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HomeMy WebLinkAboutSWP273531 (13)Steve Lee From: Garmon Newsom Sent: Monday, December 27, 2010 11:28 AM To: Denis Law, Council, Jay B Covington; Marty Wine, Alexander Pietsch, Suzanne Dale Estey, Chip Vincent; Vanessa Dolbee; Gregg A. Zimmerman; Ronald Straka, Steve Lee, Larry Warren Subject: Lake Washington Boulevard North Infrastructure/Exit 7 Area Improvement Project decision Attachments: image003.jpg; Lake Washington Boulevard North SHB decision.PDF Good Morning and Happy Holidays to everyone. It is the City Attorney's Office's pleasure to inform you that the Shorelines Hearings Board (SHB) has denied Mr. Brad Nicholson's petition to appeal the City's Lake Washington Boulevard North Infrastructure permit decision. In an effort to continue improving the quality of life in the City of Renton and to improve our environment, The City undertook the responsibility of improving the quality of surface water near the former Pan Abode/proposed Hawk's Landing site that drains into May Creek. The project was initiated by the Planning and Development Department. In February 2009, Economic Development Director, Ms. Suzanne Dale Estey successfully sought an economic and infrastructure grant from the state for the "Exit 7 Area Improvement Project." The grant provided for a storm drainage system on Lake Washington Boulevard North which would treat water that is discharged into May Creek and ultimately into Lake Washington; a water line extension; a sidewalk; and possibly an extension of the May Creek Trail. With the grant approval in hand, Senior Planner Vanessa Dolbee and Civil Engineer Steve Lee developed the infrastructure project plan. Ms. Dolbee managed the project through the Washington State Department of Ecology. Mr. Lee did the laborious work of making sure that the project addressed the environmental concerns of possible contaminants from the former Pan Abode site and that the plans achieved the city's goal of cleaning ground water, and possibly improving public access and/or visibility of May Creek. Both Mr. Lee and Ms. Dolbee insured that the project complied with Renton's Shoreline Master Program and the Shorelines Management Act. On August 26, 2010, citizen Brad Nicholson appealed the Shoreline Mon agement-Substontial Development Permit to the Shorelines Hearings Board. After Mr. Nicholson and the City filed opposing Motions for Summary Judgment, opposing Opposition motions, and the City filed a Reply Affirmation, the SHB found in Renton's favor, granted Renton's Motion for Summary Judgment, and denied Mr. Nicholson's petition. This decision and the work that went into obtaining the decision is the perfect example of team effort. Without Ms. Dale Estey, Ms. Dolbee and Mr. Lee meeting with Larry Warren and me, sometimes more than once, there is no way that we could have intelligently and successfully prevailed in this matter. I feel that everyone must know that Mr. Steve Lee and I worked on the Reply Affirmation and a third declaration for Mr. Lee of the eve of Thanksgiving, after 5 p.m., and again on the Monday following Thanksgiving. Mr. Lee was officially out of the office at that time but that did not stop him from helping Renton put its best arguments and responses forward. He walked me through the technical details of the project, the technical flaws in Mr. Nicholson's arguments, and he even reviewed our Reply Affirmation to make sure that each argument was scientifically accurate. Ms. Dolbee also called me while she was on her personal time to assist in the preparation of the City's pleadings. I sincerely appreciate how Mr. Lee and Ms. Dolbee went above and beyond every expectation to give Renton the best opportunity for an appropriate and favorable outcome. It has truly been a pleasure working with Mr. Steve Lee, Ms. Vanessa Dolbee and Ms. Suzanne Dale Estey. 1 Mr. Nicholson has 30 days to appeal to Superior Court. If he does, the City Attorney's Office is ready to defend this judgment of the SHB. Attached is a copy of the 20 page SHB decision. A large part of the decision was taken from Renton's pleadings and the attached declarations. G. Newsom II Assistant City Attorney City of Renton 100 South 2nd Street P.O. Box 626 Renton WA 98057 (425) 430-6480 (Office) (425) 255-5474 (Facsimile) CONFIDENTIALITY STATEMENT This message may contain information that is protected by the attorney -client privilege and/or work product privilege. If this message was sent to you in error, any use, disclosure or distribution of its contents is prohibited. If you receive this message in error, please contact me at the telephone number or e-mail address listed above and delete this message without printing, copying, or forwarding it. Thank you. *_____________________________________________* Constant User Interface DWF Inflow RNF Layer Inflow Junction Inflow Inflow Inflow Inlow through Inflow Outflow Evaporation from Name to Node to Node to Node to Node Outtall to Node from Node from Node 2D Layer --------------- ------------------------------------------- ---------------------- ---------------------- Nl 0.0000 46138.9050 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 N2 0.0000 85592.6250 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 N7 0.0000 0.0000 0.0000 0.0000 0.0000 0.0000 131724.5378 0.0000 0.0000 I Table E20 - Junction Flooding and Volume Listing. I I The maximum volume is the total volume I I in the node including the volume in the I I flooded storage area. This is the ma.x I volume at any time. The volume in the I flooded storage area is the total volumes I above the ground elevation, where the I I flooded pond storage area starts. I The fourth column is instantaneous, the fifth is thel sum of the flooded volume over the entire simulations Units are either ft^3 or m^3 depending on the units.) Out of System Stored in System Junction Surcharged Flooded Flooded Maximum Ponding Allowed Name Time (min) Time(min) Volume Volume Flood Pond Volume --------------- U2 ------------------------------------- 18.1875 0.0000 0.0000 30.1527 ----------------- 0.0000 N1 1440.00D0 0.0000 0.0000 60.8308 0.0000 N2 1440.0000 0.000D 0.0000 60,5139 0.0000 N3 1440.0000 0.0000 0.0000 55.5345 0.0000 N4 1440.0000 0.0000 0.0000 49.2625 0.0000 U1 12.0625 0.0000 0.0000 25.1867 0.0000 N7 1440.0000 0.0000 0.0000 34.6822 0.0000 N5 1440.0000 0.0000 0.0000 44.3157 0.0000 N6 1440.0000 0.0000 0.0000 35.1924 0.0000 I Simulation Specific Information I Number of Input Conduits.......... Number of Natural Channels........ Number of Storage Junctions....... Number of Orifices ................ Number of Free Outfalls........... 8 Number of Simulated Conduits...... 0 Number of Junctions ............... 0 Number of Weirs ................... 0 Number of Pumps ................... 1 Number of Tide Gate Outfalls...... Average % Change in Junction or Conduit is defined as: I I Conduit 8 Change =_> 100.0 ( Q(n+l) - Q(n) ) / Qfull I I Junction % Change =_> 100.0 ( Y(n+l) - Y(n) ) / Yfull I The Conduit with the largest average change was..FREE # 1 with 0.017 percent The Junction with the largest average change was.N6 with 0.115 percent The Conduit with the largest sinuosity was ....... N5-N6 with 26.594 I Table E21. Continuity balance at the end of the simulation I I Junction Inflow, Outflow or Street Flooding I I Error = Inflow + Initial Volume - Outflow - Final Volume I Inflow Inflow Average Junction Volume,ft^3 ------------ Inflow, cfs ------------- --------------- N1 46138.7042 0.5340 N2 85592.2132 0.9907 N7-131724.5378 -1.5246 Outflow Outflow Average Junction Volume,ft^3 ------------ Outflow, cfs ------------ --------------- N7 131724.5378 1.5246 I Initial system volume = 3161.5915 Cu Ft I I Total system inflow volume = 131731.5300 Cu Ft I I Inflow + Initial volume = 134893.1215 Cu Ft I I Total system outflow = 131724.5378 Cu Ft I I Volume left in system = 3161.7395 Cu Ft I Evaporation = 0.0000 Cu Ft I 9 9 0 0 0 I Outflow + Final Volume = 134886.2773 Cu Ft I Total Model Continuity Error I Error in Continuity, Percent =-0.0021 I I Error in Continuity, ft^3 = -2.852 1 + Error means a continuity loss, - a gain I ################################################### # Table E22. Numerical Model judgement section # ################################################### Your overall error was-0.0021 percent Worst nodal error was in node U2 with 11.7736 percent Of the total inflow this loss was 0.0012 percent Your overall continuity error was Excellent Excellent Efficiency Efficiency of the simulation 1.53 Most Number of Non Convergences at one Node 1. Total Number Non Convergences at all Nodes 1. Total Number of Nodes with Non Convergences 1. Hydraulic model simulation ended normally. XP-SWMM Simulation ended normally. Your input file was named : M:\RENTON\09583 Lk Wa Blvd - Hawks Landing Storm -Water Imps\Stormwater\Modeling\Existing\Hawk Landing Future 100.DAT ___> Your output file was named : M:\RENTON\09583 Lk Wa Blvd - Hawks Landing Storm -Water Imps\stormwater\Modeling\Existing\Hawk Landing Future 100.out I SWMM Simulation Date and Time Summary f I Starting Date... January 13, 2010 Time... 12:28:54:33 f f Ending Date... January 13, 2010 Time... 12:29:51:48 i I Elapsed Time... 0.95250 minutes or 57.15000 seconds i Steve Lee From: Vanessa Dolbee Sent: Tuesday, July 13, 2010 2:10 PM To: Steve Lee Subject: FW: Lake Washington Boulevard Storm Improvement for Hawk's Landing project, LUA10-041, ECF, SM Notice of Application and Proposed Determination of Non -Significance Steve, Could you provide Karen Walter a response to her questions below. Please cc me on the response so I can include the response in the official file. Thank you, Vanessa Dolbee x7314 From: Karen Walter[mailto:KWalter@muckleshoot.nsn.us] Sent: Tuesday, July 13, 2010 02:00 PM To: Vanessa Dolbee Subject: Lake Washington Boulevard Storm Improvement for Hawk's Landing project, LUA10-041, ECF, SM Notice of Application and Proposed Determination of Non -Significance Vanessa, The Muckleshoot Indian Tribe Fisheries Division has reviewed the Notice of Application materials which included the environmental checklist; project plans; Stream assessment memo dated June 16 2010; and Wetland/Stream Study dated May 12, 2009. We have some questions about this project as noted below. 1. Will any of the stormwater runoff from Hawk's Landing/Crown Plaza Hotel be directed to the new wet bioswale? 2. The response to project description indicates that the project will have a water quantity or detention component. Will the wet bioswale be used for detention or is another facility proposed? 3. Sheet 4 of the project drawings shows a high flow bypass structure outletting from the bioswale. Why is a high flow by-pass needed as part of the stormwater improvements? We appreciate the opportunity to review this proposal and look forward to the City's responses to our questions. We may have subsequent comments. Thank you, Karen Walter Watershed and Land Use Team Leader Muckleshoot Indian Tribe Fisheries Division 39015 172"d Ave Auburn WA 98092 253-876-3116 Steve Lee From: Johnson, Kathleen J -Kathy [kathy.johnson@pse.com] Sent: Tuesday, May 11, 2010 3:41 PM To: Steve Lee Subject: FW: SEPA text for utilities Steve, Please include this sentence in your SEPA checklist submittal. This should cover PSE's needs in regard to relocating the pole. Thanks, Kathy From: Strauch, Bradley R Sent: Tuesday, May 11, 2010 3:31 PM To: Johnson, Kathleen J -Kathy Subject: SEPA text for utilities Kathy, If using a standard SEPA checklist as defined in WAC 197-11-960, under Section A. 11, the following text could be added. "It is anticipated that existing utilities may be in conflict with the proposed work and therefore, relocation of some facilities is expected." April 13, 2010 Susan Powell Seattle Office, US Army Corps of Engineers Regulatory Division CENWS-OD-RG PO Box 3755 Seattle, Washington 98124-3755 SUBJECT: JURISDICTIONAL DETERMINATION FOR THE LAKE WASHINGTON BOULEVARD, HAWKS LANDING STORM AND WATER SYSTEM IMPROVEMENT PROJECT CITY OF RENTON, KING COUNTY, WASHINGTON Dear Ms. Powell: The City of Renton is undertaking stormwater improvements associated with installation of new water and stormwater infrastructure for the Hawks Landing Project along Lake Washington Boulevard at 44`" Street NE. The project involves filling of approximately 8,400 square feet of a drainage ditch along the east side of Lake Washington Boulevard, installing new water and stormwater infrastructure and new curb, gutter and sidewalk that will serve a new hotel complex. Stormwater will be diverted to a new constructed swale that will be wider and shallower than the existing ditch, which will be filled to allow construction of the new curb, gutter & sidewalk. The swale will contain wet -tolerant plant species, which will likely provide stormwater treatment resulting in higher quality leaving the site, once the project is completed. A new water main will cross May Creek in an existing metal sleeve under the existing bridge. Stormwater on the site flows to the existing storm system that eventually drains to May Creek about 1,100 feet upstream of Lake Washington. The following documents are provided for your review: • Site Plans • Wetland/Stream Study: Hawk's Landing Crowne Plaza Hotel prepared by Graham - Bunting Associates on May 12, 2009 Landau Associates Archaeological Assessment (December 24, 2009) 0 Joint Aquatic Resources Permit Application Ms. Susan Powell April 14, 2010 Page 2 Please review this information and provide the City with a Jurisdictional Determination for the proposed Hawks Landing Storm and Water System Improvement Project. Very truly yours, [CITY SIGNATURE] RentonNet Page 1 of 1 RentonNet Home Page Logout slee • ITS TimeSheet • eGrapevine • KCA Lookup • City Clerk • Communications • PBPW FileSys • Message Board • Employee Directory • City Forms • Online Service Desk • City Phone Dir •HRRM • Facilities Help • Finance • Landlnfo Maps • Renton WEB Site • Useful Links • Telestaff • Bright Ideas! City Clerk Card Fito Record 48 of 70 0 0 Title: FRANCHISE, PUGET SOUND ENERGY INC/ORD 4858 2000 Effective Date: Sep 11, 2000 Date Entered: Jan 15, 2001 by User: Bwalton Last Modified: Jul 9, 2001 by User: slombard Scheduled Destruction Date: Destroyed Date: Narrative: ■ 9/11/2000 - ORDINANCE 4858 - Granting unto Puget Sound Energy, Inc., the right, privilege, authority and franchise for 15 years, to construct, operate, set, erect, support, maintain, repair & use facilities for purposes of transmission, distribution & sale of electrical energy for power, heat, & light, in, upon, along and through the franchise area; and to charge and collect tolls, rates and compensation for such energy and such uses. Expires: 10/15/2015 ■ 11121/2000 -Accepted by Franchisee ■ Effective:10/15/2000 Keywords: ■ FRANCHISE 2000 ■ PUGET SOUND ENERGY 2000 ■ ELECTRICAL ENERGY 2000 ■ PSE 2000 Location: VAULT Category: http://rentonnet.org/intranet/index.cfm 04/23/2010 SUMMARY FRANCHISE SUMMARY: RENTON (PROPOSED NEW AGREEMENT) Franchise: Puget Sound Power & Light has a non-exclusive franchise to construct, operate, set, erect, support, attach, connect, maintain, repair, replace, enlarge and use facilities for purposes of transmission, distribution and sale of energy for power, heat, light and any other purposes for which energy can be used, in, upon, over, under, along, across and through the franchise area. This franchise also grants Puget the right, privilege and authority to charge and collect tolls, rates and compensation for such energy and such uses, subject to the limitations imposed by state and federal law. Term: 15 years Effective Date - 30 days after City adoption Compliance: Puget shall comply with all federal, state, and local laws or regulations applicable to this franchise. Upon written inquiry, Puget shall provide a specific reference to the federal, state, or local law or the WUTC order or action establishing a basis for Puget's actions related to a specific franchise issue. Undergrounding. City Policy: Puget acknowledges that the City desires to adopt a policy to encourage the undergrounding of overhead facilities. Puget will cooperate with the City in the formulation of policy and regulations concerning the undergrounding of Puget's facilities, subject to and in accordance with applicable rates and tariffs on file with the WUTC. Underg_rounding. WUTC Tariffs: If the City directs Puget to underground facilities, such undergrounding shall be arranged and accomplished subject to and in accordance with applicable rates and tariffs on file with the WUTC. Relocation, City Project: Whenever the City undertakes or causes to be undertaken at City expense, the construction of any public works improvement which necessitates the relocation of Puget's facilities, Puget shall relocate said facilities at no cost to the City. The City shall provide within a reasonable time period written notice requesting such relocation, along with copies of pertinent portions of the plans for said improvements. The City request will include a specified time frame for relocation which must be adhered to by Puget. Any costs associated with construction delays due to Puget's failure to adhere to the specified time frames will be paid by Puget. Relocation, Private Development Project: Whenever the City requires any person or entity to undertake work that requires the relocation of Puget facilities, the cost for said relocation shall be borne by Puget. Relocation, Alternatives: If the City directs Puget to relocate its facilities for a City project, Puget may propose an alternate method of relocation to the City. The final decision on the alternate method shall be with the City. No alternative proposed by Puget shall be evaluated by the City in an arbitrary or capricious manner. C Records of Installation: Puget shall at its expense provide to the City, upon the City's request, copies of available drawings and specifications in use by Puget showing the location of its facilities within the City. Placement of Facilities: Puget shall at all times maintain its facilities so as not to unreasonably interfere with the free passage of traffic or the use and enjoyment of adjoining property. Permits: Puget shall comply with all applicable City ordinances, codes, regulations, standards and procedures and shall obtain all necessary permits or approvals. Construction Coordination: Puget and the City shall each exercise best efforts to coordinate construction work either may undertake so as to promote the orderly and expeditious performance and completion of such work as a whole. Joint Use of Trenches: The City may adopt policies which encourage joint use of utility facilities. Puget shall cooperate with the City and explore opportunities for joint use of utility facilities. Park Protection: No park, public square or public place of like nature shall be excavated or torn up if there is a substantially equal and practical way around same, with the practicability to be determined by the City. Tree Trimming and Planting: Puget shall be solely responsible for the maintenance and trimming of all trees and vegetation within the Franchise Area to prevent such trees and vegetation from becoming a hindrance to or coming into contact with Puget's power lines or other facilities. Puget shall prepare and maintain a tree -trimming schedule to ensure compliance with this provision. Puget shall notify the City of the location and timing of all tree trimming one week prior to the start of such work. Puget shall use best practices when trimming and maintaining such trees and vegetation. Prior to the placing of any trees or other plant materials within the Franchise Area, Puget shall obtain approval from the City for types and locations of said trees or other plant materials. Pesticides and Hazardous Materials: City approval must be obtained prior to the use of any pesticide, herbicide or other potentially hazardous material. Adherence to the requirements of the Aquifer Protection Zones is required. Restoration: Whenever it shall be necessary for Puget to disturb the surface of the street area, Puget shall restore the surface of the street to City restoration standards, or in the absence of a City standard, to at least a condition the same as it was in prior to any such disturbance. Puget agrees to promptly complete all such restoration work at its sole cost and expense. Emergency Work: In the event of any emergency in which Puget's facilities are damaged or are otherwise in a condition as to immediately endanger the property, life, health or safety of any individual, Puget shall immediately take action to correct the dangerous condition. The City waives the requirement that Puget obtain any such permit or approval prior to undertaking such activity, providing Puget shall subsequently apply for any such required permit or approval. Lateral Support: Whenever construction, installation or excavation of Puget facilities have caused or contribute to a condition that appears to substantially impair the lateral support of the street 4 area, the PBPW Administrator may direct Puget, at Puget's expense, to take such actions as are reasonably necessary so as not to impair the lateral support of the street area. Use of Poles: The city shall have the right, without compensation, to make use of any and all poles and conduits of Puget, for the stretching of wires owned or controlled by the City for any fire alarm, traffic, telegraph or police signal call service, water department service, or like municipal service or purpose. Recovery of Costs: Per RCW 35.21.860, the City may not impose a franchise fee or any other fee or charge upon Puget, except that Puget shall reimburse the City for all actual administrative expenses incurred by the City related to the permitting, review and inspection of Puget facilities. Principal Use: This franchise shall not authorize a principal use for purposes other than the transmission, distribution and sale of energy for power, heat, or light. Administrative Costs: The City may recover the actual administrative expenses incurred by the City which are directly related to receiving and approving this Franchise. The City may recover any administrative costs incurred by the City in the approval of permits or in the supervision, inspection or examination of all work by Puget in the Franchise Area. Indemnification: Puget shall defend, indemnify and save the City harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence of Puget or its agents. Insurance: Puget shall procure and maintain for the duration of the franchise, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by Puget, its agents, representatives, employees, subconsultants or subcontractors. Moving Buildings: Puget must raise or remove all obstructing wires along the route for building moving, with the costs to be paid to Puget by the person moving the building. The City must give fourteen (14) days notice of the move to Puget, and Puget may request an alternate route with less interference. Abandonment: None of Puget's facilities may be abandoned by Puget without the express written consent of the City. Failure to Comply: In case of material failure by Puget to comply with any of the provisions of the Franchise, the City may elect to give not less than thirty days written notice of such violation and of its intention to revoke said Franchise if such violation is not corrected. Modification: This franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment of this franchise and is approved and executed in accordance with laws of the State of Washington. Forfeiture: If Puget willfully violates or fails to comply with any of the provisions of this franchise, then Puget shall, at the election of the Renton City Council, forfeit all rights conferred and this franchise may be revoked or annulled by the Council. 5 Cost of Publication: The cost of the publication of this franchise shall be borne by Puget. Acceptance: In order to claim any right or benefit under this franchise, Puget shall file its written acceptance of this franchise with the City Clerk within sixty (60) days after the approval by the Mayor. 0 ORDINANCE NO. An Ordinance of the City of Renton, Washington, granting unto Puget Sound Energy, Inc., a Washington corporation, its successors and assigns, the right, privilege, authority and franchise for fifteen years, to construct, operate, set, erect, support, attach, connect, maintain, repair, replace, enlarge and use Facilities for purposes of transmission, distribution and sale of electrical energy for power, heat, and light, in upon, over, under, along, across and through the Franchise Area; and to charge and collect tolls, rates and compensation for such energy and such uses. THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Definitions Where used in this franchise (the "Franchise') the following terms shall mean: Administrator: The Administrator of the Department of Planning/Building/Public Works of the City, or any successor office with responsibility for management of the public properties within the City of Renton, or his/her designee. City: The City of Renton, a municipal corporation of the State of Washington, and its respective successors and assigns. Facilities: Poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, automatic meter reading devices, braces, guys, anchors, vaults and all necessary or convenient facilities and appurtenances thereto, whether the same be located over or under ground. Franchise Area: Any, every and all of the roads, streets, avenues, alleys, highways, grounds and public places of the City as now laid out, platted, dedicated or improved; and any, every and all roads, streets, avenues, highways, grounds and public places that may hereafter be laid out, platted, dedicated or improved within the present limits of the City and as such limits may be hereafter extended or altered. Puget: Puget Sound Energy, Inc., a Washington corporation, and its respective successors and assigns. WUTC: Washington Utilities and Transportation Commission, or a successor regulatory entity. Section 2. Franchise Granted 2.1 All other franchises heretofore granted by the City to Puget for utilization of streets, avenues, rights -of -way, roads, alleys, lands or other public places within the City for electrical power are hereby canceled. 2.2 Pursuant to the laws of the State of Washington (including, but not limited to, RCW 35A.47.040 and RCW 80.32.010), the City hereby grants to Puget, subject to the terms and conditions set forth hereinafter, a franchise for a period of fifteen (15) years, commencing upon the effective date of this Ordinance. 2.3 Subject to the terms and conditions hereof, this Franchise grants Puget the right, privilege and authority to construct, operate, set, erect, support, attach, connect, maintain, repair, replace, enlarge and use Facilities for purposes of transmission, distribution and sale of electrical energy for power, heat, light and any other purpose for which electrical energy can be used, in, upon, over, under, along, across PUGET5.doc\ 1 and through the Franchise Area. In addition, this Franchise grants Puget the right, privilege and authority to charge and collect tolls, rates and compensation for such energy and such uses, subject to the limitations imposed by state and federal law. 2.4 The terms and conditions of this Franchise shall not be construed to apply to Facilities located outside of the Franchise Area. Section 3. Compliance with Laws - Reservation of Powers and Authority 3.1 As to matters subject to the terms and conditions of this Franchise, if the City shall determine during the term of this Franchise that the assertion of a legitimate municipal interest is prohibited by application of federal or state law, then as to such matter and such municipal interest and consistent with its legal obligations, Puget shall cooperate with the City in a good faith effort to otherwise address such municipal interest. In this context, neither party shall invoke this Franchise as a basis to assert that its consideration of a given issue is excused by operation of the doctrines of estoppel or waiver. 3.2 Upon written inquiry by the City, Puget shall provide a specific reference to the federal, state, or local law or the WUTC order or action establishing a basis for Puget's actions related to a specific Franchise issue. Section 4. Nonexclusive Franchise Grant The City expressly reserves the right to grant other or further franchises or to use the Franchise Area itself, provided that such uses do not unreasonably interfere with Puget's use and placement of its Facilities in, along, over, through, under, below or across the Franchise Area. This Franchise shall in no way prevent or prohibit the City from using the Franchise Area in a manner consistent with this Franchise or affect its jurisdiction over the Franchise Area. This Franchise shall not limit and the City hereby reserves all lawful powers and franchise authority to it under its general police authority, and the City shall at all times exercise its retained power in a manner consistent with the terms and conditions of this Franchise. The City reserves the right to acquire, construct, own, operate and maintain a municipal electric utility at any time within the Franchise Area, and in all respects to exercise such right in accordance with applicable laws (there being no prejudice by operation of this Franchise to Puget, or any right afforded to Puget, arising under such applicable laws). Section 5. Undergrounding of Facilities 5.1 Puget acknowledges that the City desires to adopt a policy to encourage the undergrounding of Facilities within the Franchise Area. The City acknowledges that Puget provides electrical service on a non -preferential basis subject to and in accordance with applicable rates and tariffs on file with the WUTC. Subject to and in accordance with such rates and tariffs, Puget will cooperate with the City in the formulation of policy and regulations concerning the undergrounding of Puget's Facilities within the Franchise Area. 5.2 If, during the term of this Franchise, the City shall direct Puget to underground Facilities within the Franchise Area, such undergrounding shall be arranged and accomplished subject to and in accordance with applicable rates and tariffs on file with the WUTC. This Section 5 shall govern all matters related to undergrounding of Puget's Facilities (i.e., conversion or otherwise) within the Franchise Area. PUGET5.doc1 Section 6. Relocation of Puget's Facilities 6.1 The City shall have prior and superior right to the use of the Franchise Area for the installation and maintenance of its utilities and capital improvement projects, and should any conflict arise with the City facilities, Puget shall, at its own cost and expense, conform to the utilities and capital improvement projects of the City. Whenever the City undertakes (or causes to be undertaken at City expense) the construction of any public works improvement within the Franchise Area and such public works improvement necessitates the relocation of Puget's then existing Facilities within the Franchise Area, the City shall: a. Provide Puget, within a reasonable time prior to the City's commencement of activities requiring such public works improvement, written notice requesting such relocation; and b. Provide Puget with copies of pertinent portions of the City's plans and specifications for such public works improvement. After receipt of such notice and such plans and specifications, Puget shall submit the Puget plan drawings for the relocation of the Puget facilities to the City within a reasonable and agreed upon time period in advance of the preparation of the City's final plans and specifications so as to be incorporated into the City's construction plans. Puget shall complete the relocation work in a reasonable and agreed upon time period to prevent delay to the City project. Puget shall relocate such Facilities within the Franchise Area at no charge to the City. The relocation completion date will be included in the City's written request for said relocation to Puget. Any associated cost caused by any construction delays to the City or to any contractor working for the City due to Puget's failure to submit and adhere to Puget's plans and schedule in relocating or installing Puget facilities shall be the sole responsibility of Puget. 6.2 Whenever any person or entity, other than the City, requires the relocation of Puget's facilities to accommodate the work of such person or entity within the Franchise Area; or, the City requires any person or entity to undertake work (other than work undertaken at the City's cost and expense) within the Franchise Area and such work requires the relocation of Puget's Facilities within the Franchise Area, then Puget shall have the right as a condition of any such relocation to require such person or entity to make payment to Puget, at a time and upon terms acceptable to Puget for any and all costs and expenses incurred by Puget in the relocation of Puget's Facilities. 6.3 Any condition or requirement imposed by the City upon any person or entity (including, without limitation, any condition or requirement imposed pursuant to any contract or in connection with approvals or permits obtained pursuant to any zoning, land use, construction or other development regulation) which necessitates the relocation of Puget's Facilities within the Franchise Area shall invoke the provisions of Section 6.2 above; provided, however, (i) in the event the City reasonably determines and notifies Puget that the primary purpose of imposing such condition or requirement upon such person or entity is to cause the construction of a public works improvement project within a segment of the Franchise Area on the City's behalf, and (ii) such public works improvement is otherwise reflected in an existing City prepared capital improvement plan, then only those costs and expenses incurred by Puget in constructing and connecting new Facilities with Puget's other Facilities shall be paid to Puget by such person or entity, and Puget shall otherwise relocate its Facilities within such segment of the Franchise Area in accordance with Section 6.1. 6.4 As to any relocation of Puget's Facilities whereby the cost and expense thereof is to be borne by Puget in accordance with subsection 6.1, Puget may, after receipt of written notice requesting such relocation, submit in writing to the City alternatives to relocation of its Facilities. Upon the City's receipt from Puget of such written alternatives, the City shall evaluate such alternatives and shall advise Puget in writing if one or more of such alternatives is suitable to accommodate the work which would PUGETS.doc\ 3 otherwise necessitate relocation of Puget's Facilities. In evaluating such alternatives, the City shall give each alternative proposed by Puget full and fair consideration with due regard to all facts and circumstances which bear upon the practicality of relocation and alternatives to relocation. No alternative proposed by Puget shall be evaluated by the City in an arbitrary or capricious manner. In the event the City determines that such alternatives are not appropriate, Puget shall relocate its Facilities as otherwise provided in subsection 6.1. 6.5 Nothing in the Section 6 shall require Puget to bear any cost or expense in connection with the location or relocation of any Facilities existing under benefit of easement or other rights not arising under this Franchise. Section 7. Records of Installation Puget shall at all times keep full and complete plans, specifications, profiles, and records (Facility Records) in accordance with its standard business practices, showing the location, installed depth, and size of all its Facilities within the Franchise Area, and hereafter installed, and such Facility Records shall be kept current by Puget to show thereon the locations of all additional lines hereinafter installed by Puget. Puget shall (at its expense) provide to the City, upon the City's request, copies of available Facility Records in use by Puget showing the location of its Facilities within the Franchise Area. As to any such Facility Records so provided, Puget does not warrant the accuracy thereof and, to the extent the location of Facilities are shown, such Facilities are shown in their approximate location. With respect to any excavations by Puget or the City within the Franchise Area, nothing herein is intended (nor shall be construed) to relieve either party of their respective obligations arising under applicable law with respect to determining the location of utility facilities. Section 8. Placement of Facilities, Permits, Coordination of Activities, Excavations 8.1 Puget shall at all times maintain its Facilities within the Franchise Area so as not to unreasonably interfere with the free passage of traffic or the use and enjoyment of adjoining property. Puget shall at all times post and maintain proper barricades and comply with all applicable safety regulations during such- period of construction as required by the ordinances of the City or the laws of the State of Washington. 8.2 Puget shall submit permit application to the City prior to any construction or installation within the Franchise Area. The permit application shall include a work sketch and any information necessary to inform the City of the nature of the work, the location thereof, whether any temporary or permanent structures will be erected, location of existing utilities and whether traffic may be obstructed during construction. Puget shall secure all necessary permits prior to any construction or installation within the Franchise Area. Puget shall further inform the City of any time or date that Puget is performing work within the Franchise Area to allow the City to inspect such work. Work within City streets shall be accomplished through boring rather than open trenching whenever reasonably feasible. 8.3 Puget shall, in carrying out any authorized activities within the Franchise Area, comply with all applicable Federal, State and City ordinances, codes, regulations, standards and procedures as now or hereafter amended, and shall obtain all necessary permits or approvals; provided, however, that if any term or condition of this Franchise and any term or condition of such ordinances, codes, regulations, standards, procedures, permits or approvals are in conflict, the term or condition of this Franchise shall govern and control. In interpreting this Section 8, and unless a circumstance is otherwise explicitly addressed by this Franchise, the parties intend that the specific location of Facilities within the PUGET5.doc\ 4 Franchise Area (and similar facility -related matters of a specific nature requiring detailed case -by -case analysis) are matters to be determined in accordance with applicable City ordinances, codes, regulations, standards and procedures (including, without limitation, rights of appeal) and are therefore matters beyond the scope of this Franchise. 8.4 Puget and the City shall each exercise best efforts to coordinate construction work either may undertake within the Franchise Area so as to promote the orderly and expeditious performance and completion of such work as a whole. Such efforts shall include, at a minimum, reasonable and diligent efforts to keep the other party informed of its intent to undertake such construction work. Puget and the City shall further exercise best efforts to minimize any delay or hindrance to any construction work either may undertake within the Franchise Area. Any associated costs caused by any construction delays to the City or to any contractor working for the City due to Puget's failure to submit and adhere to Puget's plans and schedule in relocating or installing Puget facilities shall be the sole responsibility of Puget. Puget shall, at the City's request, also attend construction meetings pertaining to performance of work within the Franchise Area and shall designate a contact person to be available to attend such meetings. Puget's responsibility for performance of all such work is, in all respects, subject to: (I) all of the provision of Schedule 80, paragraph 12, as "electrical service;" and (ii) applicable tariffs. 8.5 If, at any time or from time to time, either Puget or the City shall cause excavations to be made within the Franchise Area, the party causing such excavation to be made shall afford the other, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (a) such joint use shall not unreasonably delay the work of the party causing the excavation to be made; and (b) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties. 8.6 The City may, from time to time during the term of this Franchise, adopt policies with respect to the Franchise Area which encourage joint use of utility facilities within the Franchise Area. Puget shall cooperate with the City and explore opportunities for joint use of utility facilities within the Franchise Area that are consistent with applicable law and prudent utility practices. 8.7 No park, public square, golf course or public place of like nature shall be excavated or damaged by Puget if there is a substantially equivalent alternative. The determination of there being a substantially equivalent alternative shall be at the sole determination of the City. 8.8 Puget shall have the right to trim and maintain all trees and vegetation within the Franchise Area to prevent such trees and vegetation from becoming a hindrance to or coming into contact with Puget's power lines or other Facilities. Puget shall prepare and maintain a tree -trimming schedule in compliance with this provision. Puget shall notify the City of the location and timing of all tree trimming one week prior to the start of such work. 8.9 Prior to the placing of any trees or other plant materials within the Franchise Area, Puget shall obtain approval from the City for types and locations of said trees or other plant materials. Section 9. Pesticides and Hazardous Materials 9.1 In maintaining its Facilities (including, without limitation, vegetation management activities), Puget shall not apply any pesticide, herbicide, or other hazardous material with the Franchise Area without prior written approval of the City. Approval shall not be unreasonably withheld by the City, but must be in conformance to the Aquifer Protection regulations of the City. If Puget shall first obtain the City's approval to apply a specific product in accordance with a defined procedure on an ongoing basis throughout the Franchise Area, it shall not thereafter be necessary for Puget to obtain the City's approval on each occasion such product is applied in accordance with such procedure. Puget shall PUGET5.doc\ 5 notify the City of any accident by Puget involving Puget's use of hazardous materials within the Franchise Area. 9.2 Upon notice or discovery of a significant release of any hazardous substance caused by Puget or expressly authorized by Puget to occur upon the Franchise Area and Facilities covered by this Franchise, Puget shall notify the City within 24 hours of discovery. If the encountered or suspected hazardous substances are not the result of the acts or omissions of Puget, the City shall, at its own expense, determine if the material is hazardous, in accordance with applicable law. If the material should prove to be hazardous, then the City shall, at its own expense, remove, dispose, or otherwise handle such hazardous substances, as necessary, in accordance with applicable law, if possible. If hazardous substances are removed, the City also shall provide substitute nonhazardous material to replace the removed material for Puget to use in its operation, if necessary. Upon approval by the City to proceed, Puget shall proceed with the operations at its own cost, with no recourse against the City for the cost of schedule delays incurred due to the delay in operation. If the encountered or suspected hazardous substances within the Franchise Area are the result of the acts or omissions of Puget, then the City's characterization of the substances involved and any removal, disposal, or other handling costs incurred in connection with the removal, disposal, or handling of the hazardous substances will be at Puget's expense. Any environmental mitigation requirements imposed, by operation of applicable, as a result of the exercise of any right or obligation Puget hereunder shall be the sole responsibility and expense of Puget. Section 10. Restoration after Construction 10.1 Whenever it shall be necessary for Puget, in the exercise of its rights under this Franchise, to disturb the surface of the Franchise Area, Puget shall restore the surface of the Franchise Area per City standards, and where no standard applies to at least a condition the same as it was in immediately prior to any such disturbance. All concrete encased monuments within the Franchise Area which have been disturbed or displaced by such work shall be restored pursuant to all federal, state and local standards and specifications. Puget agrees to promptly complete all such restoration work at its sole cost and expense. 10.2 All restoration of public streets, sidewalks and other amenities shall conform to current City of Renton Standard Specifications for Road, Bridge and Municipal Construction and the City of Renton's Trench Restoration Standards. As a condition of receiving the right to work within the Franchise Area, Puget shall assume full responsibility for using materials and installation methods that are in full compliance with City standards and shall verify this submittal of documentation of materials and testing reports when requested by the City. All costs for performing on -site testing, such as compaction tests, shall be borne by Puget. Section 11. Emergency Work - Permit Waiver 11.1 In the event of any emergency in which Puget's Facilities located in or under the Franchise Area break, are damaged, or if Puget's Facilities within the Franchise Area are otherwise in a condition as to immediately endanger the property, life, health or safety of any individual, Puget shall, upon receipt of notification from the City of the existence of such condition, immediately take those actions as are necessary to correct the dangerous condition. 11.2 If and to the extent reasonable actions on Puget's part are necessary to respond to an emergency situation involving Puget's Facilities within the Franchise Area, and such action would otherwise require the issuance by the City of an authorizing permit or approval, the City hereby waives the requirement that Puget obtain any such permit or approval as a prerequisite to undertaking such PUGET5.doc1 6 activity; provided, however, Puget shall subsequently apply for any such required permit or approval within ten (10) business days from and after the date of the commencement of such actions otherwise requiring such permit or approval. 11.3 Nothing in this Section 11 is intended, nor shall it be construed, as a hindrance to Puget's ability to take such actions as it deems necessary to discharge its public service obligations in accordance with the laws of the State of Washington. Nothing in this Section 11 is intended, nor shall it be construed, as preventing the City from recovering from Puget, if otherwise so entitled in accordance with applicable law, any extraordinary costs in responding to an emergency situation involving Puget's Facilities. Section 12. Lateral Support Whenever construction, installation or excavation of Facilities within the Franchise Area have caused or contribute to a condition that appears to substantially impair the lateral support of the Franchise Area, the Administrator may direct Puget, at Puget's own expense, to take such actions as are reasonably necessary within the Franchise Area so as not to impair the lateral support thereof. Section 13. City Use of Puget Poles During the term of this Franchise, and with respect to poles which are Facilities and which are (a) wholly owned by Puget and (b) within the Franchise Area, the City, subject to Puget's prior written consent which shall not be unreasonably withheld, may install and maintain City -owned overhead wires upon such poles for police, fire, traffic control and other noncommercial municipal communications purposes. The foregoing rights of the City to install and maintain such wires are further subject to the following: A. Such installation and maintenance shall be done by the City at its sole risk and expense, in accordance with all applicable laws, and subject to such reasonable requirements as Puget may specify from time to time (including, without limitation, requirements accommodating Puget's Facilities or the Facilities of other parties having the right to use Puget's Facilities); B. Puget shall have no obligation arising under the indemnity and insurance provisions of this Franchise as to any circumstances directly or indirectly caused by or related to such City -owned wires or the installation or maintenance thereof, and C. Puget shall not charge the City a fee for the use of such poles in accordance with this Section 13 as a means of deriving revenue therefrom; provided, however, nothing herein shall require Puget to bear any cost or expense in connection with such installation and maintenance by the City. 13.2 The City shall have the right, subject to such reasonable rules and regulations as may be prescribed by Puget and subject to the limitations prescribed by RCW` 70.54.090 or any other applicable law, to post City signs on Puget's utility poles within the Franchise Area. Section 14. Recovery of Costs 14.1 As specifically provided by RCW 35.21.860, the City may not impose a franchise fee or any other fee or charge of whatever nature or description upon Puget, except that, as provided in RCW 35.21.860, Puget shall reimburse the City for all actual administrative expenses incurred by the City that are directly related to receiving and approving a permit, license and this Franchise, to inspect plans and construction, or to prepare a detailed statement pursuant to Chapter 43.21C RCW. Where the City incurs actual administrative expenses for review or inspection of activities undertaken through the PUGET5.doc1 7 authority granted in this franchise (and which such expenses are not duplicative of expenses which are reflected in some other City -imposed charge or fee), Puget shall pay such expenses directly to the City. 14.2 This Franchise shall not authorize a principal use of the Franchise Area for purposes other than the transmission, distribution and sale of energy for power, heat, or light. The City acknowledges that Puget may, from time to time, make or allow incidental use of excess capacity of Facilities within the Franchise Area for other purposes. The City may impose utility tax on Puget's electrical energy business as permitted by RCW 35.21.870. Section 15. Indemnification 15.1 Puget shall defend, indemnify and save the City harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence of Puget or its agents, servants or employees in exercising the rights granted Puget in the Franchise; provided, however, that in the event any such claim or demand be presented to or filed with the City, the City shall promptly notify Puget thereof, and Puget shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand; provided further, that in the event any suit or action be begun against the City based upon any such claim or demand, the City shall likewise promptly notify Puget thereof, and Puget shall have the right, at its election and its sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own decision. 15.2 In the event that (i) the City is required to defend a "suit or action" as referenced in subsection 15.1 and (ii) the City is determined to be without fault for the claim or demand giving rise to such "suit or action," then Puget shall reimburse the City for a percentage of the City's total defense costs. The percentage of the City's total defense costs to be so reimbursed shall be a percentage equal to the percentage (if any) of fault attributable to Puget for the claim or demand giving rise to such "suit or action." 15.3 The provisions of this section shall survive the expiration or termination of this Franchise if the basis for any such claim, demand, suit or action as referenced in subsection 13.1 occurred during the Franchise term. Section 16. Insurance 16.1 Puget shall procure and maintain for the duration of the Franchise, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work within the Franchise Area by Puget, its agents, representatives, employees, subconsultants or subcontractors. 16.2 Before beginning work on the project described in this Franchise, Puget shall provide a Certificate of Insurance or proof of self-insurance evidencing: (a) Automobile Liability Insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and (b) Commercial General Liability Insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $5,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability. 16.3 Any payment of deductible or self insured retention shall be the sole responsibility of Puget. PUGET5.doc\ 16.4 The City, its officers, officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of Puget and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance or proof of self-insurance. 16.5 Puget's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. 16.6 Puget's insurance shall be primary insurance as respects the City, and the City shall be given thirty (30) calendar days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. 16.7 In lieu of the foregoing insurance requirements, Puget may self -insure against such risks in such amounts as are consistent with prudent utility practices. Puget shall, upon request, provide the City with sufficient evidence that such self-insurance is being so maintained. Section 17. Moving Buildings Within the Franchise Area If any person or entity obtains permission from the City to use the Franchise Area for moving or removal of any building or other object, the City shall, prior to granting such permission, require such person or entity to make any necessary arrangements with Puget for the temporary adjustment of Puget's wires to accommodate the moving or removal of such building or other object. Such necessary arrangements with Puget shall be made, to Puget's satisfaction, not less than fourteen (14) days prior to the moving or removal of said building or other object. In such event, Puget shall at the expense of the person or entity desiring to move or remove such building or other object, adjust any of its wires which may obstruct the moving or removal of such building or other object, provided that: (a) The moving or removal of such building or other object which necessitates the adjustment of wires shall be done at a reasonable time and in a reasonable manner so as not to unreasonably interfere with Puget's business. (b) To the extent practical, where more than one route is available for the moving or removal of such building or other object, such building or other object shall be moved or removed along the route which causes the least interference with Puget's business. (c) The person or entity obtaining such permission from the City to move or remove such building or other object shall be required to indemnify and save Puget harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or in conjunction with the moving or removal of such building or other object, to the extent such injury or damage is caused by the negligence of the person or entity moving or removing such building or other object or the negligence of the agents, servants or employees of the person or entity moving or removing such building or other object. Section 18. Abandonment and Discontinuance of Puget's Facilities 18.1 None of Puget's Facilities within the Franchise Area may be abandoned by Puget without the express written consent of the City. Any plan for abandonment or removal of Puget's Facilities within the Franchise Area must be first approved by the Administrator, and all necessary permits must be obtained prior to such work. 18.2 In the event the use of Puget Facilities is permanently discontinued, or no franchise has been obtained therefor upon expiration of this Franchise (and the parties are not engaged in good faith PUGETS.doc\ 9 negotiations for a renewal franchise), or within one hundred and twenty (120) days after any termination of this Franchise, the City may direct Puget to promptly remove all its Facilities within the Franchise Area, at Puget's sole cost and expense, except those installations that the City may allow to remain temporarily or permanently. Section 19. Modification 19.1 This Franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this Franchise and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise (including, without limitation, Section 13 above) shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise) by Puget of any and all rights, benefits, privileges, obligations or duties in and under this Franchise, unless such permit, approval, license, agreement or other document specifically: (a) references this Franchise; and (b) states that it supersedes this Franchise to the extent it contains terms and conditions which change, modify, delete, add to, supplement or otherwise amend the terms and conditions of this Franchise. In the event of any conflict or inconsistency between the provisions of this Franchise and the provisions of any such permit, approval, license, agreement or other document, the provisions of this Franchise shall control. 19.2 The City and Puget hereby reserve the right to alter, amend or modify the terms and conditions of this Franchise in accordance with the provisions of this subsection 19.2: (a) At any time during the term of this Franchise, the City or Puget may request, by written notice, that the other promptly join in negotiations to alter, amend or modify the terms and conditions of this Franchise. (b) Within a reasonable time after receipt of the notice required by subsection 19.2(a), the City and Puget shall, at a mutually agreeable time and place, commence negotiations to alter, amend or modify the terms and conditions of this Franchise. The City and Puget shall conduct such negotiations in good faith and with due regard to all pertinent facts and circumstances; provided, however, that neither the City nor Puget shall have any obligation to agree to any proposed alteration, amendment, or modification; provided further, however, that no rights or privileges granted by this Franchise shall be prejudiced, impaired or otherwise affected by the failure of the City or Puget to agree to any proposed alteration, amendment or modification. (c) Neither the City nor Puget shall be obliged to continue negotiations after the expiration of ninety (90) days from the date such negotiations are commenced; provided, however, the City and Puget may agree to continue such negotiations for an additional time period. (d) Any alteration, amendment or modification agreed to by the City and Puget shall be submitted to the Council of the City as a proposed ordinance. The ordinance so proposed shall expressly provide that unless Puget files a written notice of acceptance with the Clerk of the City within sixty (60) days of its effective date, the ordinance shall have no force or effect and this Franchise shall not be altered, amended or modified. To the extent permitted by law, each party shall bear its own costs in connection with the alteration, amendment or modification of this Franchise. 