone application. The Hearing 9 Examiner should also amend the August 31, 2000 Decision to include a decision that only one 10 of the persons signing the appeal statement with six signatures letter is a proper appellant. 11 In addition, the Hearing Examiner should clarify that the August 31, 2000 Decision does 12 not preclude the use of existing environmental documents, to the extent deemed appropriate 13 by the Environmental Review Committee. The Examiner should clarify that the superior court 14 is the appropriate entity to hear any appeal of this matter, and should state that the time for 15 filing any appeal will run from the date of the decision on this motion for reconsideration. 16 17 DATED this 14th day of September, 2000. 18 INSLEE, BEST, DOEZIE & RYDER, P.S. 19 20 Byig40444 O Rosemary A. Lal , , W.S.B.A. #18084 21 Attorneys for Lazarus Land Corporation 22 23 24 - INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION "'-108th 1ven a N.E. SteFOR RECONSIDERATION- 9 Bellevue,Washingtonox 09 8 009-901 6 n!1('Q\4c4U (In") MncA')7 M lazy)455-1234 to • CIT` OF RENTON ..LL Planning/Building/Public Works Department J e Tanner,Mayor Gregg Zimmerman P.E.,Administrator September 15,2000 • CITY OF RENTON SEP 1 5 2000 " . . RECEIVED CITY CLERKS OFFICE Mr:Fred Kaufman,Hearing Examine r City of Renton City Hall, 7th floor., 1055 Grady Way Renton,WA 98055 Re: LUA00-107, AAD, Report and Decision Dear Mr. Kaufman This letter is written to request a RECONSIDERATION of the Decision of August 31, 2000,in the matter of the appeal(referenced above)of an environmental determination associated with the Tharp Rezone,LUA00-051: In your Report and Decision of August 31,2000;the following decision was made: - ' "The lead agency is directed to prepare an Environmental Impact Statement for the subject proposal:" The Development Services Division hereby requests a clarification that the APPLICANT shall bear the responsibility for preparation of an Environmental Impact Statement should one be required. Thank you for your reconsideration of this matter.., Sincerely Elizabeth-Higgins,AICP Senior Planner -1055 South Grady Way-Renton,Washington 98055 ®This paper contains 50%recycled material,20%post consumer " CSC 11U ' ' CITY OF RENTON LEI SEP 18 2000 V 1 SEP 1 4 2000 2 HFJIRING DWM ER'"`}` 'ri` RECEIVED CITY CLERKS OFFICE 3 4 5 CITY OF RENTON OFFICE OF THE HEARING EXAMINER 6 7 In the Matter of an Appeal from the 8 Issuance of a Determination of NO. LUA00-107, AAD Nonsignificance on a Rezone Application 9 Filed by Lazarus Land Corporation, LAZARUS' MOTION FOR 10 RECONSIDERATION AND Wynnlee Crisp, et. al., Appellants. CLARIFICATION 11 12 Lazarus Land Corporation ("Lazarus"), the applicant, submits the following Motion for 13 Reconsideration of the Hearing Examiner's August 31, 2000 Decision in this matter. 14 15 I. RELIEF REQUESTED 16 Lazarus requests that the Hearing Examiner revise the August 31, 2000 Decision in this 17 matter (1) to remand to the City's Environmental Review Committee ("ERC") the issue of 18 whether a Determination of Significance or a Mitigated Determination of Nonsignificance is 19 appropriate for the Lazarus rezone application, and (2) to include a decision on the issue of 20 the identity of the proper Appellants in the appeal. 21 In addition, Lazarus requests clarification that the August 31, 2000 Decision does not 22 preclude the use of existing environmental documents, to the extent deemed appropriate by 23 the ERC. Lazarus also requests clarification as to whether any appeal of the Examiner's 24 decision would be to the City Council, or to the superior court, and whether the time for filing INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777-108thh Avenue N.E. SuiP.O.Box C-90016 FOR RECONSIDERATION - 1 G I L Bellevue,Washington 98009-9016 DOCS\356902\002\0205427.01 (425)455-1234 1 any appeal runs from the decision on the motion for reconsideration. 2 3 II. GROUNDS FOR RECONSIDERATION 4 A. The Environmental Review Committee Should Make the Initial Decision on the Issue of Whether a Determination of Significance or A Mitigated Determination of 5 Nonsignificance Should Be Required. 6 In Conclusions No. 26 through 28, the Hearing Examiner concludes that an environmental 7 impact statement must be prepared for the Lazarus rezone application. In essence, because 8 the Examiner required that an environmental impact statement be prepared, the Examiner 9 converted the City's Determination of Nonsignificance into a Determination of Significance. 10 The Examiner dismissed the possibility of a mitigated determination of nonsignificance with 1 1 a single sentence: "a DNS, even a mitigated DNS, would be inappropriate for this rezone 12 action." Conclusion No. 27. 13 The ERC is the City's responsible official for purposes of environmental review under the 14 State Environmental Policy Act ("SEPA"). RMC 4-9-070G. The ERC is charged with 15 making environmental determinations, including decisions as to whether mitigated 16 determinations of nonsignificance are appropriate, or whether an determination of significance 17 should be required, meaning that an environmental impact statement will be prepared. RMC 18 4-9-070G. 19 The ERC determined that because the Lazarus proposal only involved a rezone application, 20 and not any specific development proposal for the property, the ERC could not determine the 21 impacts of the proposal or impose any mitigation at this time. The Hearing Examiner's 22 decision to require an environmental impact statement is based on the conclusion that as a 23 matter of law, the City and the ERC were improperly "segmenting" the proposal, and that the 24 City and the ERC should have considered all probable impacts that could result from the INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777-108th Avenue N.E. Suite 1900 FOR RECONSIDERATION - 2 Bellevue,Washingt n098009-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 growth allowed if the rezone is granted. 2 Assuming that the Hearing Examiner is correct, then the matter should be remanded to the 3 ERC with direction for the ERC to reconsider its decision to issue the unmitigated 4 Determination of Nonsignificance, in light of the Examiner's decision on this legal issue. If 5 the ERC believed that it had the authority to address these environmental issues at the rezone 6 application stage, it is not clear whether the ERC would determine that an environmental 7 impact statement is required, or that a mitigated determination of significance should be 8 issued. 9 The ERC is the City agency with specific expertise in environmental matters. The ERC 10 has access to all prior environmental review performed by the City, such as for the City's 11 comprehensive plan and for the development regulations. The ERC has particular knowledge 12 (or can obtain that information from City staff) regarding the City's development regulations 13 and the effect of the regulations on potential development that could be allowed under the 14 Lazarus rezone application. The ERC has already made certain conclusions regarding 15 potential impacts of development under the rezone. The ERC's staff report clearly indicated 16 that the ERC was aware of a number of environmental issues that will be raised by potential 17 development of the subject property. 18 Given the Hearing Examiner's conclusion on the legal issue of whether the ERC had the 19 authority to consider impacts that could flow from potential development proposals allowed 20 under the requested zoning and related mitigation requirements, the ERC should have the 21 opportunity to fully analyze the factual environmental issues, as well as the effect of the 22 pertinent City development regulations on the subject property. With the Hearing Examiner's 23 direction to consider these potential impacts that could result from the rezone, the ERC may 24 determine that a determination of significance is appropriate. However, the ERC could also INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777 108th Avenue N.E. P.O.Box C-90016 FOR RECONSIDERATION - 3 Bellevue,Washington 98009-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 determine that a mitigated determination of nonsignificance is appropriate. The ERC is the 2 most appropriate City agency to make this initial determination. 3 The Hearing Examiner summarily dismissed the option of issuing a mitigated determination 4 of nonsignificance for the rezone application. Conclusion No. 27. There is nothing in the 5 Examiner's decision that indicates that the Examiner considered whether mitigation could be 6 imposed on the rezone application, that would mitigate any significant adverse impacts so that 7 a mitigated determination of significance would be appropriate. For instance, the Decision 8 does not even reference the geotechnical report submitted by Lazarus, at the ERC's request, 9 which states that the property could be developed under the requested zoning with no adverse 10 impacts to the steep slopes on the property. Likewise, the Decision does not reference the 11 wildlife biologist's report, submitted by Lazarus at its own initiative, that states that 12 development of the property under the requested zoning would not impact wildlife 13 significantly. The Appellants did not submit any expert testimony to counter these reports. 14 In light of the Examiner's direction that it was erroneous to perform the environmental review 15 for the rezone application without considering potential development that could result from 16 the rezone, it is respectfully submitted that the ERC is the appropriate entity to make the initial 17 decision as to whether an environmental impact statement or a mitigated determination of 18 nonsignificance is appropriate. The ERC could be directed to consider possible contract 19 rezone options as a part of this determination. 20 It may be that the ERC did not obtain all information from Lazarus that it believes is 21 necessary in order to determine appropriate mitigation, because the ERC thought that it did 22 not have the authority to impose mitigation at this stage. In that event, the ERC could obtain 23 the necessary information from Lazarus, in order to make a fully informed decision as to 24 whether a mitigated determination of significance is appropriate. Lazarus has fully complied INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777-108th Avenue N.E. Suite 1900 FOR RECONSIDERATION - 4 Bellevue,Washington°98009.9016 (425)455-1234 DOCS\356902\002\0205427.01 • 1 with all prior requests for information from the City. 2 In the Hearing Examiner's Decision, the Examiner noted that an environmental impact 3 statement serves the purpose of providing environmental information to the public and the 4 decision-maker on the underlying application. Conclusion No. 15, 20, 22, 23, 25, 27. While 5 an environmental impact statement can serve this purpose, a determination of significance 6 should only be issued where potential significant adverse impacts can not be adequately 7 mitigated. WAC 197-22-340, 197-22-350. There has been no meaningful analysis as to 8 whether such mitigation can be imposed. The applicant should not be penalized with a 9 determination of significance, simply because the ERC did not believe that it had the authority 10 to consider and impose mitigation as part of the environmental review for the rezone 11 application. 