19.3 This Franchise is subject to the provisions of any applicable tariff now or hereafter on file with the WUTC or its successor. In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. PUGET5.doc\ 10 Section 20. Forfeiture and Other Remedies 20.1 If Puget willfully violates or fails to comply with any of the provisions of this Franchise, or through willful or unreasonable negligence fails to heed or comply with any notice given Puget by the City under the provisions of this Franchise, then Puget shall, at the election of the Renton City Council, forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the Council after a hearing held upon reasonable notice to Puget. Section 21. Cost of Publication The cost of the publication of this Ordinance shall be bome by Puget. Section 22. Acceptance After the passage and approval of this ordinance and within sixty (60) days after such approval, this Franchise shall, if accepted by Puget, be accepted by Puget by its filing with the City Clerk an unconditional written acceptance thereof Failure of Puget to so accept this Franchise within said period of time shall be deemed a refection thereof by Puget, and the rights and privileges herein granted shall be deemed forfeited and null and void, unless the time period is extended by ordinance duly passed for that purpose. Section 23. Survival 23.1 With respect only to matters arising during the period of time this Franchise shall be in full force and effect, the parties intend that any term or condition applicable to such matters shall survive the expiration or termination of this Franchise to the extent such survival can be reasonably inferred under the circumstances presented and to the extent such an inference is necessary to prevent substantial injustice to an injured party. 23.2 The terms and conditions of this Franchise shall be binding upon the parties' respective successors and assigns. Section 24. Severability If any section, sentence, clause or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of the Franchise. Section 25. Assignment Puget may not assign or transfer this Franchise without the written consent of the City Council of the City, which consent shall not be unreasonably withheld. Any assignee or transferee shall, at least thirty (30) days prior to the date of any assignment or transfer, file written notice of the assignment or transfer with the City, together with its written acceptance of all of the terms and conditions of this Franchise. Notwithstanding the foregoing, Puget shall have the right, without such notice or such written acceptance, to mortgage its rights, benefits and privileges in and under this Franchise to the trustee for its bondholders. PUGETS.doc1 11 Section 26. Notice Any notice or information required or permitted to be given to the parties under this Franchise agreement may be sent to following Addresses unless otherwise specified: City of Renton Administrator, Planning/Building/Public Works Department 1055 South Grady Way Renton, WA 98055 Puget Sound Energy Wayne Hopman 815 Mercer St, MER-04 Seattle, WA 98109 Section 27. Effective Date This ordinance shall take effect thirty (30) days after its execution; having first been submitted to the Renton City Attorney for approval; after one reading by the City Council at a regular meeting; after having been published at least once in newspaper of general circulation in the City of Renton; and finally, having been granted an approving vote of at least a majority of the City Council after a second reading at a regular meeting. PUGET5.doc\ 12 ' � F CITY OF RENTON, WASHINGTON ORDINANCE NO. 4 8 5 8 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING UNTO PUGET SOUND ENERGY, INC., A WASHINGTON CORPORATION, AND ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND FRANCHISE FOR 15 (FIFTEEN) YEARS, TO CONSTRUCT, OPERATE, SET, ERECT, SUPPORT, ATTACH, CONNECT, MAINTAIN, REPAIR, REPLACE, ENLARGE AND USE FACILITIES FOR PURPOSES OF TRANSMISSION, DISTRIBUTION AND SALE OF ELECTRICAL ENERGY FOR POWER, HEAT, AND LIGHT, IN UPON, OVER, UNDER, ALONG, ACROSS AND THROUGH THE FRANCHISE AREA; AND TO CHARGE AND COLLECT TOLLS, RATES AND COMPENSATION FOR SUCH ENERGY AND SUCH USES. THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON DO ORDAIN AS FOLLOWS: SECTION 1. Definitions: Where used in this franchise (the "Franchise") the following terms shall mean: Administrator: The Administrator of the Department of Planning/Building/Public Works of the City, or any successor office with responsibility for management of the public properties within the City of Renton, or his/her designee. City: The City of Renton, a municipal corporation of the State of Washington, and its respective successors and assigns. Facilities: Poles (with or without crossarms), wires, lines, conduits, cables, communication and signal lines, automatic meter reading devices, braces, guys, anchors, vaults and all necessary or convenient facilities and appurtenances thereto, whether the same be located over or under ground. Franchise Area: Any, every and all of the roads, streets, avenues, alleys, highways, grounds and public places of the City as now laid out, platted, dedicated or improved; and any, 1 ORDINANCE NO. 4 8 5 8 every and all roads, streets, avenues, highways, grounds and public places that may hereafter be laid out, platted, dedicated or improved within the present limits of the City and as such limits may be hereafter extended or altered. Puget: Puget Sound Energy, Inc., a Washington corporation, and its respective successors and assigns. WUTC: Washington Utilities and Transportation Commission, or a successor regulatory entity. SECTION 2. Franchise granted: 2.1 All other franchises heretofore granted by the City to Puget for utilization of streets, avenues, rights -of -way, roads, alleys, lands or other public places within the City for electrical power are hereby canceled. 2.2 Pursuant to the laws of the State of Washington (including, but not limited to, RCW 35A.47.040 and RCW 80.32.010), the City hereby grants to Puget, subject to the terms and conditions set forth hereinafter, a franchise for a period of 15 (fifteen) years, commencing upon the effective date of this Ordinance. 2.3 Subject to the terms and conditions hereof, this Franchise grants Puget the right, privilege and authority to construct, operate, set, erect, support, attach, connect, maintain, repair, replace, enlarge and use Facilities for purposes of transmission, distribution and sale of electrical energy for power, heat, light and any other purpose for which electrical energy can be used, in, upon, over, under, along, across and through the Franchise Area. In addition, this Franchise grants Puget the right, privilege and authority to charge and collect tolls, rates and compensation for such energy and such uses, subject to the limitations imposed by state and federal law. 2.4 The terms and conditions of this Franchise shall not be construed to apply to Facilities located outside of the Franchise Area. E ORDINANCE NO. 4 8 5 8 SECTION 3. Compliance with Laws - Reservation of Powers and Authority: 3.1 As to matters subject to the terms and conditions of this Franchise, if the City shall determine during the term of this Franchise that the assertion of a legitimate municipal interest is prohibited by application of federal or state law, then as to such matter and such municipal interest and consistent with its legal obligations, Puget shall cooperate with the City in a good faith effort to otherwise address such municipal interest. In this context, neither party shall invoke this Franchise as a basis to assert that its consideration of a given issue is excused by operation of the doctrines of estoppel or waiver. 3.2 Upon written inquiry by the City, Puget shall provide a specific reference to the federal, state, or local law or the WUTC order or action establishing a basis for Puget's actions related to a specific Franchise issue. SECTION 4. Nonexclusive Franchise Grant: The City expressly reserves the right to grant other or further franchises or to use the Franchise Area itself; provided that such uses do not unreasonably interfere with Puget's use and placement of its Facilities in, along, over, through, under, below or across the Franchise Area. This Franchise shall in no way prevent or prohibit the City from using the Franchise Area in a manner consistent with this Franchise or affect its jurisdiction over the Franchise Area. This Franchise shall not limit and the City hereby reserves all lawful powers and franchise authority to it under its general police authority, and the City shall at all times exercise its retained power in a manner consistent with the terms and conditions of this Franchise. The City reserves the right to acquire, construct, own, operate and maintain a municipal electric utility at any time within the Franchise Area, and in all respects to exercise such right in accordance with applicable laws (there 3 ORDINANCE NO. 4 8 5 8 being no prejudice by operation of this Franchise to Puget, or any right afforded to Puget, arising under such applicable laws). SECTION 5. Undergrounding of Facilities: 5.1 Puget acknowledges that the City desires to adopt a policy to encourage the undergrounding of Facilities within the Franchise Area. The City acknowledges that Puget provides electrical service on a non -preferential basis subject to and in accordance with applicable rates and tariffs on file with the WUTC. Subject to and in accordance with such rates and tariffs, Puget will cooperate with the City in the formulation of policy and regulations concerning the undergrounding of Puget's Facilities within the Franchise Area. 5.2 If, during the term of this Franchise, the City shall direct Puget to underground Facilities within the Franchise Area, such undergrounding shall be arranged and accomplished subject to and in accordance with applicable rates and tariffs on file with the WUTC. This Section 5 shall govern all matters related to undergrounding of Puget's Facilities (i.e., conversion or otherwise) within the Franchise Area. SECTION 6. Relocation of Puget's Facilities: 6.1 The City shall have prior and superior right to the use of the Franchise Area for the installation and maintenance of its utilities and capital improvement projects, and should any conflict arise with the City facilities, Puget shall, at its own cost and expense, conform to the utilities and capital improvement projects of the City. Whenever the City undertakes (or causes to be undertaken at City expense) the construction of any public works improvement within the Franchise Area and such public works improvement necessitates the relocation of Puget's then existing Facilities within the Franchise Area, the City shall: 4 A. Provide Puget, within a reasonable time prior to the City's commencement of activities requiring such public works improvement, written notice requesting such relocation; and B. Provide Puget with copies of pertinent portions of the City's plans and specifications for such public works improvement. After receipt of such notice and such plans and specifications, Puget shall submit the Puget plan drawings for the relocation of the Puget facilities to the City within a reasonable and agreed upon time period in advance of the preparation of the City's final plans and specifications so as to be incorporated into the City's construction plans. Puget shall complete the relocation work in a reasonable and agreed upon time period to prevent delay to the City project. Puget shall relocate such Facilities within the Franchise Area at no charge to the City. The relocation completion date will be included in the City's written request for said relocation to Puget. Any associated cost caused by any construction delays to the City or to any contractor working for the City due to Puget's failure to submit and adhere to Puget's plans and schedule in relocating or installing Puget facilities shall be the sole responsibility of Puget. 6.2 Whenever any person or entity, other than the City, requires the relocation of Puget's facilities to accommodate the work of such person or entity within the Franchise Area; or, the City requires any person or entity to undertake work (other than work undertaken at the City's cost and expense) within the Franchise Area and such work requires the relocation of Puget's Facilities within the Franchise Area, then Puget shall have the right as a condition of any such relocation to require such person or entity to make payment to Puget, at a time and upon terms acceptable to Puget for any and all costs and expenses incurred by Puget in the relocation of Puget's Facilities. G ORDINANCE NO. 4 8 5 8 6.3 Any condition or requirement imposed by the City upon any person or entity (including, without limitation, any condition or requirement imposed pursuant to any contract or in connection with approvals or permits obtained pursuant to any zoning, land use, construction or other development regulation) which necessitates the relocation of Puget's Facilities within the Franchise Area shall invoke the provisions of Section 6.2 above; provided, however, (A) in the event the City reasonably determines and notifies Puget that the primary purpose of imposing such condition or requirement upon such person or entity is to cause the construction of a public works improvement project within a segment of the Franchise Area on the City's behalf, and (B) such public works improvement is otherwise reflected in an existing City prepared capital improvement plan, then only those costs and expenses incurred by Puget in constructing and connecting new Facilities with Puget's other Facilities shall be paid to Puget by such person or entity, and Puget shall otherwise relocate its Facilities within such segment of the Franchise Area in accordance with Section 6.1. 6.4 As to any relocation of Puget's Facilities whereby the cost and expense thereof is to be borne by Puget in accordance with subsection 6.1, Puget may, after receipt of written notice requesting such relocation, submit in writing to the City alternatives to relocation of its Facilities. Upon the City's receipt from Puget of such written alternatives, the City shall evaluate such alternatives and shall advise Puget in writing if one or more of such alternatives is suitable to accommodate the work which would otherwise necessitate relocation of Puget's Facilities. In evaluating such alternatives, the City shall give each alternative proposed by Puget full and fair consideration with due regard to all facts and circumstances which bear upon the practicality of relocation and alternatives to relocation. No alternative proposed by Puget shall be evaluated by the City in an arbitrary or capricious manner. In the event the City determines that such 2 ORDINANCE NO. 4 8 5 8 alternatives are not appropriate, Puget shall relocate its Facilities as otherwise provided in subsection 6.1. 6.5 Nothing in the Section 6 shall require Puget to bear any cost or expense in connection with the location or relocation of any Facilities existing under benefit of easement or other rights not arising under this Franchise. SECTION 7. Records of Installation: Puget shall at all times keep full and complete plans, specifications, profiles, and records (Facility Records) in accordance with its standard business practices, showing the location, installed depth, and size of all its Facilities within the Franchise Area, and hereafter installed, and such Facility Records shall be kept current by Puget to show thereon the locations of all additional lines hereinafter installed by Puget. Puget shall (at its expense) provide to the City, upon the City's request, copies of available Facility Records in use by Puget showing the location of its Facilities within the Franchise Area. As to any such Facility Records so provided, Puget does not warrant the accuracy thereof and, to the extent the location of Facilities are shown, such Facilities are shown in their approximate location. With respect to any excavations by Puget or the City within the Franchise Area, nothing herein is intended (nor shall be construed) to relieve either party of their respective obligations arising under applicable law with respect to determining the location of utility facilities. SECTION 8. Placement of Facilities, Permits, Coordination of Activities, Excavations: 8.1 Puget shall at all times maintain its Facilities within the Franchise Area so as not to unreasonably interfere with the free passage of traffic or the use and enjoyment of adjoining property. Puget shall at all times post and maintain proper barricades and comply with all 7 ORDINANCE NO. 4858 applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington. 8.2 Puget shall submit a permit application to the City prior to any construction or installation within the Franchise Area. The permit application shall include a work sketch and any information necessary to inform the City of the nature of the work, the location thereof, whether any temporary or permanent structures will be erected, the location of existing utilities and whether traffic may be obstructed during construction. Puget shall secure all necessary permits prior to any construction or installation within the Franchise Area. Puget shall further inform the City of any time or date that Puget is performing work within the Franchise Area to allow the City to inspect such work. Work within City streets shall be accomplished through boring rather than open trenching whenever reasonably feasible. 8.3 Puget shall, in carrying out any authorized activities within the Franchise Area, comply with all applicable Federal, State and City ordinances, codes, regulations, standards and procedures as now or hereafter amended, and shall obtain all necessary permits or approvals; provided, however, that if any term or condition of this Franchise and any term or condition of such ordinances, codes, regulations, standards, procedures, permits or approvals are in conflict, the term or condition of this Franchise shall govern and control. In interpreting this Section 8, and unless a circumstance is otherwise explicitly addressed by this Franchise, the parties intend that the specific location of Facilities within the Franchise Area (and similar facility -related matters of a specific nature requiring detailed case -by -case analysis) are matters to be determined in accordance with applicable City ordinances, codes, regulations, standards and procedures (including, without limitation, rights of appeal) and are therefore matters beyond the scope of this Franchise. 8 ORDINANCE NO. 4 8 5 8 8.4 Puget and the City shall each exercise its best efforts to coordinate construction work either may undertake within the Franchise Area so as to promote the orderly and expeditious performance and completion of such work as a whole. Such efforts shall include, at a minimum, reasonable and diligent efforts to keep the other party informed of its intent to undertake such construction work. Puget and the City shall further each exercise its best efforts to minimize any delay or hindrance to any construction work either may undertake within the Franchise Area. Any associated costs caused by any construction delays to the City or to any contractor working for the City due to Puget's failure to submit and adhere to Puget's plans and schedule in relocating or installing Puget facilities shall be the sole responsibility of Puget. Puget shall, at the City's request, also attend construction meetings pertaining to performance of work within the Franchise Area and shall designate a contact person to be available to attend such meetings. Puget's responsibility for performance of all such work is, in all respects, subject to: (I) all of the provision of Schedule 80, paragraph 12, as "electrical service;" and (ii) applicable tariffs. 8.5 If, at any time or from time to time, either Puget or the City shall cause excavations to be made within the Franchise Area, the party causing such excavation to be made shall afford the other, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (a) such joint use shall not unreasonably delay the work of the party causing the excavation to be made; and (b) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties. 8.6 The City may, from time to time during the term of this Franchise, adopt policies with respect to the Franchise Area which encourage joint use of utility facilities within the Franchise Area. Puget shall cooperate with the City and explore opportunities for joint use of utility 0 ORDINANCE NO. 4 8 5 8 facilities within the Franchise Area that are consistent with applicable law and prudent utility practices. 8.7 No park, public square, golf course or public place of like nature shall be excavated or damaged by Puget if there is a substantially equivalent alternative. The determination of there being a substantially equivalent alternative shall be at the sole determination of the City. 8.8 Puget shall have the right to trim and maintain all trees and vegetation within the Franchise Area to prevent such trees and vegetation from becoming a hindrance to or coming into contact with Puget's power lines or other Facilities. Puget shall prepare and maintain a tree - trimming schedule in compliance with this provision. Puget shall notify the City of the location and timing of all tree trimming one week prior to the start of such work. 8.9 Prior to the placing of any trees or other plant materials within the Franchise Area, Puget shall obtain approval from the City for types and locations of said trees or other plant materials. SECTION 9. Pesticides and Hazardous Materials: 9.1 In maintaining its Facilities (including, without limitation, vegetation management activities), Puget shall not apply any pesticide, herbicide, or other hazardous material within the Franchise Area without prior written approval of the City. Approval shall not be unreasonably withheld by the City, but must be in conformance to the Aquifer Protection regulations of the City. If Puget shall first obtain the City's approval to apply a specific product in accordance with a defined procedure on an ongoing basis throughout the Franchise Area, it shall not thereafter be necessary for Puget to obtain the City's approval on each occasion such product is applied in accordance with such procedure. Puget shall notify the City of any accident by Puget involving Puget's use of hazardous materials within the Franchise Area. 101 ORDINANCE NO. 4 8 5 8 9.2 Upon notice or discovery of a significant release of any hazardous substance caused by Puget or expressly authorized by Puget to occur upon the Franchise Area and Facilities covered by this Franchise, Puget shall notify the City within 24 hours of discovery. If the encountered or suspected hazardous substances are not the result of the acts or omissions of Puget, the City shall, at its own expense, determine if the material is hazardous, in accordance with applicable law. If the material should prove to be hazardous, then the City shall, at its own expense, if possible remove, dispose, or otherwise handle such hazardous substances, as necessary, in accordance with applicable law. If hazardous substances are removed, the City also shall provide substitute nonhazardous material to replace the removed material for Puget to use in its operation, if necessary. Upon approval by the City to proceed, Puget shall proceed with the operations at its own cost, with no recourse against the City for the cost of schedule delays incurred due to the delay in operation. If the encountered or suspected hazardous substances within the Franchise Area are the result of the acts or omissions of Puget, then the City's characterization of the substances involved and any removal, disposal, or other handling costs incurred in connection with the removal, disposal, or handling of the hazardous substances will be at Puget's expense. Any environmental mitigation requirements imposed, by operation of applicable law or otherwise, as a result of the exercise of any right or obligation Puget hereunder shall be the sole responsibility and expense of Puget. SECTION 10. Restoration after Construction: 10.1 Whenever it shall be necessary for Puget, in the exercise of its rights under this Franchise, to disturb the surface of the Franchise Area, Puget shall restore the surface of the Franchise Area per City standards, and where no standard applies, to at least a condition the same as it was in immediately prior to any such disturbance. All concrete encased monuments within 11 ORDINANCE NO. 4 8 5 8 the Franchise Area which have been disturbed or displaced by such work shall be restored pursuant to all federal, state and local standards and specifications. Puget agrees to promptly complete all such restoration work at its sole cost and expense. 10.2 All restoration of public streets, sidewalks and other amenities shall conform to current City of Renton Standard Specifications for Road, Bridge and Municipal Construction and the City of Renton's Trench Restoration Standards. As a condition of receiving the right to work within the Franchise Area, Puget shall assume full responsibility for using materials and installation methods that are in full compliance with City standards and shall verify this submittal of documentation of materials and testing reports when requested by the City. All costs for performing on -site testing, such as compaction tests, shall be borne by Puget. SECTION 11. Emergency Work - Permit Waiver: 11.1 In the event of any emergency in which Puget's Facilities located in or under the Franchise Area break, are damaged, or if Puget's Facilities within the Franchise Area are otherwise in a condition as to immediately endanger the property, life, health or safety of any individual, Puget shall, upon receipt of notification from the City of the existence of such condition, immediately take those actions as are necessary to correct the dangerous condition. 11.2 If and to the extent reasonable actions on Puget's part are necessary to respond to an emergency situation involving Puget's Facilities within the Franchise Area, and such action would otherwise require the issuance by the City of an authorizing permit or approval, the City hereby waives the requirement that Puget obtain any such permit or approval as a prerequisite to undertaking such activity; provided, however, Puget shall subsequently apply for any such required permit or approval within ten (10) business days from and after the date of the commencement of such actions otherwise requiring such permit or approval. 12 ORDINANCE NO. 4 8 5 8 11.3 Nothing in this Section 11 is intended, nor shall it be construed, as a hindrance to Puget's ability to take such actions as it deems necessary to discharge its public service obligations in accordance with the laws of the State of Washington. Nothing in this Section 11 is intended, nor shall it be construed, as preventing the City from recovering from Puget, if otherwise so entitled in accordance with applicable law, any extraordinary costs in responding to an emergency situation involving Puget's Facilities. SECTION 12. Lateral Support: Whenever construction, installation or excavation of Facilities within the Franchise Area have caused or contribute to a condition that appears to substantially impair the lateral support of the Franchise Area, the Administrator may direct Puget, at Puget's own expense, to take such actions as are reasonably necessary within the Franchise Area so as not to impair the lateral support thereof. SECTION 13. City Use of Puget Poles: During the term of this Franchise, and with respect to poles which are Facilities and which are (a) wholly owned by Puget and (b) within the Franchise Area, the City, subject to Puget's prior written consent which shall not be unreasonably withheld, may install and maintain City - owned overhead wires upon such poles for police, fire, traffic control and other noncommercial municipal communications purposes. The foregoing rights of the City to install and maintain such wires are further subject to the following: A. Such installation and maintenance shall be done by the City at its sole risk and expense, in accordance with all applicable laws, and subject to such reasonable requirements as Puget may specify from time to time (including, without limitation, requirements accommodating Puget's Facilities or the Facilities of other parties having the right to use Puget's Facilities); 13 ORDINANCE NO. 4 8 5 8 B. Puget shall have no obligation arising under the indemnity and insurance provisions of this Franchise as to any circumstances directly or indirectly caused by or related to such City - owned wires or the installation or maintenance thereof; and C. Puget shall not charge the City a fee for the use of such poles in accordance with this Section 13 as a means of deriving revenue therefrom; provided, however, nothing herein shall require Puget to bear any cost or expense in connection with such installation and maintenance by the City. 13.2 The City shall have the right, subject to such reasonable rules and regulations as may be prescribed by Puget and subject to the limitations prescribed by RCW 70.54.090 or any other applicable law, to post City signs on Puget's utility poles within the Franchise Area. SECTION 14. Recovery of Costs: 14.1 As specifically provided by RCW 35.21.860, the City may not impose a franchise fee or any other fee or charge of whatever nature or description upon Puget, except that, as provided in RCW 35.21.860, Puget shall reimburse the City for all actual administrative expenses incurred by the City that are directly related to receiving and approving a permit, license and this Franchise, to inspect plans and construction, or to prepare a detailed statement pursuant to Chapter 43.21 C RCW. Where the City incurs actual administrative expenses for review or inspection of activities undertaken through the authority granted in this franchise (and which such expenses are not duplicative of expenses which are reflected in some other City -imposed charge or fee), Puget shall pay such expenses directly to the City. 14.2 This Franchise shall not authorize a principal use of the Franchise Area for purposes other than the transmission, distribution and sale of energy for power, heat, or light. The City acknowledges that Puget may, from time to time, make or allow incidental use of excess capacity 14 ORDINANCE NO. 4 8 5 8 of Facilities within the Franchise Area for other purposes. The City may impose utility tax on Puget's electrical energy business as permitted by RCW 35.21.870. SECTION 15. Indemnification: 15.1 Puget shall defend, indemnify and save the City harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another, to the extent such injury or damage is caused by the negligence of Puget or its agents, servants or employees in exercising the rights granted Puget in the Franchise; provided, however, that in the event any such claim or demand be presented to or filed with the City, the City shall promptly notify Puget thereof, and Puget shall have the right, at its election and at its sole cost and expense, to settle and compromise such claim or demand; provided further, that in the event any suit or action be begun against the City based upon any such claim or demand, the City shall likewise promptly notify Puget thereof, and Puget shall have the right, at its election and its sole cost and expense, to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own choosing. 15.2 In the event that (A) the City is required to defend a "suit or action" as referenced in subsection 15.1 and (B) the City is determined to be without fault for the claim or demand giving rise to such "suit or action," then Puget shall reimburse the City for a percentage of the City's total defense costs. The percentage of the City's total defense costs to be so reimbursed shall be a percentage equal to the percentage (if any) of fault attributable to Puget for the claim or demand giving rise to such "suit or action." 15.3 The provisions of this section shall survive the expiration or termination of this Franchise if the basis for any such claim, demand, suit or action as referenced in subsection 13.1 occurred during the Franchise term. 15 ORDINANCE NO. 4 8 5 8 SECTION 16. Insurance 16.1 Puget shall procure and maintain for the duration of the Franchise, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work within the Franchise Area by Puget, its agents, representatives, employees, subconsultants or subcontractors. 16.2 Before beginning work on the project described in this Franchise, Puget shall provide a Certificate of Insurance or proof of self-insurance evidencing: (a) Automobile Liability Insurance with limits no less than $1,000,000 combined single limit per accident for bodily injury and property damage; and (b) Commercial General Liability Insurance written on an occurrence basis with limits no less than $1,000,000 combined single limit per occurrence and $5,000,000 aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operationsibroad form property damage; explosion, collapse and underground (XCU) if applicable; and employer's liability. Puget. 16.3 Any payment of deductible or self insured retention shall be the sole responsibility of 16.4 The City, its officers, officials, employees, agents and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of Puget and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance or proof of self-insurance. 16.5 Puget's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. 16 ORDINANCE NO. 4 8 5 8 16.6 Puget's insurance shall be primary insurance as respects the City, and the City shall be given thirty (30) calendar days prior written notice by certified mail, return receipt requested, of any cancellation, suspension or material change in coverage. 16.7 In lieu of the foregoing insurance requirements, Puget may self -insure against such risks in such amounts as are consistent with prudent utility practices. Puget shall, upon request, provide the City with sufficient evidence that such self-insurance is being so maintained. SECTION 17. Moving Buildings within the Franchise Area If any person or entity obtains permission from the City to use the Franchise Area for moving or removal of any building or other object, the City shall, prior to granting such permission, require such person or entity to make any necessary arrangements with Puget for the temporary adjustment of Puget's wires to accommodate the moving or removal of such building or other object. Such necessary arrangements with Puget shall be made, to Puget's satisfaction, not less than fourteen (14) days prior to the moving or removal of said building or other object. In such event, Puget shall at the expense of the person or entity desiring to move or remove such building or other object, adjust any of its wires which may obstruct the moving or removal of such building or other object, provided that: A. The moving or removal of such building or other object which necessitates the adjustment of wires shall be done at a reasonable time and in a reasonable manner so as not to unreasonably interfere with Puget's business. B. To the extent practical, where more than one route is available for the moving or removal of such building or other object, such building or other object shall be moved or removed along the route which causes the least interference with Puget's business. 17 ORDINANCE NO. 4 8 5 8 C. The person or entity obtaining such permission from the City to move or remove such building or other object shall be required to indemnify and save Puget harmless from any and all claims and demands made against it on account of injury or damage to the person or property of another arising out of or in conjunction with the moving or removal of such building or other object, to the extent such injury or damage is caused by the negligence of the person or entity moving or removing such building or other object or the negligence of the agents, servants or employees of the person or entity moving or removing such building or other object. SECTION 18. Abandonment and Discontinuance of Puget's Facilities: 18.1 None of Puget's Facilities within the Franchise Area may be abandoned by Puget without the express written consent of the City. Any plan for abandonment or removal of Puget's Facilities within the Franchise Area must be first approved by the Administrator, and all necessary permits must be obtained prior to such work. 18.2 In the event the use of Puget Facilities is permanently discontinued, or no franchise has been obtained therefor upon expiration of this Franchise (and the parties are not engaged in good faith negotiations for a renewal franchise), or within one hundred and twenty (120) days after any termination of this Franchise, the City may direct Puget to promptly remove all its Facilities within the Franchise Area, at Puget's sole cost and expense, except those installations that the City may allow to remain temporarily or permanently. SECTION 19. Modification 19.1 This Franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this Franchise and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise (including, without limitation, Section 13 above) shall govern and 18 ORDINANCE NO. 4 8 5 8 supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise) by Puget of any and all rights, benefits, privileges, obligations or duties in and under this Franchise, unless such permit, approval, license, agreement or other document specifically: A. References this Franchise; and B. States that it supersedes this Franchise to the extent it contains terms and conditions which change, modify, delete, add to, supplement or otherwise amend the terms and conditions of this Franchise. In the event of any conflict or inconsistency between the provisions of this Franchise and the provisions of any such permit, approval, license, agreement or other document, except as expressly superseded by such permit, approval, license, agreement or other document, the provisions of this Franchise shall control. 19.2 The City and Puget hereby reserve the right to after, amend or modify the terms and conditions of this Franchise in accordance with the provisions of this subsection 19.2: A. At any time during the term of this Franchise, the City or Puget may request, by written notice, that the other promptly join in negotiations to alter, amend or modify the terms and conditions of this Franchise. B. Within a reasonable time after receipt of the notice required by subsection 19.2(a), the City and Puget shall, at a mutually agreeable time and place, commence negotiations to alter, amend or modify the terms and conditions of this Franchise. The City and Puget shall conduct such negotiations in good faith and with due regard to all pertinent facts and circumstances; provided, however, that neither the City nor Puget shall have any obligation to agree to any proposed alteration, amendment, or modification; provided further, however, that no 19 ORDINANCE NO. 4 8 5 8 rights or privileges granted by this Franchise shall be prejudiced, impaired or otherwise affected by the failure of the City or Puget to agree to any proposed alteration, amendment or modification. C. Neither the City nor Puget shall be obliged to continue negotiations after the expiration of ninety (90) days from the date such negotiations are commenced; provided, however, the City and Puget may agree to continue such negotiations for an additional time period. D. Any alteration, amendment or modification agreed to by the City and Puget shall be submitted to the Council of the City as a proposed ordinance. The ordinance so proposed shall expressly provide that unless Puget files a written notice of acceptance with the Clerk of the City within sixty (60) days of its effective date, the ordinance shall have no force or effect and this Franchise shall not be altered, amended or modified. To the extent permitted by law, each party shall bear its own costs in connection with the alteration, amendment or modification of this Franchise. 19.3 This Franchise is subject to the provisions of any applicable tariff now on file with the WUTC or its successor. In the event of any conflict or inconsistency between the provisions of this Franchise and such tariff, the provisions of such tariff shall control. SECTION 20. Forfeiture and other Remedies: 20.1 If Puget willfully violates or fails to comply with any of the provisions of this Franchise, or through willful or unreasonable negligence fails to heed or comply with any notice given Puget by the City under the provisions of this Franchise, then Puget shall, at the election of the Renton City Council, forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the Council after a hearing held upon reasonable notice to Puget. 01 ORDINANCE NO. 4 8 5 8 SECTION 21. Cost of Publication: The cost of the publication of this Ordinance shall be borne by Puget. SECTION 22. Acceptance: After the passage and approval of this ordinance and within sixty (60) days after such approval, this Franchise shall, if accepted by Puget, be accepted by Puget by its filing with the City Clerk an unconditional written acceptance thereof. Failure of Puget to so accept this Franchise within said period of time shall be deemed a refection thereof by Puget, and the rights and privileges herein granted shall be deemed forfeited and null and void, unless the time period is extended by ordinance duly passed for that purpose. SECTION 23. Survival: 23.1 With respect only to matters arising during the period of time this Franchise shall be in full force and effect, the parties intend that any term or condition applicable to such matters shall survive the expiration or termination of this Franchise to the extent such survival can be reasonably inferred under the circumstances presented and to the extent such an inference is necessary to prevent substantial injustice to an injured party. 23.2 The terms and conditions of this Franchise shall be binding upon the parties' respective successors and assigns. SECTION 24. Severability: If any section, sentence, clause or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of the Franchise. SECTION 25. Assignment: 21 ORDINANCE NO. 4 8 5 8 Puget may not assign or transfer this Franchise without the written consent of the City Council of the City, which consent shall not be unreasonably withheld. Any assignee or transferee shall, at least 30 (thirty) days prior to the date of any assignment or transfer, file written notice of the assignment or transfer with the City, together with its written acceptance of all of the terms and conditions of this Franchise. Notwithstanding the foregoing, Puget shall have the right, without such notice or such written acceptance, to mortgage its rights, benefits and privileges in and under this Franchise to the trustee for its bondholders. SECTION 26. Notice: Any notice or information required or permitted to be given to the parties under this Franchise agreement may be sent to following Addresses unless otherwise specified: City of Renton Administrator, Planning/Building/Public Works Department 1055 South Grady Way Renton, WA 98055 Puget Sound Energy Wayne Hopman 815 Mercer St, MER-04 Seattle, WA 98109 SECTION 27. Effective Date: This ordinance shall take effect 30 (thirty) days after its execution; having first been submitted to the Renton City Attorney for approval; after one reading by the City Council at a regular meeting; after having been published at least once in newspaper of general circulation in the City of Renton; and finally, having been granted an approving vote of at least a majority of the City Council after a second reading at a regular meeting. 22 ORDINANCE NO. 4 8 5 8 PASSED BY THE CITY COUNCIL this lithday of September , 2000. Marilyn YPekAen, City Clerk APPROVED BY THE MAYOR this llth day of September , 2000. • Jed as to • Lawrence J. Warren, City Attorney Date of Publication: 9 / 15 / 2 0 0 0 (Summary) ORD.869:8/14/00:ma. Jes anner, Mayor 23 Ordinance No. 4858 ACCEPTED BY FRANCHISEE, Puget Sound Energy, Inc., this_day of 1,1)qewGez7 2000. )- r-.p LA l0k, 'le 4 - � -. I � � Wayne ffopan, Director of System Panning Puget Sound Energy, Inc. -24- CITY OF RENTON NOV 3 0 2000 RECEIVED CITY CLERK'S OFFICE Denis Law City Of Mayor � _ lk _ t August 9, 2010 Department of Community and Economic Development Alex Pietsch, Administrator State Department of Ecology Northwest Regional Office 3190 160th Ave. SE Bellevue, WA 98008-5452 SUBJECT: Shoreline Management Substantial Development Permit for Lake Washington Blvd. Storm Improvement File No. 10-041, ECF, SM Dear Sir or Madam: Enclosed is the Shoreline Substantial Development Permit for the above referenced project. The permit was issued by the City of Renton on August 9, 2010. A Determination of Non -Significance -Mitigated was issued by the City's Environmental Review Committee on July 19, 2010. The appeal period ended on August 6, 2010, no appeals of the threshold determination were filed. We are filing this action with the Department of Ecology and the Attorney General per WAC 173-14-090. Please review this permit and attachments and contact me at (425) 430-7314 if you have any questions or need additional information. Sincerely, r Vanessa Dolbee (Acting)Senior Planner Enclosures: Administrative Decision Copy of Master Application Project Narrative Neighborhood Detail Map Site Plan & Details Notice of Application SEPA Checklist SEPA Determination SEPA Determination Mitigation Measures SEPA Determination Advisory Notes cc: Office of Attorney General Jennifer Henning, Current Planning Manager City of Renton & Port Quendall Company / Applicant/Owner City of Renton Surface Water Utility, Steve Lee / Contact Yellow File SM_Cover Ltr_10-041.docx Renton City Hall • 1055 South Grady Way • Renton, Washington 98057 • rentonwa.gov DEPARTMENT OF COMMUNITY City of 00000000000, AND ECONOMIC DEVELOPMENT`' E i PLANNING DIVISION SHORELINE MANAGEMENT ACT OF 1971 PERMIT FOR SHORELINE MANAGEMENT EVALUATION FORM & DECISION DATE OF PERMIT ISSUANCE: LAND USE ACTION FILE NO.: DATE RECEIVED DATE OF PUBLIC NOTICE: TYPE OF ACTION(S): August 9, 2010 LUA10-041, ECR, SM June 24, 2010 July 1, 2010 ® Substantial Development Permit ❑ Conditional Use Permit ❑ Variance Permit Pursuant to Chapter 90.58 RCW, staff recommends that the City of Renton grant a Substantial Development Permit. This action is proposed on the following application: PROJECT NAME: Lake Washington Blvd. Storm Improvements PROJECT MANAGER: Vanessa Dolbee, (Acting) Senior Planner OWNER: City of Renton, City right-of-way, Renton, WA 98057; and Port Quendall Company, 4350 Lake Washington Blvd. N, Renton, WA 98057 APPLICANT/CONTACT: City of Renton Surface Water Utility, Attn: Steve Lee, 1055 South Grady Way, Renton, WA 98057 PROJECT LOCATION: In existing ROW fronting 4350 Lake Washington Blvd. N LEGAL DESCRIPTION: Within the ROW of Sec. 32, Twn. 24, R. 5 E SEC-TWN-R: Sec. 32, Twn. 24, R. 5 E WITHIN THE SHORELINES OF: May Creek APPLICABLE MASTER PROGRAM: City of Renton PROPOSAL DESCRIPTION: The purpose of the project is to install curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd. N. to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area, including the Hawks Landing development. The proposed infrastructure's design expands beyond the existing City of Renton Department of Community & Economic Development Shoreline Management Permit Lake Washington Blvd. Storm Improvements LUA10-041, ECR, SM DATE OF PERMIT: August 9, 2010 Page 2 of 4 right-of-way(ROW); therefore, a portion of the development would occur on private property located on the east side of Lake Washington Blvd. N. The small portion of the project that would occur outside of the existing ROW would be located on the site commonly known as the Pan Abode Site (Tax Parcel# 3224059049, 4350 Lake Washington Blvd. N). The following list describes each part of the proposed project: • Curb and Gutter: The curb and gutter would extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, gutter and sidewalk would continue south on the east side of Lake Washington Blvd. N. to connect to the existing bridge over May Creek. • Pervious Sidewalk: The sidewalk would be installed from approximately 270-feet north of the May Creek Bridge to the existing May Creek Bridge sidewalk connection. The sidewalk is proposed to be 12-feet wide with a 10-foot landscape strip behind the curb and be made of porous concrete. • Stormwater System: The stormwater system would collect road, curb, gutter, and sidewalk runoff and provide water quality treatment for a portion of the existing road prior to discharging to an existing stormwater system flowing to May Creek. The new storm system would consist of approximately 810 lineal feet of 24-inch storm pipe with a catch -basin collection system capable of carrying traffic loading. • Wet Bio Swale: The project also includes a wet bio Swale, approximately 140 lineal feet (top length) of which, will be used to treat a portion of the runoff from Lake Washington Blvd. N. One 20-foot wide gravel maintenance access road is proposed off of Lake Washington Blvd. N. The landscape strip is proposed to terminate just north of the maintenance access road. • Water Line: The water line extension consists of the installation of about 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE 40th St. to NE 44th St. A 100- foot portion of the water line will be installed inside an existing 18-inch steel casing within the May Creek Bridge. The reach of May Creek near the project site has been designated as an Urban Shoreline pursuant to the City's SMP. May Creek runs through the south end of project area; it flows under Lake Washington Blvd. N into Lake Washington approximately 0.25 miles southwest of the subject property. The downstream portion of the new storm system is within 60 feet of May Creek and the new water line will cross May Creek in an existing 18-inch steel casing located within the May Creek Bridge. Under current conditions stormwater directly discharges into May Creek from the existing road side ditch. After the proposed project completion, discharge would remain in May Creek however, the subject project includes the addition of a wet bio swale to treat stormwater runoff prior to discharge into May Creek. Moreover, the subject project would result in improvements in the water quality discharging into the creek. The applicant has indicated that the creek itself would not be disturbed during construction and best management practices would be conducted to ensure the creek is protected from sediment flowing downstream during construction. No fill or dredge is proposed to be placed within May Creek. City of Renton Department of Community & Economic Development Lake Washington Blvd. Storm Improvements DATE OF PERMIT: August 9, 2010 Shoreline Management Permit LUA10-041, ECR, SM Page 3 of 4 The following section/page of the Master Program is applicable to the development: RMC Section Description Page 4-3-090J Urban Environment 3-25 4-3-090K General Use Regulations for All Shoreline Uses 3-26 4-3-090L Specific Use Regulations 3-27 Development of this project shall be undertaken pursuant to the following terms and conditions: 1. The applicant shall comply with all construction conditions of State Agencies. 2. The applicant shall comply with all mitigation measures identified in the SEPA Environmental Review for the subject project. This Permit is granted pursuant to the Shoreline Management Action of 1971 and pursuant to the following: 1. The issuance of a license under the Shoreline Management Act of 1971 shall not release the applicant from compliance with federal, state, and other permit requirements. 2. This permit may be rescinded pursuant to Section 14(7) of the Shoreline Management Act of 1971 in the event the permittee fails to comply with any condition(s) hereof. 3. Construction permits shall not be issued until twenty-one (21) days after approval by the Washington State Department of Ecology or until any review proceedings initiated within this twenty-one (21) day review period have been completed. i �J, C. E. "Chip" Vincent, Planning Director Planning Division g o Date APPEALS: Appeals of Shoreline Substantial Development Permit issuance must be made directly to the Shorelines Hearings Board. Appeals are made by filing a request in writing within the twenty-one (21) days of receipt of the final order and concurrently filing copies of such request with the Washington State Department of Ecology and the Attorney General's office as provided in section 18(1) of the Shorelines Management Act of 1971. All copies of appeal notices shall also be filed with the City of Renton Planning Division and the City Clerk's office. EXPIRATION: Unless a different time period is specified in the shoreline permit as authorized by RCW 90.58.143 and subsection 11 of RMC 4-9-190, construction activities, or a use or City of Renton Department of Community & Economic Development Shoreline Management Permit Lake Washington Blvd. Storm Improvements LUA10-041, ECR, SM DATE OF PERMIT: August 9, 2010 Page 4 of 4 activity, for which a permit has been granted pursuant to this Master Program must be commenced within two (2) years of the effective date of a shoreline permit, or the shoreline permit shall terminate, and a new permit shall be necessary. However, the Planning Division may authorize a single extension for a period not to exceed one year based on reasonable factors, if a request for extension has been filed with the Planning Division before the expiration date, and notice of the proposed extension is given to parties of record and the Washington State Department of Ecology. DEFINITION OF COMMENCEMENT OF CONSTRUCTION ACTIVITIES: the construction applications must be submitted, permits must be issued, and foundation inspections must be completed before the end of the two (2) year period. Attachments: A. Neighborhood Detail Map cc: Attorney General's Office Owner(s)/Applicant — City of Renton & Port Quendall Company Contact — City of Renton Surface Water Utility, Steve Lee City of Renton Official File SCALE: 1 "=500' NE 44TH -SITE o 0� BIOSWALE P v City of Penton Planning Division CITY OF RENTON LAKE WASHDiGTON BLVD STORM AND WATER SYSTEM D&ROVEIGUITS '�r� ? t NEIGHBORHOOD NAP �tty uT Menton City of Renton Planning Division LAND USE PERMIT JUN242610 MASTER APPLICATIOW-Ec[EoV[E o PROPERTY OWNERS) TELEPHONE NUMBER AND E-MAIL ADDRESS: NAME: City Of Renton Port Quendall Company(easement/dedication) ADDRESS: City ROW in streets and easements: Port Quendall Company, 4350 Lake Washington Blvd North CITY: Renton, WA ZIP:City 98057 Esmts- 98056 TELEPHONE NUMBER: (425) 430-7205 APPLICANT (if other than owner) NAME: City of Renton Surface Water Utility Attn: Steve Lee COMPANY (if applicable): City of Renton ADDRESS: 1055 South Grady Way CITY: Renton, WA ZIP: 98057 TELEPHONE NUMBER 425-430-7205 slee@rentonwa.gov CONTACT PERSON NAME: Same as Applicant COMPANY (if applicable): PROJECT INFORMATION PROJECT OR DEVELOPMENT NAME: Lake Washington Blvd N Storm and Water System Improvement Project PROJECT/ADDRESS(S)/LOCATION AND ZIP CODE: Located in ROW fronting 4350 Lake Washington Boulevard North, Renton, WA 98056 KING COUNTY ASSESSOR'S ACCOUNT NUMBER(S): City ROW and Private property on: 3224059049 EXISTING LAND USE(S): City ROW and C-Commercial PROPOSED LAND USE(S): NO CHANGE EXISTING COMPREHENSIVE PLAN MAP DESIGNATION: City ROW and C-Commercial PROPOSED COMPREHENSIVE PLAN MAP DESIGNATION (if applicable): NA EXISTING ZONING: C PROPOSED ZONING (if applicable): C SITE AREA (in square feet): appx. 34000 sf ( appx. 630 LF of new storm pipe x 4 ft width ) SQUARE FOOTAGE OF PUBLIC ROADWAYS TO BE DEDICATED: 3,300 Square Feet ADDRESS: SQUARE FOOTAGE OF PRIVATE ACCESS EASEMENTS: NA CITY: ZIP: PROPOSED RESIDENTIAL DENSITY IN UNITS PER NET ACRE (if applicable): NA H:\File Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\Master Plan Appl.doc 06/21/10 PR )ECT INFORMA NUMBER OF PROPOSED LOTS (if applicable): None NUMBER OF NEW DWELLING UNITS (if applicable): None NUMBER OF EXISTING DWELLING UNITS (if applicable): NA SQUARE FOOTAGE OF PROPOSED RESIDENTIAL BUILDINGS (if applicable): None SQUARE FOOTAGE OF EXISTING RESIDENTIAL BUILDINGS TO REMAIN (if applicable): NA SQUARE FOOTAGE OF PROPOSED NON-RESIDENTIAL BUILDINGS (if applicable): None SQUARE FOOTAGE OF EXISTING NON-RESIDENTIAL BUILDINGS TO REMAIN (if applicable): NA NET FLOOR AREA OF NON-RESIDENTIAL BUILDINGS (if applicable): NA TION contir. :d NUMBER OF EMPLOYEES TO BE EMPLOYED BY THE NEW PROJECT (if applicable): NA PROJECT VALUE: $1,200,000.00 IS THE SITE LOCATED IN ANY TYPE OF ENVIRONMENTALLY CRITICAL AREA, PLEASE INCLUDE SQUARE FOOTAGE (if applicable): ❑ AQUIFER PROTECTION AREA ONE ❑ AQUIFER PROTECTION AREA TWO Yes ❑ FLOOD HAZARD AREA sq. ft. ❑ GEOLOGIC HAZARD sq. ft. ❑ HABITAT CONSERVATION sq. ft. ❑ SHORELINE STREAMS AND LAKES 6,000 sq. ft. ❑ WETLANDS sq. ft. I LEGAL DESCRIPTION OF PROPERTY I (Attach legal description on separate sheet with the followinci information included) SITUATE IN THE NW QUARTER OF SECTION 32 , TOWNSHIP 24N , RANGE 5E W.M. , IN THE CITY OF RENTON, KING COUNTY, WASHINGTON. TYPE OF APPLICATION & FEES List all land use applications being applied for- 1 . Environmental Review $1,000.00 2.),o.�L P��M��2� 000• on Staff will calculate applicable fees and postage: $ 3. Q AFFIDAVIT OF OWNERSHIP I, (Print Name/s) -5+eve- Tt„fi _. Lc-e- , declare that I am (please check one) _ the current owner of the property involved in this application or - the authorized representative to act for a corporation (please attach proof of authorization) and that the foregoing statements and answers herein contained and the information herewith are in all respects true and correct to the best of my knowledge and belief. H:1File Sys\SWP - Surface Water Projects�SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks Landing11600 Permits\ECF attachments Hawks L.anding\Master Plan Appl.doc 06/21/10 x _.OJECT INFORMATION (continue, (Signature of Owner/Representative) (Signature of Owner/Representative) I certify that I know or have satisfactory evidence that -r► 15�- V 1_y� signed this instrument and acknowledged it to be his/her/their Vie and voluntary act for the uses and purposes mentioned in the instrument. R HOP, �rffi Notary Public in and for the State of Was Vngton y' N rrof, i Notary (Print) V"bp r h4n /��7 7 ��`�r ?• T9-1 �' +t0_ u /irrrr'rpPIWAS��- N`� My appointment expires: HAFile Sys�SWP - Surface Water Projects�SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing11600 Permits\ECF attachments Hawks Landing\Master Plan Appl.doc 06/21/10 City Of R� pidnnintito 9 Diviyion City of Renton April 5, 2010 Hawks Landing Storm and Water System Improvement Project 4 ru Project Narrative • Project Name: Lake Washington Blvd. Hawks Landing Storm and Water System Improvement Project. • Project Size/Extent: The curb and gutter will extend on the east side of Lake Washington Blvd. North from Ripley Lane south approximately 600 feet. Curb, gutter & sidewalk will continue south on the east side of Lake Washington Blvd. North to connect to an existing bridge over May Creek. The stormwater collection system will collect road & sidewalk runoff and provide water quality treatment for a portion of the existing road prior to discharge to an existing stormwater system and May Creek. The new storm system will consist of approximately 810 lineal feet of 24-inch storm pipe with a catch basin collection system capable of carrying traffic loading and curb and gutter along the frontage of the hotel site to direct runoff into the catch basins. Sidewalk will be installed from approximately 270 feet north of May Creek Bridge to the existing sidewalk connection immediately north of May Creek Bridge on the east side of Lake Washington Boulevard. The project also includes a wet bioswale with a top length of approximately 140 feet that would treat a portion of the runoff from Lake Washington Boulevard North. The water line extension consists of approximately 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE 400i Street to 44rh Street. A 100-feet portion of the water line will be installed inside an existing 18-inch steel casing within the May Creek Bridge. Various franchise utilities may need to be relocated to accommodate the stormwater and water construction including, but not limited to, power poles, fiber optic, telephone and gas/power. • Project Location: The project is located in the NW quarter of Section 32, Township 24 North, Range 5 East in the City of Renton, King County, Washington. Latitude 47.53055 North, Longitude 122.20035 West. • Land Use Permits: City of Renton Shoreline Substantial Development Permit, City or Renton Grading Permit & City of Renton Right -of -Way Permit. • Zoning Classification of Project Site: C-Commercial • Current Land Use: The project site limits' landuse currently includes Lake Washington Boulevard roadway, a roadside ditch, and a small portion of parking lot where the proposed wet bioswale is proposed. • Special Site Features: New curb and gutter will be constructed from the existing north entrance to north of May Creek Bridge with a proposed new stormwater pipe to be directed to a wet bioswale. Proposed pervious sidewalk will be installed from 270 feet north of May Creek Bridge to the existing May Creek Bridge sidewalk. The new water main will extend approximately 450 feet south of May Creek, cross the May Creek Bridge using an existing 18-inch steel casing, and end at the north entry of the Pan Abode site (proposed hotel site's north entrance). • Soils: The King County Soil Conservation Service Soil Survey classifies the soils in the project area as Norma Sandy Loam, which is described as soil having a low runoff potential and high infiltration rate. It consists of deep, well to excessively drained sands or gravels and has a high rate of water transmission. The geotechnical report for the project area found fill consisting of silty sand with gravel to a depth of about six feet, which was underlain by very loose to loose sand with lenses of very soft silt to a thickness of 20 feet below the fill. There are no known indications of unstable soils in the immediate vicinity. • Proposed use of the property and scope of the proposed development: The purpose of the project is to install curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd. N. to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area, including the Hawks Landing development. The curb and gutter will extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, gutter and sidewalk will continue south on the east side of Lake Washington Blvd. N. to connect to the existing bridge over May Creek. The sidewalk will be installed from approximately 270-feet north of the May Creek Bridge to the existing May Creek Bridge sidewalk connection. The stormwater system will collect road, curb, gutter, and sidewalk runoff and provide water quality treatment for a portion of the existing road prior to discharging to an existing stormwater system flowing to May Creek. The new storm system will consist of approximately 810 lineal feet of 24-inch storm pipe with a catch -basin collection system capable of carrying traffic loading. The project also includes a wet bioswale, approximately 140 lineal feet (top length) of which, will be used to treat a portion of the runoff from Lake Washington Blvd. N. The water line extension consists of the installation of about 1,450 feet of 12- inch water line in Lake Washington Blvd. N. from NE 40ffi St. to NE 44t' St. A 100-foot portion of the water line will be installed inside an existing 18-inch steel casing within the May Creek Bridge. Plats: Not applicable. • Access: Access to the project will be off of Lake Washington Boulevard North and most likely be coming from I-405 exit 5 (NE44th Street Exit). • Proposed off -site improvements: The adjacent site to the east is proposed to be developed into a hotel. Hotel improvements will install the landscaping plants and trees, as well as construct the remaining portions of the sidewalk from 270 feet north of May Creek Bridge to it's existing north entryway. • Total estimated construction costs & estimated fair market value to the proposal: Total construction cost is estimated to be approximately $1,000,000. The fair market value is unknown. • Estimated quantities and type of materials involved, if any fill or excavation is proposed: About 2,380 cubic yards of cut will occur associated with the proposed project, and approximately 2,450 cubic yards of fill will be imported by the contractor from licensed gravel pits. • Number, type and size of trees to be removed: 0 • Explanation of any land to be dedicated to the City: Some land will need to be dedicated to the City from the proposed hotel south entryway to the southwest comer of the adjacent parcel. The wide of the dedication will vary from 9.5 feet wide to a few feet wide closer to the south entryway. Any proposed job shacks, sales trailers, and/or model homes: NA Any proposed modifications being requested for projects located within 200 feet of May Creek or Lake Washington provide the following information: o Distance from the nearest work area to the OHWM: 1 to 2 vertical feet from pipeline conduit under May Creek Bridge to the OHWM. The new stormwater pipe will connect approximately 55' away from the discharge point to May Creek's OHWM. o Description of the nature of the existing shoreline: The May Creek shoreline through the project area is Urban. May Creek flows west through rural King County and the City of Renton through a 2-mile long, largely undeveloped ravine immediately above I-405. It passes through a 200-foot culvert under the freeway west to Lake Washington Blvd. N. which is approximately 1,100 feet from Lake Washington. Vegetation along the creek includes alders, cottonwoods, willows, salmonberry etc. The approximate location of and number of residential units, existing and potential, that will have an obstructed view in the event the proposed project exceeds a height of 35-feet above the average grade level: Not applicable, as all new infrastructure associated with the proposed project will be below grade. Potential impacts associated with the future hotel development will be addressed in a future SEPA Checklist, Shoreline Substantial Development, Grading and ROW permits. SCALE: 1 "=500' C NE 44TH i % -SITE ,o Lo o 0� .� BIOSWALE F� Fl Q' v I CitY of Renton Ranning Division CITY OF RENTON LAKE WASEEINGTON BLVD STORM AND HATER SYSTEM IWPROVEMENTS '��� NEIGHBORHOOD MAP DDCONSULTING ENONEERS s ir 000" OTA 104:U� '2: MR V�, w U) 11' L KLIAK VALVE 2, L (Vw7 .,A LAKE WASHIN 7 �- L�7 lir'STEM It CARR" it- mi 13+w Z44A ll-.. uj -7 rT-11,.-------- I A' --- - - - - 15 . 11 L 1) 7 0, --- 7, — ---- --------- ---- ........ ----------- . . ......... .... ......... . . . ....... ........... ......— — _`l t•. /' '/ ........... ... .. ......... .......... ... . ................. I . .. . .......... V: .......... I ................ ..... . . ........ ............... ..... .... .. I r AR VAWjII ;0 .......... . ... ... .. .. .. .: i..:. .: : i . . . T r! 1 m I d1. w. .. .. ..... 50 ..... .... . 1: i. ................ . . .......... .................. .... . ....... ......... . .............. .............. ........ ...... ...... . ..... : ................ 45 ............ . .. .............. A. .. .. .. ... ..... . ...... r= 40 15 A 71kft 7- 35 ............ ............. 7, . ......... nw I � 10 ............. .................. 30 T: 25 11+00 12+00 13+00 14+00 15+00 16+00 City of Renton Pl-Rnning Division JUN 1, - 20': FDF-135131110 PRELIMINARY CITY OF LAKE WASHINGTON BLVD NOT FOR liR RENTON HAWKS LANDING STORM WATER CONSTRUCTION DAM f! �m IMPROYEMEh7S fl f; I r_�� - 1 — . -- 7. - . -• - I -___� I. - _wm'sunua xtaweutw, - - - _c ^______ __ __ ___ o �' r 1227 \ ' 7: W.m -- °umw°mo" w _ o -- i' li A�e[Na LAKE WAS IH N6 BLVD I bW"S er 2-IY w n,W to ° DiHERa C°NIRACTfr1 1-��,yyy,�_ �REupYi AND WASreH k '� ---��--��. "` ° W N I ro COdIgNAre. 21 a■ [26TNC ce AND PN[. N) W W o aTA t�00 AC[ OP YAIX N2C[MiAND LLInN wl--- �= M �N i1) r M tJya - e :yA"r� 21- APa—nil-����_� A � _ _ T " r r e m[ N } aP°YD CMn DNC - -y.l ` .s T v rA s u Q I .'si1j.wroaAuf .as•r, Z _'�� 70R DCT r•'�_ �: '�'-' 1 ) t V T O"r jC IIOr06[D i� wanNn 31] TM[ SDN } r. L I ptlp �, f_ \�•�o J 2/ MAE°N I"' D-2 si I141i � ly �. < lTwUCNRE � I � li t � �`� f ���.-•.. WORK BY 7. v ANN riannincg Uivision g�2? N;v, riffs JUJf � A' ` LI'r,) 10 IQ' Q 2G' 40" _ I'-20} D-3531 D ® PRELIMINARY CITY OF LANEWASHINGTONBLVD 2�1e 10 C3arT8c�■}taetagIm NOT FOR —2+[ RENTON HA LA- LANDING STORM WATER CONSTRUCTION �u rrr NOM TatI IMPROVEMENTS r 4 ° ;' lr 1twiTuc tiOAi �� I —l_I — I STTAc 4n.w ..�\ I- I _ - _ { L�. • a uJ W' u / O�% ° u• 1-r KM). �.,, oo ° ` f n=i yiiYbliAia _ ..•I N W(m el > r WORK BY',2 i•! / \ 1 ��F+T ��A Li � i •. i 1 ndRro _ • srai�rs•r•,� XCEPT24' STO,RMLINE \ \ .�`;. fOIOK 6 V 01 OMifA 7,' STOIIY im iulo AYo ,VAYDON r77 an sTos,AN°Af 50 t i prapaen"°auiNkjaMAtD I _ /I . ... ... L.. 5 I ....NShHG. eGWI� A7 46 f k r + .. r c48NT .. ....t.:. .. ... .. .: .... ... ... I yrc t1 40 i r I Ta° 40 �( I P Of R, } .. _ f Y 35�„.�.g ti 5 p�c�lil�jr� rl Pen to �. i � I 30 I �0 A w ,. N 2 f 3 .• � „� : Mu-7,•av 25 25 ....._ ` a ... .. _. ......... 20 t i . I : i 20 D i 22+50 23+00 24+00 —_ 25+00 Ce#��D 3t �z VIA d14 krs fo' ,D• 4 2D• gyp. •� m�WJ m WW m JJ WI 1 • � 20': �laut � Alau � - _ D-35310 PRELIMINARY W '' CITY OF x xe to RENTON LAKE WAS HINGTON RLVD Q»7�a»q Tm NOT FOR —°„� J HAWKS LANDING STORM WATER CONSTRUCTIONS °A�UM ilanaF / IMPROVEMENTS r 5 T •�tAG i euedny/1ubAa Wank. 0.01. N°. W[VISM)N W OAT[ Mill �* X SXIE'RAU MArw exnrNo rnolw 1/x• R. (TYP� NENi A..O %S JX( CouC.�iE CINn xIE YAK DUireP.lel DlrM nIM DN!!T �„uti'rtVV'T'•. * :'.. . _;". A' WN a sm.AUL W PRE D , S eRDOKD —SN p .•wnr l—TH ' rPOWFlEO RneAFiaP fAC[ OF CWe a 1/2• I D[ xDelT rl U ° S 1"R ..... 1/3•R !' 1111CK C[M ." Ero NATLN F%ISTNO MNFWAY MD1N r o w—aw ra S CEMENT CONCRETE SIDEWALK rJ' ' NoRk 1. EXPAN" JINTS AM CONMADIIDN 1S SMALL K D AIs IN, .. —T& SHALL K RUNH I JCMTIE iRiSNED ra ca+cPeToe.Aw"i T OM4lT"•• e' b KE NDTE 2 ., x• COLIPADTET DV1M /•, <'/.`!' R. ALL UTuIN POLES, MEAN PDXES,YD FINE HRANTS, VAIK& ETC, IDCATEO IN TIE SAEWALR MEA SHALL . GUSHED SUW— ra �M� HAW 1/.• rNE-UDEo ME FILLER HAl DEPTI) (( E RACED M0I1Np 1NFY RAWD PRldl f0 CDNG lE } IIN`l MD J00,T FILLER YInRIAL SN:IIE ASPHALT CONIMctgH bwT bewnlP PAr 'EI.' � ,• T%PANeIM 1oRn MawlN _ I EHT(� Y CEN[SeL..tlDI[i aW1XLIN0 SAIUIIATED FELT G PMER. .. rpeN Mo SNGAK Nu[cnw eY TIE OPHG aNAu K R[DLINED PRIOR 1D POURING CONCRETE. 7Ct CUIe AMDaIXWAu MOLDED � , � soon r -' 1. M[Y0.D[D .ANT fNlfll 1NALL K A�N 1 SATIRATED "1.7 ON PAPER. E�yL 1. CO.CREIE SHAM eE A CLAMI .00E MILL S. OCINGEM SHALL K A CGLWGCIAL CUSS CONCRETE - © ERPANSIW JWT JOINT AND PINNIN A.L. DETI e' ro V.• 3. FpIN AND SWGAK NS"ECTNSI MALL ME IMAINII[D PRIX ro PoURNM CDNCIT[rE a NSTALL GIN x• CDVACTED — "AN a MN ED L DRIVEWAY XO MIA1l MT EXCEED M (MAX) CROSS SN'LE IDND1110R4x NA ILt (YM) 4W[. - �. r •.� � 3I.IRIACOW1OP e .. ccn wAu 11 eE A A wrw11 CpMYGbAI cuts CONCIICI[. x CEMENT CONC. SIDEWALK DETAILe NDT TD SCACONIC,CEMENT CON, TRAFFIC CURB AND MUTTER x NOl ro 6CAL[ NOl 1D SCALE © CDIIIIACCION JODII r, zm 1 x' G4WPMT TILLED NTO b 1 N POTION Mo1N-lx, e' NATM; eLY4 10.5 LONCINOINAL Elf M 1 (TRANSVER E) IN[T YDA1YAl1 d10Y YOT10N —�.eiN P A i' 4IN (MANSKRSE ANC) V MIN 1' MIN .]' MI4 (LDNNNTMNAL XINp) I' MIN (111MSA[Nsr ANC) ]' MIN (LwMN1UNNIUL AND) AunwAela 1, PLANTS MFLU THE WET eR)a1TM SHALL SC TDLERMT W rAau T FUND AHo NACHO FINISHED AMPEINEN T1. "GA T ANO WER1ACIN . L A"LE Nmr N.�n N AND DRDUDHT ACNE THE MMNER IFOYMS. NIDWANE wewn RAMS AM SPApNO ARE AM11I1 N TAKE 1, V w GRADE C:L't \\��14 City tJ of . �CONC. CUSS 'B' } rj s s In �A{E L .. 'Y .BR .M" - P�- S" ASPHALT 1 < n 7nrr .wM CONC. CASS I�� Oiv s I(�n sI„r.,w a Iw SPECUL PRECAUTIONS B. TO PROTECT PIPE TO '�� 'A / 6" CRI/SHED SURFACING TOP COURSE x.lNwsww THIS LEVEL DEPTH �F S.. TO PIPE CROWN .` VARIES, SEE PLAN PIPE BEDDING J1 SEE SPECIFICATIONS LT + JuN I r MIN. ty ;• s�� .. : it CPEP OR DUCTILT. IRDN PIPE �N'1•%Ve"A�✓%.>^ l� z _ {}/� ANR lJ 'Y"p, 4y CX '• �4 �y:' �5 TYPICAL ROAD RESTORATIQN / TRENCH NOT TO SCALE SECTION e 31 FD1 D-3 PRELIMINARY ar.a '��'°" CITY OF LAKE WHT ASINGON BLVD x/xe/ID N3Rr, ae, ]:T,a NOT FOR e.K p.TUN RENTON HAWKS LANDING STORM WATER e�o.tRo CONSTRUCTION .VL panw ENmXnp/Pwle Nw,. D.PL IMPROVEMENTS o-t T SCALE: 1"-20' CONBTRUCTION BE VENCE FOR 12-INCH WATER MA RELOCATION AB VE EW B %CULVERT I. INSTALL CONCRETE DEAD -LAW BLOCKS ON EXISTING 12- WATER LINE. ALLOW 5-DAY CURING TIME. 2. CUT IN 2 NEW 12' ISOLATION GATE VALVES, SHACKLE NEW VALVES AND TEE TO DEAD -MAN BLOCKS WITH B- 3/4- SHACKLE RODS (TYPICAL). CITY CREW WILL PERFORM CUT IN OF VALVES. 3. INSTALL NEW 12' WATER LINE 4. PRESSURE TEST, DISINFECT, FLUSH NEW B-INCH LINE. . — BKCO[ AND 't Pi�ny Of Penton l ©! 1 EnsTwo sKRWwK oRAq: cKroTYA; DBAo[ nin9 DivI' on .e•A I e• u.I IB• STEEL 0-0A nn +x e• �. I SI JUNI - /Uj Gir qw ` - SIM G JIMDIRL I 9IOOL SPeCL JPU0. R°°J ('� IIL 12- Bl[[VE (W) U V D lY G`E VILV[ (NFnwM W)Gi[ YALVE B [ D (W [ W) SEE DETAIL e 3/e' YMCKL[ Ii•E e- m 1' . n) a D/r SHMCKLE T- 12' ]I I/t' eENDJ I. W). RB•• ( '�) Iz' AGFTG In [ W1 LiYFlGL ODJ (1 M—LE ro VALVL DEADNAN elnCi AND MAOUON AL BENDS ro D"".. I Ill. BDTN SIDES) CONCBEIC B1MLL BC KEYED 1L' RMFXLE AODJ (.K BCpMm) MN ADAMlT 111O61lIRBED EARRI 12" WATER MAIN RELOCATION B-3p• raL Ie-NCH Bf[ BOTN rAGJ NOT ro sru[ (eFL CRY DCTALMai BDY) Ir PK r cG id' MN. J• CUR CIAtl B 1/2 11LK CONCBRC J000 FM 14N PLAN Wit AMG B[BM e' D.C. E.W.W. IN CONCHAE 1— —T- _e __________ Man •m____ I B' MN. "-------- TYPICAL CONCf f UEADMAN ANCHOR DETAIL e C NOT To Bcu[ - PRELIMINARY CITY OF D-353 107 e vA LAKE WASHINGTON BLVD Ci.+�6cO.hoJJJe,I.Jo NOT FOR —�, RENTON HAWKSLANDINGSTORMWATER CONSTRUCTION rlenm�e/.wam[/rwne w.w o.PL IMPROVEMENTS T •.,,c" — —raw ND. KIVOKl4 f! IT V1 . City of,-, rA NOTICE OF APPLICATION AND PROPOSED DETERMINATION OF NON -SIGNIFICANCE (DNS) DATE: July 1, 2010 LAND USE NUMBER: LUA1D-041, ECF, SM PROJECT NAME: Lake Washington Blvd Storm Improvement PROJECT DESCRIPTION: The applicant is requesting SEPA Environmental Review and a Shoreline Substantial Development Permit for the installation of curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd. N. to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area. The project is primarily located within the existing right-of-way of Lake Washington Blvd. N adjacent to 4350 Lake Washington Blvd. N. However, a small portion for the proposal would extend onto private property located at 4350 Lake Washington Blvd. N. The proposed curb and gutter would extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, gutter and sidewalk will continue south on the east side of Lake Washington Blvd. N. to conned to the.existing bridge over May Creek. The new storm system would consist of approximately 810 lineal feet of 24-inch storm pipe with a catch -basin collection system and the new water line extension would consist of about 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE 40th St. to NE 44th St The project also includes a wet bioswale, approximately 140 lineal feet. The applicant has provided stream and wetland studies, a traffic study, a geotechnical report, and a hydrologic analysis with their application. PROJECT LOCATION: R-O-W fronting 4350 Lake Washington Blvd N & a small section on subject site OPTIONAL DETERMINATION OF NON -SIGNIFICANCE (DNS): As the Lead Agency, the City of Renton has determined that significant environmental impacts are unlikely to result from the proposed project. Therefore, as permitted under the RCW 43.21C.110, the City of Renton is using the Optional DNS process to give notice that a DNS is likely to be issued. Comment periods for the project and the proposed DNS are integrated into a single comment period. There will be no comment period following the issuance of the Threshold Determination of Non -Significance (DNS). A 14-day appeal period will follow the issuance of the DNS. PERMIT APPLICATION DATE: June 24, 2010 NOTICE OF COMPLETE APPLICATION: July 1, 2010 APPLICANT/PROJECT CONTACT PERSON: Steve Lee, City of Renton; Eml: slee@rentonwa.gov Permits/Review Requested: Environmental (SEPA) Review, Shoreline Substantial Development Permit Other Permits which may be required: Construction Permit Requested Studies: Stream Study, Hydrologic Analysis, and Geotechnical Study Location where application may be reviewed: Department of Community & Economic Development (CED) — Planning Division, Sixth Floor Renton City Hall, 1055 South Grady Way, Renton, WA 98057 If you would like to be made a party of record to receive further information on this proposed project, complete this form and return to: City of Renton, CED — Planning Division, 1055 So. Grady Way, Renton, WA 98057. Name/File No.: Lake Washington Blvd Storm I m prove ment/LUA10-04 1, ECF, SM NAME: MAILING ADDRESS: TELEPHONE NO.: PUBLIC HEARING: N/A CONSISTENCY OVERVIEW: Zoning/Land Use: The subject site is designated Commercial/ Office/ Residential (COR) on the City of Renton Comprehensive Land Use Map and Commercial/Office/Residential (COR) on the City's Zoning Map. Environmental Documents that Evaluate the Proposed Project: Environmental (SEPA) Checklist Development Regulations Used For Project Mitigation: The project will be subject to the City's SEPA ordinance, RMC 4-3-090, RMC 4-7- 070, RMC 4-9-190 and other applicable codes and regulations as appropriate. Comments on the above application must be submitted in writing to Vanessa Dolbee, (Acting) Senior Planner, CED — Planning Division, 1055 South Grady Way, Renton, WA 98057, by 5:00 PM on July 15, 2010. If you have questions about this proposal, or wish to be made a party of record and receive additional notification by mail, contact the Project Manager. Anyone who submits written comments will automatically become a party of record and will be notified of any decision on this project. CONTACT PERSON: Vanessa Dolbee, (Acting) Senior Planner; Tel: (425) 430-7314; Eml: vdolbee@rentonwa.gov PLEASE INCLUDE THE PROJECT NUMBER WHEN CALLING FOR PROPER FILE IDENTIFICATION DEVELOPMENT SERVICES DIVISION ENVIRONMENTAL CHECKLIST,,'ty0 City of Renton Development Services Division 1055 South Grady Way, Renton, WA 98055 Phone: 425-430-7200 Fax: 425-430-7231 P,ent©t7 Division JL'N 2 4 j6lu PURPOSE OF CHECKLIST: �S �D The State Environmental Policy Act (SEPA), Chapter 43.21 C RCW, requires all governmental agencies to consider the environmental impacts of a proposal before making decisions.. An Environmental Impact Statement (EIS) must be prepared for all proposals with probable significant adverse impacts on the quality of the environment. The purpose of this checklist is to provide information to help you and the agency identify impacts from your proposal (and to reduce .or avoid impacts from the proposal, if it can be done) and to help the agency decide whether an EIS is required. INSTRUCTIONS FOR APPLICANTS: This environmental checklist asks you to describe some basic information about your proposal. Governmental agencies use this checklist to determine whether. the environmental impacts of your proposal are significant, requiring preparation of an EIS. Answer the questions briefly, with the most precise information known, or give the best description you can. You must answer each question accurately and carefully, to the best of your knowledge. In most cases, you should be able to answer the questions from your own observations or project plans without the need to hire experts. If you really do not know the answer, or if a question does not apply to your proposal, write "do not know" or "does not apply". Complete answers to the questions now may avoid unnecessary delays later. Some questions ask about governmental regulations, such as zoning, shoreline, and landmark designations. Answer these questions if you can. If you have problems, the governmental agencies can assist you. The checklist questions apply to all parts of your proposal, even if you plan to do them over a period of time or on different parcels of land. Attach any additional information that will help describe your proposal or its environmental effects. The agency to which you submit this checklist may ask you to explain your answers or provide additional information reasonably related to determining if there may be significant adverse impact USE OF CHECKLIST FOR NONPROJECT PROPOSALS: Complete this checklist for nonproject proposals, even though questions may be answered "does not apply."' IN ADDITION, complete the SUPPLEMENTAL SHEET FOR NONPROJECT ACTIONS (part D). For nonproject actions (actions involving decisions on policies, plans and programs), the references in the checklist to the words "project," "applicant," and "property or site" should be read as "proposal," "proposer," and "affected geographic area," respectively. HAFile Sys1SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks Landing11600 PermitslECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc A. BACKGROUND Name of proposed project, if applicable: Lake Washington Blvd. Hawks Landing Storm and Water System Improvement Project 2. Name of applicant: City of Renton Surface Water Utility, Attn: Steve Lee 3. Address and phone number of applicant and contact person: City. of Renton Surface Water Utility Attn: Steve Lee 1055 South Grady Way Renton, WA 98055 425-430-7205 4. Date checklist prepared: June 2010 Agency requesting checklist: City of Renton Development Services Division 6. Proposed timing or schedule (including phasing, if applicable): Submit Environmental Checklist: June 2010 Advertise Project for Bids: August 2010 Construction: October 2010 Do you have any plans for future additions, expansion, or further activity related to or connected with this proposal? If yes, explain. The adjacent parcel located on the east side of Lake Washington Blvd., south of NE 44t' St., may be developed into a hotel. The developer is proposing to install the remaining frontage improvements (landscaping and sidewalk) in front of this property. Any portions of this project that does not get completed shall be completed by the hotel developer including the remaining landscape plantings along the frontage. 8. List any environmental information you know about that has been prepared, or will be prepared, directly related to this proposal. Wetland/Stream Study: Hawk's Landing Crowne Plaza Hotel prepared by Graham -Bunting Associates on May 12, 2009. A Geotechnical Report for the existing soil conditions and construction recommendations was prepared by Soil & Environmental Engineers Inc. on March 17, 2010. 9. Do you know whether applications are pending for governmental approvals of other proposals directly affecting the property covered by your proposal? If yes, explain. 10. List any governmental approvals or permits that will be needed for your proposal, if known. City of Renton Shoreline Permit, Grading Permit and Right -of -Way Use Permit. HARe Sys1SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks 2 Landing11600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc 11. Give brief, complete description of your proposal, including the proposed uses and the size of the project and site. The purpose of the project is to install curb/gutter and portions of a sidewalk, a new storm system, a retrofit water quality facility and a water line extension along Lake Washington Blvd. N. to meet the infrastructure needs for future development in the vicinity of 1-405 Exit 7 area, including the Hawks Landing development. The curb and gutter will extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, gutter and sidewalk will continue south from 270 feet north of the May Creek Bridge on the east side of Lake Washington Blvd. N. and connect to the existing sidewalk north of the May Creek Bridge. The stormwater system will collect road, curb, gutter, and sidewalk runoff and provide water quality treatment for a portion of the existing Lake Washington Boulevard roadway prior to discharge to an existing stormwater pipe that discharges to May Creek. The new storm system will consist of approximately 810 lineal feet of 24" storm pipe with a catch basin collection system capable of carrying traffic loading. The project also includes a wet bioswale approximately 140 lineal feet (top length) which will be used to treat a portion of the runoff from Lake Washington Blvd. N. Water quality (and quantity) treatment follows the 2009 City of Renton Stormwater Design Manual that follows the 2005 Ecology Stormwater Design Manual. The water line extension consists of the installation of about 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE. 40'' St. to NE 441h St. A 100' portion of the water line will be installed inside an existing 18-inch steel casing within the May Creek Bridge. It is anticipated that existing utilities may be in conflict with the proposed work and therefore relocation of some existing facilities and utilities is expected. Conflicts may include PSE poles, fiber optics, Qwest lines, Comcast, and other franchise utilities. 12. Location of the proposal. Give sufficient information for a person to understand the precise location of your proposed project, including a street address, if any, and section, township, and range if known. If a proposal would occur over a range of area, provide the range or boundaries of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if reasonably available. While you should submit any plans required by the agency, you are not required to duplicate maps or detailed plans submitted with any permit applications related to this checklist. The project is located in the NW quarter of Section 32, Township 24N, Range 5E in the City of Renton, King County, Washington. Latitude 47.53055 N, Longitude 122.20035 W. The new storm system, curb, gutter, and sidewalk will be begin near the east side of the intersection of Ripley Lane and Lake Washington Blvd North. The system will extend along the east side of Lake Washington Blvd. to a point just north of the May Creek Bridge. The water main is near the same alignment however, it will be located under the east half of Lake Washington Blvd. and will extend under the May Creek Bridge to a point 450' south of the bridge. See the attached figures and plans. H:\File Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Pernits\ECF attachments Hawks Landing\SEPA Check] ist-Final-STLedited 100621.doc B. ENVIRONMENTAL ELEMENTS EARTH a. General description of the site (circle one); flat, rolling, hilly, steep slopes, mountainous, other Gently sloped. b. What is the steepest slope on the site (approximate percent slope?) Approximately 3 % C. What general types of soils are found on the site (for example, clay, sand, gravel, peat, muck)? If you know the classification of agricultural soils, specify them and note any prime farmland. The soils in the area are classified as Norma Sandy Loam by the Soil Conservation Service King County Soil Survey. Norma Sandy Loam is described as soil that has low runoff potential and high infiltration rates that consist of deep, well to excessively drained sands or gravels and have a high rate of water transmission. A geotechnical report for the area found fill consisting of silty sand with gravel to a depth of about 6 feet which was underlain by very loose to loose sand with lenses of very soft silt to a thickness of 20 feet below the fill. d. Are there surface indications or history of unstable soils in the immediate vicinity? If so, describe. None known e. Describe the purpose, type, and approximate quantities of any frlling or grading proposed. Indicate source of fill. About 2,380 cubic yards will be cut and approximately 2,450 cubic yards will be used for fill. The contractor will supply the backfill from licensed gravel pits. Could erosion occur as a result of clearing, construction, or use? If so, generally describe. Surface erosion may occur along the slope of the ditch in the northern section however, the contractor will be required to use typical erosion control methods described in the 2009 City of Renton Stormwater Design Manual (which follows the 2005 Ecology Stormwater Manual) to control erosion from the excavation and any soil stockpiles. Flow in the existing storm system will be diverted around the work area. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or buildings)? Approximately 61.9% of the drainage area for this project will be covered with impervious surfaces which is an increase over the 57.2% that exists today. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 4 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-FinalSTLedited 100621.doc Proposed measures to reduce or control erosion, or other impacts to the earth, if any: The contractor will be required to use typical erosion control methods in the City of Renton 2009 Stormwater Design Manual (document follows the 2005 Ecology Manual BMPs), including filter fabric fences and catchbasin inlet protection. Stormwater will be diverted around the work area, and sandbags and silt fencing will be used to keep any water and sediment out of the open channel. 2. AIR a. What types of emissions to the air would result from the proposal (i.e., dust, automobile, odors, industrial wood smoke) during construction and when the project is completed? If any, generally describe and give approximate quantities if known. During construction, dust and exhaust from construction equipment will occur. After construction, no emissions are expected from the site. b. Are there any off -site sources of emission or odor that may affect your proposal? If so, generally describe. No. C. Proposed measures to reduce or control emissions or other impacts to air, if any: Construction equipment will have mufflers and exhaust systems in good working order. Dust will be kept down by watering the excavation and stockpiles as needed. 3. WATER a. Surface Water: 1) Is there any surface water body on or in the immediate vicinity of the site (including year- round and seasonal streams, saltwater, lakes, ponds, wetlands)? If yes, describe type and provide names. If appropriate, state what stream or river it flows into. Yes, May Creek is within the vicinity of the project and is considered a Class 1 (City system classification) stream. A wetland evaluation was performed where the existing storm water system discharges to the open channel. The evaluation found that the area did not meet the criteria to be classified as a wetland and was reviewed as part of the adjacent hotel developer's determination. 2) Will the project require any work over, in, or adjacent to (within 200 feet) the described waters? If yes, please describe and attach available plans. Yes. The downstream part of the new 24" storm system is within 60 feet of May Creek. The new 24" storm system will connect to an existing 24" CMP pipe that will continue to discharge to May Creek. The creek itself will not be disturbed during construction of this project. Best management practices will be conducted to ensure the creek is protected from sediment flowing downstream during construction. 3) Estimate the amount of fill and dredge material that would be placed in or removed from surface water or wetlands and indicate the area of the site that would be affected. Indicate the source of fill material. No fill or dredge will be placed within May Creek. Fill will be located in the ditch where the current stormwater discharges to along HAFile Sys1SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)�27-3531 Lake Washington Blvd -Hawks 5 Landing116D0 Permh\F=CF attachments Hawks Landing\SEPA Checklist-FinalSTLedited 100621.doc the east side of Lake Washington Blvd. About 2,380 cubic yards will be cut and approximately 2,450 cubic yards will be used for fill throughout the project area. 4) Will the proposal require surface water withdrawals or diversions? Give general description, purpose, and approximate quantities if known. No. 5) Does the proposal lie within a 100-year flood plain? If so, note location on the site plan. No, the project site is located approximately 55 feet outside of the 100-year flood plain. The project will also involve going through an existing 18" sleeve underneath May Creek bridge. 6) Does the proposal involve any discharges of waste materials to surface waters? If so, describe the type of waste and anticipated volume of discharge. No. b. Ground Water: 1) Will ground water be withdrawn, or will water be discharged to ground water? Give general description, purpose, and approximate quantities if known. If there is a high water table which affects construction excavation temporary pumping would be needed to keep the excavation dry. Any groundwater would be filtered to remove sediment and discharged back to the downstream storm system through the use of sediment and erosion control best management practices. 2) Describe waste material that will be discharged into the ground from septic tanks or other sources, if any (for example: Domestic sewage; industrial, containing the following chemicals...; agricultural; etc.). Describe the general size of the system, the number of such systems, the number of houses to be served (if applicable), or the number of animals or humans the system(s) are expected to serve. NIA. C. Water Runoff (including storm water): 1) Describe the source of runoff (including storm water) and method of collection and disposal, if any (include quantities, if known). Where will this water flow? Will this water flow into other waters, If so, describe. The Hawk's Landing area is located at the downstream end of a 15-acre basin that mostly consists of impervious pavement from 1-405, NE 44t' St., and the existing development on the Hawk's Landing site. For existing conditions the peak flow from the basin for the 100-year, 24-hour storm is approximately 12 cfs. The majority of the storm water runoff from the basin is currently carried by a 24- inch pipe, which begins near a depressed area located south of the intersection of Lake Washington Blvd. N. and Ripley Lane/NE 44th. The 24-inch pipe conveys flows to the northwest edge of the proposed Hawk's Landing development where it then enters a 450-foot long ditch. This ditch is connected to a 24" CMP pipe that is 120 lineal feet and discharges directly to May Creek at a point approximately 1,100 feet upstream of Lake Washington. 2) Could. waste material enter ground or surface waters? If so, generally describe. H:\File Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 6 Landing\160o Permits\ECF attachments Hawks Landing\.SEPA Checklist-Final-STLedited 10o621.doc Any liquid spills on site could enter the drainage system. The same potential exists with the current drainage system. Best management practices will be. in place to limit impacts. d. Proposed measures to reduce or control surface, ground, and runoff water impacts, if any: No new impacts are expected. The City of Renton Maintenance Department would respond to any problems with the storm system or liquid spills in City. ROW. The project includes the construction of a wet bio swale to treat storm water runoff from Lake Washington Boulevard. Sediment and erosion control standards follow the adopted 2009 City of Renton Stormwater Design Manual (2009 KCSWDM). 4. PLANTS a. Check or circle types of vegetation found on the site: X deciduous tree: alder, maple, aspen, other possibly cottonwood, aspen, alder X evergreen tree: fir, cedar, pine, other possibly small fir or pine trees X shrubs X grass pasture crop or grain wet soil plants: cattail, buttercup, bullrush, skunk cabbage, other water plants: water lily, eel grass, milfoil, other other types of vegetation b. What kind and amount of vegetation will be removed or altered? Vegetation (weeds, long grass and some cattails) within the existing ditch will be replaced with fill. C. List threatened or endangered species known to be on or near the site. None known. d. Proposed landscaping, use of native plants, or other measures to preserve or enhance vegetation on the site, if any: The proposed wet bioswale located just upstream from May Creek will include plants that are tolerant of saturated conditions. Grass will be used within the planter strips. 5. ANIMALS a. Circle any birds and animals which have been observed on or near the site or are known to be on or near the site: Birds: hawk, heron, eagle, songbirds, other small birds in general Mammals: deer, bear, elk, beaver, other Typical small mammals such as mice muskrats and squirrels may be present Fish: bass, salmon, trout, herring, shellfish, other Chinook. Coho Sockeye Steelhead and Cutthroat. b. List any threatened or endangered species known to be on or near the site. H:1File Sys1SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks 7 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Puget Sound Chinook Salmon and Puget Sound Steelhead in May Creek are a threatened species. C. Is the site part of a migration route? If so, explain. No. Proposed measures to preserve or enhance wildlife, if any: NA. H:1File Sys1SWP - Surface Water Projects%SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks Landing11600 PermitslECF attachments Hawks Landing\SEPA Checklist-FinalSTLedited 100621.doc 6. ENERGY AND NATURAL RESOURCES a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet the completed .projects energy needs? Describe whether it will be used for heating, manufacturing, etc. None needed for the completed project. b. Would your project affect the potential use of solar energy by adjacent properties? If so, generally describe. No. C. What kinds of energy conservation features are included in the plans of this proposal? List other proposed measures to reduce or control energy impacts, if any: NA. 7. ENVIRONMENTAL HEALTH Are there any environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, spill, or hazardous waste, that could occur as a result of this proposal? If so, describe. During construction fuel and oil spills could occur. 1) Describe special emergency services that might be required. Typical emergency services by the Fire Department and the City Maintenance Division in case of fire, injury, or fuel spills. 2) Proposed measures to reduce or control environmental health hazards, if any: The Contractor will be required to keep construction equipment in good operating condition, and will be responsible to cleanup any oil or fuel leaks and spills, and repair leaking equipment. Operators will be trained in the use of onsite spill kits. b. Noise 1) What types of noise exist in the area which may affect your project (for example: traffic, equipment, operation, other)? None. 2) What types and levels of noise would be created by or associated with the project on a short-term or a long-term basis (for example: traffic, construction, operation, other)? Indicate what hours noise would come from the site. Short-term: Noise from construction equipment may occur between the hours of 7 AM to 5 PM, Monday through Friday during construction. There will be no long term noise impacts. All noise impacts would be contained within the City's neighborhood work time and dates. HAFile Sys1SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Btvd-Hawks Landing11600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc 3) Proposed measures to reduce or control noise impacts, if any: The contractor will be required to keep the construction equipment's mufflers and exhaust systems in good operating condition. 8. LAND AND SHORELINE USE a. What is the current use of the site and adjacent properties? The site consists of a paved road. The adjacent property currently houses abandoned buildings and parking lots. The site is proposed to be developed into a hotel. b. Has the site been used for agriculture? If so, describe. No. C. Describe any structures on the site. No structures exist on the project site itself except for the May Creek bridge. d. Will any structures be demolished? If so, what? Portions of the existing storm system will be removed and replaced, or abandoned. e. What is the current zoning classification of the site? C-Commercial f. What is the current comprehensive plan designation of the site? Commercial Office Residential (COR) g. If applicable, what is the current shoreline master program designation of the site? Urban h. Has any part of the site been. classified as an "environmentally sensitive" area? If so, specify. A wetland report obtained by the City does not classify the existing ditch as a wetland. A letter has been written for the Army Corps describing this area as a ditch. Approximately how many people would reside or work in the completed project? NA Approximately how many people would the completed project displace? NA k. Proposed measures to avoid or reduce displacement impacts, if any: NA HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 10 Landing\16D0 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 1 D0621.doc Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any: The project replaces an existing stormwater drainage system with a new storm system that will have adequate flow capacity. The water main will provide better water quality in the future and allow development to occur. The new storm system will be under ground and the asphalt street will be restored to its existing use. HOUSING Approximately how many units would be provided, if any? Indicate whether high, middle, or low-income housing. None b. Approximately how many units, if any, would be eliminated? Indicate whether high, middle, or low-income housing. None C. Proposed measures to reduce or control housing impacts, if any: NA 10. AESTHETICS a. What is the tallest height of any proposed structure(s), not including antennas; what is the principal exterior building material(s) proposed.. The utilities will be under ground and the curb will be less than a foot taller than the existing pavement. b. What views in the immediate vicinity would be altered or obstructed? None. C. Proposed measures to reduce or control. aesthetic impacts, if any: The wet bioswale will be planted with appropriate vegetation and the planter strips will contain grass or other appropriate landscaping vegetation. 11. LIGHT AND GLARE a. What type of light or glare will the proposal produce? What time of day would it mainly occur? None b. Could light or glare from the finished project be a safety hazard or interfere with views? No C. What existing off -site sources of light or glare may affect your proposal? None d. Proposed measures to reduce or control light and glare impacts, if any: NA H:Tile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 11 Landing\16D0 Permits\ECF attachments Hawks Landing\SEPA Checklist -Final STLedited 100621.doc 12. RECREATION a. What designated and informal recreational opportunities are in the immediate vicinity? None b. Would. the proposed project displace any existing recreational uses? If so, describe. No C. Proposed measures to reduce or control impacts on recreation, including recreation opportunities to be provided by the project or applicant, if any: NA 13. HISTORIC AND CULTURAL PRESERVATION a. Are there any places or objects listed on, or proposed for, national state, or local preservation registers known to be on or next to the site? If so, generally describe. No b. Generally describe any landmarks or evidence of historic, archaeological, scientific, or cultural importance known to be on or next to the site. None known. C. Proposed measures to reduce or control impacts, if any: In the event any materials of historic cultural or archaeological significance are encountered during construction, construction shall be stopped and the Dept. of Archaeology Historic Preservation and appropriate tribes shall be consulted. 14. TRANSPORTATION a. Identify public streets and highways serving the site, and describe proposed access to the existing street system. Show on site plans, if any. The site is served by Lake Washington Blvd N. and NE 44t' St. b. Is site currently served by public transit? If not, what is the approximate distance to the nearest transit stop? No. Metro serves a park n' ride lot at 30t' and Park, approximately a mile and a half north of the project area. c. How many parking spaces would the completed project have? How many would the project eliminate? NIA. d. Will the proposal require any new roads or streets, or improvements to existing roads or streets, not including driveways? If so, generally describe (indicate whether public or private? HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Btvd-Hawks 2 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Safety along Lake Washington Blvd. N. will improve by adding curb, gutter, and sidewalks. Will the project use (or occur in the immediate vicinity of) water, rail, or air transportation? If so, generally describe. No - How many vehicular trips per day would be generated by the completed project? If known, indicate when peak volumes would occur. None Proposed measures to reduce or control transportation impacts, if any: NA 15. PUBLIC SERVICES a. Would the project result in an increased need for public services (for example: fire protection, police protection, health care, schools, other)? If so, generally describe. No b. Proposed measures to reduce or control direct impacts on public services, if any. Safety will be improved along the Lake Washington Blvd. by adding curb, gutter and sidewalks. The new water and storm services will serve adjacent development. 16. UTILITIES a. Circle utilities currently available at the site: electricity, natural gas, water, refuse service, telephone, sanitary sewer, septic system, other. Electricity, natural gas, water, and telephone, are available. Describe the utilities that are proposed for the project, the utility providing the service, and the general construction activities on the site or in the immediate vicinity which might be needed. The new 24-inch stormwater pipes and water quality facility will be owned by the City of Renton in City ROW, or in easements granted by the private property owners. The new stormwater system will be installed in trenches excavated in the asphalted street or in City ROW. A new 12-inch water pipe is proposed within City ROW and existing asphalted street. The new water pipe will reduce to 10-inch diameter steel in order to sleeve within the existing 12-inch steel pipe located on the May Creek Bridge. Construction will be provided by the City of Renton through private contractors via state bidding laws. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 13 Landing\1600. PermitslECF attachments Hawks LandinglSEPA Checklist-Final-STLedRed 100621.doc C. SIGNATURE I, the undersigned, state that to the best of my knowledge the above information is true and complete. It is understood that the lead agency may withdraw any declaration of non -significance that it might issue in reliance upon this checklist should there be any willful misrepresentation or willful lack of full disclosure on my part. Proponent: -., �7 v Name Printed: 31-e✓e- /7, - Zee Date: n 2 � to HAFile Sys1SWP - Surface Water Projects%SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks 14 Landing11600 Permits\ECF attachments Hawks LandinglSEPA Checklist-FinalSTLedited 1D0621.doc D. SUPPLEMENTAL SHEETS FOR NONPROJECT ACTIONS (These: sheets should only be used for actions Involving ;decisions on ;policies "plans and programs :You do not needito fill'ouf these sheets for.project actions.) Because these questions are very general, it may be helpful to read them in conjunction with the list of the elements of the environment. When answering these questions, be aware of the extent the proposal, or the types of activities likely to result from the proposal, would affect the item at a greater intensity or at a faster rate than if the proposal were not implemented. Respond briefly and in general terms. How would the proposal be likely to increase discharge to water; emissions to air; production, storage, or release of toxic or hazardous substances; or production of noise? Proposed measures to avoid or reduce such increases are: 2. How would the proposal be likely to affect plants, animals, fish, or marine life? Proposed measures to protect or conserve plants, animals, fish, or marine life are: 3. How would the proposal be likely to deplete energy or natural resources? Proposed measures to protect or conserve energy and natural resources are: 4. How would the proposal be likely to use or affect environmentally sensitive areas or areas designated (or eligible or under study) for governmental protection; such as parks, wilderness, wild and scenic rivers, threatened or endangered species habitat, historic or cultural sites, wetlands, flood plains, or prime farmlands? Proposed measures to protect such resources or to avoid or reduce impacts are: 5. How would the proposal be likely to affect land and shoreline use, including whether it would allow or encourage land or shoreline uses incompatible with existing plans? HAFile SyskSWP - Surface Water Projects%SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks 15 Landing116D0 PermitslECF attachments Hawks LandingZEPA Checklist-Final-STLedited 100621.doc Proposed measures to avoid or reduce shoreline and land use impacts are: 6. How would the proposal be likely to increase demands on transportation or public services and utilities? Proposed measures to reduce or respond to such demand(s) are: 7. Identify, if possible, whether the proposal may conflict with local, state, or federal laws or requirements for the protection of the environment. SIGNATURE I, the undersigned, state that to the best of my knowledge the above information is true and complete. It is understood that the lead agency may withdraw any declaration of non -significance that it might issue in reliance upon this checklist should there be any willful misrepresentation or willful lack of full disclosure on my part. Proponent: Name Printed: Date: ENVCHLST.DOC REVISED 6/98 HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks 16 Landing11600 Permiis\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Denis Law Mayor Cl Of - -1Y O July z1, 2010 Departmentof Community. and. Economic Development Alex Pietsch, Administrator Washington State Department of Ecology Environmental Review Section PO 'Box 47703 Olympia, WA.,198504-7-703 Subject:.. : ENVIRONMENTAL (SEPA) DETERMINATION Transmitted herewith is a`copy of the Environmental Determination_for the following project reviewed by the Environmental Review Committee.(ERC)..on July 19, 2010: DETERMINATION OF NON -SIGNIFICANCE -MITIGATED PROJECT NAME: Lake Washington Blvd Storm Improvements , PROJECT. NUMBER:-' LUA10-041, ECF, SM LOCATION: Lake Washington Blvd N R-0-W fronting 4350. Lake Washington Blvd N DESCRIPTION: The applicantis, requesting SEPA -Environmental Review -and -a Shoreline Substantial -Development Permit -for the installation- of curb/gutter .and. portions of a. sidewalk, a new storm system, and a water line extension within Lake Washington Blvd N to meet the infrastructure needs for, - future development in the vicinity of the..1-405 Exit 7 area. Appeals of the environmental determination must.be filed_ in writing on or before 5:00 p.m. on August 6, 2010. Appeals must be,filed in writing together With the required fee with: Hearing Examiner, City of Renton, 1055.South Grady Way, Renton- WA 98051. Ap-pea.lsto the -Examiner are governed by City. of Renton Municipal Code. Section 4-8- = 110:8. Additional information'regarding the appeal process=may be'obtained from the Renton.City Clerk's Office, (425•) 430-6510.: Please refer to the enclosed.Notice of Environmental -Determination for complete details. If you have questions,• please_tall me at (425) 430-7314. . For the Environmental Review Committee, Vanessa Dolbee (Acting) Senior Planner. Renton City Hall • 1055 South Grady Way • Renton, Washington 98057 • rentonwa.gov DEPARTMENT OF COMMUNITY D c;tyof �Y AND ECONOMIC DEVELOPMENT c�j on' DETERMINATION OF NON -SIGNIFICANCE -MITIGATED MITIGATION MEASURES APPLICATION NO(S): LUA10-041, ECF, SM APPLICANT: City of Renton PROJECT NAME: Lake Washington Blvd Storm Improvements DESCRIPTION OF PROPOSAL: The applicant is requesting SEPA Environmental Review and a Shoreline Substantial Development Permit for the installation of curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd N to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area. LOCATION OF PROPOSAL: Lake Washington Blvd N right-of-way fronting 43SO Lake Washington Blvd N LEAD AGENCY: The City of Renton Department of Community & Economic Development Planning Division MITIGATION MEASURES: 1. The applicant shall comply with the recommendations found within the Geotechnical Study, prepared by S&EE, Inc., dated March 17, 2010. 2. The applicant shall comply with the recommendation included within the Archaeological Assessment completed by Landau Associates, dated December 24, 2009. ERC Mitigation Measures Page 1 of 1 DEPARTMENT OF COMMUNITY tTe Cityof AND ECONOMIC DEVELOPMENT - ton f` DETERMINATION OF NON -SIGNIFICANCE -MITIGATED ADVISORY NOTES APPLICATION NO(S): LUA10-041, ECF, SM APPLICANT: City of Renton PROJECT NAME: Lake Washington Blvd Storm Improvements DESCRIPTION OF PROPOSAL: The applicant is requesting SEPA Environmental Review and a Shoreline Substantial Development Permit for the installation of curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd N to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area. LOCATION OF PROPOSAL: Lake Washington Blvd N right-of-way fronting 4350 Lake Washington Blvd N LEAD AGENCY: The City of Renton Department of Community & Economic Development Planning Division Advisory Notes to Applicant: The following notes are supplemental information provided in conjunction with the environmental determination. Because these notes are provided as information only, they are not subject to the appeal process for environmental determinations. Planning: 1. RMC section 4-4-030.C.2 limits haul hours between 8:30 am to 3:30 pm, Monday through Friday unless otherwise approved by the Development Services Division. 2. Commercial, multi -family, new single family and other nonresidential construction activities shall be restricted to the hours between seven o'clock (7:00) a.m. and eight o'clock (8:00) p.m., Monday through Friday. Work on Saturdays shall be restricted to the hours between nine o'clock (9:00) a.m. and eight o'clock (8:00) p.m. No work shall be permitted on Sundays. 3. Within thirty (30) days of completion of grading work, the applicant shall hydroseed or plant an appropriate ground cover over any portion of the site that is graded or cleared of vegetation and where no further construction work will occur within ninety (90) days. Alternative measures such as mulch, sodding, or plastic covering as specified in the current King County Surface Water Management Design Manual as adopted by the City of Renton may be proposed between the dates of November 1st and March 31st of each year. The Development Services Division's approval of this work is required prior to final inspection and approval of the permit. Plan Review -Water: 1. All fire hydrants must be capable of delivering a minimum of 1,000 GPM. 2. Water System Development Fees are not triggered by this project. ERC Advisory Notes Page 1 of 2 Plan Review —Sewer: 1. Sanitary sewer requirements are not triggered by this project. 2. Sanitary Sewer System Development Fees are not triggered by this project. Plan Review —Storm drainage: 1. Storm Water System Development Fees are not triggered by this project Plan Review —Transportation: 1. All street restoration shall be per the current City of Renton Trench Restoration and Street Overlay Requirements details. 2. Traffic Mitigation Fees are not triggered by this project. 3. Any existing pavement markings and channelization (ie, bike lane) and signing disturbed during construction will need to be replaced in kind by this project. Plan Review —General: 1. All required utility, drainage and street improvements will require separate plan submittals prepared according to City of Renton drafting standards by a licensed Civil Engineer. 2. All plans shall be tied to a minimum of two of the City's current horizontal and vertical control plan Fire Department: 1. The project shall meet City fire hydrant ordinances with regards to spacing of a maximum of 300-feet in commercial districts. Property Services: 1. No monuments were noted on the plan; if there are any in the field that would be affected by construction, a permit should be obtained pursuant to RCW 332-120-040. DorLc- 1. Recommends modification to plan details for sidewalk and landscape strip to reflect what is included on plans. 