12 13 B. The Hearing Examiner's Decision Should Address the Issue of the Identity of the Proper Appellant in this Matter. 14 One of the appeal statements in this matter was signed by six separate individuals. The 15 City raised the issue of the identity of the proper appellant for that appeal statement. At the 16 hearing, the Hearing Examiner indicated that the Examiner would rule on this issue at a later 17 time. Lazarus believed that the Examiner would address the issue in the written decision. 18 In the August 31, 2000 Decision, the Hearing Examiner noted that the issue was raised, 19 and stated: "The Examiner stated he would make his determination at a later date and the 20 matter could proceed." Decision, p. 2. The Examiner did not otherwise address this issue 21 in the Decision. 22 The City code requires that each appellant in a matter pay an appeal fee to the City for 23 processing his or her appeal. RMC 4-8-110C.4. Thus, payment of the appeal fee is 24 jurisdictional; the City has no authority to process the appeal without payment of the fee. INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777-108th Avenue N.E. Suite 1900 FOR RECONSIDERATION - 5 Bellevue,Washington098009-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 Based on the City's comments at the hearing, the City interprets this code as requiring that 2 each individual appellant file a separate appeal and pay the appropriate appeal fee. The City's 3 interpretation of its code is entitled to considerable judicial deference. Mall, Inc. v. Seattle, 4 108 Wn.2d 369, 377-78, 739 P.2d 668 (1987); Grader v. Lynnwood, 45 Wn.App. 876, 728 5 P.2d 1057 (1986)(City's interpretation of an ordinance is entitled to substantial weight). 6 While in some instances a neighborhood association may be able to be an appellant, no person 7 signed the appeal statement on behalf of an association. 8 To make the record clear, Lazarus requests that the Hearing Examiner amend the Decision g to include a decision on the issue of the proper appellant in this matter. Because Mr. Mapili 10 is the only person to have paid an appeal fee to the City for the appeal statement signed by six 11 individuals(Decision,p. 2), the Examiner should determine that Mr. Mapili is the only proper 12 appellant with respect to that appeal statement. 13 14 C. Lazarus Requests Clarification that the Hearing Examiner's Decision Does Not Preclude the Use of Prior Environmental Documents, to the Extent Approved by 15 the ERC. 16 The State Environmental Policy Act and its implementing regulations clearly authorize the 17 use of environmental documents that have been previously prepared. WAC 197-11-600 18 through 197-11-640. Under the City's SEPA regulations, the ERC has the authority to 19 determine the extent to which a prior environmental document may be used, either through 20 adoption, incorporation by reference, or the preparation of a supplement or an addendum. 21 RMC 4-9-070G, L and O. 22 Environmental review has already been performed by the City at least for the City's 23 comprehensive plan and development regulations, which resulted in an environmental impact 24 statement and an addendum(s)to the environmental impact statement. Lazarus recognizes that INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777 -108th Avenue N.E. FOR RECONSIDERATION - 6 Bellevue,Was190 Bhington0016 98009-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 if the Hearing Examiner does not grant its motion for reconsideration and remand the matter 2 to the ERC for an initial decision as to whether a DS or a MDNS should be issued, the 3 Decision requires the preparation of an EIS for the rezone proposal. However, some of the 4 prior environmental work may be useful to the environmental review in this matter. Lazarus 5 simply requests confirmation that the Examiner's decision does not preclude the use of the 6 prior environmental documents, to the extent approved by the ERC. 7 8 D. Lazarus Requests Clarification as to the Appropriate Entity to Hear Any Appeal of the Hearing Examiner's Decision on this Appeal of the ERC's Environmental 9 Decision, and of the Time in Which an Appeal Must Be Filed. 10 In the August 31, 2000 Decision, the Hearing Examiner included a paragraph regarding 1 1 appeals of the Decision that indicates that an appeal, if any, would be heard by the City 12 Council. Decision, p. 14. However, the City code seems to require that an appeal of the 13 Examiner's Decision would be to the superior court. In Lazarus' post-hearing discussions 14 with City staff, staff indicated that they thought the appeal was to the City Council. In a post- 15 hearing discussion with the City Attorney, the City Attorney indicated that the City code 16 required that any appeal be filed in superior court. 17 RMC 4-8-110C.8 states: "There shall be no more than one appeal on a procedural 18 determination or an environmental determination such as the adequacy of a determination of 19 significance, non-significance, or of a final environmental impact statement." RMC 4-8- 20 110E8.b. states: 21 The action of the Hearing Examiner in the case of appeals from administrative determinations and environmental determinations shall be final and conclusive, 22 unless within the time frame specified by subsection G.5 of this Section, an aggrieved party or person obtains a writ of review from the Superior Court of 23 the State of Washington for King County for purpose of review of the action taken. 24 These sections are consistent with SEPA, which allows only one agency appeal proceeding on INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777 1S8th Avenue N.E. FOR RECONSIDERATION - 7 Bellevue,Washingt n°98o°9-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 a procedural determination (the adequacy of a determination of significance/nonsignificance 2 or of a final environmental impact statement). RCW 43.21C.075(3);WAC 197-11-680(3)(iv); 3 see also RMC 4-9-070N, adopting WAC 197-11-680 by reference. The appeal of a 4 determination of significance may occur prior a final decision on the underlying permit. Id. 5 Because this matter involved an appeal of an environmental determination, the adequacy 6 of a determination of non-significance, the City code and state law appear to require that any 7 appeal of the Examiner's decision be filed with the superior court. Therefore, Lazarus 8 requests clarification of the paragraph of the Examiner's Decision that indicates that an appeal 9 would be to the City Council 10 In addition, given the conflict between the paragraph in the Examiner's Decision and the 11 City code and SEPA provisions, and given the fact that the Examiner's Decision on this 12 motion for reconsideration may affect the necessity or scope of any appeal and the proper 13 parties to the appeal, Lazarus requests that the Examiner's decision on this motion for 14 reconsideration state that the time for filing any appeal of the August 31, 2000 Decision, or 15 the decision on this motion for reconsideration, shall run from the date of the decision on the 16 motion for reconsideration. 17 This may already be the case. However, the City code does not appear to address this 18 issue. When Lazarus asked City staff whether a motion for reconsideration "stayed" the time 19 for filing an appeal until after the decision on the motion for reconsideration, City staff was 20 unable to provide an answer. Lazarus understands that in the past, the Examiner exercised 21 discretion to either stay or not stay the time for filing an appeal when a motion for 22 reconsideration is filed. Logically, the time for filing an appeal of a decision on a motion for 23 reconsideration should run from the date of the decision on that motion. Lazarus requests 24 either that the Examiner exercise his discretion to stay the time for filing an appeal of the INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION 777-108th Avenue N.E. Suite 1900 FOR RECONSIDERATION - 8 Bellevue,Washingt n098009-9016 (425)455-1234 DOCS\356902\002\0205427.01 1 August 31, 2000 Decision until after the decision on the motion for reconsideration is issued, 2 or clarify that the stay occurs as a matter of course. 3 4 IV. CONCLUSION 5 Based on the foregoing, the Hearing Examiner should reconsider the Decision dated 6 August 31, 2000, and amend the Decision to remand this matter to the Environmental Review 7 Committee for a determination as to whether an environmental impact statement or a mitigated 8 determination of significance is appropriate for the Lazarus rezone application. The Hearing 9 Examiner should also amend the August 31, 2000 Decision to include a decision that only one 10 of the persons signing the appeal statement with six signatures letter is a proper appellant. 1 1 In addition, the Hearing Examiner should clarify that the August 31, 2000 Decision does 12 not preclude the use of existing environmental documents, to the extent deemed appropriate 13 by the Environmental Review Committee. The Examiner should clarify that the superior court 14 is the appropriate entity to hear any appeal of this matter, and should state that the time for 15 filing any appeal will run from the date of the decision on this motion for reconsideration. 16 17 DATED this 14th day of September, 2000. 18 INSLEE, BEST, DOEZIE & RYDER, P.S. 19 20 BY 4044 �Q`lr--� Rosemary A. Lads, W.S.B.A. #18084 21 Attorneys for Lazarus Land Corporation 22 23 24 INSLEE,BEST,DOEZIE&RYDER,P.S. ATTORNEYS AT LAW LAZARUS' MOTION _ "'-108 h Avenue ven a N.E. SteFOR RECONSIDERATION - 9 P.O.Box c-90016 Bellevue,Washington 98009-9016 (425)455-1234 DOCS\356902\002\0205427.01 HEARING EXAMINER'S REPORT August 31,2000 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION APPELLANTS: Randal Barger, Wynnlee Crisp,Rose Falaniko, Wanda Look, Charles Mapili,Karen Stein, Sheri Waddington File No.: LUA00-107,AAD APPLICANT: Lazarus Land Corporation Tharp Rezone File No.LUA00-051,R LOCATION: Between Lincoln Avenue NE and Aberdeen Avenue NE and Between NE 31st Street and NE 33rd Place SUMMARY OF APPEAL: Appeal City's Environmental Review Committee's Determination of Non-Significance SUMMARY OF REQUEST: To rezone 10.3 acres in the May Creek Basin from Resource Conservation(RC)to Residential 1 (R-1)and Residential 5 (R-5)zones. PUBLIC HEARING: After reviewing the Appellants'written requests 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 August 8,2000 appeal hearing. The official record is recorded on tape. The hearing opened on Tuesday,August 8,2000,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 appeal file No. LUA00-107, Exhibit No.2: Yellow file No.LUA00-051,R AAD, containing the appeals, and other containing the original application,proof of posting, documentation pertinent to the appeal. proof of publication and other documentation pertinent to this request. Exhibit No.3: Map of site Exhibit No. 4: Copy of Wynnlee Crisp presentation Exhibit No.5: Detailed written narrative of Wynnlee Crisp presentation Tharp Rezone - Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 2 Parties present: Appellants: Representing City of Renton Charles Mapili Larry Warren Wynnlee Crisp 1055 S Grady Way Sheri Waddington Renton, WA 98055 Randal Barger Representing Applicant Lazarus Land Corporation Rosemary Larson 777 108th Avenue NE Bellevue,WA 98009 Shirley Allen Lazarus Land Corporation 5657 229th Avenue SE Issaquah, WA 98029 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 appellants have 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. As a preliminary matter,Mr. Warren stated that one of the appeals was signed by a number of people who were not an incorporated association or other recognizable organization, and only a single fee of$75.00 was paid by Mr.Mapili. Only Mr. Mapili would,therefore,be considered an appellant. This would be important in the case of an appeal of the Examiner's decision. The Examiner stated he would make his determination at a later date and the matter could proceed. Charles Mapili,2316 NE 31st,Renton,Washington 98056, appellant herein,requested that the DNS be overturned and enumerated several points on which to base his appeal. The applicant should not be allowed to state that there is no impact because it is a zoning change only. Obvious and significant impact will logically follow. There are several court cases to back up the view that the entire project,explicitly stated or not, should be considered. Further,the sensitive nature of the area has been downplayed. The City has an opportunity to make a decision that protects its citizens, environment and aesthetic quality of the area by recognizing that the rezoning and the following development is a significant negative impact. There are many details in the application that have been misrepresented, confused or overlooked. The applicant focused on a single development bordered to the north. They have one border to the north that shares with the developed area. The other five borders are all extending into the RC area, effectively eliminating half the cross-section of the greenbelt area. The application is written as if the rezoning will not lead to development, even though preliminary development plans have been shown to the neighbors. The City should require and not waive reviews for geologic, slope, habitat and wetlands as called out in the critical areas ordinance since it is on or near critical areas of high erosion, steep slopes,wetlands and landslides. The applicant states that this is Tharp Rezone - Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 3 not a migration route,yet it is the only greenbelt and wildlife corridor from Lake Washington to the mountains. We have seen deer,hawks, eagle and bear. Salmon migrate up May Creek through this property. That makes this a significant wildlife habitat. In conclusion,the May Creek Valley is obviously a critical area as evidenced by the actions of Renton, Newcastle and King County to protect it. Since the following development and resulting impact is easy to foresee,reverse the DNS and require an EIS for the entire project, including the development to follow. Sheri Waddington, 2332 NE 31st,Renton, Washington 98056, appellant herein, addressed the new and existing storm water system. In the 16 years she has lived at this location, she has observed the nearby developments increase the runoff into May Creek which is a salmon spawning creek. The runoff from the bioswale has flooded many times across Jones Road into May Creek. The pollutants from the runoff will kill the spawning salmon. Wynnlee Crisp,2100 NE 31st,Renton, Washington 98056, appellant herein, stated that his professional experience included the directing and conducting of SEPA and NEPA environmental impact statements. He is also an adjacent landowner to the proposed rezone area. He listed specific reasons why the City should require an EIS for the project. First,the City erred in its determination by limiting consideration of impacts to the administrative act of rezoning alone and ignored the ultimate outcome of that action. As a result of that,the City improperly segmented the larger course of action. By failing to consider the probable impacts on the environment,the City made an incorrect determination of non-significance. Finally, it was inappropriate to adjudge a precedent-setting act of converting Resource Conservation lands to more dense residential development to be non-significant when it is actually precedent-setting. Mr. Crisp further elaborated his points by citing WAC 197-11-060, in which the City failed to consider the probable impacts of reasonably foreseeable actions. Apparently there is no development proposal at this time, but a development at a higher density is the only justification for rezoning at all. WAC 197-11-060 requires that related parts of a proposal be evaluated in the same environmental document. The up-zoning and the ultimate development are dependent parts of a larger course of action. The ultimate development at densities of 1 to 5 units per acre depends on the rezoning, and the rezoning depends on the ultimate development for its justification. An EIS is required if based on the totality of circumstances future development is probable following the action, and if that development will have a significant adverse affect on the environment. In issuing the DNS,the City failed to consider the probable impacts,recognizing that the master application and SEPA checklist acknowledge the future residential development,that the current proposal depends on the future development for its justification, and that therefore the rezone and the future development are interrelated parts of a single course of action. Because of that,the action has been improperly segmented. Approval of the subject proposal would likely encourage further conversion of the May Creek greenbelt to residential use. This is the third of a series of incursions into the May Creek greenbelt,but the first to involve RC zoned land. Up-zoning the RC lands to more dense residential classifications establishes a precedent that was neither acknowledged nor evaluated. Had it been considered, a Determination of Significance would have resulted. The City also failed to consider alternative proposals which may have a less significant impact. Mr. Warren, in his opening statement, agreed with Mr. Crisp's position,but not the presentation or target. He stated this rezone is an independent part of a larger plan. The Comprehensive Plan(CP)establishes the Tharp Rezone -- Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 4 designation of the property. According to the Growth Management Act, rezones then are powered by that CP, and the rezones must conform to the designations in the CP. When the CP was adopted a limited number of zoning possibilities existed, and one of the zoning designations that exists for that parcel of land under the adopted CP is being discussed today. The CP is the earliest point in the process at which environmental work can be done,not the rezone. The City controls the CP process and so can establish the environmental review for the CP, and the existing CP was analyzed through a final EIS. That is the real motivating document behind the rezone today. Another reason why it is important to focus on the CP rather than the rezone application is the one that was identified by Mr. Crisp and that is the City has no control over the applications that are made. The applicant in this instance applied for a rezone. It did not submit development plans to the City. Although the neighbors may have been presented with some preliminary development plans,the City has not been. Until there is a development proposal on the property,the EIS and the CP document is the global environmental work that needs to be done. When a development proposal is received,then the City can go into much more detail. Because an EIS is a disclosure document, it is required to disclose, discuss and substantiate the proposal's significant environmental impacts. The City understands the impact of plats and that is why there are fire, parks and traffic mitigation fees,road standards,runoff standards,utility standards. The City's information that it has about the site that is triggered by the rezone resulted partially in the City's recommendation that part of the rezone be denied. The general overall picture the City has for this property is adequate with the environmental work that has been done under the CP,the information that the City has about the general impacts of development of plats, and the general knowledge of the May Creek Basin. Rosemary Larson,representing the applicant, clarified that under the CP the property is designated Rural Residential which allows zoning up to R-5,except for sensitive areas which are limited to R-1. The remainder of the property that does not have the steep slopes or wetlands can be up to R-5. The City's position is that because the impacts that can be identified as stemming from the rezone were already addressed in the EIS that was prepared for the adoption of the CP,this is specifically authorized under RCW 43.21(c)240 because this is a site specific rezone application for the two small parcels of property. It is the first step in the stage of developing the property. The applicant has never tried to hide the fact that they do intend at some point in time to submit a development proposal. Under the cited RCW, a City is allowed to determine that the requirements for environmental analysis and mitigation measures have been adequately analyzed and mitigated in an environmental analysis that was done at the comprehensive plan or development regulation stage. That appears to be what the City has done here. The City's staff report lists out many of the impacts that could flow from the rezone, and the records indicate they did have all the pertinent information before they made their determination. Mr.Mapili responded that this May Valley area is not a routine plat,but is very critical in nature. Mr. Crisp reiterated that the proposal does conform with some of the policies and objectives in the CP, but it is not in conformance with vastly more policies and objectives of the CP, and more specifically not in conformity with the policies that are more applicable to the natural area that is the May Creek greenbelt. The Examiner called for further testimony regarding this appeal. There was no one else wishing to speak. The hearing closed at 10:25 a.m. Tharp Rezone Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 5 FINDINGS, CONCLUSIONS &DECISION Having reviewed the record in this matter,the Examiner now makes and enters the following: FINDINGS: 1. The appellants, represented by Wynnlee Crisp and Charles Mapili, filed an appeal of a Determination of Non-Significance(DNS) issued for a proposed rezone that would reclassify approximately 10.3 acres of RC (Resource Conservation)zoned property to R-1 (Residential: 1 unit per acre) and R-5 (Residential: 5 units per acre). The appeal was filed in a timely manner. 