2. Recommends irrigation and irrigation contour to be included as a part of design. For detailed irrigation requirements coordinate with Urban Forestry and Natural Resources Manager. Irrigation should be designed to accommodate a turf landscape strip. ERC Advisory Notes Page 2 of 2 DEPARTMENT OF COMMUNITY D nCity of , AND ECONOMIC DEVELOPMENT �C ENVIRONMENTAL (SEPA) DETERMINATION OF NON -SIGNIFICANCE - MITIGATED (DNS-M) APPLICATION NO(S): LUA10-041, ECF, SM APPLICANT: City of Renton PROJECT NAME: Lake Washington Blvd Storm Improvements DESCRIPTION OF PROPOSAL: The applicant is requesting SEPA Environmental Review and a Shoreline Substantial Development Permit for the installation of curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd N to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area. LOCATION OF PROPOSAL: Lake Washington Blvd N right-of-way fronting 4350 Lake Washington Blvd N LEAD AGENCY: City of Renton Environmental Review Committee Department of Community & Economic Development The City of Renton Environmental Review Committee has determined that it does not have a probable significant adverse impact on the environment. An Environmental Impact Statement (EIS) is not required under RCW 43.21C.030(2)(c). Conditions were imposed as mitigation measures by the Environmental Review Committee under their authority of Section 4-6-6 Renton Municipal Code. These conditions are necessary to mitigate environmental impacts identified during the environmental review process. Appeals of the environmental determination must be filed in writing on or before 5:00 p.m. on August 6, 2010. Appeals must be filed in writing together with the required fee with: Hearing Examiner, City of Renton, 1055 South Grady Way, Renton, WA 98057. Appeals to the Examiner are governed by City of Renton Municipal Code Section 4-8- 110.B. Additional information regarding the appeal process may be obtained from the Renton City Clerk's Office, (425) 430-6510. PUBLICATION DATE: July 23, 2010 DATE OF DECISION: July 19, 2010 SIGNATURES: Gregg Zim e a A i i tr so r Marl Petern, A m inistrator Public Wo ks e artment Date Fire & Emergency Services Terry Higashiyama, Administrator Community Services Department Alex Pietsch, Administrator Date Department of Community & Economic Development Date 7119 If C, Date Denis Law City Of Mayor _ Y Or July 21, 2010 Department of Community and Economic Development Alex Pietsch, Administrator Steve Lee City of Renton 1055 S Grady Way Renton, WA 98057 SUBJECT: ENVIRONMENTAL THRESHOLD (SEPA) DETERMINATION Lake Washington Blvd Storm Improvements, LUA10-041, ECF, SM Dear Mr. Lee: This letter is written on behalf of the Environmental Review Committee (ERC) to advise you that they have completed their review of the subject project and have issued a threshold Determination of Non -Significance -Mitigated with Mitigation Measures. Please refer to the enclosed ERC Report and Decision, Part 2, Section B for a list of the Mitigation Measures. Appeals of the environmental determination must be filed in writing on or before 5:00 p.m. on August 6, 2010. Appeals must be filed in writing together with the required fee with: Hearing Examiner, City of Renton, 1055 South Grady Way, Renton, WA 98057. Appeals to the Examiner are governed by City of Renton Municipal Code Section 4-8- 110.B. Additional information regarding the appeal process may be obtained from the Renton City Clerk's Office, (425) 430-6510. If the Environmental Determination is appealed, a public hearing date will be set and all parties notified. The preceding information will assist you in planning for implementation of your project and enable you to exercise your appeal rights more fully, if you choose to do so. If you have any questions or desire clarification of the above, please call me at (425) 430-7314. For the Environmental Review Committee, Vanessa Dolbee (Acting) Senior Planner Enclosure cc: DJ Burtenshaw / Party(ies) of Record RECEIVED JUL 2 2 2010 CITY OF RENTON UTILITY SYSTEMS Renton City Hall • 1055 South Grady Way • Renton, Washington 98057 0 rentonwa.gov DEPARTMENT OF COMMUNITY ctyof,k _ AND ECONOMIC DEVELOPMENT a> f ENVIRONMENTAL REVIEW COMMITTEE REPORT ERC MEETING DATE: July 19, 2010 Project Name: Lake Washington Blvd. Storm Improvements Owner. City of Renton, City right-of-way, Renton, WA 98057; and Port Quendall Company, 4350 Lake Washington Blvd. N, Renton, WA 98057 Applicant/Contact: City of Renton Surface Water Utility, Attn: Steve Lee, 1055 South Grady Way, Renton, WA 98057 File Number. LUA10-041, ECF, SM Project Manager. Vanessa Dolbee, (Acting) Senior Planner Project Summary: The applicant is requesting SEPA Environmental Review and a Shoreline Substantial Development Permit for the installation of curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd. N. to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area. The project is primarily located within the existing right-of-way of Lake Washington Blvd. N adjacent to 4350 Lake Washington Blvd. N. However, a small portion for the proposal would extend onto private property located at 4350 Lake Washington Blvd. N. The proposed curb and gutter would extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, gutter and sidewalk will continue south on the east side of Lake Washington Blvd. N. to connect to the existing bridge over May Creek. The new storm system would consist of approximately 810 lineal feet of 24-inch storm pipe with a catch -basin collection system and the new water line extension would consist of about 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE 40th St. to NE 44th St. The project also includes a wet bioswale, approximately 140 lineal feet. The applicant has provided stream and wetland studies, a traffic study, a geotechnical report, and a hydrologic analysis with their application. Project Location: Lake Washington Blvd. N right-of-way fronting 4350 Lake Washington Blvd. N Exist. Bldg. Area SF: N/A Proposed New Bldg. Area (footprint): N/A Proposed New Bldg. Area (gross): N/A Site Area: 34,000 sq. ft. Total Building Area GSF: N/A STAFF Staff Recommends that the Environmental Review Committee issue a Determination RECOMMENDATION: of Non -Significance - Mitigated (DNS-M). Project Location Map ERC Report 10-041 City of Renton Department of Community & Economic Development Environmental Review Committee Report LAKE WASHINGTON BLVD. STORM IMPROVEMENTS LUA10-041, ECF, SM Report of July 19, 2010 Page 2 of 9 PART ONE: PROJECT DESCRIPTION / BACKGROUND The purpose of the project is to install curb/gutter and portions of a sidewalk, a new storm system, and a water line extension within Lake Washington Blvd. N. to meet the infrastructure needs for future development in the vicinity of the 1-405 Exit 7 area, including the Hawks Landing development. The proposed infrastructure's design expands beyond the existing right-of-way(ROW); therefore, a portion of the development would occur on private property located on the east side of Lake Washington Blvd. N. The small portion of the project that would occur outside of the existing ROW would be located on the site commonly known as the Pan Abode Site (Tax Parcel# 3224059049, 4350 Lake Washington Blvd. N). The applicant has indicated that a portion of the Pan Abode Site would need to be dedicated to the City for the proposed sidewalk and storm drainage improvements. The width of the necessary dedication would vary from 9.5 feet wide to only a few feet wide as you move north along the frontage. Other portions of the project, including the wet bioswale could be maintained in easements and a dedication would not be required. Existing ROW does not receive a land use or zoning designation, however, private property does. The Pan Abode Site is located within the Commercial/Office/Residential (COR) land use designation and zoning designation in addition to being located within Urban Design District "C" overlay. The proposed improvements are permitted within the COR zone and would meet all the development standards where applicable. The project area is comprised of an eclectic mix of development types, styles, and zones. On the east side of Lake Washington Blvd. N is property zoned COR, Residential 8 (R-8), and Residential 10 (R-10) unit per net acre and on the west side, the property is zone COR and R-8. The many different land uses surrounding the site include, but are not limited to, paired homes in the Barbee Mill development, single- family residential, multi -family residential, old industrial, the Virginia Mason Athletic Center (VMAC), and vacant property. The following list describes each part of the proposed project: • Curb and Gutter: The curb and gutter would extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, gutter and sidewalk would continue south on the east side of Lake Washington Blvd. N. to connect to the existing bridge over May Creek. • Pervious Sidewalk: The sidewalk would be installed from approximately 270-feet north of the May Creek Bridge to the existing May Creek Bridge sidewalk connection. The sidewalk is proposed to be 12-feet wide with a 10-foot landscape strip behind the curb and be made of porous concrete. • Stormwater System: The stormwater system would collect road, curb, gutter, and sidewalk runoff and provide water quality treatment for a portion of the existing road prior to discharging to an existing stormwater system flowing to May Creek. The new storm system would consist of approximately 810 lineal feet of 24-inch storm pipe with a catch -basin collection system capable of carrying traffic loading. • Wet Bio Swale: The project also includes a wet bio Swale, approximately 140 lineal feet (top length) of which, will be used to treat a portion of the runoff from Lake Washington Blvd. N. One 20-foot wide gravel maintenance access road is proposed off of Lake Washington Blvd. N. The landscape strip is proposed to terminate just north of the maintenance access road. ERC Report 10-041 City of Renton Department of Community & Economic Development Environmental Review Committee Report LAKE WASHINGTON BLVD. STORM IMPROVEMENTS LUA10-041, ECF, SM Report of July 19, 2010 Page 3 of 9 • Water Line: The water line extension consists of the installation of about 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE 40th St. to NE 44th St. A 100-foot portion of the water line will be installed inside an existing 18-inch steel casing within the May Creek Bridge. To complete the proposed infrastructure improvements approximately 2,380 cubic yards of cut would occur and approximately 2,450 cubic yards of fill would be imported from licensed gravel pits. In addition, various franchise utilities may need to be relocated to accommodate the stormwater and water line construction including, but not limited to, power poles, fiber optic, telephone and gas/power. As identified on the City of Renton Sensitive Area Maps, the Pan Abode site and portions of ROW contain seismic hazards and flood hazards. In addition, just south of the site is May Creek, a Class 1 water. The drainage ditch that runs immediately adjacent to Lake Washington Boulevard has been identified by the applicants provided Wetland/Stream Study as a Class 5 non -regulated stream with an associated non - regulated wetland. PART TWO: ENVIRONMENTAL REVIEW In compliance with RCW 43.21C.240, the following environmental (SEPA) review addresses only those project impacts that are not adequately addressed under existing development standards and environmental regulations. A. Environmental Threshold Recommendation Based on analysis of probable impacts from the proposal, staff recommends that the Responsible Officials: Issue a DNS-M with a 14-day Appeal Period. B. Mitigation Measures 1. The applicant shall comply with the recommendations found within the Geotechnical Study, prepared by S&EE, Inc., dated March 17, 2010. 2. The applicant shall comply with the recommendation included within the Archaeological Assessment completed by Landau Associates, dated December 24, 2009. C. Exhibits Exhibit 1 Neighborhood Map Exhibit 2 Project Cover Sheet Exhibit 3 Project Sheet 3 Exhibit 4 Project Sheet 4 Exhibit 5 Project Sheet 5 Exhibit 6 Project Details, Sheet D-1 D. Environmental Impacts The Proposal was circulated and reviewed by various City Departments and Divisions to determine whether the applicant has adequately identified and addressed environmental impacts anticipated to occur in conjunction with the proposed development. Staff reviewers have identified that the proposal is likely to have the following probable impacts: ERC Report 10-041 City of Renton Department of Community & Economic Development Environmental Review Committee Report LAKE WASHINGTON BLVD. STORM IMPROVEMENTS LUA10-041, ECF, SM Report of July 19, 2010 Page 4 of 9 1. Earth Impacts: With the project application, the applicant submitted a Geotechnical Study prepared by S&EE, Inc., dated March 17, 2010. The study indicated that the majority of the proposed storm line would be located in the existing roadside drainage ditch and the water line would be located in the road shoulder just to the west of the drainage ditch. The bottom of this ditch is 4 to 6 feet below the street level, resulting in the need for approximately 5 to 6 feet of fill to bring the ground to street level, for sidewalk construction. The majority of the ditch is 5-feet in width at the bottom with the exception of the northern section where the ditch reaches 15 feet in width. An existing single -story, metal building is present along the east side of the ditch, at the closest point the building is approximately 10-feet from the centerline of the ditch. Pursuant to the provided Geotechnical Study, the subsurface soil conditions along the storm line show relatively consistent conditions. The subsurface soils include existing fill, recent sedimentary deposits about 20-feet thick and glacial soils that are found at about 30 feet below the ground surface. S&EE completed their field exploration on December 28, 2009; at this time 6 to 12 inches of water was present in the drainage ditch. S&EE indicated that groundwater was found at about the same depth during drilling. The shallowest groundwater table in the project vicinity has an average depth of 15-feet below ground surface. It is anticipated that the depth of this shallow groundwater will vary with the season and precipitation levels. Based on the groundwater level, S&EE has included recommends for construction dewatering within the provided study. Overall, the report indicates that groundwater flow can be handled by sump pumps spaced at 50 to 100 feet along the ditch. The Geotechnical Study provides recommendations for both the storm line and water line construction including recommendations for settlement, subgrade preparation in the existing ditch, pipe bedding, ditch fill, catch basin subgrade, trench excavation and backfill, thrust block design, and temporary and permanent slopes. Furthermore, the subject site is located within a seismic hazard area. Pursuant to the provided Geotechnical Study, the site is located within Seismic Zone 3 and is susceptible to liquefaction hazards. SUE conclude that the soft subsoils of the site have a moderate to high liquefaction potential, therefore moderate to sever distortion to the storm line may occur. S&EE believe, that post -earthquake maintenance would be a reasonable mitigation option for the potential for liquefaction during a seismic event. Based on the potential for seismic and geological impacts, staff recommends a mitigation measure that the applicant comply with the recommendations within the Geotechnical Study, prepared by S&EE, Inc., dated March 17, 2010. In the SEPA checklist the applicant indicated that they anticipate that construction would result in approximately 2,380 cubic yards of cut and approximately 2,450 cubic yards of fill. During site excavation, it is anticipated that erosion may occur along the slope of the ditch, specifically in the northern section of the ditch. The applicant has indicated that typical erosion control methods described in the 2009 City of Renton Stormwater Design Manual to control erosion from excavation and soil stockpiles would be utilized. This would include the use of filter fabric fences and catchbasin inlet protection. Stormwater would be diverted around the work area and sandbags and silt fencing would be used to keep any water and sediment out of the open channel of the ditch and stream. Mitigation Measures: The applicant shall comply with the recommendations found within the Geotechnical Study, prepared by SUE, Inc., dated March 17, 2010. ERC Report 10-041 City of Renton Department of Community & Economic Development Environmental Review Committee Report LAKE WASHINGTON BLVD. STORM IMPROVEMENTS LUA20-041, ECF, SM Report of July 19, 2010 Page 5 of 9 Nexus: SEPA Environmental Review, RMC 4-3-050 Critical Areas Regulations, RMC 4-4-060 Grading, Excavation and Mining Regulations. 2. Water a. Wetland, Streams, Lakes Impacts: The applicants submitted a "Wetland/Stream Study", prepared by Graham -Bunting Associates (GBA), dated May 12, 2009 and a Stream Assessment completed by Gray & Osborne, Inc. dated, June 16, 2010. The GBA study identified two streams, and one wetland within the vicinity of the project site. The first stream is May Creek, which is a Shoreline of the State regulated under the Shoreline Management Act (SMA) and the City's Shoreline Master Program (SMP). The reach of May Creek near the project site has been designated as an Urban Shoreline pursuant to the City's SMP. May Creek runs through the south end of project area; it flows under Lake Washington Blvd. N into Lake Washington approximately 0.25 miles southwest of the subject property. The provided Wetland/Stream Study identified that no salmonids or resident fish species were observed during their site investigation, although May Creek is reportedly utilized by Chinook and Sockeye salmon. Furthermore, winter steelhead and cutthroat trout are also known to utilize the creek. The area of jurisdiction under the SMA and SMP extends 200 feet landward of the Ordinary High Water Mark (OHWM). The downstream portion of the new storm system is within 60 feet of May Creek and the new water line will cross May Creek in an existing 18-inch steel casing located within the May Creek Bridge. Under current conditions stormwater directly discharges into May Creek from the existing road side ditch. After the proposed project completion, discharge would remain in May Creek however, the subject project includes the addition of a wet bio swale to treat stormwater runoff prior to discharge into May Creek. Moreover, the subject project would result in improvements in the water quality discharging into the creek. The applicant has indicated that the creek itself would not be disturbed during construction and best management practices would be conducted to ensure the creek is protected from sediment flowing downstream during construction. No fill or dredge is proposed to be placed within May Creek. However, development will occur within 200-feet of the OHWM of May Creek; as such, the subject project would be subject to SMA and SMP regulations. The applicant has applied for a Shoreline Substantial Development Permit. The second stream, which is also a drainage ditch located along Lake Washington Boulevard, was identified to be a Class 5 stream. This drainage ditch is located predominantly within the right of way of Lake Washington Blvd. N. Pursuant to the provided Study, flows for this stream are maintained by stormwater runoff from the north and the subject site. The City of Renton's Critical Areas Regulations identify Class 5 waters as "non -regulated non salmonid-bearing waters...". GBA also met with the Area Habitat Biologist from Washington State Department of Fish and Wildlife (WDFW) on April 24, 2009 to provide guidance and further observations of this ditch. WDFW concluded that the ditch was a man- made feature, and that work within the trench would not require Hydraulic Project Approval (HPA). Based on the consultation with the Area Habitat Biologist and observations gathered during the site investigation GBA determined that the drainage ditch is a non-salmonid bearing water. The location and profile of the ditch indicated that it is an artificially constructed channel designed and actively maintained to convey stormwater runoff from 1-405, Lake Washington Boulevard, and the existing Pan Abode facility. As such GBA concluded that Criterion (a) of RMC 4-3-050.L.l.a.v. Streams and Lakes Class 5 waters is satisfied and therefore the subject Class 5 water would not be regulated. Within the drainage ditch, GBA also identified wetland characteristics. Based on the City's definition of Regulated and Non -regulated Wetlands GBA determined that the drainage ditch was intentionally created from a non -wetland site for the purpose of stormwater conveyance and is therefore a non -regulated wetland under the City's Critical Area Regulations ERC Report 10-041 City of Renton Deportment of Community & Economic Development Environmental Review Committee Report LAKE WASHINGTON BLVD. STORM IMPROVEMENTS LUA10-041, ECF, SM Report of July 19, 2010 Page 6 of 9 The project is located within the vicinity of the 100-year flood plain of May Creek. Pursuant to the Gray & Osborne assessment the 100-year flood elevation extends north from the OHWM of May Creek to the fence line of the Pan Abode Site and as much as 40 feet north beyond the fence. The 100-year flood elevations ranges from 26 to 32 MSL, feet across the site, however the subject project is approximately 55-feet outside the flood plain. As such, the project would not have impacts on the flood plain nor would the flood plain have impacts on the project. Mitigation Measures: No further mitigation required. Nexus: N/A b. Ground Water Impacts: The shallowest groundwater table in the project vicinity has an average depth of 15-feet below ground surface. It is anticipated that the depth of this shallow groundwater will vary with season and precipitation. The applicant has indicated if there is a high water table at time of construction, temporary pumping would be needed to keep the excavation dry. Any groundwater would be filtered to remove sediment and discharged back to the downstream storm system through the use of sediment and erosion control best management practices. Mitigation Measures: No further mitigation required. Nexus: N/A c. Storm Water Impacts: The proposed project is not anticipated to increase stormwater run off. However, the project proposes the addition of a wet bio Swale to treat stormwater runoff prior to discharge into May Creek, resulting in improved stormwater conditions for the surrounding area. In addition, sidewalk is proposed to be made of porous concrete allowing for additional stormwater infiltration, effetely reducing the amount of stormwater run off that would be anticipated for a 12-foot wide sidewalk. Mitigation Measures: No further mitigation required. Nexus: N/A 3. Vegetation Impacts: Pursuant to the provided Gray & Osborne, Inc. Stream Assessment, vegetation within the project area includes large big leaf maple, alder, and Japanese knotweed. Within the existing ditch, near the warehouse a few wetland grasses including reed canary grass were found. In the project vacancy, vegetation includes black cottonwoods, alders, vine maples, Canadian thistles, nettles, Indian plum, horsetail, alfalfa, clover and wild carrot. The riparian area of May Creek upstream of the project site is dominated by several red alders in addition to Japanese knotweed, Himalayan blackberries, salmonberry, nettles, sward fern, holly, horsetail, ivy, piggyback/youth-on-age, and a variety of grasses. The proposed location of the subject project, immediacy adjacent to existing ROW, essentially eliminates potential impacts to significant trees or vegetation, with the exception of some grasses, weeds, Japanese knotweed, and a few small alders less then 4-inches in diameter. Mitigation Measures: No further mitigation required. Nexus: N/A ERC Report 10-041 City of Renton Department of Community & Economic Development Environmental Review Committee Report LAKE WASHINGTON BLVD. STORM IMPROVEMENTS LUA20-041, ECF, SM Report of July 19, 2010 Page 7 of 9 4. Wildlife Impacts: The applicant submitted a "Wetland/Stream Study', prepared by Graham -Bunting Associates (GBA), dated May 12, 2009 a Stream Assessment completed by Gray & Osborne, Inc. dated, June 16, 2010. These reports also evaluated wildlife within are vicinity of the subject site in addition to streams. The report concludes that wildlife likely to occur on the site would be limited to species tolerant of traffic noise and human presence including deer, raccoons, opossums, squirrels, rodents, hawks and a variety of songbirds, crows, etc. Although located within the riparian area of May Creek, small mammals and birds were observed. The submitted report indicated that such wildlife as voles, blacktail deer, short tailed weasel, and a pair of Osprey were observed within this area. In addition to common species such as song sparrow, house finch, American crow and gull species were also observed within the riparian area. The reports indicate that other species such as reptiles and amphibians are likely to be present in the area including garter snakes, alligator lizards, salamanders and chorus frogs. In addition, south of the subject site in Lake Washington a nesting platform is maintained at the old Barbee Mill Site for ospreys and bald and golden eagles. As mentioned above the proposed development would be immediacy adjacent to and within the existing ROW of Lake Washington Blvd. N; as such, impacts to the habitat for the above mention species is not anticipated as a part of this development. Mitigation Measures: No further mitigation required. Nexus: N/A 5. Historic and Cultural Preservation Impacts: The applicant completed an Archaeological Assessment subject to the provisions of the Washington State Governor's Executive Order 05-05. This assessment was completed by Landau Associates, dated December 24, 2009. The assessment concludes that no prehistoric or historic cultural resources were identified during the investigation and no further archaeological work was recommended for the subject project area. However, the assessment concludes that no prehistoric or historic cultural resources were identified during their investigation, the potential for such discoveries remain. The project area is in a high probability zone given its proximity to Lake Washington and ethnographic associations. The report recommends that if archaeological deposits of unevaluated significance are encountered during construction activities, ground disturbance should be halted and activities directed away from the area. If human skeletal remains are encountered during construction activities, all work activities should cease immediately. The area should be screened off, and the construction foreman should contact the necessary organizations. Based on the potential for cultural resources to be discovered within the project vicinity, staff recommends a mitigation measure that the applicant comply with the recommendation included within the Archaeological Assessment completed by Landau Associates, dated December 24, 2009. Mitigation Measures: The applicant shall comply with the recommendation included within the Archaeological Assessment completed by Landau Associates, dated December 24, 2009. Nexus: SEPA and EO 05-05 6. Transportation Impacts: Construction of the proposed project would result in temporary traffic impacts. For the construction of the waterline, one lane of Lake Washington Blvd. N. would need to be reduced for short sections. The applicant proposes to use flaggers to permit one lane to be closed during ERC Report 10-041 City of Renton Department of Community & Economic Development Environmental Review Committee Report _LAKE WASHINGTON BLVD. STORM IMPROVEMENTS LUA10-041, ECF, SM Report of July 19, 2010 Page 8 of 9 waterline construction. Reduced speeds are anticipated during the storm pipe and manhole construction. Traffic signs and cones are proposed to be utilized to provide safety for traffic and pedestrians passing through the area. Biking access would remain open during construction. Mitigation Measures: No further mitigation required. Nexus: N/A E. Comments of Reviewing Departments The proposal has been circulated to City Department and Division Reviewers. Where applicable, their comments have been incorporated into the text of this report and/or "Advisory Notes to Applicant." ✓ Copies of all Review Comments are contained in the Official File and may be attached to this report. Environmental Determination Appeal Process: Appeals of the environmental determination must be filed in writing on or before 5:00 PM, August 6, 2010. Renton Municipal Code Section 4-8-110.B governs appeals to the Hearing Examiner. Appeals must be filed in writing at the City Clerk's office along with the required fee. Additional information regarding the appeal process may be obtained from the City Clerk's Office, Renton City Hall - 7th Floor, 1055 S. Grady Way, Renton WA 98057. ADVISORY NOTES TO APPLICANT The following notes are supplemental information provided in conjunction with the administrative land use action. Because these notes are provided as information only, they are not subject to the appeal process for the land use actions. Planning: 1. RMC section 4-4-030.C.2 limits haul hours between 8:30 am to 3:30 pm, Monday through Friday unless otherwise approved by the Development Services Division. 2. Commercial, multi -family, new single family and other nonresidential construction activities shall be restricted to the hours between seven o'clock (7:00) a.m. and eight o'clock (8:00) p.m., Monday through Friday. Work on Saturdays shall be restricted to the hours between nine o'clock (9:00) a.m. and eight o'clock (8:00) p.m. No work shall be permitted on Sundays. Within thirty (30) days of completion of grading work, the applicant shall hydroseed or plant an appropriate ground cover over any portion of the site that is graded or cleared of vegetation and where no further construction work will occur within ninety (90) days. Alternative measures such as mulch, sodding, or plastic covering as specified in the current King County Surface Water Management Design Manual as adopted by the City of Renton may be proposed between the dates of November 1st and March 31st of each year. The Development Services Division's approval of this work is required prior to final inspection and approval of the permit. Plan Review -Water: 1. All fire hydrants must be capable of delivering a minimum of 1,000 GPM. 2. Water System Development Fees are not triggered by this project. ERC Report 10-041 City of Renton Department of Community & Economic Development Environmental Review Committee Report LAKE WASHINGTON BLVD. STORM IMPROVEMENTS _ LUA10-041, ECF, SM Report of July 19, 2010 Page 9 of 9 Plan Review —Sewer: 1. Sanitary sewer requirements are not triggered by this project. 2. Sanitary Sewer System Development Fees are not triggered by this project. Plan Review —Storm drainage: 1. Storm Water System Development Fees are not triggered by this project Plan Review —Transportation: 1. All street restoration shall be per the current City of Renton Trench Restoration and Street Overlay Requirements details. 2. Traffic Mitigation Fees are not triggered by this project. 3. Any existing pavement markings and channelization (ie, bike lane) and signing disturbed during construction will need to be replaced in kind by this project. Plan Review —General: 1. All required utility, drainage and street improvements will require separate plan submittals prepared according to City of Renton drafting standards by a licensed Civil Engineer. 2. All plans shall be tied to a minimum of two of the City's current horizontal and vertical control plan Fire Department: 1. The project shall meet City fire hydrant ordinances with regards to spacing of a maximum of 300- feet in commercial districts. Property Services: 1. No monuments were noted on the plan; if there are any in the field that would be affected by construction, a permit should be obtained pursuant to RCW 332-120-040. Parks: 1. Recommends modification to plan details for sidewalk and landscape strip to reflect what is included on plans. 2. Recommends irrigation and irrigation contour to be included as a part of design. For detailed irrigation requirements coordinate with Urban Forestry and Natural Resources Manager. Irrigation should be designed to accommodate a turf landscape strip. ERC Report 10-041 M:\RENTON\09583 Lk Wa Blvd - Hawks Landing Storm -Water Imps\Permits\NEIGHBORHOOD MAP.dwg, Layoutl, 6/3/2010 3:59:11 PM, cklrk cn 0 D r m ii cn cz \o O KZ 3 sy/�GTO C=== 410 WC1 C_ N / cu / cn O D r m ca 1-405 cn Z A 0 0 A types xZ = �p z EXHIBIT 1 CITY OF RENTON LAKE WASHINGTON BLVD. HAWKS LANDING STORM AND WATER SYSTEM IMPROVEMENT PROJET PROJECT SWP-27-3531 VICINrrY MAP NOT TO SCALE J� i SHEET INDEX NO. DESCRIPTION uur[e rM rn..s u.cr vDw nn zrA.nueos ........... I COVER VICINITY A LOCATION MAPS AND M---------------- w••-------- 2 SYMBOL LEGEND. ABBREVIATIONS. AND efflNFurce rM Anenvu 7-5 SURVEY CONTROL TABLE STORM DRAINAGE IMPROVEMENT PLAN k PROFILE er________________ M UTILITY DUALS ____ •v-------u.o_____""' 7 WATER LINE RESTRAINT DETAIL er________________ V..•�_.__..__ PRGPMT TYLogMMO AIMMM r.r.r.r. PROJECT PLAN SCALE: .200' D- 3 5 3 1 1 PRELIMINARY CITY OF uKEWASNMOTONBLVG CiA.�9cO.bo.m.7A•.. NOT FOR rem RENTON HAWKS LANDING STORM WATER CONSTRUCTION , �==� °"""' �+•. •«•. e.H IMPROVEMENTS mvice .•.....r...... �..... xa ecvMouI r arE A•M EXHIBIT 2 ,l„I �.. ._. - -' - - _ .Y rt iva'��'° rl w Am vaaw (` ---�—----- a r It, I. (omAw r m VALK,' w (vALKi' --�� —_ LiKE WASHINOTON BLVD _ - - -- _ - — - J- .� - i . • ciutllrA olo.tu 'f r -ZIAv 1 Nt LLI 7. 1 TMP1Ryy�./�p4pa�Ylppl IVA in }. - �\^ ff \M�. W • n //�1• _ _ , 1P L iATil) D D . U - 1 - - - - - ...-_--- --' - - - "+ -~ - --�•`, ' \�\�\ .6 + -5721 ( > W trM t �f O( tY W. li,in N/la ,+l-- - - - - -- --- --_,`+ 11 �` r �•r' tY RrY __-_____ 1- _ ]D': D-3531 0 �aue. PRELIMINARY ui � CITY OF LAKE WASHINOTONSLVD C3n.>/AcQrb�a.,L— NOT FOR — RENTON HAWRSLANDING STORM WATER CONSTRUCTION.. wru� PlnnnlnC/aWlunY/Puplb Ywb arl. IMPROVEMENTS ND. IIMSDN w MR APPR .•... ��•�• 3 t EXHIBIT 3 _ 'wt OTY ro cblSTtIICT CUM dL - - .. r` -- J - 1 % I _ 40 IIOtTN Or TU LOrAT 01A _ - 1 DO[S NOT RpLUOt tp[rALt at 4000 P - . 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Oomm - 0 T1Tt R t* 1 /,0 8 AVI W r I - . / A11ap6�� T {t}VV N}.- 1 Ir 1--� °P°SFD LLas UC w••, �...+_rY'-"".�""r�=- �•=- 1 '4'� , A I FWMMRANt Ass'r tl~2 Lu mpgn p>rr I „ _.' xt ' 2e-1 Y t°° I s A 4--� r. �.i, �-•-:� ;' s'-'.A"S� t BWA44 11 'WORK BY. 25 I 25 .... daMrM 77 t ; t 20 i6y50 ......... 1 .°o ._ F ...... a.. } ......f0 i00 .'.:_t !... ............. ............. _............... 20Joo: .. ...... .......... _.... _ 2100::._.._..i ... ......... ....L..... 22i0020 5 in +g 6-8 nee�ee "fie �.As t� ��•. • C 20' 1P' Q 20' �0' PRELIMINARY ��aO" CITY OF LAKE WASHINGTON BLVD ' 10 C3aoy8cO.bmraglm NOT FOR ,,,, RENTON HAWKS LANDING STORM WATER CONSTRUCTION aAa� °NY PbmIn00Aans/Fww wot OOPI IMPROVEMENTS q uru wr N0. ROASpN BY OATt APPR "~�I/.a A 7 EXHIBIT 4 w w w—,',j to i�� �/ � � ✓n, sre sage � - - -ems M kj `��.1', �,v��us 1, o.. � s•°v 'V' a X lLN0. wsr WORK BY XCERT 24 TSTO.RMOWE;:_ yX( IM1b1 FMISiND1W1xE 31C uA%. OY�mI. BEI�ORK TCLAIMIB W R Q 7(C� i w • suEwAL% VR•MEMOIDED "t4 .RAHf lfR A' COY CRD pEPM )Fl iQ Q' S a•wIDF S—DTH .—E. PERNE IF. CURB a B 1/2' 1'R - ..-• I/i•R S' RIICN CEMFNi CDNCREI[ YATLN CIDSIRID DRIVEWAY MIDM CMISIIED SMFACINC TDP LWRSE O CEMENT CONCRETE SIDEWALK Q ' S SEE uo� BDTEi I. — CMMALMRI awn sH ME Q ' COIIGEnww DUtIER,EY OBTAAI MEET ? ` R • ' / •, 1 ^%PAMyON .awn ASIRSHCORN. JONTS SHALL BE FLUSH MM DIE FIRPEB E. S - " '/ � �A�� A Y CO-ALRD DEPTH ' CRUMEO SURFACNO L ALL UTU TY POLES. YF 1N K I ME NAREANSH YALKS. ETC. LOCATED NINE RIO[WAL% AREA SHALL AK PREYOIDEO ABIIi lILG iNLL OFPM) C MC -- AL .. *• AT. � TOP CWRSC UNYIELbp D1/1' PLACED MgIIID 1HEY PRNM LO PLAC�M�O COMM IL 0 , NJBORADE 3. "ITUCIDED — FILLER[ ATEMAL SHALL K ASPHALT �; N ANOrIDEWKI y> I, PREu.— .ONT FFUR MINI BE ASPHALT SATURATED FELT M Ipnc. ,per A. FORM AND SUBMADE NSPELIIM Br TIE OMER MIALL `<^ BE REAMED 11- 10 PDMNG CONCRC IL JONTf IMBR © wAmm ,NNT PAIFR. S. FMY AND SWMADE —E— SHALL BE REWIRED PMM 10 1. CONCRETE SHALL BE A CLASS AODO w%. S. CMCRETE SHALL BE A CCYYE-AI CLASS CMCRETE. JOINT AND FINISH DeTAL I TO 1/4• PCURNO .. TE. ]. WALLCAIA S' COIPAcIED DEPTH IAKR OFCRUMED L DR!"AY SLOPES SHALL NOT E%CFFD ]S (MAX) CROW SLOPE AND 121 (YA%) IMPMMUL SLOPE. _ • r a. BCACRETE TOP CWRN. e CONMER MIALL BE A COWERCIAL 0.AE{ CONCRETE. E SREMENT GONG. SIDEWALK DETAIL e CEMENT CONC, TRAFFIC CURB AND GUTTER CEMENT CONCRETE DRIVEWAY REPAIR 3 NDT 1D SCALE NOT IT, SCALE NOT 10 6LAL[ © ISNISACIIDN JdfT 21' — S' COYPMT 1RIEI1 Nl0 D A Y IMR wTloY wolH-IY I E' uAnK saL I. P M N LEI(TRANSVERSE) RBET elOeWAl2 DeDSS e[0)]QN w N rr a I' N (111ANSYZASC INIB� 1' MIN 1' YIN S' WN (LanulwMlAL MMD 1' YIN (1RANSKRSF %INO) ]' lull (IDNOYITYNDINAL XINO) TAEIl l ALLOWABLE ruHn AHD.RreclxY 1. P WET MIALL BE or M1 FINISHED LAFIT Ot -D SAT DIO RULIUADD AND SATURATED SOIL COHNDMS •Hnn lOn ni L COAR TR CRADE AND AND MOVOHT WRMO DIC SUNM[R YMDIA ALLOWABLE PLAIICS AND SPApNO ARE SHOwN N TABLE 1. 2� ASPHALT CONC. CLASS 'B' s..rY.N AM�IN we Y,S �e' ASPHALT 'B' siw.,,w EI,rAn � �:%' •d � SPECIAL PRECAUTIONS 8 Y� CONC. CLASS r TO PROTECT PIPE TO fi B' CRSHED SURFACING U TOP COURSE Ill rl THIS LEVEL DEPTH TO PIPE CROWN -.r VARIES, SEE PUNS IL_.J :D' PIPE BEDDING SEE SPECIFICATIONS YIN. CPEP OR DUCTIL T IRON PIPE 12 - 3 -0 24' - 4'-0' r, y ANN c ,� � • TYPICAL ROAD RESTORATION / TRENCH NOT TO SCALE SECTION e � � FaAA � FAwAR �' FD-F-]3f5l3lllDll PRELIMINARY '�'Q1'1gV" CITY OF E ,D NN j LANE WASHINGTON BLVD ci,-79e Oeb—.'L— NOT FOR RENTON HAWKS LANDING STORM WATER —,,,, pA1UY Dom' T coa.1. LwnE[RS CONSTRUCTION �y�✓BYRunB/PYw wmk. D•rL IMPROVEMENTS —A&-I EXHIBIT 6 Steve Lee From: brad nicholson [brad827@hotmail.com] Sent: Tuesday, July 20, 2010 1:21 PM To: Steve Lee; Vanessa Dolbee Subject: I am requesting a copy of the shoreline permit decision for LUA10-041, ECF, SM I am requesting a copy of the shoreline permit decision for LUA10- 041, ECF, SM If possible to email electronically I would appreciate, or I can come down and pick up paying for reproduction costs. Thank you Brad Nicholson The New Busy is not the old busy. Search, chat and e-mail from your inbox. Get started. 1 RECEIVED DEPARTMENT OF COMMUNITY p a City of 11 (i 2 2010 x AND ECONOMIC DEVELOPMENT Cl OFRENTON UTILITY SYSTEMS M E M O R A N D U M DATE: July 1, 2010 TO: Steve Lee, Utility Systems !� FROM: Vanessa Dolbee, Planning Division �\ SUBJECT: Notice of Complete Application LUA10-041, ECF, SM / Lake Washington Blvd Storm Improvement The Planning Division has determined that the subject application is complete according to submittal requirements and, therefore, is accepted for review. It is tentatively scheduled for consideration by the Environmental Review Committee (ERC) on July 19, 2010. Prior to that review, you will be notified if any additional information is required to continue processing your application. Please contact me, at x7314 if you have any questions. cc: Yellow File h:\ced\planning\current planning\projects\10-041.vanessa\acceptance memo 10-041.doc City of Renton LAND USE PERMIT MASTER APPLICATION PROPERTY OWNERS) TELEPHONE NUMBER AND E-MAIL ADDRESS: NAME: City Of Renton Port Quendall Company(easement/dedication) ADDRESS: City ROW in streets and easements: Port Quendall Company, 4350 Lake Washington Blvd North CITY: Renton, WA ZIP:City 98057 Esmts- 98056 TELEPHONE NUMBER: (425) 430-7205 PROJECT INFORMATION PROJECT OR DEVELOPMENT NAME: Lake Washington Blvd N Storm and Water System Improvement Project PROJECT/ADDRESS(S)/LOCATION AND ZIP CODE: Located in ROW fronting 4350 Lake Washington Boulevard North, Renton, WA 98056 KING COUNTY ASSESSOR'S ACCOUNT NUMBER(S): City ROW and Private property on: 3224059049 APPLICANT (if other than owner) EXISTING LAND USE(S): City ROW and C-Commercial NAME: City of Renton Surface Water Utility Attn: Steve Lee PROPOSED LAND USE(S): NO CHANGE COMPANY (if applicable): City of Renton EXISTING COMPREHENSIVE PLAN MAP DESIGNATION: City ROW and C-Commercial ADDRESS: 1055 South Grady Way CITY: Renton, WA ZIP: 98057 PROPOSED COMPREHENSIVE PLAN MAP DESIGNATION (if applicable): NA TELEPHONE NUMBER 425-430-7205 slee@rentonwa.gov EXISTING ZONING: C CONTACT PERSON PROPOSED ZONING (if applicable): C NAME: Same as Applicant SITE AREA (in square feet): appx. 34000 sf ( appx. 630 LF of new storm pipe x 4 ft width ) COMPANY (if applicable): SQUARE FOOTAGE OF PUBLIC ROADWAYS TO BE DEDICATED: 3,300 Square Feet ADDRESS: SQUARE FOOTAGE OF PRIVATE ACCESS EASEMENTS: NA CITY: ZIP: PROPOSED RESIDENTIAL DENSITY IN UNITS PER NET ACRE (if applicable): NA HAFile Svs\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\Master Plan Appl.doc 06/21/10 PROJECT INFORMA NUMBER OF PROPOSED LOTS (if applicable): None NUMBER OF NEW DWELLING UNITS (if applicable): None NUMBER OF EXISTING DWELLING UNITS (if applicable): NA SQUARE FOOTAGE OF PROPOSED RESIDENTIAL BUILDINGS (if applicable): None SQUARE FOOTAGE OF EXISTING RESIDENTIAL BUILDINGS TO REMAIN (if applicable): NA SQUARE FOOTAGE OF PROPOSED NON-RESIDENTIAL BUILDINGS (if applicable): None SQUARE FOOTAGE OF EXISTING NON-RESIDENTIAL BUILDINGS TO REMAIN (if applicable): NA NET FLOOR AREA OF NON-RESIDENTIAL BUILDINGS (if applicable): NA TION continued NUMBER OF EMPLOYEES TO BE EMPLOYED BY THE NEW PROJECT (if applicable): NA PROJECT VALUE: $1,200,000.00 IS THE SITE LOCATED IN ANY TYPE OF ENVIRONMENTALLY CRITICAL AREA, PLEASE INCLUDE SQUARE FOOTAGE (if applicable): ❑ AQUIFER PROTECTION AREA ONE • AQUIFER PROTECTION AREA TWO Yes u FLOOD HAZARD AREA sq. ft. ❑ GEOLOGIC HAZARD sq. ft. ❑ HABITAT CONSERVATION sq. ft. ❑ SHORELINE STREAMS AND LAKES 6,000 sq. ft. ❑ WETLANDS sq. ft. LEGAL DESCRIPTION OF PROPERTY (Attach legal description on separate sheet with the following information included) SITUATE IN THE NW QUARTER OF SECTION 32 , TOWNSHIP 24N , RANGE 5E W.M. , IN THE CITY OF RENTON, KING COUNTY, WASHINGTON. TYPE OF APPLICATION & FEES List all land use applications being applied for: 1. Environmental Review $1,000,00 3. 2. _�S_6py-?,(.xA_ Pe r-,+- � 2 ooO on 4. Staff will calculate applicable fees and postage: $ AFFIDAVIT OF OWNERSHIP I, (Print Name/s) Sl-eveT =I e�Q , declare that I am (please check one) _ the current owner of the property involved in this application or _Y the authorized representative to act for a corporation (please attach proof of authorization) and that the foregoing statements and answers herein contained and the information herewith are in all respects true and correct to the best of my knowledge and belief. H:\File Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\Master Plan Appl.doc 06/21/10 PROJECT INFORMATION (continued) I certify that I know or have satisfactory evidence that "rt Ya `5' - V 9— L. et V. signed this instrument and acknowledged it to be his/her/their f e and voluntary act for the uses and purposes mentioned in the instrument. (Signature of Owner/Representative) 1 Hop 111s� 2 NIN Notary Public in and for the State of Was ngton /� +° (Signature of Owner/Representative) ' I tl1��4 �V�t.\4 Z Notary(Print) WVNb v'-`{Y�In /� VY r�7'e,��•tg_1�.-��A; /14110p1WAgN \N�. My appointment expires:_ a i HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\Master Plan Appl.doc 06/21/10 INTERFUND TRANSFER FORM TO: Casaundra Commodore DATE: 06/23/2010 FROM: RON STRAKA, FIS DEPT. SURFACE WATER UTILITY Please prepare the following cash transfer: DEBIT: W/O Function Account Number U65470 ( F040 1 427.475470.018.595.38.63.000 U65470 I F040 427.475470.018.595.38.613.000 Amount Description $1,000.00 1 Lake Washington Boulevard North Storm Reason: SEPA Application Review Fees & Shoreline Permit Application Review Fees Approval Signature: Z'?"' Note: Documentation to support this transfer request must be attached. Date: C/Z-? //c—, HAFile Sys\SWP - Surface Water Prcjects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Pennits\ECF attachments Hawks Landing\100621 InterFund-Transfer-FIS555.doc\ Revised 9/2006 cor PLANNING DIVISION WAIVER OF SUBMITTAL REQUIREMENTS FOR LAND USE APPLICATIONS Plat Name Reservation 4 Ary Public Works Approval Letter2 n: Screening Detail 4 :77777777777777: Stream or Lake Study, Standard 4 kiE.......... Stream or Lake Mitigation Plan 4 Title Report or Plat Certificate 4 Traffic Study 2 N Urban Design Regulations Analysis 4 V Lc) Wetlands Mitigation Plan, Final 4 i g" :6 h: 4 0 -77= Wetlands Report/Delineation 4 Applicant Agreement Statement 2 AND 3 Inventory of Existing Sites 2 AND 3 Lease Agreement, Draft 2 AND 3 Map of Existing Site Conditions 2AND3 Map of View Area 2 AND 3 PhotosimulationS 2 AND 3 This requirement may be waived by: 1. Property Services 2. Public Works Plan Review 3. Building 4, Planning PROJECT NAME: L4-e, WA DATE: H,\CF-E)\Data\Forms-Tomplates\Self-Help Handouts\Planning\waiverofsubmittalreqs.xls 06/09 PLANNING DIVISION WAIVER OF SUBMITTAL REQUIREMENTS FOR LAND USE APPLICATIONS Calculations 1 This requirement may be waived by: 1. Property Services 2. Public Works Plan Review 3. Building 4. Planning PROJECT NAME: L-1 4 DATE: r ' (J �( ) H:\CED\DataTorms-Templates\Self-Help Handouts\Planning\waiverofsubmittalregs.xis o8 C9 Printed: 06-24-2010 Payment Made CITY OF RENTON 1055 S. Grady Way Renton, WA 98055 Land Use Actions RECEIPT Permit#: LUA10-041 06/24/2010 05:30 PM Total Payment: 3,000.00 Current Payment Made to the Following Items: Receipt Number: R1002840 Payee: INTERFUND TRANSFER Trans Account Code Description Amount ------ 5010 ------------------ 000.345.81.00.0007 ------------------------------ Environmental Review ---------------- 1,000.00 5019 000.345.81.00.0016 Shoreline Subst Dev 2,000.00 Payments made for this receipt Trans Method Description Amount ---------- -------- --------------------------- --------------- Payment IOT R STRAKA 3,000.00 Account Balances Trans Account Code Description 3021 303.000.00.345.85 Park Mitigation Fee 5006 000.345.81.00.0002 Annexation Fees 5007 000.345.81.00.0003 Appeals/Waivers 5008 000.345.81.00.0004 Binding Site/Short Plat 5009 000.345.81.00.0006 Conditional Use Fees 5010 000.345.81.00.0007 Environmental Review 5011 000.345.81.00.0008 Prelim/Tentative Plat 5012 000.345.81.00.0009 Final Plat 5013 000.345.81.00.0010 PUD 5014 000.345.81.00.0011 Grading & Filling Fees 5015 000.345.81.00.0012 Lot Line Adjustment 5016 000.345.81.00.0013 Mobile Home Parks 5017 000.345.81.00.0014 Rezone 5018 000.345.81.00.0015 Routine Vegetation Mgmt 5019 000.345.81.00.0016 Shoreline Subst Dev 5020 000.345.81.00.0017 Site Plan Approval 5021 000.345.81.00.0018 Temp Use, Hobbyk, Fence 5022 000.345.81.00.0019 Variance Fees 5024 000.345.81.00.0024 Conditional Approval Fee 5036 000.345.81.00.0005 Comprehensive Plan Amend 5909 000.341.60.00.0024 Booklets/EIS/Copies 5941 000.341.50.00.0000 Maps (Taxable) 5954 650.237.00.00.0000 DO NOT USE - USE 3954 5955 000.05.519.90.42.1 Postage 5998 000.231.70.00.0000 Tax Balance Due .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 .00 Remaining Balance Due: $0.00 INTERFUND TRANSFER FORM TO: Casaundra Commodore DATE: 06/23/2010 FROM: RON STRAKA, FIS DEPT. SURFACE WATER UTILITY Please prepare the following cash transfer: DEBIT: W/O Function Account Number Amount Description L,14/,9 ` 041 U65470 F040 427.475470.018.595.38.63.000 $1,000.00 Lake Washington Boulevard North Storm and Water System Improvement Project SEPA) U65470 F040 427.475470.018.595.38.63.000 $2,000.00 Lake Washington Boulevard North Storm and Water System Improvement Project Shoreline Permit CREDIT: W/O Function Account Number Amount Description 000.345. 8 .00 0007 /3 Lt, 00 r C%,2 ke--, 3 00b . 00 Reason: SEPA Application Review Fees & Shoreline Permit Application Review Fees Approval Signature: Date: (� : 1 /Z3// /C - I Note: Documentation to support this transfer request must be attached. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\100621 InterFund-Transfer-FIS555.doc\ Revised 9/2006 cor DEVELOPMENT SERVICES DIVISION ENVIRONMENTAL CHECKLIST City of Renton Development Services Division 1055 South Grady Way, Renton, WA 98055 Phone: 425-430-7200 Fax: 425-430-7231 PURPOSE OF CHECKLIST: The State Environmental Policy Act (SEPA), Chapter 43.21 C RCW, requires all governmental agencies to consider the environmental impacts of a proposal before making decisions. An Environmental Impact Statement (EIS) must be prepared for all proposals with probable significant adverse impacts on the quality of the environment. The purpose of this checklist is to provide information to help you and the agency identify impacts from your proposal (and to reduce or avoid impacts from the proposal, if it can be done) and to help the agency decide whether an EIS is required. INSTRUCTIONS FOR APPLICANTS: This environmental checklist asks you to describe some basic information about your proposal. Governmental agencies use this checklist to determine whether the environmental impacts of your proposal are significant, requiring preparation of an EIS. Answer the questions briefly, with the most precise information known, or give the best description you can. You must answer each question accurately and carefully, to the best of your knowledge. In most cases, you should be able to answer the questions from your own observations or project plans without the need to hire experts. If you really do not know the answer, or if a question does not apply to your proposal, write "do not know" or "does not apply". Complete answers to the questions now may avoid unnecessary delays later. Some questions ask about governmental regulations, such as zoning, shoreline, and landmark designations. Answer these questions if you can. If you have problems, the governmental agencies can assist you. The checklist questions apply to all parts of your proposal, even if you plan to do them over a period of time or on different parcels of land. Attach any additional information that will help describe your proposal or its environmental effects. The agency to which you submit this checklist may ask you to explain your answers or provide additional information reasonably related to determining if there may be significant adverse impact. USE OF CHECKLIST FOR NONPROJECT PROPOSALS: Complete this checklist for nonproject proposals, even though questions may be answered "does not apply." IN ADDITION, complete the SUPPLEMENTAL SHEET FOR NONPROJECT ACTIONS (part D). For nonproject actions (actions involving decisions on policies, plans and programs), the references in the checklist to the words "project," "applicant," and "property or site" should be read as "proposal," "proposer," and "affected geographic area," respectively. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc A. BACKGROUND 1. Name of proposed project, if applicable: Lake Washington Blvd. Hawks Landing Storm and Water System Improvement Project 2. Name of applicant: City of Renton Surface Water Utility, Attn: Steve Lee 3. Address and phone number of applicant and contact person: City of Renton Surface Water Utility Attn: Steve Lee 1055 South Grady Way Renton, WA 98055 425-430-7205 4. Date checklist prepared: June 2010 5. Agency requesting checklist: City of Renton Development Services Division 6. Proposed timing or schedule (including phasing, if applicable): Submit Environmental Checklist: June 2010 Advertise Project for Bids: August 2010 Construction: October 2010 7. Do you have any plans for future additions, expansion, or further activity related to or connected with this proposal? If yes, explain. The adjacent parcel located on the east side of Lake Washington Blvd., south of NE 441h St., may be developed into a hotel. The developer is proposing to install the remaining frontage improvements (landscaping and sidewalk) in front of this property. Any portions of this project that does not get completed shall be completed by the hotel developer including the remaining landscape plantings along the frontage. List any environmental information you know about that has been prepared, or will be prepared, directly related to this proposal. Wetland/Stream Study: Hawk's Landing Crowne Plaza Hotel prepared by Graham -Bunting Associates on May 12, 2009. A Geotechnical Report for the existing soil conditions and construction recommendations was prepared by Soil & Environmental Engineers Inc. on March 17, 2010. Do you know whether applications are pending for governmental approvals of other proposals directly affecting the property covered by your proposal? If yes, explain. 10. List any governmental approvals or permits that will be needed for your proposal, if known. City of Renton Shoreline Permit, Grading Permit and Right -of -Way Use Permit. H:\File Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc 11. Give brief, complete description of your proposal, including the proposed uses and the size of the project and site. The purpose of the project is to install curb/gutter and portions of a sidewalk, a new storm system, a retrofit water quality facility and a water line extension along Lake Washington Blvd. N. to meet the infrastructure needs for future development in the vicinity of 1-405 Exit 7 area, including the Hawks Landing development. The curb and gutter will extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, gutter and sidewalk will continue south from 270 feet north of the May Creek Bridge on the east side of Lake Washington Blvd. N. and connect to the existing sidewalk north of the May Creek Bridge. The stormwater system will collect road, curb, gutter, and sidewalk runoff and provide water quality treatment for a portion of the existing Lake Washington Boulevard roadway prior to discharge to an existing stormwater pipe that discharges to May Creek. The new storm system will consist of approximately 810 lineal feet of 24" storm pipe with a catch basin collection system capable of carrying traffic loading. The project also includes a wet bioswale approximately 140 lineal feet (top length) which will be used to treat a portion of the runoff from Lake Washington Blvd. N. Water quality (and quantity) treatment follows the 2009 City of Renton Stormwater Design Manual that follows the 2005 Ecology Stormwater Design Manual. The water line extension consists of the installation of about 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE. 40th St. to NE 44th St. A 100' portion of the water line will be installed inside an existing 18-inch steel casing within the May Creek Bridge. It is anticipated that existing utilities may be in conflict with the proposed work and therefore relocation of some existing facilities and utilities is expected. Conflicts may include PSE poles, fiber optics, Qwest lines, Comcast, and other franchise utilities. 12. Location of the proposal. Give sufficient information for a person to understand the precise location of your proposed project, including a street address, if any, and section, township, and range if known. If a proposal would occur over a range of area, provide the range or boundaries of the site(s). Provide a legal description, site plan, vicinity map, and topographic map, if reasonably available. While you should submit any plans required by the agency, you are not required to duplicate maps or detailed plans submitted with any permit applications related to this checklist. The project is located in the NW quarter of Section 32, Township 24N, Range 5E in the City of Renton, King County, Washington. Latitude 47.53055 N, Longitude 122.20035 W. The new storm system, curb, gutter, and sidewalk will be begin near the east side of the intersection of Ripley Lane and Lake Washington Blvd North. The system will extend along the east side of Lake Washington Blvd. to a point just north of the May Creek Bridge. The water main is near the same alignment however, it will be located under the east half of Lake Washington Blvd. and will extend under the May Creek Bridge to a point 450' south of the bridge. See the attached figures and plans. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc B. ENVIRONMENTAL ELEMENTS EARTH General description of the site (circle one); flat, rolling, hilly, steep slopes, mountainous, other Gently sloped. What is the steepest slope on the site (approximate percent slope?) Approximately 3 % What general types of soils are found on the site (for example, clay, sand, gravel, peat, muck)? If you know the classification of agricultural soils, specify them and note any prime farmland. The soils in the area are classified as Norma Sandy Loam by the Soil Conservation Service King County Soil Survey. Norma Sandy Loam is described as soil that has low runoff potential and high infiltration rates that consist of deep, well to excessively drained sands or gravels and have a high rate of water transmission. A geotechnical report for the area found fill consisting of silty sand with gravel to a depth of about 6 feet which was underlain by very loose to loose sand with lenses of very soft silt to a thickness of 20 feet below the fill. Are there surface indications or history of unstable soils in the immediate vicinity? If so, describe. None known e. Describe the purpose, type, and approximate quantities of any filling or grading proposed. Indicate source of fill. About 2,380 cubic yards will be cut and approximately 2,450 cubic yards will be used for fill. The contractor will supply the backfill from licensed gravel pits. Could erosion occur as a result of clearing, construction, or use? If so, generally describe. Surface erosion may occur along the slope of the ditch in the northern section however, the contractor will be required to use typical erosion control methods described in the 2009 City of Renton Stormwater Design Manual (which follows the 2005 Ecology Stormwater Manual) to control erosion from the excavation and any soil stockpiles. Flow in the existing storm system will be diverted around the work area. About what percent of the site will be covered with impervious surfaces after project construction (for example, asphalt or buildings)? Approximately 61.9% of the drainage area for this project will be covered with impervious surfaces which is an increase over the 57.2% that exists today. HAFile Sys1SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks Landing11600 PermitslECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc AIR Proposed measures to reduce or control erosion, or other impacts to the earth, if any: The contractor will be required to use typical erosion control methods in the City of Renton 2009 Stormwater Design Manual (document follows the 2005 Ecology Manual BMPs), including filter fabric fences and catchbasin inlet protection. Stormwater will be diverted around the work area, and sandbags and silt fencing will be used to keep any water and sediment out of the open channel. What types of emissions to the air would result from the proposal (i.e., dust, automobile, odors, industrial wood smoke) during construction and when the project is completed? If any, generally describe and give approximate quantities if known. During construction, dust and exhaust from construction equipment will occur. After construction, no emissions are expected from the site. Are there any off -site sources of emission or odor that may affect your proposal? If so, generally describe. No. C. Proposed measures to reduce or control emissions or other impacts to air, if any: Construction equipment will have mufflers and exhaust systems in good working order. Dust will be kept down by watering the excavation and stockpiles as needed. 3. WATER Surface Water: 1) Is there any surface water body on or in the immediate vicinity of the site (including year- round and seasonal streams, saltwater, lakes, ponds, wetlands)? If yes, describe type and provide names. If appropriate, state what stream or river it flows into. Yes, May Creek is within the vicinity of the project and is considered a Class 1 (City system classification) stream. A wetland evaluation was performed where the existing storm water system discharges to the open channel. The evaluation found that the area did not meet the criteria to be classified as a wetland and was reviewed as part of the adjacent hotel developer's determination. 2) Will the project require any work over, in, or adjacent to (within 200 feet) the described waters? If yes, please describe and attach available plans. Yes. The downstream part of the new 24" storm system is within 60 feet of May Creek. The new 24" storm system will connect to an existing 24" CMP pipe that will continue to discharge to May Creek. The creek itself will not be disturbed during construction of this project. Best management practices will be conducted to ensure the creek is protected from sediment flowing downstream during construction. 3) Estimate the amount of fill and dredge material that would be placed in or removed from surface water or wetlands and indicate the area of the site that would be affected. Indicate the source of fill material. No fill or dredge will be placed within May Creek. Fill will be located in the ditch where the current stormwater discharges to along HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc the east side of Lake Washington Blvd. About 2,380 cubic yards will be cut and approximately 2,450 cubic yards will be used for fill throughout the project area. 4) Will the proposal require surface water withdrawals or diversions? Give general description, purpose, and approximate quantities if known. No. 5) Does the proposal lie within a 100-year flood plain? If so, note location on the site plan. No, the project site is located approximately 55 feet outside of the 100-year flood plain. The project will also involve going through an existing 18" sleeve underneath May Creek bridge. 