2. In processing the rezone application the City subjected the application to its ordinary SEPA review process. The City, in the course of and as a result of its SEPA review, issued a Determination of Non- Significance for the project. The Determination of Non-Significance(DNS)was not conditioned by the City. To quote the staff report prepared for the rezone analysis: "There being no development proposal submitted by the applicant,the Environmental Review Committee found that environmental impacts of the rezone could not be assessed at this time and,therefore, declined to recommend mitigation measures." 3. The appellants objected to the determination and raised a number of issues concerning the disparate impacts of the greater density on local environment including the steeper slopes above May Creek,the impacts on May Creek itself,the precedent of up-zoning property designed Rural Residential(RR) in the Comprehensive Plan,the loss of habitat and that reviewing the rezone in a vacuum results in piecemeal review of the impacts of the rezone and the eventual subdivision and development of the subject site. The main thrust of the appeal almost precisely counters the ERC's determination. Whereas the ERC found the rezone a mainly ministerial action that merely changes the map designation which impacts cannot be fairly judged,the appellants allege that the rezone in fact results in certain known results and possible consequences such as the precedent involved. 4. The subject site was annexed to the City with the adoption of Ordinance 1835 enacted in June 1960. 5. The subject site consists of two differently sized,rectangular parcels that are side-by-side(east to west) but slightly askew. The eastern parcel is smaller and its north boundary line is approximately 58 feet north of the larger western parcel's north boundary. The eastern parcel is approximately 400 feet wide (east to west) by approximately 300 feet deep. The western parcel is approximately 558.56 feet wide and approximately 593 feet deep. 6. The entire subject site is located within the May Creek drainage basin. The creek falls just south of the southeast corner of the larger western parcel. Portions of the subject site are within 200 feet of May Creek and would be governed by the Shoreline Master Program. 7. The subject site has a heavy tree cover and native vegetation covers most of the site. 8. The subject site has moderate slopes along the northern approximately third of the site,very steep slopes in the majority of the remainder of the site,with somewhat less steep slopes in the south central Tharp Rezone -- Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 6 portion of the site. The slopes less than 25% are generally north of a curving line that falls between the 75 foot contour line and the 90 foot contour line. This area is approximately 3.58 acres in area. (All references to contour lines are approximate-the two areas proposed for rezone are delineated by a slope angle analysis.) This area is proposed for an R-5 Zone. 9. The remainder of the site lies generally south of the curved area defined above and it is approximately 6.72 acres. This parcel has slopes that range from 25%to 60%and in some cases possibly 100%. The proposal calls for this area to be zoned R-1. While there is another area of potentially moderate slopes located in this 6.72 acres, it lies in the southeast corner of the western parcel and there is no access due to its being surrounded by the Creek,the very steep slopes and third party property with no access. It has been included in a proposal to classify it to R-1. 10. The property north of the subject site is zoned R-8 (Residential; 8 dwelling units per acre). It has been and is continuing to be developed with single family homes. In the course of developing this adjacent property it was cleared of virtually all vegetation. 11. The subject site and property south, east and west of it is zoned RC. Most of the property south of NE 33rd(even if extended to the west)is zoned RC. Additional RC zoned property extending up to NE 36th is located west of May Creek. 12. There is an R-1 zoned area northwest of the subject site that is located east of Jones Road. 13. The RC zone also extends substantially south of May Creek. South of that area is another R-8 zone. 14. The City and King County have established a May Creek Greenway that incorporates the creek and a corridor on each side of the creek. 15. There are some single family homes located on the more level portions of the RC zone south of May Creek. The separate appellants both reside in homes in that area. 16. Access to the subject site would be through the subdivision noted above. It would be by Monterey Court NE which has been extended from the north to the boundary of the subject site. Similarly,utility lines have been provided to the north boundary of the subject site from that new subdivision. 17. While the record is not completely clear, it appears that while the applicant proposed rezoning the steeper slopes to R-1,they indicated that it would probably not develop those areas but would place them into a protected category such as a native growth protection easement due to the slopes. 18. The appellants pointed out the context of the subject site vis-a-vis its surroundings. They objected to categorizing a rezone as routine when it applied to this site. The only boundary the site shares with development is along its northern boundary while all of its other boundaries are undeveloped. The site has more in common with the undeveloped land than with developed land. The site is part of a corridor; actually,the only natural corridor that still connects Lake Washington with the mountains. They also argued that the City treated the rezone as defacto exempt from detailed environmental analysis since it did not change a feature of the site. If this were the case, however, it would be Tharp Rezone - Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31,2000 Page 7 categorically exempt. They argued that if any rezone deserved additional review and should not be defacto exempt,this site was worthy of such additional review. There is nothing in the statute to preclude an EIS for a specific proposal even if an EIS was prepared for the Comprehensive Plan. 19. The appellants also admitted that the potential changes to the subject site or portions of it could induce them to seek similar rezones of their respective properties and that this first incursion into land already zoned RC could induce additional conversions. 20. The City and applicant countered that an EIS was prepared for the adoption of the Comprehensive Plan as suggested by newer statutes. That EIS included this area. Another EIS without a specific project in mind would be duplicative and not provide any new information since no development was actually proposed. They also noted that many planning departments now do not consider an EIS routine when dealing with rezones. In addition,the City has its methods of mitigating projects including its fees to offset the impacts on roads,parks and emergency services, and noted that the adjacent developing properties were subjected to those mitigation measures as well as measures to control erosion and other impacts. Any speculation the City made to the possible development of the site would not add to the public debate. The preparation of an EIS at this point,the City noted,would lead to delay, expense and confusion. 21. In an August 3, 2000 letter from Elizabeth Higgins to Shirley Allen,the applicant,Ms Higgins noted: "Your deliberate separation of a development proposal from the rezone action was intended to result in a Determination of Non-Significance for the rezone request,which was achieved. The refusal of the ERC to make a determination at the initial meeting, based on these early expressed concerns, should have indicated to you their concern about making that decision." CONCLUSIONS: 1. The decision of the governmental agency acting as the responsible official is entitled to substantial weight. Therefore,the determination of the Environmental Review Committee(ERC),the City's responsible official, is entitled to be maintained unless the appellant clearly demonstrates that the determination was in error. 2. The Determination of Non-Significance in this case is entitled to substantial weight and will not be reversed or modified unless it can be found that the decision is "clearly erroneous." (Hayden v.Port Townsend,93 Wn 2nd 870, 880; 1980). The court in citing Norway Hill Preservation and Protection Association v. King County Council, 87 Wn 2d 267,274; 1976, stated: "A finding is 'clearly erroneous' when although there is evidence to support it,the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Therefore,the determination of the ERC will not be modified or reversed if it can meet the above test. For reasons enumerated below,the decision of the ERC is reversed. Tharp Rezone - Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31,2000 Page 8 3. The clearly erroneous test has generally been applied when an action results in a DNS since the test is less demanding on the appellant. The reason is that SEPA requires a thorough examination of the environmental consequences of an action. The courts have,therefore,made it easier to reverse a DNS. A second test,the "arbitrary and capricious"test is generally applied when a determination of significance(DS) is issued. In this second test an appellant would have to show that the decision clearly flies in the face of reason since a DS is more protective of the environment since it results in the preparation of a full disclosure document,an Environmental Impact Statement. 4. An action is determined to have a significant adverse impact on the quality of the environment if more than a moderate impact on the quality of the environment is a reasonable probability. (Norway, at 278). Since the Court spoke in Norway, WAC 197-11-794 has been adopted, it defines "significant" as follows: Significant. (1) "Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. (2) Significance involves context and intensity...Intensity depends on the magnitude and duration of an impact.... The severity of the impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great,but the resulting environmental impact would be severe if it occurred. 5. Also redefined since the Norway decision was the term "probable." Probable. "Probable" means likely or reasonably likely to occur, ... Probable is used to distinguish likely impacts from those that merely have a possibility of occurring,but are remote or speculative. (WAC 197-11-782). 6. Impacts also include reasonably related and foreseeable direct and indirect impacts including short- term and long-term effects. (WAC 197-11-060(4)(c)). Impacts include those effects resulting from growth caused by a proposal, as well as the likelihood that the present proposal will serve as precedent for future actions. (WAC 197-11-060(4)(d)). Environmental impact is also related to the location. A development,whether an office building or a single family development,may or may not create impact depending on the existing surroundings. 7. In this case there is both a sensitive location (although moderated somewhat by the intensity of the new development to its north), as well as the precedent setting nature of reclassifying lots or portions of legal lots that have significantly constrained slopes. It does not appear unreasonable-- actually, it appears very reasonable to explore in more detail both the probable impacts of developing the subject site with 15 to 17 homes that might be accommodated on 3.58 acres as well as the possible consequences of opening up the other less constrained RC property now protected by that RC zoning of one home per 10 acres. 8. The Court in Juanita Bay Valley Community Association v. The City of Kirkland, 9 Wn.App. 59, 72, 510 P.2d 1140,rev. denied, 83 Wn.2d 1002(1973)expounded on the requirement for early review and Tharp Rezone Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 9 particularly singled out the area of phased,or a series of related projects: "[O]ne of the purposes of.... SEPA, is to avoid the adverse impact upon the environment which takes place when various phases of a project, or a series of projects, are authorized by governmental agencies, in a piecemeal fashion without regard to the cumulative impact of the total development.... Appellant correctly suggests that the environmental impact of the total project, rather than that of the grading project alone,must be weighed in order to meet the requirements of SEPA. We therefore conclude SEPA requires that an environmental impact statement be prepared prior to the first governmental authorization of any part of a project or series of projects which,when considered cumulatively, constitute a major action'significantly affecting the quality of the environment...'RCW 43.21C.030(c). 9 Wn.App. at 72-72." 9. The court has rejected arguments that merely modest steps of a longer or larger project do not require full environmental assessment. There have been contrary opinions and it clearly depends on the nature of the proposal. Courts have decided both ways. WAC 197-11-060 clearly requires analysis of reasonably foreseeable results, of related and foreseeable actions,which can be read as quite reasonably: "of rezoning and platting." The courts have used language that says the decision should be predicated on the totality of the circumstances;that review of a proposal is not to be limited by the four corners of the application. In other words,the reviewing official cannot turn a blind eye to the ultimate objective. This office believes that the decision-maker, deciding the fate(development potential)of property abutting the May Creek Greenway and with slopes that range from moderate to almost 100%, but where the majority of the 10 or so acres is between 25% and 60%, deserves a full analysis. It appears inappropriate at this stage to merely use straight topographic features to divide the site into moderate,developable slopes and severe,undevelopable slopes. This does not consider whether moderate slopes may appropriately remain RC or R-1 when both topographically and legally attached to severe slopes. The parcels are after all a legal combination of both. 10. Clearly, in dealing with an appeal alleging "piece-mealing" we are dealing with issues more related to philosophy which can be seen in the way courts have split on the issue. It is an issue of process or rather how to process a proposal that in substance does little more than change labels on a map,but in outcome begins a process of vesting rights to develop in a certain manner and in a certain density. It is the first concrete step in a progression that generally, although albeit not necessarily, leads to a subdivision,homes,yards,noise, additional air pollution, pesticide and herbicide application and change. 11. The City suggests that the rezone stage is not an appropriate time to review the probable impacts of development since a rezone is merely a map change. Instead they suggest that when real development, such as a proposed plat is submitted,would be the time to possibly analyze the potential environmental impacts of the development. The City also argues that the adoption of the Comprehensive Plan was accompanied by the preparation of the EIS and,therefore, one for a rezone is not required. 12. The argument is,therefore,that now is not the time to mount a SEPA challenge on rezone based on Tharp Rezone - Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31,2000 Page 10 Comprehensive Plan policies. The thrust of that argument is that such challenges should have been mounted when the Comprehensive Plan was adopted, particularly since a EIS was done at that stage. This argument either misses the point or dismisses the point that if the appellants had no problem with the Comprehensive Plan as it applied to the subject site,they would have had no reason at that time to challenge that prior SEPA determination. 13. While the Comprehensive Plan is quite complex, it is not very location specific.Also,the Comprehensive Plan adopted at that time, as it pertains to the subject site or area,was for Resource Conservation--meaning fairly low density residential development. 14. It is only the fact that the potential zoning districts(i.e. RC,R-1 and R-5)that meet those goals appear to extend the meaning of"fairly low density residential" that seems to give these appellants concern. The zoning that staff has suggested for the subject site ranges from: RC,the current zoning and one which the appellants support at one(1)residence per ten(10)acres;to R-1 which allows one(1)residence per one(1) acre;to R-5 which allows five(5)residences per one(1)acre. The appellants allege that there is a difference between the Rural Residential designation identified in the Comprehensive Plan and its EIS. The EIS is more general and is insufficient and inadequate since it fails to deal individually in describing the impacts to this specific site. There is no question that RC zoning and R-5 zoning are very different and result in a very different development pattern. So while RC and R-5 along with R-1 zoning may be accommodated by a Rural Residential designation,there really is little to connect them in terms of outcome if development were to occur. 15. The City during the course of the hearing enumerated the impacts from developing the site but did not think that such enumeration in an EIS was necessary. There was almost an implicit admission that the City and its planners and probably the decisionmaker already know about the impacts of development generally and that documenting them was redundant, even for a site such as the subject site. This ignores the fact that the general public may not be so knowledgeable. It also ignores the fact that occasionally a more full exploration of the probable impacts might lead to better design,particularly for a non-routine site or one with significant features or attributes. 16. It is clear the applicant wanted to avoid detailed environmental review at this stage of the process and the City agreed(see August 3,2000 letter of Higgins to the applicant). It is just as clear that the City's obligation is to fully and fairly determine the potential impacts of rezoning these two parcels. It is also clear that Washington's vesting laws will make critical environmental review after the rezone more problematic. Waiting until the rezone is approved will foreclose,probably forever, any review of alternative scenarios that would allow the applicant reasonable development while preserving more of the natural amenities of the site and not just the precipitously steep slopes. Tharp Rezone -- Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 11 17. While the applicant has attempted to limit the scope of SEPA review to the proposed rezone, SEPA does not permit arbitrarily segmenting proposals to avoid the full disclosure otherwise required under SEPA. There can be little doubt that a proposal to reclassify property that can now support two homes to a classification that allows 15 to 17 homes will more than probably result in development. 18. While the City has alternately argued that an EIS will not tell us much more than that 15 homes will generate approximately 135 vehicle trips and remove vegetation from a large portion or all of the subject site, and that pavement will increase runoff that has to be handled,the absence of a thorough review might foreclose information that developing the site less intensely is more appropriate. Frankly, alternative analyses might show that the City inappropriately foreclosed greater density on other portions of the subject site. It is noted that the applicant applied for R-1 zoning on approximately 6.72 acres and that the City recommended that that be denied and that those 6.72 acres retain their RC zoning. 19. SEPA requires review "at the earliest possible point in the planning and decision-making process" (WAC 197-11-055(2). This review should be performed prior to irrevocable commitment of either resources or land. This decisionmaker for one would like to have an analysis of rezoning the entire 10.3 acres to R-1. That would allow approximately 10 homes and the possible retention of more vegetation. What of substance can be accomplished after granting the rezone and vesting a strong, if not absolute,potential for 15 to 17 homes. It is apparent that the SEPA determination required at this, the earliest time when alternatives can be realistically considered,would be to require an EIS. 20. By attempting to eliminate the full disclosure mandated by SEPA,the applicant or applicants may be foreclosing reasonable and better alternatives for the site. They may be committing to a course of action which has not been fully explored. SEPA demands more in this case. 21. The focus clearly needs to be narrow but studied. The reclassification of the subject site to R-5 will almost certainly foreclose options for the subject site. The City's interpretations of the minimum density requirements,the fact that any options in the density range are solely for the applicant's benefit when coupled with Washington's vesting laws would certainly result in development that is R-5 or approximately 15 to 17 homes on the subject site. The R-5 rezone without a SEPA study would foreclose considering something like R-3 or R-2 density equivalents. While this office acknowledges such density ranges are not defined in code, a contract rezone could be used to arrive at such intermediate densities with their inherent reductions in pavement,vegetation removal and noise. 22. It also needs to be remembered that merely studying minimum and maximum development and mid- range development scenarios does not mean that the ultimate development cannot be what the applicant envisions. The focused EIS only serves as a full disclosure document. 23. Again, one has to remember that while the document serves the needs of the decisionmaker, it truly serves the needs of those who need information to formulate appropriate questions for the decisionmaker--that is neighbors and other interested persons who may not be as knowledgeable of development results. 