6) Does the proposal involve any discharges of waste materials to surface waters? If so, describe the type of waste and anticipated volume of discharge. No. b. Ground Water: 1) Will ground water be withdrawn, or will water be discharged to ground water? Give general description, purpose, and approximate quantities if known. If there is a high water table which affects construction excavation temporary pumping would be needed to keep the excavation dry. Any groundwater would be filtered to remove sediment and discharged back to the downstream storm system through the use of sediment and erosion control best management practices. 2) Describe waste material that will be discharged into the ground from septic tanks or other sources, if any (for example: Domestic sewage; industrial, containing the following chemicals...; agricultural; etc.). Describe the general size of the system, the number of such systems, the number of houses to be served (if applicable), or the number of animals or humans the system(s) are expected to serve. N/A. Water Runoff (including storm water): 1) Describe the source of runoff (including storm water) and method of collection and disposal, if any (include quantities, if known). Where will this water flow? Will this water flow into other waters, If so, describe. The Hawk's Landing area is located at the downstream end of a 15-acre basin that mostly consists of impervious pavement from 1405, NE 441h St., and the existing development on the Hawk's Landing site. For existing conditions the peak flow from the basin for the 100-year, 24-hour storm is approximately 12 cfs. The majority of the storm water runoff from the basin is currently carried by a 24- inch pipe, which begins near a depressed area located south of the intersection of Lake Washington Blvd. N. and Ripley Lane/NE 44th. The 24-inch pipe conveys flows to the northwest edge of the proposed Hawk's Landing development where it then enters a 450-foot long ditch. This ditch is connected to a 24" CMP pipe that is 120 lineal feet and discharges directly to May Creek at a point approximately 1,100 feet upstream of Lake Washington. 2) Could waste material enter ground or surface waters? If so, generally describe. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 6 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Any liquid spills on site could enter the drainage system. The same potential exists with the current drainage system. Best management practices will be in place to limit impacts. d. Proposed measures to reduce or control surface, ground, and runoff water impacts, if any: No new impacts are expected. The City of Renton Maintenance Department would respond to any problems with the storm system or liquid spills in City ROW. The project includes the construction of a wet bio swale to treat storm water runoff from Lake Washington Boulevard. Sediment and erosion control standards follow the adopted 2009 City of Renton Stormwater Design Manual (2009 KCSWDM). 4. PLANTS a. Check or circle types of vegetation found on the site: X deciduous tree: alder, maple, aspen, other possibly cottonwood, aspen, alder X evergreen tree: fir, cedar, pine, other possibly small fir or pine trees X shrubs X grass pasture crop or grain wet soil plants: cattail, buttercup, bullrush, skunk cabbage, other water plants: water lily, eel grass, milfoil, other other types of vegetation b. What kind and amount of vegetation will be removed or altered? Vegetation (weeds, long grass and some cattails) within the existing ditch will be replaced with fill. C. List threatened or endangered species known to be on or near the site. None known. d. Proposed landscaping, use of native plants, or other measures to preserve or enhance vegetation on the site, if any: The proposed wet bioswale located just upstream from May Creek will include plants that are tolerant of saturated conditions. Grass will be used within the planter strips. 5. ANIMALS a. Circle any birds and animals which have been observed on or near the site or are known to be on or near the site: Birds: hawk, heron, eagle, songbirds, other small birds in -general Mammals: deer, bear, elk, beaver, other Typical small mammals such as mice, muskrats and squirrels may be present Fish: bass, salmon, trout, herring, shellfish, other Chinook, Coho, Sockeye, Steelhead and Cutthroat. b. List any threatened or endangered species known to be on or near the site. H:\File Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)27-3531 Lake Washington Blvd -Hawks 7 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Puget Sound Chinook Salmon and Puget Sound Steelhead in May Creek are a threatened species. Is the site part of a migration route? If so, explain. No. Proposed measures to preserve or enhance wildlife, if any: NA. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks 8 Landing11600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc 6. ENERGY AND NATURAL RESOURCES a. What kinds of energy (electric, natural gas, oil, wood stove, solar) will be used to meet the completed project's energy needs? Describe whether it will be used for heating, manufacturing, etc. None needed for the completed project. Would your project affect the potential use of solar energy by adjacent properties? If so, generally describe. No. What kinds of energy conservation features are included in the plans of this proposal? List other proposed measures to reduce or control energy impacts, if any: NA. ENVIRONMENTAL HEALTH Are there any environmental health hazards, including exposure to toxic chemicals, risk of fire and explosion, spill, or hazardous waste, that could occur as a result of this proposal? If so, describe. During construction fuel and oil spills could occur. 1) Describe special emergency services that might be required. Typical emergency services by the Fire Department and the City Maintenance Division in case of fire, injury, or fuel spills. 2) Proposed measures to reduce or control environmental health hazards, if any: The Contractor will be required to keep construction equipment in good operating condition, and will be responsible to cleanup any oil or fuel leaks and spills, and repair leaking equipment. Operators will be trained in the use of onsite spill kits. b. Noise 1) What types of noise exist in the area which may affect your project (for example: traffic, equipment, operation, other)? None. 2) What types and levels of noise would be created by or associated with the project on a short-term or a long-term basis (for example: traffic, construction, operation, other)? Indicate what hours noise would come from the site. Short-term: Noise from construction equipment may occur between the hours of 7 AM to 5 PM, Monday through Friday during construction. There will be no long term noise impacts. All noise impacts would be contained within the City's neighborhood work time and dates. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc 3) Proposed measures to reduce or control noise impacts, if any: The contractor will be required to keep the construction equipment's mufflers and exhaust systems in good operating condition. 8. LAND AND SHORELINE USE a. What is the current use of the site and adjacent properties? The site consists of a paved road. The adjacent property currently houses abandoned buildings and parking lots. The site is proposed to be developed into a hotel. b. Has the site been used for agriculture? If so, describe. No. C. Describe any structures on the site. No structures exist on the project site itself except for the May Creek bridge. d. Will any structures be demolished? If so, what? Portions of the existing storm system will be removed and replaced, or abandoned. e. What is the current zoning classification of the site? C-Commercial f. What is the current comprehensive plan designation of the site? Commercial Office Residential (COR) g. If applicable, what is the current shoreline master program designation of the site? Urban h. Has any part of the site been classified as an "environmentally sensitive" area? If so, specify. A wetland report obtained by the City does not classify the existing ditch as a wetland. A letter has been written for the Army Corps describing this area as a ditch. Approximately how many people would reside or work in the completed project? NA Approximately how many people would the completed project displace? NA k. Proposed measures to avoid or reduce displacement impacts, if any: NA HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 10 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Proposed measures to ensure the proposal is compatible with existing and projected land uses and plans, if any: The project replaces an existing stormwater drainage system with a new storm system that will have adequate flow capacity. The water main will provide better water quality in the future and allow development to occur. The new storm system will be under ground and the asphalt street will be restored to its existing use. 9. HOUSING a. Approximately how many units would be provided, if any? Indicate whether high, middle, or low-income housing. None b. Approximately how many units, if any, would be eliminated? Indicate whether high, middle, or low-income housing. None C. Proposed measures to reduce or control housing impacts, if any: NA 10. AESTHETICS a. What is the tallest height of any proposed structure(s), not including antennas; what is the principal exterior building material(s) proposed. The utilities will be under ground and the curb will be less than a foot taller than the existing pavement. b. What views in the immediate vicinity would be altered or obstructed? None. C. Proposed measures to reduce or control aesthetic impacts, if any: The wet bioswale will be planted with appropriate vegetation and the planter strips will contain grass or other appropriate landscaping vegetation. 11. LIGHT AND GLARE a. What type of light or glare will the proposal produce? What time of day would it mainly occur? None b. Could light or glare from the finished project be a safety hazard or interfere with views? No C. What existing off -site sources of light or glare may affect your proposal? None d. Proposed measures to reduce or control light and glare impacts, if any: NA HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 11 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc 12. RECREATION a. What designated and informal recreational opportunities are in the immediate vicinity? None b. Would the proposed project displace any existing recreational uses? If so, describe. No C. Proposed measures to reduce or control impacts on recreation, including recreation opportunities to be provided by the project or applicant, if any: NA 13. HISTORIC AND CULTURAL PRESERVATION a. Are there any places or objects listed on, or proposed for, national state, or local preservation registers known to be on or next to the site? If so, generally describe. No b. Generally describe any landmarks or evidence of historic, archaeological, scientific, or cultural importance known to be on or next to the site. None known. C. Proposed measures to reduce or control impacts, if any: In the event any materials of historic cultural or archaeological significance are encountered during construction, construction shall be stopped and the Dept. of Archaeology Historic Preservation and appropriate tribes shall be consulted. 14. TRANSPORTATION a. Identify public streets and highways serving the site, and describe proposed access to the existing street system. Show on site plans, if any. The site is served by Lake Washington Blvd N. and NE 44th St. b. Is site currently served by public transit? If not, what is the approximate distance to the nearest transit stop? No. Metro serves a park n' ride lot at 30`h and Park, approximately a mile and a half north of the project area. C. How many parking spaces would the completed project have? How many would the project eliminate? NIA. d. Will the proposal require any new roads or streets, or improvements to existing roads or streets, not including driveways? If so, generally describe (indicate whether public or private? HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 12 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Safety along Lake Washington Blvd. N. will improve by adding curb, gutter, and sidewalks. e. Will the project use (or occur in the immediate vicinity of) water, rail, or air transportation? If so, generally describe. No How many vehicular trips per day would be generated by the completed project? If known, indicate when peak volumes would occur. None g. Proposed measures to reduce or control transportation impacts, if any: NA 15. PUBLIC SERVICES a. Would the project result in an increased need for public services (for example: fire protection, police protection, health care, schools, other)? If so, generally describe. No b. Proposed measures to reduce or control direct impacts on public services, if any. Safety will be improved along the Lake Washington Blvd. by adding curb, gutter and sidewalks. The new water and storm services will serve adjacent development. 16. UTILITIES a. Circle utilities currently available at the site: electricity, natural gas, water, refuse service, telephone, sanitary sewer, septic system, other. Electricity, natural gas, water, and telephone, are available. b. Describe the utilities that are proposed for the project, the utility providing the service, and the general construction activities on the site or in the immediate vicinity which might be needed. The new 24-inch stormwater pipes and water quality facility will be owned by the City of Renton in City ROW, or in easements granted by the private property owners. The new stormwater system will be installed in trenches excavated in the asphalted street or in City ROW. A new 12-inch water pipe is proposed within City ROW and existing asphalted street. The new water pipe will reduce to 10-inch diameter steel in order to sleeve within the existing 12-inch steel pipe located on the May Creek Bridge. Construction will be provided by the City of Renton through private contractors via state bidding laws. HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 13 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc C. SIGNATURE I, the undersigned, state that to the best of my knowledge the above information is true and complete. It is understood that the lead agency may withdraw any declaration of non -significance that it might issue in reliance upon this checklist should there be any willful misrepresentation or willful lack of full disclosure on my part. Proponent: Name Printed: �Sf�✓� %.,� -r �e e Date: n,�, Zl, Zceto HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 14 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc D. SUPPLEMENTAL SHEETS FOR NONPROJECT ACTIONS (These sheets should only be used for actions involving decisions on policies, plans and programs. You do not need to fill out these sheets for project actions.) Because these questions are very general, it may be helpful to read them in conjunction with the list of the elements of the environment. When answering these questions, be aware of the extent the proposal, or the types of activities likely to result from the proposal, would affect the item at a greater intensity or at a faster rate than if the proposal were not implemented. Respond briefly and in general terms. How would the proposal be likely to increase discharge to water; emissions to air; production, storage, or release of toxic or hazardous substances; or production of noise? Proposed measures to avoid or reduce such increases are: How would the proposal be likely to affect plants, animals, fish, or marine life? Proposed measures to protect or conserve plants, animals, fish, or marine life are: How would the proposal be likely to deplete energy or natural resources? Proposed measures to protect or conserve energy and natural resources are: 4. How would the proposal be likely to use or affect environmentally sensitive areas or areas designated (or eligible or under study) for governmental protection; such as parks, wilderness, wild and scenic rivers, threatened or endangered species habitat, historic or cultural sites, wetlands, flood plains, or prime farmlands? Proposed measures to protect such resources or to avoid or reduce impacts are: How would the proposal be likely to affect land and shoreline use, including whether it would allow or encourage land or shoreline uses incompatible with existing plans? HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)127-3531 Lake Washington Blvd -Hawks 15 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Proposed measures to avoid or reduce shoreline and land use impacts are: 6. How would the proposal be likely to increase demands on transportation or public services and utilities? Proposed measures to reduce or respond to such demand(s) are: 7. Identify, if possible, whether the proposal may conflict with local, state, or federal laws or requirements for the protection of the environment. SIGNATURE I, the undersigned, state that to the best of my knowledge the above information is true and complete. It is understood that the lead agency may withdraw any declaration of non -significance that it might issue in reliance upon this checklist should there be any willful misrepresentation or willful lack of full disclosure on my part. Proponent: Name Printed: Date: ENVCHLST.DOC REVISED 6/98 HAFile Sys\SWP - Surface Water Projects\SWP-27 - Surface Water Projects (CIP)\27-3531 Lake Washington Blvd -Hawks 16 Landing\1600 Permits\ECF attachments Hawks Landing\SEPA Checklist-Final-STLedited 100621.doc Stream or Lake Study, Standard: A report shall be prepared by a qualified biologist, unless otherwise determined by the Administrator, and include the following information: a. Site Map: Site map(s) indicating, at a scale no smaller than one inch equals twenty feet (I _ 20') (unless otherwise approved by the Development Services Director): i. The entire parcel of land owned by the applicant, including one hundred feet (100') of the abutting parcels through which the water body(ies) flow(s); ii. The ordinary high water mark (OHWM) determined in the field by a qualified biologist pursuant to RMC 4-3-050L1b (the OHWM must also be flagged in the field); iii. Stream classification, as recorded in the City of Renton Water Class Map in RMC 4-3-050Q4 or RMC 4-3-090 (if unclassified, see "Supplemental Stream or Lake Study" below); iv. Topography of the site and abutting lands in relation to the stream(s) and its/their buffer(s) at contour intervals of two feet (T) where slopes are less than ten percent (10%), and of five feet (5') where slopes are ten percent (10%) or greater; v. One hundred (100) year floodplain and floodway boundaries, including one hundred feet (100') of the abutting parcels through which the water body(ies) flow(s); vi. Site drainage patterns, using arrows to indicate the direction of major drainage flow; vii. Top view and typical cross-section views of the stream or lake bed, banks, and buffers to scale; viii. The vegetative cover of the entire site, including the stream or lake, banks, riparian area, and/or abutting wetland areas, extending one hundred feet (100') upstream and downstream from the property line. Include position, species, and size of all trees at least ten inches (10") average diameter that are within one hundred feet (100') of the OHWM; ix. The location, width, depth, and length of all existing and proposed structures, roads, stormwater management facilities, wastewater treatment and installations in relation to the stream/lake and its/their buffer(s); and x. Location of site access, ingress and egress. b. Grading Plan: A grading plan prepared in accordance with RMC 4-8-120D7, and showing contour intervals of two feet (T) where slopes are less than ten percent (10%), and of five feet (5') where slopes are ten percent (10%) or greater. c. Stream or Lake Assessment Narrative: A narrative report shall be prepared to accompany the site plan which describes: i. The stream or lake classification as recorded in the City of Renton Water Class Map in RMC 4-3-050Q4 or RMC 4-3-090; ii. The vegetative cover of the site, including the stream or lake, banks, riparian area, wetland areas, and flood hazard areas extending one hundred feet (100') upstream and downstream from the property line; iii. The ecological functions currently provided by the stream/lake and existing riparian area; iv. Observed or reported fish and wildlife that make use of the area including, but not limited to, salmonids, mammals, and bird nesting, breeding, and feeding/foraging areas; and v. Measures to protect trees, as defined per RMC 4-11-200, and vegetation. (Ord. 5137, 4-25- 2005) "Co "vay 8z C- shoir•ne, liru-. CONSULIIN(., CNOIN!_[HS MEMORANDUM TO: STEVE LEE, BARRY BAKER & STACEY CLEAR FROM: P JIM DOUGHERTY DATE:JUNE 16, 2010 SUBJECT: STREAM ASSESSMENT (CONSISTENT WITH RENTON MUNICIPAL CODE SECTION 4-8-120) FOR THE WATER MAIN INSTALLATION ASSOCIATED WITH THE HAWK'S LANDING WATER AND STORMWATER IMPROVEMENTS CITY OF RENTON, KING COUNTY, WASHINGTON G&O #09583 l . Stream Assessment Narrative for the proposed water main crossing of May Creek associated with the Hawk's Landing Project: May Creek is a City of Renton "Class I Stream" with a 25-foot buffer requirement (Renton Municipal Code 4-3-050 Q4, personal communication with Steve Lee 6-9-2010). Buried pipelines in existing rights -of -way have no buffer requirements (RMC 4-3-90E Regulated Water Bodies). The Shoreline Designation for this reach of May Creek is "Urban" (RMC 4-3-90 Map G-3). • The Ditch along the east side of Lake Washington Blvd. adjacent to the water main project is a City of Renton "Class 5 Stream" with no regulatory restrictions for water lines. • According to the City of Renton Floodplain Map for the area, except for the very northwest corner of the site, the 100-year flood elevation extends north from the Ordinary High Water Mark of May Creek to the fence line of the existing warehouse complex and as much as 40 feet north beyond the fence. The 100-year flood elevation ranges from 26 to 32 feet across the site 2. Vegetation in the Project Vicinity includes: • fast of the bridge along May Creek: Large big leaf maple (Ater macrolMyllum) 30-1- inches diameter breast height (DBH), alder (Alnus 701 Dexter Avenue N., Suite 200 Seattle, Washington 98109 (206) 284-0860 Fax (206) 2.83-3206 June 16, 2010 Page 2 rubra) and black cottonwood (Populus balsamifera trichocarpa) dominate the overstory. Himalayan blackberries with some salmonberry and small willows dominate the understory to the east of the bridge. North of the bridge: Grasses, dandelions, milkweed, clover, yarrow and Japanese knotweed are present along the east side of Lake Washington Boulevard are the only plant species likely to be impacted by the proposed sidewalk installation. Several small alders (approx. 4-inches DBH) will be removed for installation of the drainage swale. Between 100 and 200 feet north of the bridge Japanese knotweed (10-feet tall) dominates from the road prism, and on both sides of the ditch, all the way to the warehouse. To the east trees are limited to small alders and a few cottonwoods 4 to 6 inches DBH along the fence line. • The ditch draining the area to the warehouse area to the north contains some wetland grasses reeds canary grass along with a few other wet -soil plants. Iron bacteria have turned the water in the ditch orange. • Overstory includes black cottonwoods, alders and vine maples. • Other vegetation present includes nettles, (Urtica dioica), Canadian thistles (Cirsium edule), Indian plum (Oemleria cerasiformis) horsetail (Fquistum sp.), yarrow (Achillea sp.), alfalfa, clover and wild carrot. • Riparian vegetation along May creek upstream (east) of the bridge is dominated by several age classes of red alder ranging in size from 4 inches DBH to 12 inches DBEI. Willows, Japanese knotweed (Polygonum cuspidatun:), Himalayan blackberries (Rubus discolor), salmonberry (R. spectabilis), nettles, sword fern (Polystichum munitum), holly, horsetail, ivy, piggyback/youth-on-age (Tolmiea menziesii) and a variety of grasses are present in the understory. Knotweed is not as tall farther to the east, shaded by the large cottonwoods (28 to 30 inches DBH) to the NE about 30 feet north of the SE property corner. • There is a small muddy wetland delineated approximately 35 feet NW of the SE property corner marker and 140 feet east of the bridge. Wetland vegetation is dominated by reed canarygrass (Phalaris anundinacea) and Japanese knotweed. The proposed sidewalk extension, stormwater improvements and water main installation will not impact this wetland or the associated buffers. June 16, 2010 Page 3 G� Vegetation on the west side of the Lake Washington Boulevard ROW includes many of the same plants as the project area, with the addition of piggyback, purple loosestrife and buttercups. The bank in this area is low and within the 100-year floodplain of May Creek according to the City of Renton Floodplain Maps. The bank steepens as May Creek curves to the north, just northeast of the SF, property corner marker. 3. Ecological Functions May Creek drains approximately 8.6 miles from Lake Kathleen and receives flows from a number of named and unnamed streams and lakes including Lake Boren. While Shoreline Designation for the stream is "Urban" west of I-405, it is "Rural" upstream of I-405 for several miles where it passes through a steep -sided valley dominated by deciduous trees with a few Douglas fir, western redcedar and other conifers. There are a few alder and cottonwood snags scattered throughout the riparian area. Wildlife in this middle portion of May Creek includes deer, coyotes, black bear, raccoons, opossums and various species of rabbits, and rodents including mice, voles, moles, chipmunks and squirrels. May Creek flows across the south end of the project area and supports transportation and rearing for most species of salmon and trout in Lake Washington. Spawning habitat for chinook (Oncvrhynchus tshawytscha), coho (O. kisulch) and sockeye (O. nerka) is present upstream of I-405. I luman development limiting the habitat value of the project area includes I-405 to the east, Lake Washington Blvd. to the west, the warehouse area (future site of Ilawk's Landing) to the north and residential areas to the south on the Kennydale Hill. Wildlife likely to occur on the site would be limited to species tolerant of traffic noise and human presence including deer, raccoons, opossums, squirrels, rodents, hawks and a variety of songbirds, crows etc. 4. Fish & Wildlife Birds observed during the field visit included robins, chickadees and an unidentified hawk. Other bird species likely to be present in the project area include crows, sparrows, woodpeckers, flickers, Steller's jay, and chickadees, warblers and nuthatches. A nesting platform is maintained at the old Barbee Mill Site for ospreys and bald and golden eagles are observed downstream along Lake Washington. Other raptors that could be present include red-tailed hawks, "C� June 16, 2010 Page 4 Cooper's hawk, sharp -shinned hawk, western screech owl and the barred owl (AOA 2007, Matthews 1999). Reptiles and amphibians likely to be present in the area include garter snakes, alligator lizards, salamanders and chorus frogs. May Creek flows through the project are from east to west under the Lake Washington Boulevard Bridge. It is classified as a City of Renton Class 1 Stream with a 25-foot buffer (RMC 4-3-90), which supports chinook, coho and sockeye salmon; steelhead are also present (WDFW Salmonscape). 5. Measures to Protect Trees: The scope of the proposed project essentially eliminates potential impacts to significant trees on the subject property, because the proposed sidewalk extension and swale will occur along the shoulder of Lake Washington Boulevard where vegetation is limited to grasses, weeds and Japanese knotweed. The swale proposed may impact a few small alders that are less than 4 inches DBH. The remaining trees and any on -site wetlands would not be impacted (See attached Project Site Map). w ply �.•-ice �. Yt "Omni :l IN Ilk .00 1 �i 17Y h m "40� June 16, 2010 Page 6 ' 1 le r r A�k 1 Photo 2 — Project site looking north from bridge over May Creek. Vegetation to be impacted by sidewalk extension is visible along the shoulder. G� June 16, 2010 Page 7 Photo 3 - Photo looking west on left hydraulic bank of May Creek showing typical riparian vegetation and Lake Washington Blvd bridge crossing. REFERENCES Altman Oliver Associates, LLC 2007. Wildlife Habitat Assessment and .Stream Review: Lake Washington View Estates, Renton, WA, Parcel 322405-9081. f lart, J. L. 1973. Pacific Fishes of Canada, Fisheries Research Board of Canada: Bulletin 180, Ottawa. Lee, Steve 2010. Personal communication regarding Renton Municipal Code and Shoreline Master Program, June 9, 2010. Mathews, Daniel 1999. Cascade -Olympic Natural History: A Trailside Reference, Raven Editions, Portland, Oregon. "C� June 16, 2010 Page 8 Renton City Code 2007. Sections 4-3-05 (Q4), 4-3-90E Shoreline Master Program Regulated Water Bodies, and 4-3-90 Map (G-3) website reviewed 6-10 & 11. Washington Department of Fish & Wildlife 2010. SalmonScape Website, accessed June 9, Olympia, Washington. J D/sn / --- - — �1 1 - _.. ... �naM 17+00 l 18+00 14+00 15+00_� -tom SCALE: 1"=80' A-10 —.--- /����..��� / A-12 CBI TYPE F i _____BuRRIE cKBEs \ A 00 7_____ SALNON ELOW A•12 }. F � A4 _F1D1p1 — T � A•12 A10 C-32 C. C-33 A•20 Al 2 A-72 C 30 DELINEATED WETLAND A n 140' FROM PROJECT AREA ` A c$ C-32 w'd 11 11 , O 4 C-10 1 A4 I i i/ (/ f I / i i i I 1 I _6. -- - -- - — 36 34 I 34 32 32 I �.. I 30 i 30 28 28 26 26 I I -- 2426 24 24 22 i 22 20 20 -50 -40 -30 -20 -10 0 10 20 30 40 50 -- - -- - BERRIES BLACKBERRIES / 5 TYPE'2- 175 ji.F 24- CPEP STORMU4k iF 24CP -STC 3 E 2 KNOTYYEED N �q ' IW.ORK Y OTHERS EXCfP STORM SITE FLAN LEGEND A- ALDER C- COTTONWOOD M- MAPLE X= DBH (DIAMETER AT BREAST HEIGHT -INCHES) OPEN AREAS DOMINATED BY BLACKBERRIES, KNOTWEED, AND NETTLES 1-- 82 �\ ,- 1 , -CB 9( TYPE 2 "1 STREAM SECTION A D- 3 5 3 1 CITY OF 2/26/10 LAKE WASHINGTON BLVD 1 RENTON HAWKS LANDING STORM WATER fix• L �e rr DATUM C04ULTM ERG11fan Planning/Building/Public Works Dept. IMPROVEMENTS �� •von[ .ud sitt< s • w es rr w*nr. rwom. rw mu a.rw NO. REVISION BY 117E APPR �� 7 BR.0. Altmann Oliver Associates, LL�,IAOA II t;..,� _i I. n n. iu,. n. 11\,..:.I I II,' 1 .-.-,i ..1. I -,' March 26, 2007 David Parry Heritage Homes 4325 SW 323d Street Federal Way, WA 98023 11rrllil� I IIII C AOA-3447 DEV CITY cOF ENTONNING SUBJECT: Wildlife Habitat Assessment and Stream Review Lake Washington View Estates, Renton, WA UN ' Zdd� Parcel322405-9081 RECEIVED Dear David: This letter documents the results of a wildlife habitat assessment and stream reconnaissance that was conducted on January 30, 2007 on the undeveloped subject property located on Lake Washington Blvd. N. in the City of Renton, WA. May Creek flows from east to west through the central portion of the site. The primary focus of the reconnaissance was on the area located south of the creek, since there is no proposed development on the north side of the creek. At the time of my site visit, webands on the property had been delineated by Evergreen Aquatic Resource Consultants, LLC (Evergreen)_ A description of the wetlands and their classification can be found in the wetland report prepared by Evergreen. The wetland boundaries, topography, and significant trees located south of the creek were subsequently surveyed by Hansen Surveying. The survey drawing also depicts the edge of May Creek. Topography throughout the study area generally slopes moderately down from south to north toward May Creek. Wetlands are situated in the central and northwestern portions of the site and steep slopes can be found in the eastern portion of the property. The proposed project consists of the construction of 12 single-family residences in the western portion of the site and one residence in the southeastern portion of the property. It is my understanding that all of the wetlands and their buffers will be preserved under the proposed project, and that there will be no direct impacts to these resources. David Parry March 26, 2007 Page 2 WILDLIFE HABITAT ASSESSMENT Wildlife habitats on the site were reviewed during the field investigation and consisted primarily of two main habitat types (Figure 1): 1) Unevenly aged deciduous forest This habitat type occupies all of the property except for the southwestern portion. It is found along the entire riparian corridor of May Creek as well as throughout the un-surveyed northern portion of the site. Canopy trees within this habitat consisted primarily of relatively young red alder (Alnus rubra) that generally had a diameter at breast height (dbh) of <12". Scattered throughout the alder were larger (>24' dbh) black cottonwood (Populus trichocarpa)_ Conifers on the site were limited to several Douglas fir (Pseudotsuga menziesir) and western red cedar (Thuja plicata) trees along the south-central property boundary (see tree survey). Willow (Salix sp.) was also observed within the wetlands. Canopy coverage throughout most of the forested area appeared to be greater than 80%. Understory and groundcover vegetation at the time of the site visit was generally dominated by Himalayan blackberry (Rebus discolor). Although understory species diversity was low throughout the western portion of the site, it was more diverse in the eastern portion of the property where Indian plum (Oemieria cerasiformis), saimonberry (Rebus spectabilis), red -osier dogwood (Comas sericea), and hazelnut (Corylus comuta) were also common. Habitat features such as snags and downed logs were observed. 2) Monotyaic Himalayan blackberry. This habitat type is found throughout the southwestern portion of the site, and occupies most of the proposed development area. It consists almost entirely of Himalayan blackberry, with a few widely scattered trees and small patches of reed canarygrass (Phalaris arundinacea) and Japanese knot weed (Polygonum cuspidatum). Wildlife species observed during the limited site review included the American robin, song sparrow, black capped chickadee, and black -tailed deer. However, the number of wildlife species that utilize the site is likely much higher than the number actually observed due to the seasonality and secretive nature of most wildlife species. The project site likely provides habitat for a variety of small mammals such as mice, shrews, bats, weasels, and squirrels that are commonly found within primarily forested habitats of the suburban Puget Sound area. Other mammals that likely utilize the site include the raccoon and Virginia opossum. David Parry March 26, 2007 Page 3 Unobserved bird species that likely utilize the property on a regular or occasional basis include the Steller's jay, American crow, winter wren, Bewick's wren, bushtit, dark -eyed junco, spotted towhee, rufous hummingbird, red -breasted sapsucker, northern flicker, hairy woodpecker, and a variety of sparrows, kinglets, warblers, and nuthatches_ Although no raptors or raptor nests were observed during the field investigations, the site is possibly utilized, at least occasionally, by raptors such as the red-tailed hawk, Cooper's hawk, sharp -shinned hawk, western screech owl, barred owl, and bald eagle. Unobserved reptiles and amphibians that are likely to utilize the site include garter snakes (Thamnophis sp.), northem alligator lizard, Pacific chorus frog, and a variety of salamanders. The site is somewhat limited in its value as a wildlife corridor due to its isolation as a habitat area. Surrounding development includes Interstate Highway 405 to the east, warehouses and light industrial t the north, Lake Washington Blvd. N to the west, multi -family residential to the southwest and single-family residential to the southeast. Threatened and Endangered Species and Habitats The Washington Department of Fish and Wildlife was contacted for their Nongame Heritage data and Priority Habitats and Species (PHS) data for the project site and on all adjacent sections. According to this data base system, May Creek contains both anadromous and resident populations of priority fish species. No other state endangered, threatened, or sensitive wildlife species or habitats have been identified on the site, nor were any identified during the field investigations. May Creek As previously discussed, May Creek flows from east to west through the central portion of the site_ May Creek is mapped as a Class 2 stream by the City of Renton. May Creek is also considered a Shoreline of the City and that portion of the creek located on the site has been designated as Urban Environment_ It is my understanding that a minimum setback of 25 feet from the ordinary high water of the creek is required for residential structures within the Urban Environment under the shoreline regulations. It is also my understanding (based on personal communications with the project team) that the City of Renton has confirmed that the shoreline regulations determine the required setbacks from the creek and not the critical areas ordinance. Since the project proposes a 50-foot buffer from the edge of the creek, it would be in compliance with the shoreline regulations. r David Parry March 26, 2007 Page 4 If you have any questions regarding the wildlife habitat assessment, please give me a call. Sincerely, ALTMANN OLIVER ASSOCIATES, LLC John Altmann Ecologist Cc: Jim Hanson r Ilk HETLAND5 AREA HBI / \ AREA= 6043 5.F, r..- \\ 25' WETLANDS `\{\+ BUFFER 50' STREAM BUFFER OUTER EDGE OF I� UNEVENLY -AGED I) �O �� DEGIDUOU5 FOREST 8 50' WETLANDS �` •� �� BUFFER —1 EDSE OF (TTYPICAL) CREEK r Z / - 50' HETLAND5 / r `• , . A . \ \ ♦ BUFFER OUTER EDGE OF ~ + - �� ' . - . ` \ AREA OF 40% OR UNEVENLY -AGED ' -- GREATER SLOPE DEGIDUO05 FOREST 25' HMANDs ~� �. . AREA- 24,543 5P. BUFFER ` HETLAND5 AREA H52 AREA= 3535 S.F. MONOTYPI G HIMALAYAN HETLANDS AREA H133 BLAGKBERRY AREA= 22,92b S.F. AREA OF 40% OR I3 6REATER SLOPE AREA= 1,3W 5.F. ♦ S DRAWN PRO_EGT 50 3447 1 FIGURE i. HABITAT TYPES 1 Altmann Oliver Associates, LLC AOA LK. WA VIEW ESTATES SGAL F pi inm.nc,l PARCEL 322405-408I I••= O, Planing A La hc.,,e RENTON, WA 3/27/O�1 I Architecture REViSFD STArf 0 FrUctim Control Hearings Board o i Shore!Mfs Hearings Board m Oy 3y✓, raae � STATE OF WASHINGTON ENVIRONMENTAL HEARINGS OFFICE _Marline Address: PO Box 40903, Olympia, WA 98504-0903 PhvsicaJ� Address: I I I I Israel Rd. SW, Tumwater, WA 98501 December 22, 2010 Lawrence Warren Brad Nicholson Garmon Newson II 2302 NE 28°i St City of Renton Attorneys Renton WA 98056 PO Box 626 Renton WA 98056 Re: SHB No. 10-016 BRAD NICHOLSON v. CITY OF RENTON Teleohunr: (360- 6641-9160 FAX, (360l 586-2253 Erna& ehrwehov a.�p'. Website:%--el'o. WA gm Dear Parties: Enclosed please find the Order on Summary Judgment of the Shorelines Hearings Board. This is a FINAL ORDER for purposes of appeal to Superior Court within 30 days. See WAC 461-08-570 and 575, and RCW 34.05.542(2) and (4). You are being given the following notice as required by RCW 34.05.461(3): Any party may file a petition for reconsideration with the Board. A petition for reconsideration must be filed with the Board and served on all parties within ten days of mailing of the final decision. WAC 461-08-565. incerely, 4 CLo W Phyllis K. Macleod Administrative Appeals Judge, Presiding PKMIdj/S 10-016 Enc. Cc: Don Bales, Ecology City of Renton Community Development Port Quendall Company CERTIFICATION Alpert International on this day, I forwarded a trve and accurate copy of the documents to which this certificate is affixed via United States Postal Service Postage prepaid or via delivery through State Consolidated Mail Services to the parties of record herein. 1 certify under penalty of perjury under the laws of the State of Washi on that the foregoing is true and correct. pATED , at Lacey, WA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 I8 19 20 21 SHORELINES HEARINGS BOARD STATE OF WASHINGTON BRAD NICHOLSON, Petitioner, V. CITY OF RENTON, Respondent. SHB NO. 10-016 ORDER ON SUMMARY JUDGMENT Petitioner Brad Nicholson filed an appeal with the Shorelines Hearings Board (Board) challenging a Shoreline Substantial Development Permit (SSDP) the City of Renton issued to itself for infrastructure improvements along Lake Washington Boulevard. A portion of the improvements lie within the shoreline of May Creek. Petitioner Nicholson and the City of Renton filed cross motions for summaryjudgment in the case. The Board considering the motions was comprised of Andrea McNamara Doyle, Chair, William H. Lynch, Kathleen D. Mix, Simon Kihia, John Bolender, and Gordon Crandall. Administrative Appeals Judge Phyllis K. Macleod presided for the Board. In deliberating on this motion the Board reviewed the following materials: 1. Petitioner's Motion for Summary Judgment. 2. Declaration of Brad Nicholson with Attachments 1-7. 3. Respondent's Motion for Summary Judgment. 4. Declaration of Steve Lee with Exhibits A-C. 5. Declaration of Suzanne Dale Estey with Exhibits A-B. ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (1) 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 6. Declaration of Vanessa Dolbee with Exhibits A-H. 7. Declaration of Spencer Alpert. 8. Respondent's Opposition to Petitioner's Motion for Summary Judgment. 9. Declaration of Steve Lee in Support of Renton's Opposition. 10. Petitioner Brad Nicholson's Response to City of Renton Motion. 11. Third Declaration of Brad Nicholson. 12. Petitioner Brad Nicholson's Final Reply to City of Renton Response. 13. City of Renton Drawings dated 2/26/10. 14. Respondent's Reply Affirmation. 15. Declaration of Steve Lee in Support of Renton's Reply Affirmation with Exs. A-B. The matter was decided on the record submitted without oral argument. Based upon the records and files in the case, the evidence submitted and the legal briefing, the Board enters the following decision. Factual Background The City of Renton has proposed an infrastructure project adjacent to Lake Washington Boulevard designed to upgrade the roadside area and extend water lines. A portion of the project lies within the shoreline of May Creek, a Class 1 salmon bearing stream and therefore a shoreline substantial development permit is required for the construction. Lee Decl. in Support, Ex. C; Dolbee Decl., Ex. F. The project includes five elements: (1) Curb and Gutter: The curb and gutter would extend on the east side of Lake Washington Blvd. N. from Ripley Lane N. approximately 600 feet south; and curb, DRDER ON SUMMARY JUDGMENT SHB NO. 10-016 (2) r 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 gutter and sidewalk would continue south on the east side of Lake Washington Blvd. N. to connect to the existing bridge over May Creek. (2) Pervious Sidewalk: The sidewalk would be installed from approximately 270-feet north of the May Creek Bridge to the existing May Creek Bridge sidewalk connection. The sidewalk is proposed to be 12-feet wide with a 10-foot landscape strip behind the curb and be made of porous concrete. (3) Stormwater System: The storm water system would collect road, curb, gutter, and sidewalk runoff and provide water quality treatment for a portion of the existing road prior to discharging to an existing storm water system flowing to May Creek. The new storm system would consist of approximately 810 lineal feet of 24-inch storm pipe with a catch -basin collection system capable of carrying traffic loading. (4) Wet Bioswale: The project also includes a wet bioswale, approximately 140 lineal feet (top length) of which will be used to treat a portion of the runoff from Lake Washington Blvd. N. One 20-foot wide gravel maintenance access road is proposed off of Lake Washington Blvd. N. The landscape strip is proposed to terminate just north of the maintenance access road. (5) Water Line: The water line extension consists of the installation of about 1,450 feet of 12-inch water line in Lake Washington Blvd. N. from NE 40`h St. to NE 44`h St. A 100-foot portion of the water line will be installed inside an existing 18-inch steel casing within the May Creek Bridge. ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (3) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Dolbee Decl., Ex. F, p. d. The City's enunciated purposes for the project include reducing flooding, improving storm drainage for the existing roadway, and improving storm water quality treatment to protect May Creek water quality and fish habitat. The water line extension component of the project would provide needed water flow capacity and improved system reliability for fire protection to properties in the vicinity of the Exit 7 area. t Estey Decl., Ex. B, p. 8. Prior to the City of Renton infrastructure project at issue in this appeal, the Petitioner Nicholson was involved in an appeal of the Hawk's Landing Hotel development proposed on a nearby site abutting Lake Washington Boulevard. The Hawk's Landing proposal was the subject of a hearing examiner's decision dated September 10, 2009, that approved a Master Site Plan and Site Plan subject to conditions. Petitioner Nicholson appealed the Examiner's decision to the Renton City Council. The Council adopted the recommendation of the Planning and Development Committee and approved the Master Plan with minor modifications. The Hawk's Landing approval was not appealed to Superior Court under LUPA (RCW 36.70C.040(3)). Dolbee Decl. ¶¶17-18. The Hawks' Landing project was proposed by a private developer, Spencer Alpert, for a 3.07 acre site along Lake Washington Boulevard. Dolbee Decl., Ex, H. The property had been used for decades as industrial land and warehouse space. The site is unused at this time, but was most recently the site of Pan Abode Cedar Homes' manufacturing facility. Estey Decl., Ex. A, p. 3. The hearing examiner decision in the Hawk's Landing case concluded that the hotel project 1 The Exit 7 area refers to the exit number from Interstate-405. Esrey Ded, Ex. B, p. 6. ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (4) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 was not located within 200 feet of May Creek and that a shoreline substantial development permit was not necessary. Petitioner Nicholson contends the City of Renton infrastructure project, which does involve activity within 200 feet of May Creek, is inconsistent with the Hawk's Landing decision. He further asserts that the Hawk's Landing project is so interrelated with the infrastructure project that it cannot be legitimately separated from it for permitting purposes. The permit for the Renton infrastructure project at issue in this case was applied for by the City of Renton as a municipal project funded by a state grant. The City's project creates improvements to the sidewalk, storm water system, and water service that will serve the general public as well as future developments in the vicinity. While the project is for the benefit of the receiving stream and may support future development, it will treat only runoff from the road right-of-way areas. Lee Decl. in Support 1$16-17; Dolbee Decl. ¶10. The City will be constructing the infrastructure improvements for Lake Washington Boulevard whether or not the Hawk's Landing project ever moves forward. Estey Decl. 19. By contrast, the Hawk's Landing proposal is a private commercial project which will be funded by private investment. At this time, Hawk's Landing has not been able to secure financing to proceed with the hotel project. Estey Decl. ¶10; Alpert Decl. If and when the Hawk's Landing project or any other project, moves forward at that site, the project developer will be responsible for satisfying all applicable Renton codes and applicable state laws related to on -site drainage and water runoff. Renton's infrastructure improvement effort is an independent project that does not depend upon ORDER ON SUMMARY JUDGMENT SHB NO. I0-016 (5) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 construction of the Hawk's Landing development and goes beyond serving just the hotel site. Lee Decl. in Support 1¶17-19. May Creek receives runoff flows from a number of named and unnamed streams in its run from Lake Kathleen to Lake Washington. The shoreline designation for the stream is "Urban" west of I-405 and "Rural" upstream of I-405. The creek supports transportation and rearing for most species of salmon and trout in Lake Washington. Spawning habitat for chinook, coho, and sockeye is present upstream of I-405. Lee Decl., Ex. C The City of Renton's Lake Washington Boulevard project at issue in this case is located west (downstream) of 1-405 in the Urban shoreline designation. Dolbee Decl., Ex. A. Fish and wildlife likely to occur on the site would be limited to species tolerant of traffic noise and human presence including deer, opossums, squirrels, rodents, hawks, and a variety of songbirds, crows etc. Lee Decl. in Support, Ex. C. The limited area encompassed by the project minimizes the potential impacts to significant trees. The proposed sidewalk extension and swale will occur along the shoulder of Lake Washington Boulevard where vegetation is limited to primarily grasses, weeds, and Japanese knotweed. The swale may impact a few small alders that are less than 4 inches in diameter. The remaining trees and any on -site wetlands would not be impacted. Id., p. 4. The bed of May Creek will not be disturbed during construction and the City will utilize best management practices to keep any sediment generated by its activities from reaching the stream. Dolbee Decl., Ex. F, p. 2. The construction would not alter May Creek other than improving the quality of water entering the creek from the existing drainage pipe. Lee Decl. in Support � 19. ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (6) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The project's impacts on flow into May Creek were evaluated by Gray & Osborne, Inc., consulting engineers. Lee Decl. on Reply, Ex. A. They concluded that the difference between the existing land use condition and the future land use condition during the same storm would be less than 0.1 cfs. This small difference in flow is considered exempt from flow control requirements under the terms of the governing storm water manual. Id., p. 6; Lee Decl. on Reply, p. 3. The City's project actually has more water quality enhancement than is required under the applicable regulations. Lee Decl. on Reply, pp. 3-4. The project increases the net impervious area by only 1,480 square feet. The governing stormwater manuals have a threshold of 5,000 square feet for requiring water quality treatment. Similarly, the project does not trigger enhanced water quality treatment because the daily traffic count is much less than the 7,500 trips per day that would necessitate such treatment. Nevertheless, Renton has chosen to provide retrofit water quality treatments using the basic water quality treatment menu as recommended by Gray & Osborne. The project will utilize catch basins with sumps to settle solids such as rust or vehicle dust from the runoff. The wet bioswale will further improve the quality of discharges entering May Creek by providing treatment where none currently exists. Lee Decl. on Reply, p. 4. Renton's project meets or exceeds the minimum requirements of the Western Washington Municipal Stormwater NDPES Phase II Permit. Lee Decl, on Reply, pp. 3-4. In addition to storm water improvements, the project will have other benefits to the public. The aesthetics of the roadside area approaching May Creek will be enhanced by filling in the ditch that currently has orange discoloration from unknown sources, without disturbing the ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (7) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 shoreline buffer area. The natural habitat area that contains wetland buffers and the May Creek buffer areas will not be disrupted. The porous concrete sidewalk will provide a safe area from which to view May Creek and will allow improved pedestrian access along Lake Washington Boulevard. The project will improve and stabilize municipal water flow to the area providing better fire fighting flows for the Exit 7 area. Lee Decl., pp 6-7. The Petitioner Brad Nicholson is a resident of the City of Renton who owns property approximately ten blocks from the project site overlooking the May Creek basin. He enjoys walking and biking along Lake Washington Boulevard in the vicinity of the infrastructure improvements. He has recreated on and around May Creek for many years, has observed the May Creek shoreline many times from the May Creek Bridge area, and has seen wildlife using the vegetation in the area for cover. He loves May Creek and purposely invested in the neighborhood when establishing his home. Analysis Summary judgment is a procedure available to avoid unnecessary trials where formal issues cannot be factually supported and cannot lead to, or result in, a favorable outcome to the opposing party. Jacobsen v. State, 89 Wn.2d 104, 108, 569 P.2d 1 l 52 (1977). The summary judgment procedure is designed to eliminate trial if only questions of law remain for resolution. Summary judgment is appropriate when the only controversy involves the meaning of statutes, and neither party contests the facts relevant to a legal determination. Rainier Nat 7 Bank v. Security State Bank, 59 Wn. App. 161, 164, 796 P.2d 443 (1990), review denied, 117 Wn.2d 1004 (1991). ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (8) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 The party moving for summary judgment must show there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Magula v. Benton Franklin Title Co., Inc., 131 Wn.2d 171, 182, 930 P.2d 307 (1997). A material fact in a summary judgment proceeding is one affecting the outcome under the governing law. Eriks v. Denver, 118 Wn.2d 451, 456, 824 P.2d 1207 (1992). If the moving party satisfies its burden, then the non-moving party must present evidence demonstrating that material facts are in dispute. Atherton Condo Ass'n v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990), reconsideration denied (1991). Ina summary judgment proceeding, all facts and reasonable inferences must be construed in favor of the non-moving party. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d 1068 (2002). However, the non-moving party cannot rely on argumentative assertions, speculative statements or conclusory allegations to defeat summary judgment. Traeger v. City of Spokane, SHB No. 07-010 (Order Granting Summary Judgment,. September 25, 2007). The City is challenging Petitioner Nicholson's standing to bring the appeal in this case. The Shoreline Management Act allows any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 to seek review from the Shorelines Hearings Board. RCW 90.58.180 (1). In order to maintain this appeal, an appellant must show that he is an "aggrieved person" within the meaning of RCW 90.58.180, The term "person aggrieved" has been interpreted to include anyone with standing to sue under existing law. Anderson v. Pierce County, 86 Wash. App. 290, 299, 936 P.2d 432 (1997). This requires the appellant to show that he has suffered an injury in fact within the zone of interests ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (9) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 protected by the statute and that the Board has authority to redress the injury suffered. CORE v. Olympia, 33 Wash. App. 677, 657 P.2d 790 (1983). Alexander v. City of Port Angeles, SHB Nos. 02-027 & 02-028 (Order on Summary Judgment, March 13, 2003). "To show an injury in fact, the plaintiff must allege specific and perceptible harm." Suquamish Indian Tribe v. Kitsap County, 92 Wash. App. 816, 829, 965 P.2d 636 (1998). The "injury in fact" test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself (or herself) among the injured. Lujan v. Defenders of Wildlife, 504 U.S. 555, 563, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992). A party asserting general enforcement of a statute does not have standing unless he or she is "perceptibly affected by the unlawful action in question." Id. at 566. Moreover, no standing is conferred to a party alleging a conjectural or hypothetical injury. Snohomish County Property Rights Alliance v. Snohomish County, 76 Wash. App. 44, 53, 882 P.2d 807 (1994). To adequately evaluate Petitioner NichoIson's standing, it is important to delineate the proper scope of the matter before the Board for decision. The permit on appeal to the Board is the City of Renton's application to construct infrastructure improvements along a portion of Lake Washington Boulevard, including a wet bioswale treatment facility for runoff collected from the project area. The Board will examine whether the City's shoreline substantial development permit (SSDP) approval for the project is consistent with the Shoreline Management Act (SMA) and the local Renton Shoreline Master Program (RSMP). The Board does not have any other permit before it for review and will not engage in substantive analysis of permits issued to proponents of other projects such as the nearby Hawk's Landing Hotel ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (10) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 proposal. Petitioner Nicholson's standing and interests at stake must be based on injuries arising from the permit issued to the City of Renton for infrastructure improvements. Petitioner Nicholson contends the Board can, and should, consider the terms of the Hawk's Landing Master Plan in this case on the basis that the Hawk's Landing Project and the Lake Washington Boulevard infrastructure improvements are essentially one project that must be considered together for permitting purposes. He claims that the City has improperly engaged in piecemeal review of the overall development. The Board has recognized the concept of piecemealing under shoreline regulations as well as under the State Environmental Policy Act (SEPA). Valero Logistics Operation LP v. City of Tacoma, SHB No. 06-001 (2006); Guon v. City of Vancouver, SHB No. 93-53 (1994). However, in this case, Petitioner Nicholson has failed to make a case for piecemealing. He has not alleged facts that demonstrate the specific activities authorized by the City's infrastructure improvements project will coerce decision -makers to approve future permit applications. Nor has he presented any convincing argument that approval of this permit, or the installation of the infrastructure improvements it authorizes, will in any way compromise full environmental review of any future development proposals. The prohibition on piecemeal review is designed to avoid artificial divisions of a project undertaken to avoid meaningful and comprehensive review: As the court observed in Merkel v. Port of Brownsville, 8 Wn. App. 844, 850-51, 509 P.2d 390 (1973): The question, therefore, is whether the port may take a single project and divide it into segments for purposes of SEPA and SMA approval. The ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (11) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 frustrating effect of such piecemeal administrative approvals upon the vitality of these acts compels us to answer in the negative. In this case, the details of future development in the Exit 7 area are largely unknown. The Hawk's Landing Hotel may or may not proceed to construction. Other unoccupied property in the area is open to future development proposals. The infrastructure improvements proposed by the City will benefit the existing roadway and may benefit other projects developed on adjacent property in the future. The Board has viewed infrastructure improvements as a preliminary step to development in an area, rather than impermissible segmenting. In a case challenging infrastructure improvements proposed by the Port of Olympia as piecemealing, the Board observed: The details of any future development on the parcels being created by the Port's short plat are largely unknown at this time. While the Port of Olympia short plat may be a necessary first step in redeveloping the area, the infrastructure work authorized by this permit is more appropriately viewed as a preliminary phase of re -development rather than an impermissible segment of a single, complete, or comprehensive development proposal. West v. Port of Olympia, SHB No. 08-013 (Order of Dismissal, November 17, 2008). Likewise, in this case the infrastructure improvements being proposed by the City will serve whatever development is constructed in the area. The City contends Petitioner Nicholson has failed to establish a concrete and personal interest in the project area that would be harmed by the infrastructure improvements. Petitioner Nicholson responds with a description of his long-time residence in the area and his ongoing use of the May Creek area generally, and the project site specifically, for recreation, observation of ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (12) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 wildlife, enjoying the shoreline aesthetic, and possibly fishing. The City claims Petitioner Nicholson cannot establish standing because he does not own property immediately adjacent to the project site, citing Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). The Board has generally construed the SMA broadly when parties attempt to bring shoreline -related environmental issues before it, consistent with the Legislatures' directive that the Act "be liberally construed to give full effect to the objectives and purposes for which it was enacted." RCW 90.58.900. The Board has recognized that the objectives of the SMA are broad and that the types of interests protected are diverse. Recreational use of the shoreline by nearby residents formed the basis for the appellants' standing in West v. City of Olympia, SHB No. 08- 013 (Order on Motions for Summary Judgment, November 17, 2008). Other cases have accepted interests in both private and public views of the shoreline as a basis for demonstrating standing. Leider v. Point Ruston LLC, SHB No. 09-005 (2009); Alexander v. Port Angeles, SHB Nos. 02-027, 028 (Summary Judgment, March 13, 2003). The Board is not persuaded that standing in a shoreline case is limited to persons holding a property interest in adjoining parcels. The Cowiche Canyon Conservancy v. Bosley 118 Wn.2d 801, 828 P.2d 549 (1992) case does not establish a rule that only adjacent property owners can meet the test for standing in a shoreline case. The Cowiche Canyon case involved issues arising under RCW 90.58.230 which addresses private parties bringing suit for damages to private property resulting from shoreline act violations. Under the unique facts of that case, property ownership was central to determining standing. However, the Cowiche Canyon decision does ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (13) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 not purport to state a rule limiting standing to those persons owning adjacent property for shoreline permits appeals brought under RCW 90.58.180. Under the Board's long standing interpretation of the SMA, Petitioner Nicholson has enunciated the type of recreational and view interests that can give rise to standing in a shoreline appeal. In order to establish standing, however, an appellant must allege facts demonstrating that his legitimate interests protected by the SMA will be injured by the proposed action. As the court stated in Trepanier v. City of Everett, 64 Wn. App. 380, 382, 824 P.2d 524 (1992): Second, the petitioner must allege an "injury in fact," i.e., that he or she will be specifically and perceptibly harmed" by the proposed action. Save a Valuable Env't, 89 Wash.2d at 866, 576 P.2d 401; Concerned Olympia Residents v. Olympia, 33 Wash.App. 677, 683, 657 P.2d 790 (1983); Coughlin v. Seattle Sch. Dist. No. 1, 27 Wash. App. 888, 621 P.2d 183 (1980). In order to show injury in fact, Trepanier must present facts that show he will be adversely affected by Everett's decision not to prepare an EIS. His "affidavits [must] collectively demonstrate sufficient evidentiary facts to indicate that he will suffer an `injury in fact' ". Concerned Olympia Residents, 33 Wash.App. at 683, 657 P.2d 790.... If the injury is merely conjectural or hypothetical, there can be no standing. United States v. Students Challenging Regulatory Agency Procedures (SCRAP); 412 U.S. 669, 688-89, 93 S.Ct. 2405, 2416-17, 37 L.Ed.2d 254 (1973). Petitioner Nicholson has failed to allege such facts evidencing concrete injury. In attempting to demonstrate standing, Petitioner Nicholson argues that the project will harm a number of his identified interests including: (1) injury to May Creek, (2) injury to vegetation in the shoreline, (3) harm to wildlife and habitat, (4) harm to water quality of May Creek, (5) harm to recreation and aesthetics, and (6) harm to Petitioner Nicholson's ability to comment on a complete project and have the shoreline regulations applied to the complete project. Petitioner Nicholson's ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (14) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 asserted injuries are speculative and conjectural and the facts he alleges fall short of establishing a personal, immediate and concrete injury from the City's project. Any suggested injury to May Creek is speculative and unsubstantiated. Petitioner Nicholson has failed to allege any evidentiary facts demonstrating harm to May Creek and relies on conclusory statements of harm. The City's project would not alter the bed or bank of May Creek. Stormwater collected and treated as part of the project would enter the Creek through an existing pipe. Excavation would not be conducted in the Creek and steps would be taken to prevent sediment generated by off -creek excavation from reaching the Creek. The City claims it is not altering or changing May Creek and Petitioner Nicholson has not alleged any facts showing otherwise. The impacts on vegetation in the area are minor. Much of the existing vegetation is non- native material and few trees of significant size will be removed. The vegetation impacted will be along the roadway and at the site of the wet bioswale. The City has acknowledged that existing regulations require it to replace vegetation that is removed. The project documents indicate that vegetation along the bank of May Creek will not be disturbed. The temporary impact on vegetation during construction does not rise to the level of a concrete injury and the replacement vegetation would be an improvement rather than an injury. Petitioner Nicholson has not alleged any facts supporting an injury to vegetation in the shoreline. Petitioner Nicholson raises the general issue of injury to habitat and wildlife in the project area. He has observed wildlife near May Creek at times over the years. The Gray & Osborne Inc. report for the project noted the presence of wildlife tolerant of urban conditions. Lee Decl. ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (15) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 in Support, Ex. C. The project site is primarily composed of road right of way abutting a former industrial site with extensive paving. The primary source of habitat and cover for wildlife is in water or near the banks of May Creek. The project will not physically disturb the water in May Creek. Project specifications show anticipated flow is very close to existing conditions and the water enters the stream at the same location through the same pipe. As to vegetation benefitting wildlife, the project site will have vegetation planted as part of the construction, so cover for wildlife will not be eliminated as a result of the project. In fact, the bioswale may create new habitat for certain different types of wildlife in the area. Petitioner Nicholson makes only speculative and conclusory allegations of injury to wildlife and habitat. He has not alleged facts showing a specific and concrete injury. Petitioner Nicholson's claim that the project will harm water quality in May Creek is, likewise, speculative and unsupported by factual allegations demonstrating harm. Water from Lake Washington Boulevard currently flows untreated through a ditch to a pipe discharging into May Creek. After construction of the project, runoff will be collected and treated in a wet bioswale before flowing through a pipe into May Creek. Petitioner Nicholson claims other forms of treatment would be possible or preferable. He does not, however, make any factual allegation that the project allowed by the permit will degrade the water quality over the current conditions. The City, on the other hand, has submitted factual evidence that the project will enhance the quality of water entering May Creek. The overall impact of the infrastructure improvements is to treat runoff water that has not been treated in the past, before it is discharged to May Creek. The Board has recognized this type of overall improvement to the quality of an ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (16) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 existing discharge as a positive step under the SMA rather than a source of concrete injury. McCoy v. Kitsap County, SHB No. 07-031 (2008). Petitioner Nicholson argues that the project will injure his interest in aesthetics and recreation in the May Creek area. The allegations of injury are speculative and based, in part, on inaccurate interpretation of the project impacts. The sidewalk improvement that is contained in the project will enhance rather than detract from public recreation in the area. Members of the public will have safer and better access to the May Creek Bridge and the viewing opportunity it provides of May Creek and its surrounding vegetation and wildlife. None of the infrastructure improvements will limit existing public access to the shoreline. Water quality will not be diminished, so existing water related uses will continue unabated. The recreational and aesthetic opportunities at this point in the May Creek Basin are already somewhat limited by private property ownership and the urban nature of the project's location. Impacted vegetation will be replaced with appropriate and aesthetically pleasing plantings. Petitioner Nicholson simply has not alleged any fact showing that the City's project will cause a meaningful injury to recreation or aesthetics at the site. If anything, the existing recreational and aesthetic environment will be improved by construction of the infrastructure project. Petitioner Nicholson further maintains that he is injured by the infrastructure project because he has been deprived of the opportunity to comment on and seek enforcement of shoreline regulations on a complete project. He insists that the infrastructure improvements are inextricably interconnected with the Hawk's Landing Hotel project which was proposed for ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (17) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 property adjacent to parts of the infrastructure improvements,2 Petitioner Nicholson stresses that the Hawk's Landing Hotel master plan indicated that the runoff from that project would go into a roadside ditch and on into May Creek. He contends that the Hawk's Landing project stated that no work would be conducted within 200 feet of the shoreline and that the City's project should not be allowed because it conflicts with that restriction on the Hawk's Landing development. Petitioner Nicholson contends the full scope of the project has been segmented in violation of the SMA's policy against piecemeal shoreline development. As a corollary, he is convinced that the infrastructure project will coerce future development in the area because future projects would be required to use the infrastructure improvements and choices for layout (such as the contemplated foot trail along May Creek) would be limited by the presence of the wet bioswale. As the Board held above, the proper scope of review for the present appeal is limited to whether the City's infrastructure improvement project complies with the SMA and the Renton SMP, not how it relates to the prior approval provisions for a separate private development. The infrastructure proposal is a stand-alone project that does not depend upon the fate of the Hawk's Landing Hotel. The improvements will be located primarily on City road right of way and not private property. The City's permit is a public project benefitting a much wider audience than the private developers of a hotel project that may or may not be built. Petitioner Nicholson has had a full opportunity to comment on and/or appeal both the Hawk's Landing project and the City's infrastructure project. The fact that they are separate A portion of the wet bioswale may be located on property included in the proposed hotel parcel. The City has apparently obtained rights to use a small part of that property for its proposed infrastructure improvements. Dolbee Decl. ¶10. ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (18) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 undertakings with separate permitting requirements has not injured his rights to have shoreline law considered and applied to each of the proposals. Petitioner Nicholson has also failed to allege facts demonstrating that the present project would prevent him from participating in consideration of future applications arising in the area. If the City's infrastructure project is completed, future development proposals will still need to obtain required shoreline approvals and Petitioner Nicholson's ability to participate in that process will not be impeded by the approval of the present project. Despite raising potentially valid interests in the shoreline of May Creek, Petitioner Nicholson's factual allegations do not demonstrate the concrete injury to his asserted interests necessary to establish standing. Accordingly, the City's Motion for Summary Judgment based on lack of standing should be granted and the Nicholson appeal dismissed. Given the Board's decision on standing, it is not necessary to rule on the other arguments raised in the motions for summary judgment. Based on the foregoing analysis, the Board enters the following: ORDER Petitioner Nicholson lacks standing to bring this appeal and the case is, therefore, DISMISSED. Done this n` day of2c!�inLh� , 2010. SHORELINES HEARINGS BOARD ANUKLA� MC�NAMAIZA 9PYLE, Chair WILLIAM H. LYNCH, M ber ORDER ON SUMMARY JUDGMENT 51-113 NO. 10-016 (19) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 KATHLEEN D. MIX, Member Pal. 4��tiJ K�. SIMON IHIA, Member ORDER ON SUMMARY JUDGMENT SHB NO. 10-016 (20) ;Gy f 2 3 4 3 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Motion for Summary Judgment November 27, 2010 Without Oral Argument BEFORE THE SHORLINES HEARINGS BOARD IN AND FOR THE STATE OF WASHINGTON In re the appeal of Renton's Shoreline Case NO. SHB#10-016 Substantial Development Permit LUA10-041, BCM, SM, Brad Nicholson, Declaration of Steve Lee in Support of Renton's Reply Affirmation (Declaration of Appellant, Steve Lee III). V. CITY OF RENTON, Respondent. Steve Lee hereby declares under penalty of .perjury, pursuant to the laws of the State of Washington that the following is true and correct to the best of my knowledge: 1. That I am over 18 years of age and am competent to testify in this matter. Declaration in Support —Page 1 ��Y G Renton City Attorney 100 S 2"d St is PO Box 626 * Renton, WA 98057-0626 Phone: 425.255.8678 �NT0 Fax: 425.255.5474 1 2 3 4 6 3 11 _2 13 14 15 16 17 -Q ZC L , 22 23 24 25 2. 1 have previously provided my education and experience information in the Declaration of Steve Lee in Support of Renton's Motion for Summary Judgment under CR56 Motion, and I respectfully ask this board to continue to rely on that declaration. 3. Attached hereto as exhibits are true and correct copies of the following: a. Gray & Osborne Hydrologic and Hydraulic Analysis Report (G&O H/H), by Gray & Osborne, Inc., (hereinafter "ExhibitA"); b. 2009 King County Surface Water Design Manual (2009 Design Manual), (hereinafter "Exhibit B"); c. Notice of Application and Proposed Determination of Non -Significance (DNS) (hereinafter "Exhibit C'); 4. Petitioner repeatedly claims that I have made false and inaccurate statements about the technical merits of the Lake Washington Boulevard project (LWB) without identifying a justifiable, reliable, factual, or scientific piece of evidence. 5. For the purpose of refuting and clarifying some details I am submitting this I declaration. 6. Petitioner misleads the SHB by claiming that "The bio filtration swale proposed is not approved by the 2005 manual to remove metal or dissolved pollutants. The project increases water flow into May Creek according to the City's own calculations."' 7. While the LWB project does increase surface water runoff into May Creek, the increase is less than 0.1 cfs for the 100 year peak flowrate between the existing and proposed project conditions, and therefore is within the City's discharge threshold limits. 8. According to the adopted 2009 Design Manual with City Amendment - Petitioner Brad Nicholson's response [sic] to City of Renton Motion for Summary Judgment dated 05, November, 2010, (hereinafter "Response", p. 3 I. 25). Declaration in Suppo-t — Page 2 y G Renton City Attorney 100S2n"St PO Box 626 + „i + Renton, WA 98057-0626 Phone: 425.255.8678 ��NTO Fax: 425.255.5474 requirements as specified on page 1-34 of the City's 2009 Surface Water Design Manual, this project is exempted from needing to provide for flow control. 9. Incredibly, Petitioner fails to mention this is stated in the G&O H/H,z and the 2009 Design Manual, Section 1.2.3.LA. 10. Furthermore, Petitioner claims that I failed to incorporate a "recommended" water quality treatment option as mentioned within the G&O H/H Report.3 Petitioner again misleads the SHB and attempts to discredit my experience by withholding key information provided by professional consultants. 11. The G&O H/H report, consistent with the Department of Ecology's (Ecology's 200S Stormwater Management Manual), and Renton's manual (2009 Surface Water Design Manual) that follows the latest King County manual (2009 King County Stormwater Manual) and has been deemed equivalent to the 2005 Ecology Stormwater Management Manual, states that the project is not required to provide a water quality facility since the total net increase of impervious area is 1,480 square feet. 12. The manuals state that the threshold to treat new and replaced impervious pollution generating surfaces is 5,000 square feet, with utility trenches and overlays not included in the "replaced impervious surfaces" definition. 13. The LWB project has followed and exceeds the minimum requirements administered in accordance with the Western Washington Municipal Stormwater NPDES ' Exhibit A p. 6. Response, p. 4 I. 4. Declaration in Support — Page 3 Renton City Attorney �j 100 S 2nd St e. PO Box 626 „i Renton, WA 98057-0626 �j Phone: 425.255.8678 `�N�� Fax: 425.255.5474 2 3 5 6 7 8 9 I 10 �i -2 13 14 i6 i7 i 8 i0 20 21 22 23 24 25 Phase Il Permit as required by the Federal Clean Water Act. 14. The LWB project does not trigger enhanced water quality treatment since the average daily traffic count (ADT) is much less than 7,500 trips per day for this project location. Even though this project is not required to treat runoff, the applicant is choosing to provide retrofit water quality treatment using the Basic water quality treatment menu as recommended by G&O and the manuals. Among the basic water quality treatment options recommended is a wet bio Swale that lends itself to an 'open' and aesthetically pleasing wetland type facility within the 200 feet shorelines area as opposed to a facility that is difficult to inspect or maintain. 15. The net result of the LWB Project on water quality will be improved discharges into the creek where there is currently no treatment occurring. DATED THIS 29 November 2010 RENTON, WASHINGTON. Declaration in Support — Page 4 CITY OF RENT TON Steve Lee Civil Engineer, P.E. City of Renton -Y G Renton City Attorney 100 S 2n' St z% PO Box 626 Renton, WA 98057-0626 Phone: 425.255.8678 Fax: 425.255.5474 2 3 4 5 6 7 8 BEFORE THE SHORELINES HEARINGS BOARD IN AND FOR THE STATE OF WASHINGTON In re the appeal of Renton's Shoreline Substantial Development Permit LUA10-041, ECM, SM: Brad Nicholson, Petitioner, 9 V. 10 City of Renton 11 Respondents. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Case No: SHB I0-016 Petitioner Brad Nicholson's response to City of Renton Motion for Summary Judgment dated 05, November, 2010 Response to (1) Renton asks for dismissal of the appeal in its entirety, based upon misconstruction or misinterpretation of existing case law and code and statute and asks for dismissal of additional issues that are not the issues stated in the pre -hearing order. The City incorrectly bases its request to dismiss on lack of Standing on the misconception that it be essential that Petitioner own property immediately adjacent to the site, does not identify the magnitude and frequency of the injury in fact, and that no proceedings are improper and all o the design work and processes are appropriate. If true facts be told, May Creek is a very important part of the community where Brad Nicholson resides and is ultimately very important to Brad Nicholson. He uses it frequently. Brad Nicholson owns property and resides less than a half mile upstream of the project immediately adjacent to May Creek and uses and enjoys the area of the development. And the harm that Brad Nicholson alleges is indeed impacts to visual amenities and fish and wildlife that are symbols of environmental quality in his community. The City violates RCW 90.58.020 and Renton's Shoreline Management plan in numerous respects. The City is not entitled to Summary Judgment in this case. Brad Nicholson is entitled to reversal of the'permit captioned above for compliance with the SMA. Response IPage 1 of 23 Brad Nicholson 0 M 2 3 4 5 6 7 8 9 10 11 12 13 14 15 w 16 17 18 19 20 21 22 23 24 25 26 27 28 Response to (2) I I This response is drafted on the same form that was and the issues and the facts that were shown on its to the Board for review in the original PFR, declaration. The City has attempted to I I change the issues in this motion. The main reason f¢r the change of issues is that the City want to avoid i I review of any and all facts related to Hawks Because the City has not addressed their haphazard plans, or addressed the incomplete and conflicting nature of their plans, there can be no summary judgment in their favor. Evidently, the City relies exclusively on its standing argument. Even I though interests that are within the SMA are before the Board and Brad Nicholson has alleged injury in fact to those interests, Brad Nicholson responds by setting forth specific facts proving genuine standing issues exist for hearing, making dismissal for lack of standing unjustifiable. Brad Nicholson has alleged concrete, specific, and perceptible harms in the PFR. He has also established facts proving standing in third declaration of Brad Nicholson. I I Response to (3) Counsel for the City has not transferred the issues into the Motion from the pre hearing order. The issues posited here do not read the same, and have substantial differences Additionally, the City Council did not approve the Shoreline development permit as alleged in their motion. Chip Vincent 1d. Petitioner supplied a copy of the receipt from the City Clerk for the reproduction of Renton's Shoreline Management Plan that was used to frame the issues. It was in the original list of exhibits and was the Idocument used to frame the issues. The City change of issues is untimely. Perhaps the City is using a different version of the Plan. Perhaps the City Clerk supplied the wrong shoreline plan. In any event, if the City wanted to change the issues, it should have requested the changes prior to the time that the pre hearing order was issued. The City had ample time to do it. All of the information was included the PFR. Response Brad Nicholson Page 2 of 23 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Response to (4) The exhibits presented are numerous, however there are quite a few factual allegations contained in the declarations that are not true. The evidence proving it is contained in the City documents and exhibits. As an example, Vanessa Dolbee in no. 16 of her declaration, states the opposite of what she stated on the face of the Permit and its supporting documents. The Storm water swale is taking place on the property of the Hawks Landing project and will be connected to the project and other unidentified projects taking place on the property; structurally, by pipe, and in conflict with the project Master site plan and site plan approvals that were decided by the Hearing Examiner because of her testimony. It is already final under Samuels Furniture along with the facts that standing is established in the Hawk's Landing case. On no. 7, she incorrectly states that petitioner is misleading and incorrect, the reason being that because she does not mention that she is one of the parties that is responsible for creating the most misleading and impossible for the City to resolve issues of all in this case. She said that "all of Hawk's Landing would be farther than 200 feet from the May Creek ordinary high water mark" Before the Hearing Examiner, she testified under oath that "all of the development is outside the 200 foot area" see page 2 of the HEX report Hawks Landing. Vanessa Dolbee needs to revise her testimony as to who is misleading in this case. It is not Brad Nicholson. It is her. Now they are bulldozing a storm water facility on the area within 40 feet of the Creek. Further, Steve Lee has evidently not read the statement of issues or read the proper sections of the SMP. He evidently does not construe the meaning of the word "maintained" contained in Renton's Shoreline management plan. The fact that he attributes the orange biological scum to vehicles and not the huge rusted metal building on the site further illustrates the need for the enhanced basic water quality menu to be used. May Creek has a metal problem that is due consideration. See Petitioners exhibits 4, 9, 10, PFR. Steve Lee is the applicant for the project and the Environmental Checklist page 7 incorrectly states that r threatened or endangered species are known to be on or near the site=Thatistrue. Steve Lee being the applicant, was the party that filled out the Environmental checklist so carelessly. The bio filtration swale proposed is not approved by the 2005 manual to remove metal or dissolved pollutants. The project increases water flow into May Creek according to the City's own calculation. See the SEPA Environmental checklist page 4. Water flow to May Creek attributable to the site will be increased arc 8 % thereby altering stream flow according to his present calculation. Presently, 57.2% is impervious, Response Brad Nicholson Page 3 of23 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 f 1 61.9% impervious has been approved in violation of the Shoreline management plan prohibition on Stream alteration. Further, he probably does not take into account the future development that will further strip the site of vegetation. The increases in flow are prohibited by Renton's Shoreline plan regulations concerning stream alteration and he doesn't know what will be developed in the future: He ignores the recommendations contained in the Gray and Osborn study recommending that a Storm filter CF be used to preserve land area and treat runoff for metal and dissolved pollutants on the shoreline and instead advocates getting the bulldozer out for the shoreline vegetation and reproducing and replacing a swale that is no more effective than what is already existing. Steve Lee approves of such a project when there is very nearly 4.5 acres of featureless development abutting the facility that will drain into his project and he does not even know what the character of that development will consist of. They could ask for the facility to be located elsewhere on that 4.5 acres. See petitioner's Motion for summary Judgment. He does not even know if Hawk's Landing will take place and considers the storm water facility to be per code without review of a site plan. He is disregarding and disposing of previous and final Master and site planning. The entire site is most likely and probably going to be used as a large parking lot for Seahawk games. This fact is not on the plans. One area of concern where he is correct in this case, is that Quendall Terminals is not any issue with water flow anymore. He has now designed the project so that every drop of water from whatever development occurs from the entire site, will go directly by surface flow to May Creek and onto Salmon that rely on the Creek for survival. Steve Lee never made any review of a definite, actual project to make his declaration. Response to (5) (A) The full size drawing of the storm water facility is much easier to read and shows the project is not "roughly the area of a sidewalk" The storm water facility can be scaled to be 60 by 175 feet with cut and fill of 5000 cubic yards. It can not be built without clearing more area than that. They will need to bulldoze and/or excavate to a point 30 feet from May Creek, and 70 or 80 feet in. Those are not the dimensions of a sidewalk. The sidewalk is unjustifiably permitted here in the place where the ditch was supposed to remain. The swale is evidently being moved to facilitate another access road into the featureless portion of the site for the future undisclosed development. The City or someone else probably knows what it is but will just not disclose it. This project would permanently block areas that quite possibly are the best locations to connect to the May Creek trail and while at the same time alter the Response Brad Nicholson Hue) �t wit 46� VW"-%L - Ova R"J� pa s Cc� ,lUe>� Dvv Page 4 of 23 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 esthetics and view to the detriment and damage of Brad Nicholson. Wildlife enjoyed use the area for cover and that cover will be removed to build the utilities infrastructure on the shoreline of May Creek. Stripping the area will obviously affect the biodiversity of the shoreline. The view of the area will then not be the pleasant break but a storm water facility, and blocking the area from connection to May Creek trails plan, and replacing the natural area with a huge pit and a view of whatever other development m occur on the adjacent property. (probably a parking lot for football or retail tax generating development) There is no way anyone can say that the action would enhance the natural characteristics of the shoreline. With the storm water facility located as depicted, the trail would need to be within 30 feet of the ordinary high water mark even if it was right up to the swale access road. Contrary to accusations, the trail that is alleged to be "coveted" by the Petitioner would in all likelihood be too close to May Creek in certain areas of the shoreline including that area in the estimation of Brad Nicholson under what has been incorrectly permitted here. The trail location, like the storm water facility location, should be considered and determined free of coercion from pre established parameters. They are trying to argue that the facts indicate that no standing facts are present but that the area is coveted by Brad Nicholson. That is not consistent with the allegations offered by the City with regard to standing. j Information on the various projects is undisclosed and therefore it is impossible to make a determination or comment as far as how the trail might be designed and harmonized with other development that may or may not occur in the area. Evidently, the City is saying that it is appropriate to do the design of the connection to the trail last and bulldoze the Storm water area first. That is where the problem is. They still do not understand the fact that it is necessary to prioritize the features to implement water related use and protect the ecology and wildlife and vegetation and other requirements according to RCW 90.58.020 in the context of the entire plan and a complete application. This is not a SEPA appeal for a single unlawful segment of the total project. If the City wants others to believe that the project is not tied to Hawk's Landing then either revise Hawk' Landing or withdraw it. The two projects are not compatible right now so it can not proceed. The SMA is not amenable to speculation as to the type and character of a project. The City is proceeding even though they do not even know what they are doing. Response Brad Nicholson Page 5 of23 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2s Response to (6) (A)i The question that the City posits here is not the true issue that is before the Board. The issue as stated on the prehearing order is as follows: Issue no 1: Whether the permit decision should be reversed because it is inconsistent with Renton Shoreline Master Program Urban Designation regulations § 5.03.01(D) reading as follows, "To enhance waterfront and ensure maximum public use, industrial and commercial facilities shall be redesigned to permit pedestrian waterfront activities" and, "Where practicable, various access points ought to be linked to non -motorized transportation routes, such as bicycle and hiking paths" City inaccurately accuses petitioner of intentionally altering the meaning of the Shoreline management plan. The City has altered all of the issues to try to create a false impression. There has never been any attempt in this permit to redesign to permit pedestrian waterfront activities. A copy of the shoreline management plan and receipt was included with the PFR and marked exhibit 5. Evidently there is more than one plan document and the reason why the wording is somewhat different is because the City provided a different document. The City should have objected to the wording in the issues sooner. They have known about the copy of the shoreline plan that was used ever since it was served on them. The issue that is in the pre hearing order is the issue. If the City wanted to appeal the statement of issues based upon the wrong SMP being used the appeal should have been made at the appropriate time. The City now states that they plan to acquire property for the trail but they are going to try to do it later if it is possible. That is totally inconsistent with Renton's Shoreline Master Program. Evidently, they will also contend that they need to dictate its location and situation at that later stage without ever considering the environmental effects of its location or features. It would either need to go 30 feet from May Creek or 21( feet from the Creek. There would be no consideration of any other distance or layout. There is no evidence available in the record to indicate that the project has been redesigned to permit pedestrian waterfront activities, and therefore, the permit should be reversed for compliance. Response Brad Nicholson Page 6 of 23 2 3 4 5 6 7 8 9 10 I2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (A) ii Again the issue is not the same. However in this issue the main point has been stated so that it is has the same element as what is stated in the pre hearing order. The issue is as follows: Issue no 2: Whether the permit decision should be reversed because it is inconsistent with Renton Shoreline Master Program Utilities Landscape Native Vegetation regulations § 7.19.01 (A) (1) reading as follows, "The native vegetation shall be maintained whenever possible" The construction of a municipal ordinance is construed using the principles of statutory construction. The same rules apply to a municipal ordinance as do they apply to a statute. See World wide video v. City of Tukwila 117 Wn. 2d at 382. Statutes must not be construed to render a provision superfluous or meaningless. There is no need to construe unambiguous statutes. See State v. Silva 106 Wn. App. 586. A dictionary is used to ascertain the meaning of ordinary words. See Weyerhauser v. Pierce County Health Department 123 Wn. App. 59 Black's Law Dictionary (revised 4`h edition) defines the word "maintained" as follows: carried on, kept possession of; to hold possession of, to keep effectively; Similarly, Black's Law dictionary defines "maintain" citing Maryland Casualty Company v. City of Seattle 11 Wash. 2d 69, Maintain, is defined as its structure indicates, it signifies literally to hold by the hand. It means to keep up preserve; preserve from lapse; provide for rebuild, repair, or replace; In the negative sense it is defined as not to lose or surrender; not to suffer or fail or decline; Websters Dictionary (ninth collegiate) defines "maintain" as follows: To keep in an existing state; preserve from failure or decline; to sustain against opposition or danger; uphold and defend; to support and provide for; The area at issue on the Shoreline where the storm water facility is proposed has at least 20 trees that are proposed to be cut including alder and maple trees, a half a dozen of them are 10 -12 inches in diameter Response Brad Nicholson Page 7 of 23 1 2 3 4 5 6 7 8 9 ]0 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 that should be defended "whenever possible" That is fact. Specifically, where vegetation that is growing, reproducing itself naturally in the area and belonging to the area and living and growing in the area it must be carried on, kept from danger, in its existing state and against decline, while being defended, "whenever possible" This project does not even know what the layout of the adjacent 4.5 featureless acres will be or how the entire project might be harmonized. Since locating the facility elsewhere is not impossible and the provisions of the SMP have not been followed, reversal of the permit is appropriate. "The native vegetation shall be maintained whenever possible" does not mean to take a Track -Hoe and excavate a 10,000 square foot pit to install a storm water swale and cut down all of the trees and vegetation because it is thought by a City Engineer to be better to make his own ultimatum. There are less consuming types of menu features or locations that could be used. It is especially egregious when it is not even known who the adjacent area development will consist of or how another scenario might be laid out. The trees use a lot of water that would be diverted to May Creek. It is entirely possible to locate the facility elsewhere or use a feature that does not use so much of the vegetation for its existence. See Gray and Osborn recommendation dated April 13, 2010 at 15. That is a City exhibit. Steve Lee erroneously believes that preserving alder and maple trees and other vegetation does not have any possibility on the shoreline. He !just dictates how to fast track the project through. He erroneously believes that the storm water facility takes priority without looking at any number of other possibilities, or knowing how the total layout of the site will eventually look. Petitioner has never said that the shoreline area could "never be touched" However, it seems clear that not knowing what they are doing the project for, or how it will be laid out, justifies holding off on the lay -out until the proper planning has been accomplished by obtaining the necessary information that would be sufficient to carry out the SMA and maintaining the native vegetation "whenever possible" In this sense, not "touching" the area would be prudent especially that is really what the City originally said that they would ensure. The City and Spencer Alpert are the parties that have stated that the area would "not be touched" and that virtually "all" development would be outside of the 200 foot line in previous and final plans. The City should not be able to change position from one segment to the next. They could use an underground facility from the menu and place it in the Response Brad Nicholson Page 8 of 23 1 2 3 ra 5 6 7 8 9 10 11 12 13 14 15 16 17 Is 19 20 21 22 23 24 25 26 27 28 parking lot on the future development, or use the same feature set back a larger distance. There is nothing proposed there right now. In any event, the permit will need to be reversed for further planning. (A) iii. Steve Lee argues that the metal problem with May Creek is with the road and not with the huge rusting zinc galvanized buildings. However the City's answer states that one of the large buildings determined to remain is not the subject of any development application and that Hawk's Landing is speculative at best. Perhaps the City should think about requiring the deteriorating buildings to be removed. They are a nuisance. There is a metal problem no matter how the City decides to argue now so they may as well demand removal of the buildings in a new application and use the proper menu. The KCSWDM recognizes that the "swale" that is proposed does not effectively remove metal or anything dissolved and outlines the type of facilities that do. But, as Steve Lee argues, the metals problem comes from the cars and not the buildings. Just because the City does not want to spend the extra effort to comply with the requirement to reduce pollution discharges to the maximum extent practicable does not mean that the provisions do not refer to the permit requirements of the NPDES phase 2. For this type of project, that is, an undisclosed or unlikely speculative at best development, where it is unknown what the criteria for designing requirements or not that are subject to the permitting requirements of the Department of Ecology, Army Corps of Engineers, and the U.S. Environmental Protection Agency. Simply put, when he does not know what he is designing to, he can not claim that he is complying with the requirement. If there is metal coming from the cars and traffic that is good enough reason to use the enhanced basic menu. He does not know how many cars or trips would be generated because he does not know what the development would consist of Metal and high temperatures, pollutants, and biological pathogens being discharged to the Creek harm Salmon that are present there. Perhaps the various parties in the City do not know this because they are not from the Kennydale Community like Brad Nicholson is. Response Brad Nicholson Page 9 of 23 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 (A) iv. Renton incorrectly argues that May Creek is "not a unique and fragile area' in total disregard of the SMA. May Creek Shoreline in this area is one of the most unique and fragile areas in Renton. The legislature has already decided that it is: RCW 90.58.020 Legislative findings --State policy enunciated --Use preference. The legislature finds that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation. The argument that is made by the City that May Creek will not be altered is not consistent with the Environmental Checklist submitted for the permit. They are increasing the impervious area by approximately 8-10%. Additionally, they probably do not calculate facts indicating the transpiration rates that will change from cutting down all of the trees, will alter the flow rate and increase erosion even more. Additionally, it is not known what will occur on the site. With all new composition roofing, and new asphalt, say for sake of argument, a new and rather large impervious parking areas, the temperature would radically increase during certain climactic events in the Creek and cause harm to Salmonids and the Creek; with the additional impervious area. Cleaning and maintenance agents will be added. An infiltration feature that would minimize those effects has not been considered because it would take additional area c Land that is being preserved for economic gain. Catch basins and a swale will not prevent harm to May Creek. Petitioner enjoys the Salmon and wildlife in the area of the Development and will be harmed even without disregarding provisions promulgated to protect the habitat and those fish. Basically, it is outrageous to state that May Creek is not a unique and fragile area. If Steve Lee wants to have his view that May Creek is not unique and fragile implemented, he is in the wrong jurisdiction. He should go to the Legislature and have them reenact the SMA and make 25 new findings. 26 21 28 Response Page 10 of 23 Brad Nicholson 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (B) The City claims that there is nothing piecemeal about the project but they have not followed the revision procedures of WAC 173-27-100 to revise the previous site plan to become consistent with this permit, they plan to do the remaining work of designing by the Trails Master plan on another inappropriate project segment, and they claim that cutting down 20 trees and excavating a 10,000 square foot pit on the shoreline to support "speculative at best, and unknown development will do nothing to damage the shoreline area. Basically, the City would have the Board believe that it is impossible to do anything else. All future development in the area would necessarily need to utilize this development layout according to City demands.There are three different concerns under the issue of piecemealing. The first is a desire for the totality of identified projects constructed within the shoreline to be reviewed comprehensively, and simultaneously under the SMA and its regulations. This is to insure the project is reviewed under the same, as opposed to different rules, regarding the uses of the shorelines of the state. Another aspect is the coercive effect the construction of one segment of a project would have upon another part of the project. In other words, does approval of one part of the project dictate a result for the remainder of the project. The third concern pertaining to piecemealing is whether a particular development would serve as a detrimental precedent to future development. The Shorelines Management Act recognizes the need to protect against the cumulative impacts piecemeal development through coordinated planning of all development, not just substantial development. Skagit County v. Ecology, 93 Wn. 2d 742, 750 (1980); Hayes v. Yount, 87 Wn. 2d 280 (1976). Whether a particular development will serve as precedent for later development depends upon the circumstances, such as the similarities and distinctions in locations. Hayes at 291. It is simply disingenuous and an invitation to coerced development and further segmentation of future projects, that invite similar or the same proponents of projects to segment their future proposals, to seek a building permit with no or inadequate shoreline review, and then argue, later shoreline permit requirements were trumped by failure to appeal the permit decision for the storm water Swale. The trail as well as development that will occur should be well planned by delineating it on the application and subjecting it to review at the same time and in the same document pursuant to WAC 197-11-060. If it is placed on the plans later the location and configurations of the total development including the trail will Response Brad Nicholson Page I or23 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 be dictated by the limitations that this project places upon it. The type and location of future buildings anc storm water features has facts that are no less persuasive. This is precisely the type of piecemeal development that is prohibited by the SMA. There is no way that the project can be in complete compliance with RCW 90.58.020 because they do not even know what is going to be built in the area. This project is just one coercive piece of a larger un-deliberated and uncoordinated and unconsidered project. Future projects would have to use it. A brief of the requirements for RCW 90.58.020 is contained in Petitioner's motion for Summary Judgment and is alleged as if fully incorporated herein. A copy of petitioners motion is in the City's possession at this time. The project does not comply with RCW 90.58.020. The permit is not complete within itself and it does not contain enough detail to determine compliance with the SMA. (C) The City has changed the issue to different wording in this motion. The City states their new issue as follows: Whether Petitioner may argue any facts or findings related to the proposed Hawk's Landing hotel development project, when he failed to exhaust his L UPA remedies and when the SHB does not have jurisdiction over that permit? The original question the City presented for review by the Board and in the pre hearing order is as follows: ISSUE NO 11: "May petitioner, under the Samuels Furniture case, 147 Wn.2d 440, ' ask the Board to impose shoreline jurisdiction on Hawk's Landing hotel and argue that the appealed permit is improperly segmented from the adjoining Hawk's Landing hotel when he did not file a LUPA appeal from the decision that Hawk's Landing Hotel is more than 200 feet from the shoreline and his attorney basically conceded that issue? Response Brad Nicholson Page 12 of23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The conflict between the issues that the City poses illustrates the City's double talk. First, they wanted Board to find that no Shoreline jurisdiction could be imposed on Hawk's Landing because it would be farther than 200 feet from the shoreline. Now they want to preclude the arguing of "any facts" related to IHawk's Landing. They want the Board to close their eyes to the scope and intent of Hawk's Landing and its obvious interrelation to the present project like they have done. The City correctly states that "no one" Iincluding the City are exempt from the requirements of Samuels. Brad Nicholson is not required to exhaust administrative remedies when such administrative action would be futile. Orion Corporation v. State, 103 Wn. 2d 441 The Washington Supreme Court clearly recognized the importance of finality in land use decisions in a recent shoreline case: Samuel's Furniture v. Ecology, 147 Wn.2d 440 (2002). With regard to the City's hypothetical question, the answer is yes in certain aspects of their question of law and fact. Samuel's never confronted the possibility of litigating deception or changed position during the process. Samuel's involved attempts by Ecology to re -litigate interpretation of the location of some lines on a map ....those issues are not present here. There is no doubt that the merits of Hawk's Landing may not be litigated here, but there is nothing in the decision in Samuels that prevents the Board from inquiring here into the "scope and intent" of the Hawk's Landing original permit approval and reversing this instant permit because it is inconsistent with that final approval and because it has been revised without following the rules for shoreline permits according to WAC 173-27-100. Although Hawk's Landing original application had very little detail on the storm water plan, that issue was argued extensively and in the final decision it was clearly decided that the type of feature and location details were to the satisfaction of all. It was final. That is a fact that is appropriately before the Board here. See City Council decision, Hawk's Landing. It was to use the "ditch" to convey the water to May Creek, and that "all" development activity would take place farther than 200 feet from the ordinary high water mark. And Brad Nicholson has standing. If the City does not like the fact that Brad Nicholson has standing they should have filed a LUPA appeal. The City should not be able to pick and choose which part of the substance and merits of Hawks Landing project is final and which is not final. There is no law or procedure available to them stating that they can pick and choose like that. Response Brad Nicholson Page 13 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Having part of the decision final and part of the decision improperly revised with another permit to the benefit of their position is certainly not an aspect of the decision in Samuels that works to benefit the j I City's shoreline permit. Standing in Hawk's Landing can not be reversed here, because the Hearing Examiner and City Council already decided Brad Nicholson has standing. The scope of the original decision is final, but it is appropriate for the Board to inquire into what the scope of the instant project actually consists of, that is that the Hotel Master Plan and Site plan was approved, with all development activity taking place farther than 200 feet from the ordinary high water mark, and that the ditch would be utilized to discharge the water to May Creek, while presently it is stated that it is for a speculative at best and development not the topic of any development application. The scope of the original project certainly excluded development of the shoreline area with infrastructure such as storm water facilities. Evidently, the City is also contending that the development that is not the topic of any application is already final by using the feature permitted here. That would be absurd. In Samuels, the Court applied the concept of finality in Land use decisions to certain types of Land use decisions. With regard to the original substance and scope, this case is one of them and Samuels should be fully applicable. The merit of the original Hotel project Master site plan and Site plan and the scope and substance are not disputable here. In Samuels, the City of Ferndale authorized the extension of an existing store without any shoreline permits because the City determined the project was not within the shoreline jurisdiction based upon some map interpretations. It was later disputed because of some discrepancies with the maps, delineations, and descriptions. The case involved an interpretation of documents concerning flood plain designation and location and there was some disagreement as to whether the project was on the shoreline floodway or not. They originally decided that it wasn't and held to that. In the case of Hawk's Landing and the instant permit, there has been no interpretation disputed at al! just a clear determination that was made about the project's scope based upon unambiguous and undisputed testimony and subsequently issuance of a shoreline permit inconsistent with the findings and approval. The location of the "ordinary high water mark" or the lines are not in dispute here. The proponent in Hawk's Landing stated that the Response Brad Nicholson Page 14 of 23 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 area within 200 feet of the ordinary high water mark "would not be touched" and no interpretation of maps or flood plain documents took place or was necessary. It was simply taken as true that the words could be honored. The Hearing Examiner made the finding and incorporated it into the Master site plan and Site plan approval. In Samuel's, Ecology argued it was not contending the fill and grade or the building permits were issued improperly, but only that a shoreline permit was required. Because the city did not issue a formal shoreline permit or decision regarding the shoreline jurisdiction, Ecology reasoned there was nothing for it to appeal. That is not the case here. One issue here is the substance and scope of the original site plan approval (with standing) has been ignored in a shoreline permit here that is captioned above and under review by the Board. Other issues like how to determine compliance with RCW 90.58.020 are also present in this case. The instant case respectfully distinguishes Samuel's Furniture in certain ways. The City has not contended that the instant project is outside Shoreline jurisdiction otherwise there would not be a shoreline permit captioned above. The Shoreline permit captioned above and at issue here is intended, (according to the permit face) to "meet the infrastructure needs offuture development including Hawk's Landing" (which is in reality a revision to an undisclosed or unknown and speculative at best project) In this case, the City processed and issued a shoreline permit for a part of the project, but failed to include information as to the scope of the project that it determined it to be serving. That was the point in time when the inappropriate connection was made. Unlike Samuel's Furniture, this case involves an appeal capable Shoreline Permit, (LUA10-041) for an inappropriate segment of the total project, which is now before this Board. The Shorelines Hearings Board was never asked in Samuel's Furniture, to interpret the Shoreline Management Act and its regulations for the Samuel's project because no permit was in existence. Here it is evidently contended that the City can basically revise the scope of the final, original permit, without mentioning that it is in reality the final substance and scope of the Hawk's Landing speculative at best project that is necessary to inquire into here, with the instant permit approval, to be able to consider whether the act has been carried out. I Samuels is not about how to change a final decision with another improper segment, it is about the original segment. It is simply too difficult to imagine that the Shoreline Management Act, which was Response Brad Nicholson � Page 15 of 23 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 approved by the voters of Washington, can be construed to allow a Shoreline Permit, such as in this case, I to render the Shoreline regulations omnipotent while allowing development in conflict with a final II site plan and Site Plan approvals. That would replace the State wide uniformity and consistency of the j interpretation of the Shoreline Management Act by this Board with a clever tactic that would circumvent legitimate review of their actions that could then be used by anybody. That is exactly what Mr. Bhada tried to do, and what the City attempts here that is so inappropriate. It seems to be thought by the City that as if by magic and a few deceptive words, the City can shield the instant permit from deliberations and review. If this type of permit is allowed to proceed, then all any applicant would need to do is pledge that no development would take place within 200 feet of the ordinary high water mark during the site plan approvals, (which generally comes first) then following with the revisions that could never be reviewed. Coerced development details could then proceed and prevail at will with the SMA reduced to a whim. The very core of Shoreline jurisdiction is at stake in this case because it will create a precedent for future decisions. The type of clever tactic should not be allowed. Brad Nicholson does not have an issue with the Hotel concept or the scope of the original approval. It is final. Brad Nicholson is motivated by compliance with the SMA, protection of vegetation and habitat, wildlife, the visual esthetic enjoyment of those interests and other interest that he has a right to under the SMA. Brad Nicholson prevailed on the issues in Hawk's Landing that are material to his concerns, and this case, and is not attacking the previous decisions here. He does not have to agree spiritually with everything the City does or decides. He raised the issues in a previous appeal and subsequently prevailed and "basically conceded' according to the City the issues based upon the testimony and commitments of the various parties, including City Staff and the proponents. In that sense, the term "basically conceded" is deceiving. There is no citation of authority available to suggest that Brad Nicholson was under any obligation to appeal an issue (where he had standing) that he considered that he prevailed on and therefore the Board need not consider the suggestion. See Rural Residents v. Kilsap, 95 Wn. App 383 id. at 393 There the Court decided that when a party on appeal does not cite any authority in support of a claim, it is assumed that counsel found none after a diligent search. The City can cite no authority for the proposition that a LUPA appeal was needed by Brad Response Brad Nicholson Page 16 of23 M 2 3 4 5 6 7 8 9 10 11 12 13 I4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nicholson. Under Samuels, the City needed to file a LUPA appeal. The applicability of Samuel's Furniture v. Ecology, 147 Wn.2d 440 (2002) works in favor of Brad Nicholson and summary judgment should be entered in favor of Brad Nicholson on issue 11 as described. I It is final that the Hotel concept is approved and that the scope of the project is that "no development will take place within 200 feet of the ordinary high water mark" and that the "ditch be used to convey the I I water to May Creek" The storm water facility may not be situated where it is without revising the scope Iof the original approval. (D) The City's accusations that standing is not present are most incorrect, based upon authority distinctly different than the present case, and not accurate. Standing with regard to the development of Hawk's Landing has already been established as final and Brad Nicholson has standing that the project "will be farther than 200 feet from the ordinary high water mark and that the "ditch " will be used to convey storm water to May Creek " according to Samuel's Furniture v Ecology, 147 Wn.2d 440 (2002) If the City did not like the decision, they were obligated to file a LUPA appeal to reverse it. Any person aggrieved by the granting, denying, or rescinding of a permit on shorelines of the state pursuant to RCW 90.58.140 may seek review from the shorelines hearings board by filing a petition for review within twenty-one days of the date of filing as defined in RCW 90.58.140(6). RCW 90.58.180 (1). In order to maintain the petition, the petitioners must show they are aggrieved persons within the meaning of RCW 90.58.180. The term "person aggrieved" has been interpreted to include anyone with standing to sue under existing law. Anderson v. Pierce County, 86 Wash. App. 290, 299, 936 P.2d 432 (1997). This requires the petitioners to show they have suffered an injury in fact within the zone of interests protected by the statute and that the Board has authority to redress the injury suffered. CORE v. Olympia, 33 Wash. App 667, 567 P.2d 790 (1983). "To show an injury in fact, the plaintiff must allege specific and perceptible harm." Suquamish Indian Tribe v. Kitsap County, 92 Wash. App. 816, 829,965 P.2d 636 (1998). The "injury in fact" test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself (or herself) among the injured. Lujan v. Defenders of Wildlife, 504 U.S. 555, 563, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). A party asserting general enforcement of a statute does not have standing unless he or she is "perceptibly affected by the unlawful action in question" Id at 566. Moreover, no standing is Response Brad Nicholson Page I7 of23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II conferred to a party alleging a conjectural or hypothetical injury. Snohomish County Property Rights IIAlliance v. Snohomish County, 76 Wash.