24. As the appellants pointed out,the adjacent Stafford developments and other newly approved Tharp Rezone -- - Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 12 developments were fully mitigated. That resulted in the absolutely clearing of all vegetation and stripping of top soils. Is that appropriate for a site immediately above May Creek? While erosion control will prevent silt from reaching the creek, is a clear demarcation between undeveloped May Creek and fully cleared and stripped uplands an appropriate transition zone as noted by staff? The R-5 is recommended as a transition between the R-8 and the R-C. That appears to be viewing the transition from R-8 to its next nearest density,R-5. What about viewing the transition from the R-C to it nearest density'neighbor'-R-1? Could that be a suitable transition? 25. This office recognizes one issue that makes this decision problematic. This office not only reviews the SEPA appeal but is also a decisionmaker("recommendation-maker"to the City Council in this case). As the decisionmaker more information is always welcome and not just for the sake of exploring minutia or delaying the ultimate decision. This decisionmaker would like to have more information on alternatives to dividing the site merely by topographic relief. The applicant and the City both agreed on using topography to delineate the line between zones:the moderately sloped areas would be R-5 and the steeper slopes either R-1 (the applicant's proposal)and RC (status quo/no change,the staffs recommendation). There was no exploration of a contract rezone that might tie a rezone to a division of the site into lots that each contain steep slope and moderate uplands or a contract rezone that might explore tying vegetation preservation to more density or might explore a PUD or clustered development. This type of discussion could have explored options that could satisfy the rezone criteria that requires that the rezone be: in the public interest, and tends to further the preservation and enjoyment of any substantial property rights of the petitioner, and is not materially detrimental to the public welfare or the properties of other persons located in the vicinity thereof. While any increase in development potential of the upland areas could clearly further the substantial property rights of the petitioner,that does not make all such increases in potential in the public interest. The rezoning of property requires a balancing of interests. This is not merely more level terrain--this more level terrain is intimately tied to steep slopes above May Creek. Divorcing the moderate terrain leaves only the severe slopes protected. The natural ecosystem involves the transition from the Stafford Crest fully urbanized single family development to the rarified creek bed and slopes. Additionally,the area encompassing the moderate terrain is not conveniently a separate legal parcel or parcels. The two legal parcels have both some moderate terrain and a majority of very steep terrain. 26. The reviewing body should not substitute its judgment for that of the original body with expertise in the matter, unless the reviewing body has the firm conviction that a mistake has been made. There is no doubt that the reviewing agency erred in its determination. The proposal is one step in a series of related steps, a step which will almost certainly irrevocably commit the site to further development that may not be in keeping with the character and complexion and complexity of the remainder of the site above May Creek. This particular rezone is a major action which will have more than a moderate impact on the quality of the environment when viewed in terms of what it more than likely permits. Tharp Rezone Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31,2000 Page 13 This proposal, coupled with the potential development, is a major action which will significantly affect the quality of the environment and could significantly affect the range of reasonable choices which themselves affect the quality of the environment. 27. The appealing party must prevail on this appeal. A DNS, even a mitigated DNS,would be inappropriate for this rezone action. In this case,the ERC did not even impose mitigation measures, seeing it as truly a map change and nothing more. Full disclosure is required which mandates the preparation of an EIS. 28. The determination of the Environmental Review Committee is reversed. The lead agency is directed to prepare an Environmental Impact Statement for the subject proposal and reasonably identify impacts of developing 15 to 17 homes above the slopes of May Creek, as well as reasonable alternatives. This document should be quite focused,but include possible contractual agreements or limitations on the nature of development. 29. Having reached the conclusion that an EIS is required,no purpose would be served in reviewing the proposed rezone request for the subject site. The evaluation performed by the EIS may demonstrate that the subject proposal needs modification. DECISION: The lead agency is directed to prepare an Environmental Impact Statement for the subject proposal. ORDERED THIS 31st day of August,2000. (3.1jr-62—'--- FRED J.KAUFMA HEARING EXA1Villt TRANSMITTED THIS 31st day of August,2000 to the parties of record: Charles Mapili Wynnlee Crisp Sheri Waddington 2316NE31st 2100NE31st 2332NE31st Renton, WA 98056 Renton,WA 98056 Renton, WA 98056 Randal and Renee Barger Rose Falaniko Wanda Look 2336 NE 31st 2224 NE 31st 3435 Lincoln Drive NE Renton,WA 98056 Renton,WA 98056 Renton, WA 98056 Karen Stein Rosemary Larson Shirley Allen 3423 Lincoln Drive NE 777 108th Avenue NE 5657 229th Avenue SE Renton, WA 98056 Bellevue,WA 98009 Issquah, WA 98029 Tharp Rezone Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-051,R August 31, 2000 Page 14 Larry Warren Elizabeth Higgins Frank Parker 1055 S Grady Way 1055 S Grady Way 2415 NE 31st Renton,WA 98055 Renton,WA 98055 Renton, WA 98056 Sherwood Luther Todd Anderson Rodney Guest 3441 Lincoln Drive NE 3435 Lincoln Drive NE 3429 Lincoln Drive NE Renton,WA 98056 Renton,WA 98056 Renton,WA 98056 Stephen Elliott Paul Miller Julie Tharp 3624 Jones Avenue 3623 Lincoln Ave NE 359 Thomas Ave SW Renton,WA 98056 Renton,WA 98056 Renton,WA 98055 Marilyn Clise Jeanene Tharp 19810 NE 155th Place 218 "E" Street SE Woodinville, WA 98072 Auburn, WA 98002 TRANSMITTED THIS 31st day of August,2000 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 Betty Nokes,Economic Dev.Director 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.,September 15,2000. 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. Tharp Rezone -- Appeal and Land Use Hearings File Nos.: LUA00-107,AAD LUA00-05 1,R August 31,2000 Page 15 The Appearance of Fairness Doctrine provides that no ex parte(private one-on-one)communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision-maker concerning the proposal. Decision-makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. v t'-too' - ®a CITY OF LACROSS SOUTH PRELIMINARY PLAT • RENTON o`Wm I i un w r L'4;`4.}.%,ng°,tt,z, +wia EXISTING UTILITIES SMIALL02 NO. ntvlson BP DATE lava --1e,m„ dv, AND TOPOGRAPHY MAP , , I _\._y=ic- _ Zm `--' zb -p y _ -t ONOp _ Z — g / �, 1'''f�''�r+ write..— _ /�' '��-��...rG�1yt41'44M».I✓ ra l 1T"-.. .. _ - i i''/'11'°J4hlbpnrrurp/1,'/','; l `. 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NEI36th — i SE 88tt wtz f o • _ I ? t _ SE 89tr • a,J ! 1 1 •),_ % . i R I 4 c' �`l 1 SE 90th ' .\ Rcg ! 1 I I: -H 13_-___.1.8 . „ r, I ,_ k 33rd IS i !I : S. I � 1 1` 1 I i e ) t i 1 Si - YaG. , 1 t-�cµ-I ---I (( i. c. �_ • NE 1"st.:St _ ' H ii I -"‘__._._.... -‘ i •-- - \ I ------- -A-, ( • 1I \/RC . -rl IFl , • �NeTI -H-7--- - . R ( ,,,_, ) ! I ; i s I C ' ( l I , , hst ! I — - i i I . I l i l ► , 1 �: , . 3IH. -- _LI -! L?I 7t R;8 ' 1 ! .�i ; a ----� • - •\ .r-T- ---- -T--LJ ILI. 1 I ► ' I.il 'i I; ► • D4 . 5T23NR5EE1/2 0 $oo ., °..• ri ZONING es�vicsa z Di4 t 14 [,.—_ 1!4EGG. C4 � . ' ,_, 32 T24N R5E E 1/2 la ;t, ,., CIT' _F RENTON sal �-: '•', Hearing Examiner e; ,r Jesse Tanner,Mayor. Fred J.Kaufman August 3, 2000 Randal Barger Wynnlee Crisp 2336 NE 31st • • 2100 NE 31st: Renton, WA 98056 Renton, WA 98056 Rose Falaniko Wanda Look 2224 NE 31st 3435 Lincoln Drive NE Renton, WA 98056 Renton, WA 98056 Charles Mapili Karen Stein 2316 NE 31st 3423 Lincoln Drive NE Renton, WA '98056 Renton,WA 98056 Sheri Waddington 2332 NE 31st Renton, WA 98056 Re: Appeal of Environmental Determination of Tharp-Rezone Appeal File No. LUA00-107,.AAD::`.<<'' Dear Appellants: We received your appeals dated July 31, 2000, and the hearing will be scheduled for Tuesday, August 8,2000, 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 - Elizabeth Higgins 1055 South Grady Way Renton, Washington 98055 - (425)430-6515 ,. CITY OF RENTON t:341 •h+. Fred Kaufman J U L 3 1 2000 7/31/2000 THearing Examiner RECEIVED City of Renton CITY CLERK'S OFFICE 425-430-6515 re: Tharpe Rezone, LUA-00-051,R,ECF Environmental DNS Mr. Kaufman, We are appealing the DNS with respect to the Tharpe Rezone, LUA-00-051,R,ECF, based on the following errors of fact or law. Included is the required $75 appeal fee. The Environmental checklist does not take into account the obvious follow on activity, development of the land according to the new zoning. Here are a few examples of where courts have stated that it is inappropriate to perform an analysis of only one step of a process at a time. Alpine Lakes Protection Society,v. State of Washington "...provides that SEPA categorical exemptions do not apply when there is: • A series of exempt actions that are physically or • functionally related to each other, and together may have • a probable significant adverse environmental impact in • the judgment of an agency with jurisdiction." King Co v. Boudary Review Board "The basic purpose of this command is to require local governments to consider total environmental and ecological factors to the fullest extent when taking'major actions significantly affecting the quality of the environment.' Instead, an EIS is required if,based on the totality of the circumstances, future development is probable following the action and if that development will have a significant adverse effect upon the environment. The categorical approach can lead to results contrary to the purposes of SEPA. One of SEPA's purposes is to provide consideration of environmental factors at the earliest possible stage to allow decisions to be based on complete disclosure of environmental consequences. Decision making based on complete disclosure would be thwarted if full environmental review could be evaded simply because no land use changes would occur as a direct result of a proposed government action. Even a boundary change, like the one in this case,may begin a process of government action which can "snowball" and acquire virtually unstoppable administrative inertia. See Rodgers, The Washington Environmental Policy Act, 60 Wash. L. Rev. 33, 54 (1984) (the risk of postponing environmental review is "a dangerous incrementalism where the obligation to decide is postponed successively while project momentum builds"). CHARLES R. ULLOCK,Appellant,v. THE CITY OF BREMERTON "However, the current regulation also empowers counties and cities to create "environmentally sensitive areas" to which most of the categorical exemptions do not apply- including,but not limited to, areas with unstable soils, steep slopes, unusual or unique flora or fauna, or areas which lie within floodplains. WAC 197-10177." 