-App. 44, 53, 882 P.2d 807 (1994). The party asserting standing bears the burden of establishing each of these elements. Center for I Environmental Law & Policy v Department of Ecology, No. 96-165 (1997) (citing Lujan at 561). To survive summary judgment in this case, Petitioners need only set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true, demonstrating that they are entitled to standing. Lujan at 561. see also Trepanier v. City of Everett, 64 Wash. App. 380, 383, 824 P.2d 524 (1992). Brad Nicholson has set forth an affidavit that must be taken as true for purposes of this motion. See third declaration of Brad Nicholson. Summaryjudgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). "The motion will be granted, after considering the evidence in the light most favorable to the nonmoving party, only if reasonable persons could reach but one conclusion." Reynolds v. Hicks, 134 Wash. 2d 491, 495, 951 P.2d 761 (1998). Standing is established in this case by the setting forth of specific allegation and specific facts demonstrating that Brad Nicholson has standing. The City accusations are simply not accurate. As an example, the City claims that Petitioner can not enjo; the pleasant break the shoreline provides and cannot fish with his family in May Creek. Brad Nicholson third declaration sets forth facts proving the claims to be incorrect. The claim is based upon a totally inaccurate presumption. See third declaration of Brad Nicholson. Fishing regulations for May Creek is open during summer months. Sockeye fishing seasons occur on Lake Washington when salmon returns are sufficient to sustain Salmon runs. Petitioner alleged he wants to fish with his family and lives 10 blocks away from the project and owns property adjacent to May Creek. He loves, enjoys, and respects the visual amenities of the area and will be harmed by the faulty planning associated with this project. The runoff from the project will impact May Creek and species he enjoys. Development and the storm water facility and road will negatively impact upland wildlife and the appearance of the shoreline of May Creek as well. Those specific harms adversely impact Brad Nicholson and cause injury in fact to Brad Nicholson. If the truth is told, the development and impervious area on the site will impact the diversity of all species and all Citizens in the area. Rasp = &ad Nicholson Page 18 of 23 1 2 3 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eagles and raptors feed on salmon and fish, small mammals, amphibious creatures and other animals. All I of the species rely upon clean water and shoreline habitat. These animals have been relying on the cover and the trees and the diversity of the area that will be destroyed by this very development. The swale will turn into a duck pond increasing flow and temperature where none currently exists altering and damaging the Shoreline. Mammals essential to the diversity that will be harmed rely on the cover of the shoreline II will be driven farther from view. The storm water facility is nothing more than a nuisance to the that are intended to be protected by the SMA. Obviously, keeping the area in a state where the natural diversity can be enjoyed is the protection measure envisioned by the act and the vision of Brad Nicholson as well. Those priorities have never even been considered let alone carried out. The City relies exclusively upon Cowiche Canyon Conservancy v. Bosley 118 Wn.2d, 808. In Cowiche, the proposition that since no party making a claim had any interest in the removal of a Burlington Northern railroad trestle which was not a substantial development that they had no claim of standing against it. In Cowiche Canyon, the parties claiming standing had to trespass to be able to assert their interests. Those facts are not present here. Brad Nicholson is alleging damage to the appearance of the City and Community where he resides and alleges damage to wildlife and vegetation that he enjoys. Trespassing has not been required for him to do so. In the instant case, Brad Nicholson has alleged impairment and harm to the aesthetic quality and appearance of the City and May Creek caused by the excavation of the storm water facility, stating "we enjoy the pleasant break that the May Creek Shoreline provides and wish to improve it" "On a few occasions I have enjoyed seeing Deer slipping into the cover of the May Creek Shoreline on the verb area that the permit will bulldoze and fence" Evidently the City did not read the PFR and instead demands the exact level of magnitude and frequency of use of the shoreline. No citation to authority can be found or cited where there is any such hurdle that must be cleared for the number of times that frequency of use must be determined prior to a determinatii of "injury in fact" Magnitude and duration are not part of the test. Brad Nicholson enjoys the area often enough for standing and lives in the area and is negatively impacted by the project. True facts indicate that the magnitude of harm alleged in the PFR is intense. Third declaration of Brad Nicholson. To have standing, one need only have a protectable interest that has been invaded or is about to be invaded. See Orion Corporation v. State, 143 Wn. 2d 441 Response Brad Nicholson Page 19 of 23 4 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In other words, an interest that is capable of being protected. It should be found to be very offensive for the City to imply that the interests sought to be protected are not ` protectable" by the Board or Washington Law. As has been articulated in Petitioners Motion for Summary Judgment, there are numerous Board cases establishing that the esthetic quality of the Shoreline is a protectable interest. Brad Nicholson alleged that, "As a result of the City's improper segmentation and fractionated review an decision making with regard to the shoreline permit, Nicholson is already suffering from an inability to comment on a full and completed review of a single true project application and the projects lack of attention to design criteria and shoreline management purposes. "He enjoys the wildlife in Lake Washington and May Creek basin areas, frequently walks, boat, fish, bicycle, or swim with his family or desires to do so and observe the areas of May Creek surrounding the proposed project, and will be impacted by the loss of water quality and wildlife, recreation, and esthetic enjoyment associated with this project" and "The improper review of the permit fails to improve the situation that will impact him, using inadequate methods to enhance the natural systems and water quality will impact him, and he will be impacted by the degradation to amenities protected by the SMA, loss of access required by code, and water quality and harm to fish habitat associated with the project's water runoff to either Lake Washington or May Creek" "He wants to have his community planned and development consistent with the provisions of the Renton Comprehensive Plan Environment Element and Renton's Shoreline Master Program and State Law, and will be injured by the City's denial of the right to such a community without reversal of the Shoreline Permit and consideration of all the facts that are relevant to this appeal" There is absolutely no evidence that the City can produce that plaintiffs in Cowiche Canyon Conservane v. Bosley 118 Wn.2d, 808 alleged even a similar set of injuries in their complaint. In Cowiche, unlike here, they tried to amend the complaint later to allege injury in fact. Brad Nicholson alleged all of the above in the PFR. All that was involved in Cowiche Canyon was a protest against tearing out a trestle that was in all likelihood contaminated with heavy creosote, dioxins, furan, and poly cyclic aromatic hydrocarbons. They were protesting the removal of a nuisance and the fact that they could no longer trespass. Brad Nicholson is aggrieved from the destruction of visual amenities he should have access to and be protected by the SMA and the unjustifiable installation of a nuisance to those amenities in his community. Cowiche Canyon consisted of a totally different set of facts and is inapplicable here. Response Brad Nicholson Page20 of23 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 i The Court in Allan v. University of Washington 140 Wn. 2d 323 accepted the view articulated in Lujar, i v. Defenders of Wildlife, 504 U.S. 555, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992), There, where United States environmental groups sought to challenge, under the Endangered Species Act, the impact of a regulation upon animal species in foreign countries, the Court acknowledged that "f o]f course, the desire to use or observe an animal species, even for purely esthetic purposes, is undeniably a cognizable interest for purpose of standing." Id. at 562-63 (emphasis added) (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972)) The City recites only some of the standing declaration but leaves out other areas. For example, the declaration states, "I want to have my ideas considered and I want to comment on the entire proposal because I would like t, have my community planned and developed consistent with the provisions of the Renton's Shoreline Master Program, the Shoreline Management Act RCW 90.58, and a compliant design plan to protect my interests. I find it impossible to consider the reasonableness of the project when some of the most important areas of the project are always being left out. No one can even figure out what they are doing c which improvements they would be willing to do. I am aggrieved by the City's denial of my rights to such a community and aggrieved by the fact that development planning does not appear to be properly prioritized. By ignoring State policy and the procedural and substantial protections contained in the Renton Municipal Code, its Shoreline Plan and State Laws, the City's' decisions deprived me of a Shoreline environment that is so described and that is contrary to the letter and the spirit of those laws" and, "I have a wife and son and we enjoy taking walks in May Creek Park just a short distance upstream from the proposal and seeing Salmon and Trout. A few years ago, I personally saw an adult steelhead in May Creek. I have seen sockeye in the Creek just a few feet away from where the project is permitted to take place. We often enjoy seeing Bald Eagles that cruise the area where we live above the May Creek Basin and know that they also depend on water quality and the area habitat. I have seen Hawk's landing above the project site while bicycling. 1 enjoy boating and fishing in lake Washington. We have a nice canoe that we want to use but we are frightened by the threats the water quality in the area poses, but we enjoy the pleasant break that the May Creek Shoreline provides and wish to improve it. On a few occasions I Response Brad Nicholson Page 21 of 23 1 2 3 4 5 6 7 8 9 10 it 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 have enjoyed seeing Deer slipping into the cover of the May Creek Shoreline on the very area that the permit will bulldoze and fence" Response to 7. Conclusion: There is no way that Renton can salvage this permit without revisions and additional detail being articulated within a new permit. The permit here can only lead to preventable damage to the Shoreline Environment of Brad Nicholson's community to his detriment and injury. Renton has failed miserably by trying to fast track the project through and making up arbitrary arguments as they go. Renton can not prevail on the dispositive issues here because the SMA has been violated in so many respects. The City has utterly failed to design the project consistent with previous approvals, not properly considered or situated the storm water facility and its roads, the City is blatantly altering May Creek in violation of their own shoreline plan, and attempting to piecemeal and coerced review for future development with a facility that directs polluted water to May Creek, a Shoreline of the State, while using issues that are not even the issues that are before the Board. The project has obviously been designed to facilitate speedy ai economical benefit in the form of increased revenue and not for compliance with the SMA. The City misinterpreted and/or misconstructed numerous sections of State law and their own Shoreline Management plan, and mistakenly relies upon Samuel's Furniture while in reality it works against the permit that has been so erroneously and arbitrarily decided. They now try to re word the issues to escape the mistakes that have been made. IFinally, it is quite outrageous that the City would contend that the permanent addition of such a large J storm water facility and its construction on the shoreline "Preserves the natural character of the shoreline"; and that altering water in May Creek and careless situating of the facility while inconsistent with their Master site plan and Site plan "results in long term over short term benefit; protects shoreline ecology; and increases public access to public owned area of the shoreline. It is quite amazing that the City claims that they "may" be able to increase recreational opportunities for the public in these circumstances, with 4.5 acres of featureless mystery area that could possibly be used instead of the Shoreline. No water dependent uses have ever been identified. The City has decided the permit without ever attempting to prioritize the important values that inhere in the SMA. The City will block the area from public access and destroy the natural character of the shoreline in the process and dictate future Response Brad Nicholson Page 22 of 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 site layouts. The permit creates no opportunity to access the shoreline at all and uses the fragile and unique May Creek Shoreline for a storm water facility to serve private interest and not the public. SMA elements are not in the plans or application and neither is the character of the actual development that will take place that relies on this infrastructure. The Permit is fatally inconsistent with the Master site plan and Site plan. The permit approved by the City does nothing more than reduce the SMA to a whim. Signed, Response .• Nicholson Brad Nicholson Page 23 of 23 I 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE SHORELINES HEARINGS BOARD IN AND FOR THE STATE OF WASHINGTON In re the appeal of Renton's Shoreline Substantial Development Permit LUA10-041, ECM, SM: Brad Nicholson, Petitioner, V. City of Renton Respondents. I, Brad Nicholson, declare the following: Case No: SHB 10-016 Third Declaration of Brad Nicholson In response to City's Motion for Summary Judgment 1. I am now and at all times mentioned a citizen of the United States and a resident of the State of Washington, City of Renton, over the age of eighteen years, competent to make this declaration, and make this declaration from my own personal knowledge and judgment. 2. The City very incorrectly implies in its Motion for Summary Judgment that I just merely drive by the area and have very little interest in May Creek and trespass against their project. The implication is equally as offensive as it is inaccurate in my opinion. I feel very offended by such an assertion. I have memories of May Creek and Lake Washington that are nearly as vivid in my mind and heart as they were when they first were experienced over 40 years ago. I have caught but one fish in May Creek it my entire life but the memory of my experience stands out etched in my mind like it was yesterday. I was only about 10 years old. I remember the overcast day, the rain had stopped at mid morning — it was around 200 feet below where I now live. The magnificence of the moments I know is very difficult to capture with words. Declaration Brad Nicholson Page 1 of 4 I 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I used to hike, bike, explore, and enjoy the wildlife and trails in all the area of May Creek when I was a boy, well over 40 years ago. I love the area and that is why I decided to live here. The first Trout that I ever caught by myself and without instruction was in May Creek, one reason why I feel such a strong connection to May Creek now. May Creek is a fishing Creek and all that anyone needs to do is look it up in the Fishing Regulations of Washington State to know. I certainly can fish in May Creek with my family, Renton's accusation that it can not be done is simply hogwash. I loved the area then as much as I still do, in fact I used the money from a paper route I had as a teenager as the down payment to buy my property overlooking the May Creek basin just a short distance from the permit that is at issue here. This is where I consciously decided that I wanted to live because of May Creek and its virtues. I have enjoyed viewing the shoreline and May Creek from the Bridge and area right in front of the proposed swale bulldozing area many times over the years of my life. I now consider this place in my community to be my home. I don't see why 10 blocks away from the permit is so far as to be insufficient to have an interest in the area. It is not insufficient. I can walk to the permit site in 15 minutes or so, I can bike there in less than 5 minutes. I do not consider that I am just a casual passerby that is not really interested in the health, diversity and esthetics of May Creek because I go by there and enjoy it all the time. I have invested everything I have ever made except my 401K plan into my home and property that shares its property line and vicinity with May Creek, because I love and feel so stongly about May Creek. IThe May Creek basin is my home, and I take offence to comments that I should be dismissed because I am just an uninterested and theoretical passerby with no interest in the area. I love the area and I am sincerely interested in protecting it. If they do not believe me that I either do or desire to boat, fish, bicycle, or swim and I am interested in protecting the aesthetic qualities of the Creek maybe they could come by some time and I could get on t bike or walk down there to the site and show them. We could take the usual and frequent bicycle ride to Newcastle Beach Park and perhaps see and enjoy the same things that I do, riding right by where they v bulldoze in their storm water facility. Perhaps I could show the City Attorney my property overlooking May Creek, or show him how to rig up a fishing rod for fishing in Lake Washington and show him my boat and fishing equipment to prove the kinds of things I enjoy and want to protect Declaration Brad Nicholson Page 2 of 4 i `i 2 3 4 5 6 7 8 9 10 it 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Or I could show him how find and rig a caddis fly larvae that can be abundantly found on the banks of May Creek, to entice a fish, or how to avoid the nettles. If they would do it as often or as sincerely as I do, then perhaps they will see the Shoreline as I do. I can tell them the stories and explain to them how the changes to area that is where I live and respect will in fact injure me. My true belief is that the City desperately wants to justify their position, by whatever means necessary, including creating the false impression so that no standing exists and the case would be dismissed with( having had ever considered the actual facts such as how they will coerce and piecemeal the project together. They are using my tax money to do it to benefit some people and business that really does not need any money or protection at all. I think they know a lot more about what is going to occur and transpire in the area and are keeping their true plans secret. How I can explain the feeling of seeing a rare Steelhead rise and then disappear from behind a down log is a not easily described with only words, and seeing a Steelhead could not be accomplished upon demand. Salmon can be viewed from the May Creek Bridge in mid October and I have been going there to look for them a number of times almost every year. Maybe the City Attorney and I could stop on the May Creek Bridge and gaze at where the storm water facility will locate and take a break to look at the waters and capture the valuable and fragile nature of its beauty and value I could explain to them how I feel it is so very important to be able to do for the future. Salmon and Steelhead and birds and other wildlife do not show up in May Creek all of the time or with a certain frequency, but they are there and fish do spawn in May Creek and I enjoy them all when ever I can and will be injured by their loss, and injured by the loss of the pleasant atmosphere that exists in that area. I take offence to the allegation that I have no interest in the area. In my mind, the area symbolizes how my family will live and thrive in the future and captures the very essence of the qualities of the area I have chosen to call my home. They have not maintained the native vegetation whenever possible, redesigned the project for pedestrian waterfront activity, and they are altering the natural character of 1\ Creek to my detriment and injury in fact. Declaration Brad Nicholson Page 3 of 4 1 2 3 4 5 6 7 8 9 lc 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. DATED this 1 Sth day of November, in Renton, Washington. Declaration Brad Nicholson Brad Nicholson Page 4 of 4 1 �2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE SHORELINES HEARINGS BOARD IN AND FOR THE STATE OF WASHINGTON In re the appeal of Renton's Shoreline Substantial ) Case No. SHB 10-016 Development Permit LUA10-041, ECM, SM: ) Brad Nicholson, MOTION FOR Petitioner, S GMENT bITY OF RENTb 0-1-Cjr NOV 0 5 20' ` CITY CLERKS OFF £ t�� 6E611�?112ci h J V. City of Renton v NOV O 4 2010 Responden ) ENVIRONMENTAL HEARINGS OFFICE This matter comes on regularly before the Shorelines Hearings Board by prehearing order of the Honorable Phyllis MacCleod. Brad Nicholson, by and through his own motion, establishes that he is now entitled to judgment in his favor in this case. That there is no material fact that is now in dispute in this case that is material to a disposition of it and therefore judgment may be entered as a matter of Law. 11. Incontrovertible Facts: One of the primary issues in this case is whether the above permit is consistent with RCW 90.58.020. Before the Board are such issues as whether pollution discharges impacting the Shoreline have been minimized insofar as practical, whether design elements such as water related use have been properly prioritized and implemented, whether the City has included appropriate protection measures to protect shoreline wildlife and vegetation, and whether the project has been improperly segmented. In the City's answer to the PFR the City answered that the project will support one segment of additional development that is "not currently the topic of any development application" and in the answer but pertaining to another segment, the City contends that, "at the time of issuance of the Shoreline permit, there was no Summary Judgment motion Brad Nicholson Page I or25 1 2 3 4 5 6 J ] X q � `41 U i funding available and therefore Hawk's Landing was "on hold and speculative, at best " see Respondents 1 Yy 3� t� answer, at 5. The storm water facility the Director approved with this shoreline permit is for i for an unidentified, unlikely to be constructed project, or, depending on how to construe the substance of the answer, that it has been decided by the City to proceed without knowing what the development will consist of. The project that the director approved is without focus as to what the infrastructure is intended to be used for. The facts above combined with the internal conflict evidenced between the original approval of "Hawk's Landing" and the captioned permit make the job of determining that the permits are "complete within themselves" and "containing a sufficient amount of detail" an impossible task. 8 On the first page of the inconceivable Shoreline Permit, (LUA10-041) the permit describes the purpose of 9 the Shoreline Substantial Development Permit is "to meet the infrastructure needs for future development 10 11 12 13 14 15 16 17 18 19 20 21 2 24 25 k in the vicinity oft-405 Exit 7 area, including the Hawk's Landing Development" See Shoreline Permit LUA10-041. Thus the purpose of the instant permit is for one segment of the project that is "on hold and speculative, at best " and for another that is "not currently the topic of any development application" How it can be determined whether the project is consistent with RCW 90.58.020 is an impossible task - considering the present circumstances. To illustrate this point the following analogy can be used. Numerous issues regarding the storm water facility have been presented to this board for review, including a request to determine consistency with RCW 90.58,020. The primary concern identified with issue 93 is that the latest storm water manuals have been developed to reduce pollution discharges to the maximum extent practicable, containing hundreds if not thousands of pages that outline procedures for consideration of various criteria such as the type, size, location and extent of use, as well as the number of vehicle trips generated prior to proceeding to design phases that are consistent with those precisely defined criteria. In this case the Board is faced with a City. Shoreline permit decision that is willing to confront those design issues even though it does not know or disclose with any reasonable certainty -the type, size, location and extent of development, or the number o vehicle trips and while at the same time, it is in direct conflict with the scope of the previous Master site plan nd Site plan approvals. It would not be at all productive to obtain experts to examine the designs foi consistency ncy with the storm water manual or RCW 90.58.020 or even begin to look into those criteria because it can not be identified with any certainty as to what the character of the development would consist of according to the City's position. At the same time, issues are before the Board requesting that Summary Judgment motion Brad Nicholson Page 2 of 25 the Board examine and review how the storm water facility is situated. See Issue number 2. The issue is whether the Shoreline's vegetation has been maintained "whenever possible" There is no way for the e Board to look at the overall layout of the development and make such a determination because the - development is not presently the topic of any particular application. Any effort at analyzing the details of the storm water facility for consistency with the development and RCW 90.58.020 will prove to be futile. Any affected citizen would be unable to obtain and pay for an expert to examine the design details of this type of project. It is neither known nor disclosed what the use will be and therefore trying to review the approval is a total waste of time and money. There is a large featureless area depicted on the plans where the storm water facility could be situated. They don't have oae tie nah>talarear �-� 4 o- - f The Hawk's Landing development was originally approved on yet another segment (Master site plan and Site plan approval) based upon testimony and findings that "all development will take place further than 200 feet from the ordinary high water mark" and that a "Ditch" that is a class 5 stream "be used to R.IS convey storm water to May Creek. See LUA 09-060 decision. There was never any dispute in any of the approvals of the accuracy of the location of the lines on the plan or the above testimony The present oe) segments are improper and can not proceed because they are inconsistent with, and in disregard of the 15 shoreline regulation requiring revisions to be made according to precise criteria outlined in WAC 173-27- 100 (2) 17r r 18 T �existin "Headwall" have now permitted to rip out is an essential part of the ditch system within Il ,.W 19 200 feet of the ordinary high water mark that was not to be `touched" in the orginal approval. It is at 20 around 75 feet. They are now permitting an access road and storm water facility within 50 feet of the shoreline. t l 21 t�, �D`, In Hawk's Landing Master plan and Site plan, the Hearing Examiner approved the design to have the ► "Ditch" go to 277 feet from the ordinary high water mark (200 feet of functioning ditch) with no i 23 ! ° X additional work occurring on the Shoreline. That was to be the storm water facility- they were only allowed to bury the ditch to a point 277 feet from the ordinary high water mark. Hawk's Landing was / f Z s \� cl then required to treat the runoff from their project prior to discharge to the "ditch "using the 200526 KCSWDM. See City council decision. An inappropriate redesign has been approved here. Evidently, they s`r')�, 7 r� � are saying that the water quality measures will be identified later. Spencer Albert has never proposed the water qualify es that were required of him on the final decision to approve his site plan. y 10 Ct rtion V AA Brad Nicholson Page 25 L '0 ll� e4 t f J 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DNS LUA 10-041 is the document that describes ripping out the Headwall, laying down some 800 feet of 24"corrugated plastic pipe to connect to Hawk's Landing, (structure) and filling the ditch with 5000 cubic yards of dirt and gravel material (structure). It is now clear the new "swale " is intended to serve the development that "is not currently the topic of an) development application" and the pipe will be the pipe that highly unlikely Hawk's Landing will connect to. The 12 foot sidewalk (which should now be considered an over water "structure") has been delineated to be constructed on the new details, over the top of where the "Ditch and Headwall" were required to be under the original approvals. See plan detail DNS LUA10-041, (City to construct curb only) In other words, the 12 foot sidewalk across the western frontage of the development, cannot be installed without ignoring and disregarding the previous approvals — and the "swale" can not be developed as proposed without changing the previous testimony, - getting out the bulldozer for the shoreline area. There is no mention of these major conflicts on in the permit documents, but admittedly, such argument does not take into account that it has now been stated that the development is unlikely to occur or not the topic of any development application. The conflict argument is in addition to the fact that the project would be serving a project that is unknown, undisclosed, or unlikely, and that the permit would be servin those same uses that decidedly have two very different site plan approvals. These facts alone place the Board in a position where reversal of the permit is warranted. In order to determine compliance with the SMA's procedural and substantial requirements and RCW 90.58.020, the permits must be "complete within themselves" (plural) and contain sufficient detail to enable the Board t determine consistency with the policies and procedures of preferred water dependant uses and other policies that are set forth in RCW 90.58.020" see Edward Haves, v. Georee Yount, EtA4 87 Wn.2d 280, [Supreme Court No. 43776. July 15, 1976.1 Because it is shown here in this motion that it is impossible for the permits to be "complete within themselves" and "containing sufficient detail" to decide, and because the permit here is inconsistent with and in direct conflict with the scope of the positively speculative project it may be intended to serve, or when it is for a project that is undefined, or highly unlikely to occur, it should be reversed. There are sufficient Issues in the Statement to reach reversal under the facts present here. This project is merely to bulldoze the shoreline and damage the Creek and Shoreline for "an unknown,___ undisclosed and unidentified unlikely project" or, for an "incomplete project with fatal conflict with the site plan and master plan" that does not observe revision regulations for the shorelines. They would need Summary Judgment motion Brad Nicholson Page 4 of 25 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to either revise the original project, or be consistent with it. Similar to a "bridge to nowhere" the taxpayer money is being used to revitalize the area without identifying what the area development will consist of I is either that or, the speculation is being introduced deliberately to frustrate anyone concerned about the effects on the shoreline. There is simply no way the City can calculate that the permit would further the requirements of Hayes, under the circumstances the City created. It is unfortunate, but because they can not do so, under RCW 90.58.020, it must be demanded the permit be reversed and remanded for corrections and the compliance with processes and procedures envisioned by the act. Brad Nicholson's written appeal of LUA-09-060 alleged that a Shoreline Substantial Development Permit would be needed for the Hotel development. Brad Nicholson's appeal cited the need for shoreline jurisdiction. In response to that challenge, virtually every proponent in attendance at the appeals and every member of the City staff in attendance and the City Attorney and Proponents Attorney stated that in order to develop Hawk's Landing, they were proposing "no development will take place within 200 feet of the ordinary high water mark" It is in the record. Clear as can be. Jack McCullough said that they were not going to "touch" the area. Senior Planner Vanessa Dolbee testified under oath to the same effect. The commitments were accepted by the Hearing Examiner as well as Brad Nicholson. See HEX decision (LUA-09-060) There were no interpretations involved. Ecology was not involved. A landmark case has ruled that Ecology has no jurisdiction over shoreline substantial development permits. Continuing, they never mentioned ripping out the "Headwall" or filling the "Ditch" or bulldozing a major section of shoreline area to create a 10,000-15,000 square foot "swale" However, they all did accept the fact that Standing requirements were met by Brad Nicholson. With regard to standing, there are no facts making this case any different than the Hawk's Landing case. The Hearing Examiner was the City Official that had the authority to approve of Hawk's Landing Master plan and Site plan, and he did, relying on the testimony, just like Brad Nicholson did. He found that "no development will take place within 200 feet of the ordinary high water mark" While true that the Attorney representing Brad Nicholson "basically" "conceded" (in the City's words) that no Shoreline Substantial Development Permit would be required under those circumstances, the City was evidently unaware that Brad Nicholson specifically agreed and directed the Attorney to accept the so called concession because it Summary Judgment motion Brad Nicholson Page 5 of 25 1, 2 3 4 5 6 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 was decided that the testimony was to be believed. Brad Nicholson, like the Hearing Examiner, accepted the position and testimony as true. Although that trust has now been breached with this permit approval, protecting the waters and shoreline was and still is the effect that was desired by Brad Nicholson. Brad Nicholson does not consider that all his "appeals were denied" in that regard. He prevailed. This City attorney does not evidently know these facts because the City switched attorneys too. This permit is a permit where the City has now decided to revise the previous testimony and Master site plan. The City must require them to do the revisions on the Master site plan and Site plan if that is what they want to do. Here, this appeal does not contest the fact that a Hotel has been permitted to be built or insist on re - litigating the merits of the Hotel. It was acceptable to Brad Nicholson. Rather, the contention is based, for one, upon whether the instant permit (LUA 10-041) is outside the "scope and intent" of the original Master Site plan and Site plan approval, and, presently contains insufficient detail to decide because Brad Nicholson and the Board has now learned that the Hotel is "speculative " "at best" and other development is "not the topic of any development application " and it therefore cannot be subjected to any rational analysis whether the permit is appropriate under RCW 90.58.020. It is shown herein that the City can cite to no legal authority that requires a LUUPA appeal to be filed on issues where Brad Nicholson has previously prevailed. The doctrine of administrative finality applies to the City decision on LUA-09-060. If the findings on the original permit found "no development to take place within 200 feet of the shoreline" it was because at the time it was true, and that the utilization of the "ditch" for storm water conveyance to May Creek (after treatment of the water according to the KCS WDM) and that if those findings were unacceptable to the City, then it is the City or the Proponent of the project Spencer Albert Capital that should have filed a LUPA appeal, not Brad Nicholson. Proceeding to develop important shoreline vegetation and install storm water facilities on the shoreline for permits not complete within themselves and not set forth in sufficient detail is simply not appropriate and constitutes grounds for reversal under the act. Summary Judgment motion Brad Nicholson Page 6 of 25 I 11 II. Evidence Relied upon 2 (seven copies are being submitted per pre hearing order) 3 1 Attachment 1. Copy of the Shoreline permit 4 J I Attachment 2. Response to PFR 5 Attachment 3. Copy of Hearing Examiner Decision Hawk's Landing 6 Attachment 4. Copy of DNS LUA 10-041 including plan details 7 Attachment 5. City Council decision, Hawk's Landing Attachment 6. DS with mitigation measures including site plan, Hawk's Landing LUA09-060 8 Attachment 7. DVD video files on Costco disc. (open disc and open file for movies) qty. (7) files 9 10 IV 13 Motion for Summary Judgment 14 Issue no. 8 as stated in the Pre -Hearing Order: 15 Is Petitioner's appeal foreclosed when he doesn't appeal any aspect of the Cityproject for which the 16 shorelines substantial development permit was issued, nor allege any deficiencies with the permitted 17 project but rather all of his allegations relate to an adjacent non -shoreline project, Hawk's Landing 18 hotel? 19 If the facts to this hypothetical question were true, the result might be different, but the facts show that 20 petitioner has asked for reversal of the above captioned permit for numerous reasons that are identified in the Statement of Issues. 21 The accusation that Petitioner appeals no aspect of the above captioned permit and that all of the 22 allegations concern Hawk's Landing is simply and completely without merit and frivolous. Evidently, the 23 City contends that there is no way for the Board to inquire into what the scope of the original project or 24 unarticulated future development consists of. The City actually believes that they can testify in the 25 Hearing for the Master plan and Site plan that no development will take place within 200 feet of the 26 ordinary high water mark and then revise what was approved at their own instance. 27 Petitioner enumerated and assigned error and stated grounds for reversal to multiple areas of the permit 28 captioned above in the PFR and Statement of Issues. Summary Judgment motion Brad Nicholson Page 7 of 25 1 2 3 4 5 6 7 8 9 to 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The permit above is the permit that is appealed in the Statement of Issues. The permit improvements, if constructed, fail to constitute appropriate segments and are piecemeal because they do not follow the revision procedures. That obviously has something to do with the shoreline permit at issue here. Concerns indicating the permit should be reversed also include procedural and substantive compliance with the SMA and RCW 90.58.020, Renton's Shoreline Master Plan, and outright irregularity and capriciousness with the Master Plan and Site plan approvals for the Project. See PFR and Statement of I Issues. Petitioner presented issues for consideration by the Board that have now been incorporated into the Pre - Hearing Order. See pre -hearing order. It is impossible for the Respondent to show that all of the concerns relate exclusively to the merits of Hawk's Landing project because the issues are in the pre -hearing order and the PFR. Brad Nicholson is concerned that the Hawk's Landing Master site plan and site plan are not being followed. Brad Nicholson has already stated by declaration that he has nothing against the Hotel project in general. See declaration of Brad Nicholson. Perhaps City Attorney was not aware of the issues because he was not the Attorney in the Hawk's Landing appeal. Once the necessary showing is made, the responding party is required to set forth specific facts demonstrating that there is a genuine issue for trial. CR 56(e); Kendall v. Douglas, Grant & Lincoln Counties Pub. Hosp. Dist! No. 6, 118 Wn.2d 1, 8-9, 820 P.2d 497; Young v. Key Pharmaceuticals, Inc 112 Wn.2d 216, 225-26, 770 P.2d 182. The party opposing a summary judgment may not rest upon the mere allegations or denials of their pleadings or rely on conclusory allegations in an affidavit or brief to create a genuine issue of material fact. Baldwin v. Sisters of Providence, 112 Wn.2d 127, 132. When reasonable minds can not differ, Summary Judgment should be entered. Jacobson v. State, 89 Wn. 2d 104. Issue no. 8 should be dismissed and judgment entered in favor of Brad Nicholson. Summary Judgment motion Brad Nicholson Page 8 of25 1 11 Issue no. 10 as stated in the Pre -Hearing Order: 2 Does petitioner have standing to bring this appeal if; 3 4 (a) His injuries are speculative and remote because his only stated injuries come from an 5 11 project, Hawk's Landing Hotel, which may or may not be built; 6 (b) He raised these claims of injury in a SEPA appeal and site plan appeal of Hawk's Landing Hotel, 7 his claims were denied and he failed to exhaust his administrative remedies by not filing a LUPA 8 appeal; 9 10 (c) He has alleged no factual basis for damages or injury arising from the permitted project. 11 This is a perplexing accusation considering the City found that Brad 'Nicholson had standing in Hawk'; 12 Landing and made no mention of standing concerns at that time. See HEX decision Hawks Landing. I 13 appears to be another hypothetical question. The City is asking for the doctrine of administrative fmalit; 14 to be invoked for the Site plan that pertains to the exact same area of land that is appealed in this permit 15 Brad Nicholson had standing in that action. This project was claimed to be for purpose of providing fe 16 the infrastructure needs of Hawk's Landing on the permit face (on reply to be switched to an unlikel 17 projectxthat "may or may not be built"). i8 It appears that the City wishes to imply that Standing can be dissolved from "Failure of Exhaustion 19 Administrative Remedies" on the original project where he had standing with issues and prevailed or & 20 not concern the present case because it will not be built, or "Failure to State a Claim" because the City: 21 now implied that the project itself is unknown and undisclosed or speculative at best and unlikely. 22 After permit approval, the claim that Spencer Albert Capital cannot obtain financing appeared in the Cit} 23 answer along with the claim that the project is speculative at best. A claim is now made that standing is 24 therefore speculative. The threshold question on this issue is whether Petitioner Brad Nicholson ha! 25 standing to challenge the above captioned permit prior to the City's "switching" of the project description 26 for the reasons specified. The City is now stating that the storm water facility is the only construction tha 27 is certain. That it "will" be built irregardless of any other circumstances. In any event, Brad Nicholson ha 28 standing to challenge the storm water facility placed on the shoreline. Declaration of Brad Nicholson Summary Judgment motion Brad Nicholson Page 9 of 25 1 The Courts of Appeals have analyzed these types of claims under the standing rule articulated in RCW, 2 34.05.530. A person has standing to obtain judicial review of agency action if that person is aggrieved or 3 adversely affected by the agency action. A person is aggrieved or adversely affected within the meaning 4 11 of this section when all three of the following conditions are present: 5 (1) The agency action has prejudiced or is likely to prejudice that person; 6 ? (2) That person's asserted interests are among those that the agency was required to consider when 8 11 engaged in the agency action challenged; and 9 1 1(3) A judgment in favor of that person would substantially eliminate or redress the prejudice to 10 I' person caused or likely to be caused by the agency action, II 11 Our Courts have confronted challenges in this regard with review of the above requirements see Allan University of Washington 140 Wn. 2d 323 13 14 Of this test, the Court of Appeals '"Tote in Allan that '[t]he first and third prongs are generally 15 'injury -in -fact' requirements, while the second is called the'zone of interest.' prong." 16 The Court accepted the view articulated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S. CI 1? 2130, 119 L. Ed. 2d 351 (1992), There, where United States environmental groups sought to chaIlengc 18 under the Endangered Species Act, the impact of a regulation upon animal species in foreign countries 19 the Court acknowledged that "[o]f course, the desire to use or observe an animal species, even for purel 20 esthetic purposes, is undeniably a cognizable interest for purpose of standing." Id. at 562-63 (emphasi 21 added) (citing Sierra Club v. Morton, 405 U.S. 727, 734, 92 S. Ct. 1361, 31 L. Ed. 2d 636 (1972)). 22 The Shorelines Act (RCW 90.58) allows any person aggrieved by the granting, denying or rescinding of 23 permit on shorelines of the state to appeal to the shorelines hearings board. RCW 90.58.180(1). 24 25 In Core v. Olympia, 33 Wn. App. 667, 567 P.2d 790 (1983) the court identified that to be considered 26 , person aggrieved, a party must show that they have suffered an injury in fact within the zone of interes 27 protected by the statute and that the Board has authority to redress the injury suffered. 28 The Shorelines Hearings Board has noted in many cases the provisions of RCW 90.58.900 which require the Act to "be liberally construed to give full effect to the objectives and purposes for which it was Summary Judgment motion Brad Nicholson Page 10 of 25 I enacted." The Shoreline Act's broad ranging goals include preserving the public's opportunity to enjoy 2 the physical and aesthetic qualities of the natural shorelines of the state. RCW 90.58.020. Those are 3 exactly the interests identified by Brad Nicholson. PFR, Dec. of Brad Nicholson, Statement of Issues. 4 The Board has also construed standing to include visual and aesthetic interests. 5 6 In a recent case, see Alexander v. Port Angeles, SHB Nos. 02-027 & 02-028 (2003) the Board found the petitioners met standing requirements by alleging impairment of views from areas and parks that they 7 frequented. Id at pg 4. In accord, Anderson v. Pierce County, 86 Wash. App. 290, 299, 936 P.2d 432 8 (1997); Redman v. Mason County, SHB No. 99-01 (Order on Motions, July 30, 1999) citing, King v. 9 Port of Vancouver, SHB No. 97-17 (1997); West v. City of Olympia, SHB No. 08-013 (2008). 10 11 Brad Nicholson has alleged and established the same interests in the visual and aesthetic impacts 12 presented by the Applicant's instant project. Brad Nicholson has a direct and concrete interest in the 13 aesthetics of the Shoreline including its vegetation and wildlife. PFR. Dec_ of Brad Nicholson. The storm 14 water facility will be bulldozed right into shoreline habitat and discharge directly to May Creek. 15 To show an injury in fact, the petitioners must demonstrate that the injury is immediate, concrete, and 16 specific, not conjectural or hypothetical. See Snohomish County Property Rights Alliance v. Snohomish 17 County, 76 Wash. App. 44, 53, 882 P.2d 807 (1994); also Hale v. Island County, SHB Nos. 04-022 & 18 O4-023 (Decision on Motion to Dismiss, January 27, 2005). 19 On the record presented by the permit, Brad Nicholson has established standing to challenge the shoreline 20 permit by stating that he and his family enjoy the pleasant break the shoreline and its vegetation provide 21 and enjoy the wildlife that frequent the shoreline area in the area of the development and that they will be disturbed by the development, that the very area enjoyed will be bulldozed to install a 10,000 square foot 22 storm water facility and access roads installed in place of the natural vegetation. The water quality will be 23 impacted by such a major amount of construction and species impacted that Brad Nicholson and his 24 family enjoys. it is not actually known what the dependant development will actually consist of, but the 25 access roads and swale will impact shoreline and upland wildlife he enjoys. Declaration of Brad 26 11 Nicholson. 