1 The environmental Checklist prepared by the applicant was inadequate and inaccurate. Even with the supplemental information developed by the City Staff, a correct determination of significance could not be made. The applicant fails to adequately describe the natural and built environment in the Resource Conservation area, giving a false impression that impacts would be minor. In fact the rezone is a significant discontinuity in the surrounding zoning. There are discrepancies in acreage of the total property, and of areas proposed for R-1 and R-5 zoning. This is evidence of lack of care on the part of the applicant. It is still unclear how much land is involved in this application. Is it 10-12-14 acres? Do we have an accurate measurement for the land that is and is not in protective slopes? With inconsistent information it is difficult to come to the correct environmental determination. The applicant reported only songbirds and rodents found during a brief visit on a single day by an untrained observer. The applicant later provided a study by Wetland Resources, Inc., which contradicted the applicant's unsubstantiated assertion that the property has small wildlife habitat value. The Wetland Resources, Inc. study was submitted by the applicant the day before the ERC meeting, and couldn't have been taken into consideration when making the significance determination. If it had, the determination would have been different. The incorrect proposed threshold determination occurred partly because the SEPA checklist fails to adequately describe the setting. It focuses on the residential development to the north, giving the false impression that a rezone would be compatible with adjacent land use. In actuality, the rezone area spills over the rim of lower May Creek canyon, into the area shown on the City Greenbelts Map. So, while one of its six borders abuts a parcel just outside the canyon rim that is being developed at this time, the other five borders abut forested Resource Conservation lands, Resource Conservation lands with one house on 4-6 acres, May Creek, and greenbelt owned by the City Parks Department. The SEPA Checklist downplays the property's May Creek boundary and makes no mention of the impact on water quality in May Creek, a salmon spawning stream abutting the toe of the sloped property. Runoff from dense residential areas contains pesticides, herbicides, fertilizers, and oils that are not removed by conventional storm-water detention facilities. These impacts need to be described through water quality modeling and disclosed in the Checklist. Consultation with Washington Department of Fisheries, National Marine Fisheries Service, and U.S. Fish&Wildlife Service is needed. The SEPA Checklist indicates that the subject property is not in an aquifer protection area. It is in APA Zone 2 as noted by City Staff. The SEPA Checklist indicates that there is no surface indication or history of unstable soils in the immediate vicinity. This is incorrect. The southeastern corner of the property is sloughing off, forming a 30-foot vertical drop into May Creek. A visual inspection of rest of the Lower May Creek Canyon shows slope creep and mass failure toward the creek. One of these is especially notable, since it was repaired by the Washington State Department of Transportation by installing a massive concrete structure in 1997. The rest of the slides, which occurred in 1997 and 1998, remain unstabilized. 2 Transportation by installing a massive concrete structure in 1997. The rest of the slides, which occurred in 1997 and 1998, remain unstabilized. Proposed Remedy The lack of inclusion of the follow on activity as required by several courts, and the failure to collect accurate data and to notice the condition of the landscape evidences lack of investigation and completeness when compiling the Checklist. A final determination of (non)Significance should not be made with incomplete, incorrect, conflicting, and confusing information. Correct the misinformation. Compile all the information that is relevant to a complete determination into an adequate Checklist, advertise its availability for public review, and then make a Determination of Significance. Attached are the signatures of the appellants. 3 t • Appellants appealing the DNS of the Tharpe Rezone 7/31/2000 Name Signature Address Phone G*1-/-0. � 2:5 " S/s7- )/7- ram(2. 51C l W 0-4 ot(<./1 �j fv� ��GC U3 23;z �) � ZZ8-O ?5 PCB / ')• Fai- l)ko 62-4344- wick, M fis-3i / as7- Y/54 1 ilte44 C---11104er / • ' 2 3/,6 /V5-3/ y23-.23. 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Grady Way Renton,WA 98055 Subj: Appeal of DNS on Tharp Rezone,LUA00-051,R, ECF I ask that you consider this appeal of the Environmental Determination made on the Tharp Rezone,LUA00- 051,R,ECF. Attached is a description of thesubstantial errors in fact and law which exist in the record. Specifically: 1. The determination was made without considering the effect of related and reasonably foreseeable actions, and 2. The proposed action would result in significant adverse environmental impacts. I ask that the SEPA document be amended to address the effects of the larger proposal on which it depends for its justification in accordance with WAC 197-11-060(3)(b)(ii) so that a proper determination can be made. I also ask that the proposed upzoning itself be recognized as having reasonable liklihood of more than a moderate adverse impact on environmental quality(WAC 197-011-794(1)) and that a Determination of Significance be issued. Enclosed is the required$75 filing fee. Thank you for your review of this matter. Sincerely, Vpzeee' CQ Wynnlee Crisp BASIS OF THE APPEAL OF THE DETERMINATION OF NON-SIGNIFICANCE ON THE THARP REZONE LUA00-051,R,ECF Wynnlee Crisp July 31,2000 1. The SEPA document and administrative record segment the proposal,resulting in an incorrect Determination of Non-Significance. In violation of Chapter 197-11 of the Washington Administrative Code,the SEPA document and the administrative record improperly segment the full proposal such that each part may be found to have little impact,but the combined effect of related and reasonably foreseeable actions is significant. Had the reasonably foreseeable portions of the action been considered, a corresponding Determination of Significance would have been made. By segmenting the proposal,the SEPA document fails to'adequately describe the impacts. The document must address all the"closely related"parts of the larger course of action. The rezone is just one part of a larger proposal as noted in Checklist section A.7. The rezone depends on the larger proposal for its justification. (WAC 197-11-060(3)(b)(ii)) Consequently, all the related parts need to be addressed in an appropriate level of detail in the environmental document. These include the rezoning, annexation to the Coal Creek Utility District,deforestation,grading, drainage,etc.,which cumulatively have a significant adverse impact in this particular sensitive environment. (WAC 197-11-060(3)(b)) If approved,this proposal and its related development would be the third incremental encroachment of development into the May Creek greenbelt at this location. It was preceded by Stafford Crest Division I, then,two years later, Stafford Crest Division II. It is clear from the SEPA document that the current proposed rezone was induced and made possible by the City's approved conversion of these previously forested lands to the north which comprised a substantial portion of the greenspace along May Creek. The SEPA document must address the similar pressure on forested lands abutting the rezone property and extending to the east,west, and south. This insidious creep is an induced impact,which is not disclosed in the SEPA Checklist. The Checklist needs to describe the indirect impacts of the proposal,recognizing the "effects resulting from growth caused by a proposal,as well as the likelihood that the present proposal will serve as a precedent for future actions."WAC 197-11-060(4)(d). It needs to acknowledge the effect that this rezone will have on inducing other land use changes in the Resource Conservation zone,just as this proposed change was induced and made possible by prior rezoning and development. In making the threshold determination,the City needs to acknowledge that the proposal establishes a precedent for future actions with significant effects(WAC 197-11-330(3)(e)(iv)),just as its predecessors did, and issue a Determination of Significance. The Applicant's attorney(Rosemary Larson)submitted a letter to the City dated May 22,2000,the day prior to the first Environmental Review Committee meeting, attempted to justify segmenting the proposal, citing part of a court decision(Murden Cove Preservation Assn.v. Kitsap County,41 Wn.App. 515, 526, 704 P.2d 1242(1985))that held"that assessment of environmental concerns related to applicant's future plans for the property could be deferred until presented in a specific form for requested government action." That letter did not explain that the underlying reason for that court decision does not apply in the Tharp rezone. The court was reviewing a DNS issued on a proposed rezone from Residential to Industrial. Correctly,the court reasoned that the impacts of the actual development for industrial use could not be reasonably ascertained absent a development proposal, and reiterated that"SEPA does not require consideration of every remote and speculative consequence of an action." By comparison,the 2 consequences of a residential upzoning from Resource Conservation to R-1 and R-5 can reasonably be ascertained at this time and are neither remote or speculative. The City's Staff Report includes one example of this, citing an ITE manual which quantifies the number of vehicle trips generated. Unlike industrial development,which can take many forms and have widely varying impacts,the effects of residential development can be understood absent a specific proposal. If only the zoning action,and not its consequence, is all that must be considered,then there could never be a significant adverse impact and a rezone would be categorically excluded under SEPA. This explains why other jurisdictions evaluate the consequence of rezoning in their SEPA documents,in compliance with(WAC 197-11-060(3)(b)(ii)). This was affirmed in King County v.Boundary Review Board, 122 Wn 2d 648, 860 P.2d 1024(1993). The court determined that,"A proposed land use related action is not insulated from EIS requirements simply because there are no existing specific proposals to develop the land or because no immediate land use changes will result from the proposal." Acknowledging that, absent a specific development proposal,there is some level of uncertainty,in Byers v Board of Clallam County Commissioners, 84 Wn.2d 796, 529 P.2d 823 (1974)the court specified that,"Difficulty of compliance is no excuse." The Applicant's attorney(Rosemary Larson,May 22,2000) also cited part of the rationale from Narrowsview Preservation Assn.v.Tacoma, 84 Wn.2d 416, 526 P.2d 897(1974) as justification for segmenting the proposal. Again,the Narrowsview situation was entirely unlike the proposed Tharp rezone. In Narrowsview, "The decision not to prepare an EIS on a rezone was affirmed because development under the new zoning would not have a substantially greater impact than development under the old zoning" The proposed Tharp upzoning would permit densities of 10 to 50 times the current zoning,resulting in significantly greater impact. The SEPA document and the administrative record improperly segment the full proposal such that each part may be found to have little impact,but the combined effect of related and reasonably foreseeable actions on which the proposal depends for its justification is significant. Had the reasonably foreseeable portions of the action been considered,a corresponding Determination of Significance would have been made. 2. The SEPA document and the administrative record fail to consider cumulative effects. The SEPA document ignores the cumulative effect(WAC 197-11-792(2)(c)(iii))of continued encroachment into Lake Washington's last remaining contiguous greenbelt extending from the Lake to Cougar Mountain. Nor is there any mention of the significance of this in the administrative record. This continuous greenbelt, held in both public and private ownerships,provides a wildlife corridor that does not exist elsewhere around the entirety of Lake Washington.This fundamental omission caused an erroneous threshold determination, when a Determination of Significance is actually required. 3. There is reasonable likelihood that more than a moderate adverse impact on environmental quality would result. The SEPA document and the administrative record fail to adequately describe or consider the context of the impacts as required in WAC 197-11-794(2). And,in cases where the intensity of impact can be reasonably ascertained,commonly accepted thresholds of significance are not used. a. The proposal would increase density ten to fifty times the level allowed by current zoning. The current Resource Conservation zone allows one residence per 10 acres. The proposed R-1 zone would increase the allowed density by ten-fold; the R-5 zoning by fifty-fold. The magnitude of this increase is 3 more than moderate. In the context of(1) converting forested greenspace,which is part of a contiguous riparian greenbelt,to residential use and(2)narrowing the cross-section of that greenbelt to half its existing width,the proposed upzoning has a significant adverse impact. b. Permitting the conversion of resource lands to dense residential use is a significant action. The subject property lies in a continuous forested greenbelt that extends from Cougar Mountain to Lake Washington. The property accounts for half the width of the corridor at this location on May Creek. The applicant's wildlife study(Wetland Resources,Inc,June 30,2000)indicates the importance of maintaining the integrity of the forest and wildlife corridor and preserving the habitat connections; a well accepted principle of wildlife management. The current Resource Conservation zoning is intended to protect the wildlife resource. The proposed upzoning would allow partial to complete destruction of productive wildlife habitat in order to construct housing and roads. Native growth would be converted to area devoid of natural functions and values. An entitlement of this nature,in the context of a continuous wildlife corridor along a salmon-spawning stream,exceeds commonly accepted thresholds of significance. c. The proposed action is precedent-setting. Unlike the prior sequential incursions into the May Creek greenbelt,this is the first that proposes to convert Resource Conservation lands to more dense residential zones. The Resource Conservation zone was intended to protect important resources,which were given priority over residential development(allowed at only 1 unit per 10 acres). If approved,the proposed rezoning would be precedent-setting. Setting a precedent of such importance to environmental quality would commonly be considered significant. d. The proposed action would induce further resource area conversions. The proposed zoning would facilitate more dense development of adjacent resource lands,to the same extent that it was facilitated by the permitting of Stafford Crest Division II,which was itself facilitated by the permitting of Stafford Crest Division I. Induced development of resource lands is commonly considered a significant impact. e. The proposed action is not consistent with applicable Comprehensive Plan policies. The proposed zones are not consistent with the Comprehensive Plan policies. The objective of the Residential Rural designation, as it is applied throughout the city both in sensitive and non-sensitive environments,is described in LU-I. Other policies apply specifically to sensitive environments such as the Tharp property. • Comprehensive Plan Objective LU-I This objective seeks to"Preserve open space and natural resources and protect environmentally sensitive areas by limiting residential development in critical areas, areas identified as part of a city-wide or regional open space network,or agricultural lands within the City." The May Creek greenbelt is the most extensive regional open space network crossing Renton. As documented in the Staff Report,"The Cities of Renton and Newcastle, and King County,have been assembling properties for over twenty years to preserve the May Creek Corridor." The intent of the RR designation is preservation. The RC zone achieves this. It is unclear to what limited extent an R-1 zone would be able to achieve it. It is clear from adjacent development that an R-5 zoning would result in complete clearing in order to construct roads,utilities, and structures and could not,therefore,meet the plan objective at all. Inconsistency with the applicable Comprehensive Plan policies is commonly considered a significant impact. 4 In addition to the general land use objective described above,the Comprehensive Plan includes more specific objectives which are more particularly applicable to resource areas such as the Tharp property. Several of these are addressed below. • Comprehensive Plan Policy LU-12 Policy LU-12 is intended to achieve Objective LU-G,which seeks to preserve open space. As pointed out in the Parks Department's comments (May 15,2000)which were used as input to the Staff Report,the LU- 12 policy states that"Residential development should be limited in community separator areas [e.g.,RR designations] and environmentally sensitive areas such as 100-year floodways,high risk coal mine areas and hazardous landslides and erosion areas." The Parks Department's comment indicates that,"The area on May Creek is classified as high erosion hazard(Map 8-6 prepared by Geo Eng. 11/17/91) and high landslide (Map 8-7, Geo Eng. 11/17/91)"and is,therefore,one type of environmentally sensitive area. The existing RC zoning maximizes achievement of the LU-G objective and the LU-12 policy. As stated in Parks Department's comments(May 15,2000),"The current zoning(RC) and codi(sic) 1 du/10 ac is consistent with the long-range plan."Zoning that achieves the policy substantially less well(i.e.,R-1 zoning) and not at all(i.e.,R-5 zoning)would be considered a significant impact. • Comprehensive Plan Policy LU-271 Policy LU-271 is intended to achieve Objective LU-PP,which addresses Community Separators and seeks to"Provide physical and visual distinctions both within Renton and between edges of urban growth.". As pointed out in the Parks Department's comments(May 15,2000)the function of community separators should be to protect environmentally sensitive or critical areas. The current RC zone preserves a natural community separator that protects May Creek, a salmon spawning stream,and the riparian habitat. The proposed more intensive zoning extends to the shore of May Creek and previously identified wetlands and encompasses the riparian habitat zone entirely. This would eliminate a community separator in an environmentally sensitive area. Proposed zoning that is inconsistent with applicable Comprehensive Plan policies is commonly considered a significant impact. • Other Comprehensive Plan Policies and Objectives The proposal is also inconsistent with these policies and objectives: LU-2,LU-I,LU-153, LU-157, LU-OO, LU-268,LU-269,LU-276,LU-RR,LU-280,LU-VV,LU-WW, LU-XX,LU-CCC,LU-366,LU-367, and LU-DDD.Proposed zoning that is inconsistent with applicable Comprehensive Plan policies is commonly considered a significant impact. e. When the context of the site is properly considered,impacts acknowledged in the SEPA document are found to be significant. The SEPA Checklist indicates that"a limited increase in noise from the site will occur(such as typical to a single family neighborhood: lawnmowers,kids playing,etc.),"but fails to assess the affect in context nor to apply commonly accepted thresholds of significance. Typical sound pressure levels compiled by the U.S. Environmental Protection Agency indicate that suburban residential areas range from 40-50 dBA. By comparison,the current and predominant surrounding land use generates 30-40 dBA of mostly natural sound. The commonly accepted threshold of significance is a change of 3 dBA. Since significant noise would encroach on adjacent properties,a Determination of Non-Significance cannot be supported. 5 f. Runoff from the area would adversely affect May Creek and sockeye salmon spawning. In response to a request by the City,the Applicant submitted two drainage control options. One involved direct discharge to May Creek;the other, discharge to a swale that would be constructed immediately adjacent to the creek and,therefore hydraulically connected to it due to soils characterized by the May Creek Curent and Future Conditions report(August 1995)as"medium to high recharge potential." May Creek is identified in the"Critical Areas Inventory, City of Renton Wetlands and Stream Corridors" (June 1991) as salmonid habitat for Chinook, coho, and sockeye. Sockeye spawn in this reach when the early fall rains provide sufficient runoff to raise the water level in the creek. While the applicant identifies that retention facilities may be installed to slow the release of stormwater,detention facilities do not provide treatment. Consequently,stormwater that picks up a summer-season's worth of lawn pesticides,fertilizers, and oils from roadways would be discharged in concentrated form to the stream during the early fall rains (coinciding with salmon spawning). 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