27 11 Brad Nicholson took the time to draft a declaration and identify impact facts in the PFR indicating that ' I I lives, views, and recreates in the area impacted by this project and is adversely impacted by the project. Summary Judgment motion Brad Nicholson Page 11 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Now the City has changed the project stating that the use of the area is speculative. He and his family enjoy walk, bike, view, and recreate generally and precisely in the area of the development on a regular basis and use and enjoy the shoreline area and its wildlife frequently. See DVD video exhibits. He and 1 family enjoy observing wildlife along the shoreline and are adversely impacted by the project. That enjoyment includes fish and upland wildlife as well. Brad Nicholson and his family enjoy a number of different species of wildlife in the very spot that is impacted by the stormwater facilty. The project places the drainage facility in place of the Shoreline's vegetation and wildlife habitat adversely affecting the ability to enjoy the Shoreline and its wildlife and vegetation even where other property is available and Brad Nicholson's interests in finality in previous approvals is also being ignored, impacting his interests. Brad Nicholson has enunciated claims which involve injury that is both personal and concrete and standing should be granted. If the Board were to accept the City's claim for lack of standing, Brad Nicholson will be unjustifiably deprived of the right to petition the Government for redress of grievance. The Board should not allow the issue of speculation to be raised to defeat standing in this manner, If, for example, permit proponents are allowed to change position and use the argument that an area use is speculative at best, and while additional projects are undisclosed while approving a permit to build its supporting infrastructure, then each and every appellant where that strategy is used would not have standing because of speculation. The tactic could be used universally. It would be very sad indeed to use taxpayer money to create that type of precedent. The visual and esthetic, recreational, and environmental claims Brad Nicholson has stated raise issues of concern under the SMA. This type of showing meets the requirement that the alleged injury fall within th zone of interests protected by the statute. And Brad Nicholson, having demonstrated injury in fact falling within this zone of interests of those interests of the SMA, has established the grounds for standing to appeal the shoreline permit at issue in this case. The motions to dismiss for lack of standing should be dismissed and denied and summary judgment granted to Brad Nicholson on Legal Issue 10. Summary Judgment motion Brad Nicholson Page 12 of 25 1 2 3 4 5 6f 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Issue no 11 as stated in the Pre -Hearing Order: "May petitioner, under the Samuels Furniture case, 147 Wn.2d 440, ask the Board to impose shoreline jurisdiction on Hawk's Landing hotel and argue that the appealed permit is improperly segmented from the adjoining Hawk's Landing hotel when he did not file a LUPA appeal from the decision that Hawk's Landing Hotel is more than 200 feet from the shoreline and his attorney basically conceded that issue? The Washington Supreme Court clearly recognized the importance of finality in land use decisions in a recent shoreline case: Samuel's Furniture v. Ecology, 147 Wn.2d 440 (2002). With regard to the City's hypothetical question, the answer is yes in certain aspects of their question of law and fact. However, Samuel's never confronted the possibility of litigating deception or changed position during the process. However, another Board case that looked into the same type of issue is Arjan Bhatia v. Dept of Ecology SIM 95-34. Like the City approval here, Mr. Bhatia obtained the first segmented approvals under the guise of having all development take place more than 200 feet from the shoreline. The original approvals were final, but in the end it was discovered that the original disclosures and testimony were not factual. Mr. Bhatia, just like Hawk's Landing, wound up in the end claiming that they were out of money and thal the shoreline should be developed even though inconsistent with the act. Mr. Bhatia's permit was reversed. It certainly would not be fair to Mr. Bhatia to allow the opposite result here. It was for one, because the proper procedures to revise the original scope had not been followed. Samuel's involved attempts by Ecology to re -litigate interpretation of the location of some lines on a maF ....those issues are not present here. There is no doubt that the merits of Hawk's Landing may not be litigated here, but there is nothing in the decision in Samuels that prevents the Board from inquiring here into the "scope and intent" of the Hawk's Landing original permit approval and reversing this instant permit because it is inconsistent with that final approval and because it has been revised without following the rules for shoreline permits according to WAC 173-27-100. Although Hawk's Landing original application had very little detail on the storm water plan, that issue was argued extensively and in the final decision it was clearly decided that the type of feature and location details were to the satisfaction of all. It was final. See City Council decision, Hawk's Landing. Summary Judgment motion Brad Nicholson Page 13 of 25 2' 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It was to use the "ditch" to convey the water to May Creek, and that development activity would take place farther than 200 feet from the ordinary high water mark. The City should not be able to pick and choose which part of the substance and merits of Hawks Landing project is final and which is not final. There is no law or procedure available to them stating that they can pick and choose like that. Having part of the decision final and part of the decision revised with another permit to the benefit of their position is certainly not an aspect of the decision in Samuels that works to benefit the City's shoreline permit. The scope of the original decision was/is final, but it is appropriate for the Board to inquire into what the scope of the instant project actually consists of, that is that the Hotel Master Plan and Site plan was approved, with all development activity taking place farther than 200 feet from the ordinary high water mark, and that the ditch would be utilized to discharge the water to May Creek, while now it is stated that it is for a speculative at best and development not the topic of any development application. The scope of the original project certainly excluded development of the shoreline area with infrastructure such as storm water facilities. Evidently, the City is also contending that the development that is not the topic of any application is already final. That is absurd. In Samuels, the Court applied the concept of finality in Land use decisions to certain types of Land use decisions. With regard to the original substance, this case is one of them and Samuels should be fully applicable. The merit of the original Hotel project and its scope are not disputable here. In Samuels, the City of Ferndale authorized the extension of an existing store without any shoreline permits because the City determined the project was not within the shoreline jurisdiction based upon some map interpretations. It was later disputed because of some discrepancies with the maps, delineations, and descriptions. The case involved an interpretation of documents concerning flood plain designation and location and there was some disagreement as to whether the project was on the shoreline floodway or not. They originally decided that it wasn't and held to that. In the case of Hawk's Landing and the instant permit, there has been no interpretation disputed at all just a clear determination that was made about the project's scope based upon unambiguous and undisputed testimony and subsequently issuance of a shoreline permit inconsistent with the findings and approval. The location of the "ordinary high water mark" or the lines are not in dispute here. The proponent in Hawk's Landing stated that the area within 200 feet of the ordinary high water mark "would not be touched' and no interpretation of maps or flood plain documents took place or was necessary. Summary Judgment motion Brad Nicholson Page 14 of 25 1 2 3 4 5 6 7i 8 9 10 11 12 13 14 15 16 17 I8 19 20 21 22 23 24 25 26 27 28 It was simply taken as true that the words could be honored. The Heating Examiner made the finding and incorporated it into the Master site plan and Site plan approval. In Samuel's, Ecology argued it was not contending the fill and grade or the building permits were issued improperly, but only that a shoreline permit was required. Because the city did not issue a formal shoreline permit or decision regarding the shoreline jurisdiction, Ecology reasoned there was nothing for it to appeal. That is not the case here. One issue here is the substance and scope of the original site plan approval has been ignored in a shoreline permit here that is captioned above and under review by the Board. Other issues like how to determine compliance with RCW 90.58.020 are also present in this case. The instant case respectfully distinguishes Samuel's Furniture in certain ways. The City has not contended that the instant project is outside Shoreline jurisdiction otherwise there would not be a shoreline permit captioned above. The Shoreline permit captioned above and at issue here is intended, (according to the permit face) to "meet the infrastructure needs offuture development including Hawk's Landing' (which is in reality a revision to an undisclosed or unknown and speculative at best project) In this case, the City processed and issued a shoreline permit for a part of the project, but failed to include information as to the scope of the project that it determined it to be serving. That was the point in time when the inappropriate connection was made. Unlike Samuel's Furniture, this case involves an appeal capable Shoreline Permit, (LUA10-041) for an inappropriate segment of the total project, which is now before this Board. The Shorelines Hearings Board was never asked in Samuel's Furniture, to interpret the Shoreline Management Act and its regulations for the Samuel's project because no permit was in existence. Here it is evidently contended that the City can basically revise the scope of the final, original permit, without mentioning that it is in reality the final substance and scope of the Hawk's Landing speculative at best project that is necessary to inquire into here, with the instant permit approval, to be able to consider whether the act has been carried out. Samuels is not about how to change a final decision with another improper segment, it is about the original segment. It is simply too difficult to imagine that the Shoreline Management Act, which was approved by the voters of Washington, can be construed to allow a Shoreline Permit, such as in this case, Summary Judgment motion Brad Nicholson Page 15 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 to render the Shoreline regulations omnipotent while allowing development in conflict with a final Maste site plan and Site Plan approvals. That would replace the State wide uniformity and consistency of the interpretation of the Shoreline Management Act by this Board with a clever tactic that would circumvent legitimate review of their actions that could then be used by anybody. That is exactly what Mr. Bhatia tried to do, and what the City attempts here that is so inappropriate. It seems to be thought by the City that as if by magic and a few deceptive words, the City can shield the instant permit from deliberations and review. If this type of permit is allowed to proceed, then all any applicant would need to do is pledge that no development would take place within 200 feet of the ordinary high water mark during the site plan approvals, (which generally comes first) then following with the revisions that could never be reviewed. Coerced development details could then proceed and prevail at will with the SMA reduced to a whim. The very core of Shoreline jurisdiction is at stake in this case because it will create a precedent for future decisions. The type of clever tactic should not be allowed. Brad Nicholson does not have an issue with the hotel concept or the scope of the original approval. It is final. Brad Nicholson is motivated by compliance with the SMA, protection of vegetation and habitat, wildlife, the visual esthetic enjoyment of i those interests and other interest that he has a right to under the SMA. 17 1 � Brad Nicholson prevailed on the issues in Hawk's Landing that are material to his concerns, and this case 18 19 20 21 22 23 24 25 26 27 28 and is not attacking the previous decisions here. He does not have to agree spiritually with everything the City does or decides. He raised the issues in a previous appeal and subsequently prevailed and `basically conceded' according to the City the issues based upon the testimony and commitments of the various parties, including City Staff and the proponents. In that sense, the term "basically conceded'' is deceiving. There is no citation of authority available to suggest that Brad Nicholson was under any obligation to appeal an issue that he considered that he prevailed on and therefore the Board need not consider the suggestion. See Rural Residents v. Kitsap, 95 Wn. App 383 id. at 393 There the Court decided that when a party on appeal does not cite any authority in support of a claim, it is assumed that counsel found none after a diligent search. The City can cite no authority for the proposition that a LUPA appeal was needed. Under Samuels, the city needed to file a LUTA appeal. The applicability of Samuel's Furniture v. Ecology, 14' Summary Judgmen' motion Brad Nicholson Page 16 of25 I I I Wn.2d 440 (2002) works in favor of Brad Nicholson and summary judgment should be entered in favor 2 11 of Brad Nicholson on issue 11 as described. 3 It is final that the Hotel concept is approved and that the scope of the project is that "no development will 4 take place within 200 feet of the ordinary high water mark" and that the "ditch be used to convey the 5 water to May Creek" Those facts may not be re -litigated here. 6 8 9 Issue Number 7 as stated in the pre hearing order: 10 11 "Whether the permit is consistent with RCW 90.58.020?" "' ` In deciding the above question it is necessary for the Board to define the parameters of the permit 13 consistent with Edward Haves v George Yount, Et Al, 87 Wn.2d 280, also see Slade Gorton aJof 14 Dept of Ecology v. Nichols Boat builders, SHB no. 216 id. at 6, wherein the Board noted the dut 15 Board is to correctly determine compliance with RCW 90.58.020. The above question posited is o16 the primary duties required of the Board, the court stating, "such im actscan bee ectivel measu17 when the specific dimensions or "sco e "o the develo ment are set orth in sufficient detail" The 18 also found that it is appropriate and acceptable to inquire into the "scope and intent" of the original permit 19 and Master site plan and site plan approvals to make such a determination and indicated that Shoreline 20 Permits must be reversed when the permits are not complete within themselves and do not contain 21 sufficient detail to enable the Boar d_to determine consistenceswith the policies and procedures of 22 `— preferred water dependant uses and other policies that are setforth in RCW 90.58.020" (emphasis supplied) The Court found that it is correct for the Board to conclude that it is not possible for the Board 23 to carry out its important statutory duty to further the important priority of use policy and other policies 24 (RCW 90.58.020) when the permit does not describe the proposed use in sufficient detail. This permit 25 approved a storm water facility on the May Creek shoreline for around three or four featureless acres, an 21 a Hotel project that is speculative at best. 27 M 2s Summary Judgment motion Page 17 of 25 I 1 Brad Nicholson 11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1%ere is no citation available holding that permits can be complete "within themselves" when they ,ontain the internal conflict evident here. The reality of the situation is that it is not anything more than a revision to the original site plan approval, or for an unlikely to be built speculative and unknown or undisclosed project, without the City recognizing it on the permit. That is not containing "sufficient detail" In Appletree Cove Protection Fund v. Kitsap SHB No. 93-55 the Board found that failing to use the Master Plan to assess the overall environmental impacts of future development under this type of insulation "can only lead to preventable damage to the natural environment which is the right of all citizens of the state". In this case the Master site plan and Site plan approvals originally approved by the Hearing Examiner have been ignored and therefore can only lead to preventable damage to the natural environment. Further, again in Slade Gorton and Dept of Ecology v. Nichols Boat builders, S14B no.216 the Board concluded that to further the clear purposes and policies of the SMA, there are no circumstances that can be relied on to authorize..... " or its supporting documents" in accord, Evergreen Islands v. City of Anacortes and Leeward Development SHB 91-39, SAVE v. Koll Company and City of Bothell SHB 82-29 This project contains development that is "speculative at best" and `'not the topic of any development application " In Bullit v. City of Seattle SHB nos.81-29 and 82-44, the Board recognized that it has been said that "by analogy to the revision procedure, a permit that is not within the scope and intent of the application cannot meet the requirement of RCW 90.58.140. The permit appeal issues are regulated by RCW 90.58.140(l) stating a development shall not be undertaken on the shorelines of the state unless it is consistent with the policy of the chapter (RCW 90.58.020) and, after adoption or approval, as appropriate the applicable guidelines, rules, or master program ......... The Board concluded that under Hayes v. Yount, the Board, when identifying what was authorized under an initial permit, it still needed to have the "sufficient detain' on the next permit itself or on specific supporting documents including the application, the site plan, and those documents incorporated by reference on the face of the permit. Summary Judgment motion Brad >\ icholson Page 18 or25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Wherein it was stated, Because the policies set forth in RCW 90.58.020 go beyond "use" and are also concerned with adverse effects on public health, vegetation, wildlife, waters and aquatic life, ect. and that such latter impacts can be determined only when the specifics or "scope" of the project of the development are set forth in specific detail, the permit fails. The Board stated in Slade Gorton case, "Deficiencies of the permit in this regard cannot be overcome by a retrospective assessment of the impacts from construction not authorized under the initial permit'' The motions for Summary Judgment should be granted as a matter of Law on issue no. 7 and an order entered into the record for the permits to be complete within themselves and contain sufficient detail in order to enable the Board to be capable to determine the permit is consistent with RCW 90.58.020. Issue no. 12 as stated in the Pre -Hearing Order: Does petitioner properly state a complain that the City has improperly segmented the shoreline substantial development permit when the City infrastructure improvement, for which the shoreline substantial development permit was issued, will be built whether or not the Hawk's Landing project is built. The above question misconstrues the content of administrative rules applicable to the permit that is closely related to Hawk's Landing and announces that the project "will be built' whether the Hawk's Landing is built or not. The terms "can not" and "will not" are both applicable and not equivalent or interchangeable according to the rules. The permitted project can not proceed unless it is evaluated in t same environmental document because the revision procedures and requirements for sufficient detail to be contained have not been followed. The City has ignored the term "Cannot" and instead dictates the project will proceed. Summary Judgment motion Brad Nicholson Page 19 of 25 2 3 4 5 6 7 8 9 10 i1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WAC 197-11-060 Content of environmental review. (b) Proposals or parts of proposals that are related to each other closely enough to be, in effect, a single course of action shall be evaluated in the same environmental document. (Phased review is allowed under subsection (5)). Proposals or parts of proposals are closely related, and they shall be discussed in the same environmental document, if they: (i) Cannot or will not proceed unless the other proposals (or parts of proposals) are implemented simultaneously with them; (emphasis supplied) RCW 90.58.020 states, "There is a clear and urgent demand for a planned, rational, and concerted effort, jointly performed by federal, state, and local governments, to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines " Renton did not use the WAC rules or the Statute to revise the Hawk's Landing permit or consider the segment. This permit cannot clear the hurdle. The statute should not be so construed to enable the City to forego planning, or rational, and concerted efforts at coordination with their own approvals. WAC 173-27-100 provides: A permit revision is required whenever the applicant proposes substantive changes to the design, terms or conditions of a project from that which is approved in the permit. Changes are substantive if they materially alter the project in a manner that relates to its conformance to the terms and conditions of the permit, the master program and/or the policies and provisions of chapter 90.58 RCW. Changes which are not substantive in effect do not require approval of a revision. When an applicant seeks to revise a permit, local government shall request from the applicant detailed plans and text describing the proposed changes. (1) If local government determines that the proposed changes are within the scope and intent of the original permit, and are consistent with the applicable master program and the act, local government may approve a revision. (2) "Within the scope and intent of the original permit" means all of the following: (a) No additional over water construction is involved except that pier, dock, or float construction may be increased by five hundred square feet or ten percent from the provisions of the original permit, whichever is less; (e) The use authorized pursuant to the original permit is not changed; and (f) No adverse environmental impact will be caused by the project revision. Summary Judgment motion Brad Nicholson Page 20 or25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (4) If the sum of the revision and any previously approved revisions under former WAC 173-14- 064 or this section violate the provisions in subsection (2) of this section, local government shall require that the applicant apply for a new permit. WAC 173-27-030 defines "permit" "Permit" means any substantial development, variance, conditional use permit, or revision authorized under chapter 90.58 RCW; For these reasons Summary Judgment should be entered in favor of Brad Nicholson on issue number 12. Issue number 6 as stated in the pre hearing order: Whether the permit decision should be reversed because it fails "to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines " RCW 90.58.020 The Leading case, setting forth the historical decision and rule warranting reversal is ?Merkel v. Port of Brownsville, 8 Wn. App. 844 (1973). The Merkel court simply found that it is not reasonable to close our eyes to the obvious interrelation of a project upon the lowlands and adjacent uplands areas. The Court found that the evil that the legislature intended to prevent in its enactment of the Shorelines Management Act was, "coerced development" or in other terms development undertaken to avoid the purposes and objectives of SEPA or SMA. Of course the purpose of the act was to prevent applicants from revising previous approvals without inclusion of the entire known information. In other words, an unfocused, conflicting, result oriented fast track default based approach, instead of full consideration of a proposal based on a contemplative, deliberative approach, that is not only preferred to any other action, is not appropriate or acceptable. The City's Issue no 13, where it is asked "As a part of this permit, can the City be compelled to provide public access to property over which it has no ownership?" is illustrative of how "coerced" development operates. Anyone would necessarily have to answer the question affirmatively in favor of the permit and the City's position where the City has no ownership, under the process the City used here. Summary Judgment motion Brad Nicholson Page 21 of 25 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 However the City was evidently able to obtain access to develop storm water utilities on property that it has no ownership because with this permit there is now an easement on the property over which they hai no ownership. That was the property that was not going to be "touched" in the original approval. The Merkel court found the question was whether the applicant "may take single project and divide it in segments for purposes of SEPA and SMA approval" It was found that the frustrating effect of such piecemeal administrative approvals upon the vitality of these acts compels an answer in the negative. The Court went on to state that "A brief look at the record lends credence to the soundness of this decision" It then sought to, and subsequently did identify the coercive effects contained in the permit approval. Here, like in Merkel, the coercive effect the permit will have on the future projects is obvious. The questions relating to the Renton Master Program and land use priority are being avoided by the permit approval. There was evidently no observation that the property being dedicated within 200 feet of the ordinary high water mark. RCW 90.58.140 requires the Master program to be followed. Issues nos. 1, 2, 3, 4, 5, in the Statement of Issues are also illustrative. If the permit here is upheld and the conflicts with the site plan and the original approval are permitted to be ignored, it is obvious that numerous areas of concern will also be ignored. The unlikely "Hawk's Landing" or the future unknown development would have pressure to use the storm water site, type, size, and number of vehicle trips and location dictated by precedent and without contemplation or deliberation of how the infrastructure might be harmonized with whatever project might be proposed during their own reviews. The location of future trail connections would be limited as would contemplation and deliberation of general layout of the entire site so that shoreline amenities could be protected. Pressure to avoid consideration of whether alternatives exist, or where to place them, or an assessment of the quality of the facilities would be applied to the actual project. There is no evidence available that the 1.7 million dollars worth of improvement would not be heavily promoted. Undoubtedly, it could then be contended that plans, details, and setbacks and locations for the future are already established or limited by final decisions for the area, and the facilities are already in place etc. In other words, there would no motivation for other possibilities to ever be seriously considered, and the project would in all likelihood proceed without consistency with SEPA or SMA's objectives and purposes. And asking for consideration of them would be futile because the approvals would be final under Samuel's. There is no evidence that the City Summary Judgment motion. Brad Nicholson Page 22 of25 1 2 3 4 5 6 7 81 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 would ever be willing to consider changing the location and size of the storm water facility that they already spent the money on. A subdivision could then be undertaken to further develop the area where it is currently not known in any detail how the area will be put, never considering the important priorities of the act such as "water dependant use" or whether the storm water manual requirements have been met. The site plan details were argued vigorously originally, that is, what the impact the proposed project would have on the area and the measures that were decided to be used. That review would now be discarded by default here. Among the changes now are: Construction of the "Swale" and its access road within 50 feet of May Creek, filling the "Ditch" which is a class 5 stream with 5000 cubic yards of dirt and gravel, Ripping out the essential "Headwall" that is also within the Shoreline of May Creek, and having "others" in the future covering that water body with a 12 foot side walk over the top of all of it. Spencer AIbert has never considered complying with the terms of the site plan approval that requires water quality measures to be applied prior to being discharged to the "ditch" People will be looking at a square fenced drainage swale and access road just looking like a retention pond, depriving citizens from natural characteristics of the shoreline break and vegetation, by default, because it is not being reviewed with the true projects along with the deliberative and contemplative approach that is envisioned by the SMA and SEPA. The project will then be completed without ever having had contemplated or deliberated whether the important provisions of RCW 90.58.020 have been carried out, such as wherein the statute reads, "shall be given priorityfor single family residences and their appurtenant structures, ports, shoreline recreational uses including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the state, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state and other development that will provide an opportunityfor substantial numbers of the people to enjoy the shorelines of the state " Additionally, the "coerced" outcome is inevitable where connection to the May Creek Trail would never be contemplated let alone prioritized, for how say, it might meander to a connection or come near to an Summary Judgment motion Brad Nicholson Page 23 of 25 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 LO area of wildlife viewing, on this site or upstream at some location and provide the very important connection to May Creek Park people are interested in, or how a more appropriate infiltration feature might be rounded out and blended into the aesthetics of the shoreline to the people's benefit for the appearance of the City and how it can protect the wetlands associated with the site. It would undoubtedly be contended that the issues have already been decided and that no changes can be made. Claims of lack of standing, failure to exhaust administrative remedies, failure to state a claim etc. would then be reiterated and at that time it might be successful. The proponents get to maximize their efficiency and fast track the project through the steps when there are numerous aspects of the project that do not comply with legal requirements or objectives and purposes of the Act. Any future development that may or may not occur in the area, it will be successfully contended, although most inappropriately, that it should coincide with what is approved here and already constructed. In this case, the coercive effect the construction of this one segment would have upon the other is obvious. If those activities are allowed to proceed before the conflicts are resolved, and actual development identified in the context of the entire development, it is obvious much area and public interest aspects will also be affected. The Court in Merkel found that the legislature, in extending the scope of SMA to consideration of the use of lands adjacent to shorelines, sought to prevent this type of coerced land use development. The Court in Merkel did exactly that, and it is what should be done here. The Court found that, `�o permit the piecemeal development urged would lower the environmental mandates of the SMA to the status of mere admonitions", evidently where piecemeal projects render legislation purpose statements are useless. The Court found that "the result would be frustration rather than fulfillment of the legislative intent inherent in these acts" It will be to the public's benefit that these projects comply with the procedures established by SMA to insure that the identified issues have been fully contemplated, deliberated, and incorporated into the plan. Irreparable damage would flow from allowing any portion of this project to proceed without full compliance with the permit requirements inherent in the SMA. Of course it is an inconvenience and might cost more money to combine and harmonize all of the details as a result of the holding in Merkel, but these inconveniences, according to Merkel, are far outweighed b3 the public's interest in attaining and maintaining an environment consistent with legislatively promulgatec goals according to the SMA. They should not be able to develop a natural conservation environment to Summary Judgment motion Brad Nicholson Page 24 of 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facilitate a speculative at best and unknown project with shoreline infrastructure in one segment of the total project. Summary Judgment should be entered into the record on all issues pertaining to "Whether the permit decision should be reversed because it fails "to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines' RCW 90.58.020 Wherefore, Having fully complied with requirements for Summary Judgment Brad Nicholson request the following relief. 1. Summary Judgment in his favor on the issues herein and reversal and remand of the permit for corrections consistent with the Judgment. Summary Judgment motion Dated this 30`h day of October, 2010 Brad Nicholson Brad Nicholson Page 25 of 25 1' 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 RA 23 24 25 26 27 Z8 BEFORE THE SHORELINES HEARINGS BOARD fN1 AND FOR THE STATE OF WASHINGTON In re the appeal of Renton's Shoreline Substantial Development Permit LUA10-041, ECM, SM: Brad Nicholson, Petitioner, V. City of Renton Respondents. 1, Brad Nicholson, declare the following: Case No: SHB 10-016 Declaration of Brad Nicholson In support of Motion for Summary Judgment 1. 1 am now and at all times mentioned a citizen of the United States and a resident of the State of Washington, City of Renton, over the age of eighteen years, competent to make this declaration, and make this declaration from my oven personal knowledge and judgment. 2. I have attached a DVD video disc to the Motion for Summary Judgment. The videos that are contained on the disc have been reproduced at Costco at my instance and request. I am the person that created the video on a digital camera that I own. I believe that the contents of those videos represent a true and Icorrect copy and depiction of May Creek wildlife. 3. However, there were no mammals available to be photographed on the day the video was taken. On numerous other occasions, I have enjoyed observing deer, opossum, raccoon, and coyote. I have also observed bald eagle, red tailed hawk, sparrow hawk, goldfinch, and red head woodpeckers and other bird species on the site. In the past, I have seen some of them right directly in front of the proposed storm water facility or right directly overhead. Declaration Brad Nicholson Page I of 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 4. With regard to Hawk's Landing, I was under the definite impression that I prevailed on the issues that "no development would take place within 200 feet of the ordinary high water mark" and that "the ditch would be used to discharge storm water to May Creek" That is what the decision consisted of in my reading and understanding of the documents listed. 5. All of the documents attached to the motion for Summary Judgment were provided to me by the City of Renton and I believe those attachments submitted in support of this motion to be true and exact copies of the material that was provided to me. 1 declare under penalty of perjury under the laws of the State of Washington that the foregoing is true and correct. `DATED this 30th day of October, in Renton, Washington. 21 � 22 23 24 25 26 27 28 1 Nicholson Declaration Brad Nicholson Page 2 of 2 r `�1 aterE Telephone; (360) 459-63, FnH0 ution Control Hearings Board — a P Shorelines Hearings Board o FAX: (3601438-7699 Forest Practices Appeals Board _ [mail: ehoveho.wa.gov I Ivdraulic Appeals Board y`s� Website:www.eho.wa.go Environmental and Land Use Hearings Board STATE OF WASHINGTON ENVIRONMENTAL HEARINGS OFFICE Mailing Address: PO Box 40903, Olympia, WA 98504-0903 Physical Address: 4224 - 6th Ave. SE, Bldg. 2, RoweSix, Lacey, WA 98504-0903 September 16, 2010 Brad Nicholson Lawrence Warren 2302 NE 28`h St City of Renton City Attorney Renton WA 98056 PO Box 626 Renton WA 98056 Re: SHB No. 10-016 BRAD NICHOLSON v. CITY OF RENTON Dear Parties: Enclosed is the Pre -Hearing Order from the conference held on September 15, 2010. Please review the order carefully because it sets out requirements for preparing this case for hearing and states the legal issues that will control the subsequent course of this appeal. For ease of reference, the key dates and deadlines in this appeal are as follows: 2 3 rd 5 6 7 Motions: Dispositive motions must be filed no later than November 5, 2010. Opposing parties must file Responses to any dispositive motions within 14 days after receiving the motion. The Reply must be filed within 7 days after receiving the Response. Discovery: Discovery must be complete by December 10, 2010. Joint Status Report: The parties must file a joint status report by December 10, 2010. Witness and Exhibit Lists: Final witness and exhibit lists must be filed by December 27, 2010. Motions in Limine: Any motion in limine must be filed by December 30, 2010. Briefs: Pre -Hearing Briefs, if filed, are due by January 3, 2011. Hearing: The hearing is set for January 10-11, 2011. . 1';EIVE ' tcNITOk Ci Y ATTORNEY 0 110 SHB No. 10-016 September 16, 2010 Page 2 If you have questions about any of these deadlines, or the appeal process, please call the Environmental Hearings Office staff at 360-454-6327. Sincerely, ;4�- "z/.,6-'-�- Phyllis K. Macleod Administrative Appeals Judge, Presiding PKM/dj/S 10-016 Enc. Cc: Don Bales, Ecology City of Renton Community Development Port Quendall Company Alpert International CERTIFICATION On this day, 1 forwarded a true and accurate copy of the documents to which this certificate is affixed via United States Postal Service postage prepaid or via delivery through State Consolidated Mail Services to the attorneys of record herein. 1 certify under penalty of perjury under lie laws of the state of Washington that the foregoing is true and correct. DATED G at Lacey, WA. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 SHORELINES HEARINGS BOARD STATE OF WASHINGTON BRAD NICHOLSON, Petitioner, V. CITY OF RENTON, Respondent. SHB NO. 10-016 PRE -HEARING ORDER On August 26, 2010, Petitioner Brad Nicholson filed a petition with the Shorelines Hearings Board (Board) for review of a Shoreline Substantial Development Permit (SSDP) issued to the City of Renton for infrastructure improvements within a shoreline. A pre -hearing conference was held by telephone on September 15, 2010. Administrative Appeals Judge Phyllis K. Macleod presided for the Board. Brad Nicholson appeared prose as the Petitioner. City Attorney Lawrence J. Warren appeared on behalf of the Respondent City of Renton. Based on the conference, the Board enters the following Pre -Hearing Order: I. HEARING The hearing is scheduled for January 10-11, 2011, commencing at 9:30 a.m., at a location to be determined near the project site. The second day of the hearing will be held at the Board's offices in Turnwater, Washington, commencing at a time to be determined at the conclusion of the first day. On the first day of the hearing, the Board will conduct a site visit. PRE -HEARING ORDER SHB No. 10-016 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 II. MEDIATION AND SETTLEMENT The parties are requested to notify the Board jointly by December 10, 2010, if there are significant settlement possibilities in the case. The parties have been informed that mediation is a no -cost service provided by the Environmental Hearings Office. If mediation is desired the parties should notify the Environmental Hearings Office by telephone or in writing. III. LEGAL ISSUES The parties submitted and agreed to the following legal issues, which will govern the case: I • Whether the permit decision should be reversed because it is inconsistent with Renton Shoreline Master Program Urban Designation regulations §5.03.01(D) reading as follows, "To enhance waterfront and ensure maximum public use, industrial and commercial facilities shall be redesigned to permit pedestrian waterfront activities" and, "Where practicable, various access points ought to be linked to non -motorized transportation routes, such as bicycle and hiking paths." 2. Whether the permit decision should be reversed because it is inconsistent with Renton Shoreline Master Program Utilities Landscape Native Vegetation regulations §7.19.01(A)(1) reading as follows, "The native vegetation shall be maintained whenever possible. " 3. Whether the permit decision should be reversed because it is inconsistent with Renton Shoreline Master Program Local Service Utility specifications §7.19.04(D)(1) covering discharges of pollutants reading as follows, "Discharges of pollutants into water courses and ground water shall be subject to the Department of Ecology, Corps of Engineers, and the Environmental Protection Agency for review of permitsfor discharge." 4. Whether the permit decision should be reversed because it is inconsistent with RC W 90.58.020 criteria reading as follows, "Permitted uses in the shorelines of the state shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area and any interference with the vublic's use of the water." 5. Whether the permit decision should be reversed because it is inconsistent with Renton Shoreline Master Program Stream Alteration regulations §7.17.02(A)(B) reading as follows, "Stream Alteration in unique and fragile areas is prohibited" and "Stream alteration 'RE -HEARING ORDER 3HB No. 10-016 lA G 2 3 4 5 6 7 L' 12 13 14 15 16 17 18 19 20 21 solely for the purpose of enlarging the developable area of a parcel of land or increasing the economic potential of a parcel of land is prohibited " 6. Whether the permit decision should be reversed because it fails "to prevent the inherent harm in an uncoordinated and piecemeal development of the state Is shorelines. " RCW 90.58.020. 7. Whether the permit is consistent with RCW 90.58.020? 8. Is Petitioner's appeal foreclosed when he doesn't appeal any aspect of the City project for which the shorelines substantial development permit was issued, nor allege any deficiencies with the permitted project but rather all of his allegations relate to an adjacent nonshoreline project, Hawks Landing Hotel? 9. Is Petitioner's primary complaint foreclosed, that complaint being that surface water will percolate into the nonshoreline Hawk's Landing Hotel site, and then drain across the heavily polluted Quendall Terminal site, not the permitted site, since it was found, on administrative appeal that such percolation and drainage will not occur and Petitioner did not exhaust his administrative remedies by filing a LUPA appeal. 10. Does petitioner have standing to bring this appeal if; (a) His injuries are speculative and remote because his only stated injuries come from an adjoining project, Hawks Landing Hotel, which may or may not be built; (b) He raised these claims of injury in a SEPA appeal and site plan appeal of Hawks Landing Hotel, his claims were denied and he failed to exhaust his administrative remedies by not filing a LUPA appeal; (c) He has alleged no factual basis for damages or injury arising from the permitted project. 11. May Petitioner, under the Samuels Furniture case, 147 Wn.2d 440, ask the Board to impose shoreline jurisdiction on Hawks Landing Hotel and argue that the appealed permit is improperly segmented from the adjoining Hawks Landing Hotel project when he did not file a LUPA appeal from the decision that Hawks Landing Hotel is more than 200 feet from the shoreline and his attorney basically conceded that issue? 12. Does Petitioner properly state a complain that the City has improperly segmented the shoreline's substantial permit when the City infrastructure improvement, for which the shorelines substantial development permit was issued, will be built whether or not the Hawks Landing Hotel is built. PRE -HEARING ORDER 3HB No. 10-016 ki 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 13. As part of this permit, can the City be compelled to provide public access to property over which it does not have ownership? IV. MOTIONS For dispositive motions, responses, and replies, an original and seven (7) copies of the pleading and supporting documents shall be filed with the Presiding Officer. For non-dispositive motions an original and 1 (one) copy is needed. All copies and attachments shall be three - `hole punched. 1. Dispositive Motions: Motions on any issue that would be dispositive of all or part of the case shall be filed and served by November 5, 2010. Opposing parties shall have 14 days from the date received for response, and the moving party will have 7 days from receipt of the response for reply. 2. Non-Dis ositive Motions: Responses to any non-dispositive motion shall be filed and served five days from receipt of the motion by the non-moving party. The moving party shall then have three days from receipt of the response to file and serve a reply 3. Oral Argument Not R uired. Motions will be decided based on the written record, unless oral argument is requested by a party and granted by the Presiding Officer. At the parties' request, argument may be held by telephone. V. WITNESSES AND EXHIBITS The parties have exchanged preliminary lists of witnesses and exhibits. A. Witnesses. Final lists of witnesses shall be served on the parties and filed with the Board by December 27, 2010. An original and seven (7) copies shall be filed. Any witness PRE -HEARING ORDER SHB No. 10-016 a] oftk. AM*46 1 listed in final lists may be called by any party. The party calling a witness has the responsibility 2 to ensure his/her attendance at the hearing. The expertise of a witness shall be established by 3 resume offered as an exhibit. 4 B. Exhibits. Final exhibit lists shall also be filed and served by December 27, 2010. An 5 original and seven (7) copies shall be filed. Parties may request a copy of any exhibit on 6 another party's final list and such copies shall be provided within two working days. After the 7 exchange of final exhibit lists the parties shall confer, prior to the hearing, to reach any 8 agreement on exhibits' authenticity and admissibility and to eliminate duplicate exhibits. All 9 exhibits must be introduced in connection with a witness's testimony or referred to in argument. 10 Parties are asked to submit into evidence only those portions of voluminous documents actually 11 being referred to or relied upon by a witness. 12 When meeting with the Presiding Officer prior to the commencement of the hearing, each 13 party shall have available an original and seven (7) copies of its exhibits and exhibit lists which 14 shall identify those stipulated to by the parties, and spaces for indicating whether each exhibit 15 was offered, admitted or excluded. Each exhibit shall be pre -marked by a tab for identification 16 (P-1, P-2, etc., for petitioner; R-1, R-2, etc., for respondent), and so identified on the exhibit lists. 17 All oversized exhibits shall be marked with the case number. The number given to an exhibit 18 does not limit the order of its introduction at hearing. Any exhibit listed by one party may be 19 introduced by another party. Voluminous exhibits (over 100 pages) shall be three -hole punched 20 for the Board's convenience. 21 PRE -HEARING ORDER SHB No. 10-016 5 �1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 VI. DISCOVERY The parties have agreed to complete discovery by December 10, 2010, except for witnesses identified for the first time in the final witness list. These witnesses may be deposed after the fdiscovery cut-off. If formal discovery is pursued, parties should pay particular attention to the time requirements imposed by the superior court civil rules with regard to interrogatories, depositions, etc. Discovery requests shall be served sufficiently ahead of the discovery deadline so that the opposing party has the response time allowed by these rules.. (For example, responses to interrogatories are typically due thirty (30) days after service. See CR 33.) The parties shall endeavor to resolve any discovery disputes among themselves. If a dispute cannot be resolved, any party may file a motion, provided the motion is accompanied by an affidavit reciting efforts to resolve the discovery dispute. Any motions to compel discovery must be filed and served by the discovery cutoff date. An original and one (1) copy of discovery motions and supporting documents, including a proposed order, must be filed with the Presiding Officer. Depositions, interrogatories, requests for production or inspection, requests for admission and the responses shall not be filed. It is the initiating party's responsibility to maintain the original together with answers to interrogatories and to make them available for the proceedings. VII. BRIEFS Pre -Hearing Briefs are optional. If submitted, they shall be filed and served no later than PRE -HEARING ORDER SHB No. 10-016 2 I January 3, 2011, with an original and seven (7) copies for the Board. Briefs are limited to 2 fifteen (15) pages absent an order granting a motion to lengthen. If a citation is made to a case 3 other than a Wn. App. or Wn.2d case, a complete copy of the referenced citation must be filed. 4 + VIII. COMMUNICATION COMMUNICATION/CONTACT: All correspondence and filings with the Board shall 6 1 be sent to the attention of the Presiding Officer with copies sent at the same time to all other 7 j parties. The Board does not accept e-mail correspondence directed to the presiding officer. 9 I FAX: Telefax may be used to communicate with the Board for single copies only and 10 1 limited to ten (10) pages in length, provided the original and copies are mailed the same day. 11 E-FILING: Parties may file pleadings and other papers in this case with the Board by 12 electronic mail, if the original and any required number of copies are mailed the same day. 13 J Please include attachments and exhibits with the hard copy, rather than the e-mail filing. The 14 1 following additional conditions apply to e-filings: 15 1. The date of "filing" will be the date/time email filings are received by the Board. E-filings received by the Board after 5:00 p.m. on a business day will 16 be considered filed on the next business day. Please note that e-mail is not always received immediately. There may be a significant delay between the 17 time you send your e-mail, and the time the Board receives it. The office has experienced delays of up to two hours, so please plan accordingly. 18 2. The email address for e-filing is ehoneho.wa.gov. 3. The subject line of any email containing documents you wish to a -file must 19 include the following: "E-filing for SHB No. " and may also include additional descriptors (e.g., Summary Judgment Motion). 20 21 PRE -HEARING ORDER SHB No. 10-016 7 n I E-SERVICE: The parties have agreed to use of electronic service among the parties, 2 without the requirement to provide a hard copy. 3 IX. MOTIONS IN LIMINE 4 Any Motions in Limine must be filed by December 30, 2010. The briefing period for 5 non-dispositive motions shall govern motions in limine. 6 X. MISCELLANEOUS 7 "Filed" means the date received by the Board. 8 ORDER 9 This order shall govern the proceedings, unless subsequently modified by order of the 10 Board for good cause upon a party's motion or the Board's volition. 11 12 SO ORDERED this dayof 13 SHORELINES HEARINGS BOARD 14 �J 15 Phyllis K. Macleod, 16 Administrative Appeals Judge, Presiding 17 18 19 20 21 PRE -HEARING ORDER SHB No. 10-016 l:1 RCW 90.58.020: Legislative findings — State policy enunciated — Use preference. http://apps.Ieg.wa.gov/rcw/default.aspx?cite=90.58.020 Inside the Legislature * Find Your Legislator * Visiting the Legislature * Agendas, Schedules and Calendars * Bill Information * Laws and Agency Rules * Legislative Committees * Legislative Agencies * Legislative Information Center * E-mail Notifications (Lislserv) * Civic Education * History of the State Legislature Outside the Legislature + Congress - the Other Washington * TVW * Washington Courts + OFM Fiscal Note Websile Access AALWashington- h I Help RCWs > Title 90 > Chapter 90,58 > Section 90,58.020 90 58 010 « 90 58.020 >> 90.58.030 RCW 90.58.020 Legislative findings — State policy enunciated — Use preference. IN The legislature finds that the shorelines of the state are among the most valuable and fragile of its natural resources and that there is great concern throughout the slate relating to their utilization, protection, restoration, and preservation. In addition it finds that ever increasing pressures of additional uses are being placed on the shorelines necessitating increased coordination in the management and development of the shorelines of the stale. The legislature further finds that much of the shorelines of the stale and the uplands adjacent thereto are in private ownership; that unrestricted construction on the privately owned or publicly owned shorelines of the stale is not in the best public Interest; and therefore, coordinated planning is necessary in order to protect the public interest associated with the shorelines of the state while, at the same time, recognizing and protecting private property rights consistent with the public interest. There is, therefor, a clear and urgent demand for a planned, rational, and concerted effort, jointly performed by federal, state, and local governments, to prevent the inherent harm in an uncoordinated and piecemeal development of the slate's shorelines. It is the policy of the state to provide for the management of the shorelines of the state by planning for and fostering all reasonable and appropriate uses. This policy is designed to insure the development of these shorelines in a manner which, while allowing for limited reduction of rights of the public in the navigable waters, will promote and enhance the public interest. This policy contemplates protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life, while protecting generally public rights of navigation and corollary rights incidental thereto. The legislature declares that the interest of all of the people shall be paramount in the management of shorelines of statewide significance. The department, in adopting guidelines for shorelines of statewide significance, and local government, in developing master programs for shorelines of statewide significance, shall give preference to uses in the following order of preference which: (1) Recognize and protect the statewide interest over local interest; (2) Preserve the natural character of the shoreline; (3) Result in long term over short term benefit; (4) Protect the resources and ecology of the shoreline, (5) Increase public access to publicly owned areas of the shorelines; (6) Increase recreational opportunities for the public in the shoreline, (7) Provide for any other element as defined in RCW 90.58.100 deemed appropriate or necessary. In the implementation of this policy the public's opportunity to enjoy the physical and aesthetic qualities of natural shorelines of the state shall be preserved to the greatest extent feasible consistent with the overall best interest of the state and the people generally. To this end uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the slate's shoreline. Alterations of the natural condition of the shorelines of the stale, In those limited instances when authorized, shall be given priority for single family residences and their appurtenant structures, ports, shoreline recreational uses including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the stale, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the slate and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the state. Alterations of the natural condition of the shorelines and shorelands of the state shall be recognized by the department. Shorelines and shorelands of the state shall be appropriately classified and these classifications shall be revised when circumstances warrant regardless of whether the change in circumstances occurs through man-made causes or natural causes. Any areas resulting from alterations of the natural condition of the shorelines and shorelands of the state no longer meeting the definition of "shorelines of the state" shall not be subject to the provisions of chapter 90.58 RCW. Permitted uses in the shorelines of the slate shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area and any interference with the public's use of the water. (1995 c 347 § 301; 1992 c 105 § 1, 1982 1st ex.s. c 13 § 1; 1971 ex.s. c 286 § 2.1 Notes: Finding -- Severabllity -- Part headings and table of contents not law -- 1995 c 347: See notes following RCW 36.70A.470. 1 of 1 11/08/2010 2:34 PM STATE OF WASHINGTON DEPARTMENT OF ECOLOGY RECEIVED SEP 0 � 2C' CITY OF hLivTC.)N UTILITY SYSTEMS Northwest Regional Office • 3190 160th Avenue SE • Bellevue, Washington 98008-5452 • (425) 649-7000 September 1, 2010 City of Renton Surface Water Utility Attn: Steve Lee 1055 South Grady Way Renton, WA 98057 Re: City of Renton Permit LUA10-041 -Approved City of Renton Surface Water Utility, Attn: Steve Lee — Applicant Shoreline Substantial Development Permit # 350 Dear Steve Lee: On August 31, 2010 the Department of Ecology received notice that the City of Renton approved your application for an SDP. Your permit is for stormwater and water line improvements within the shoreline jurisdiction of May Creek. By law, local governments must review all SDPs for compliance with: • The Shoreline Management Act (Chapter 90.58 RCW) • Ecology's Substantial Development Permit approval criteria (Chapter 173-27-150 WAC) • The City of Renton Local Shoreline Master Program Local governments, after reviewing SDPs for compliance, are required to submit them to Ecology. Your approved SDP has been received by Ecology. What Happens Next? Before you begin activities authorized by this permit, the law requires you wait at least 21 days from the "date of receipt" — the date you receive this letter. Date of receipt is defined in RCW 43.21 B.001 as: (1) "Business days" means Monday through Friday exclusive of any state or federal holiday. (2) "Date of receipt" means: (a) Five business days after the date of mailing; or City of Renton Surface Water Utility September 1, 2010 Page 2 (b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt, however, may not exceed forty-five days from the date of mailing. This waiting period allows anyone (including you) who disagrees with any aspect of this permit, to appeal the decision to the state Shorelines Hearings Board. You must wait for the conclusion of an appeal before you can begin the activities authorized by this permit. The Shorelines Hearings Board will notify you by letter if they receive an appeal. We recommend you contact the Shorelines Hearings Board before you begin permit activities to ensure no appeal has been received. They can be reached at (360) 459-6327 or http://www.eho.wa.gov If you want to appeal this decision, you can find appeal instructions (Chapter 461-08 WAC) at the Shorelines Hearings Board website above. They are also posted on the website of the Washington State Legislature at: http://Ups.leg.wa.gov/wac. Other federal, state and local permits may be required in addition to this shoreline permit. If you have any questions about this letter, please contact Barbara Nightingale at 425-649-4309. Sincerely, Barbara Nightingale, Regional oreline Planner Shorelands and Environmental Assistance Program BN:cja __ �vcertified mail: �7009820 0001 7154 2941 cc: Vanessa Dolbee, Senior Planner, City of Renton 20 21 22 2� 2 Motion for Summary Judgment November 5, 2010 Without Oral Argument BEFORE THE SHORLINES HEARINGS BOARD IN AND FOR THE STATE OF WASHINGTON In re the appeal of Renton's Shoreline Case NO. SHB#10-016 Substantial Development Permit LUA10-041, BCM, SM, Brad Nicholson, Declaration of Steve Lee in Support of Renton's Motion for Summary Judgment Appellant, under CR56 Motion V. CITY OF RENTON, Respondent. Steve Lee hereby declares under penalty of perjury, pursuant to the laws of the State of Washington that the following is true and correct to the best of my knowledge: 1. That I am over 18 years of age and am competent to testify in this matter. Declaration in Support — Page 1 Renton City Attorney V 100 S 2nd St 6 PO Box 626 „u Renton, WA 98057-0626 �r Phone: 425.255.8678 �N�� Fax: 425.255.5474 b 9 10 11 12 1 14 15 16 1'7 �y 2C 21 22 23 2. 1 am a Civil Engineer, P.E., for Respondent, City of Renton, (hereinafter "Renton") in the above -referenced action. Since 2005, my responsibilities have included, but are not limited to, planning, designs and responses for surface water, CIPs (Capital Improvement Projects), NPDES, Cedar River issues, and flooding. I was the project manager for the Ripley Lane North Storm System Improvement Project that is located adjacent to the Seahawks Training Facility. 3. 1 attended and graduated from University of Pennsylvania and Lehigh University in 1994, with a combined degree in civil engineering. 4. 1 attended and graduated from Lehigh University in 1996 with a Masters in Hydraulics & Hydrology. 5. 1 have worked as a civil engineer since 1994 in a variety of positions for several employers. This prior experience included, but was not limited to, groundwater engineering design support, remediation technologies, PLC programming, brownfield permitting, construction engineering, surface water drainage issues, permitting dams, water cleanup, NPDES, hydrological and hydraulic modeling, and civil engineering designs. 6. Attached hereto as exhibits are true and correct copies of the following: a. Lake Wa. Blvd. Hawk's Landing Storm and Water Improvements Project, Figure 1 Vicinity Map by Gray & Osbourne, Inc., (hereinafter "Exhibit A"); b. Wetland/Stream Study: Hawk's Landing Crowne Plaza Hotel report by Graham -Bunting Associates, May 12, 2009 (hereinafter "Exhibit 8"); c. Steam Assessment (Consistent with Renton Municipal Code Section 4-8- 120) for the Main Water Installation Associated with the Hawk's Landing Water and Stormwater Improvements City of Renton, King County, Washington, by Gray & Osborne, June 16, 2010 (hereinafter "Exhibit C"). Declaration in Support — Page 2 Renton City Attorney 100 S 2nd St a- Po Box 626 tt Renton, WA 98057-0626 Ir Phone: 425.255.8678 �N�[) Fax: 425.255.5474 9 10 11 12 14 15 16 17 18 19 20 21 22 24 25 7. Petitioner makes a number of assertions or assumptions that are factually and/or scientifically incorrect in his Petition for Review. 8. Petitioner claims, throughout his petition, and specifically on pages 4 — 7, and 9, that the conveyance outlet pipe "ponds" an "extremely large quantity of water runoff and infiltrates a significant portion of that water runoff to Quendall Terminals and Lake Washington." Renton has three responses to these claims. 9. First, as for the existing ditch water that Petitioner claims "ponds" at the Pan Abode/work site and runs off to Quendall Terminals and Lake Washington, that water is confined to the Pan Abode site by Lake Washington Boulevard North and the BNSF railroad. As illustrated by Exhibit A the Lake Wa. Blvd. Vicinity Map, the water would have to rise over Lake Washington Boulevard, rise uphill over the BNSF railroad and flow diagonally to get to or near Quendall Terminal. Without a pump, that is virtually impossible. 10. Second, the flow of groundwater near the Pan Abode/work site is south to May Creek, rather than north towards Quendall Terminal. This is illustrated in Exhibit B the Wetland/Stream Study: Hawk's Landing Crowne Plaza Hotel report. In that report, on page 2, it states (speaking of the Pan Abode site which is adjacent to the Renton infrastructure site), that the proposed hotel site "is predominantly flat, however, the northern portion of the site, adjacent to the entrance of the existing Pan Abode facility, resembles a bowl shaped depression designed to receive stormwater runoff from multiple catch basins located along the southbound on -ramp to 1-405 and Lake Washington Boulevard. Stormwater runoff from the Declaration in Support — Page 3 Renton City Attorney ✓� 100 S 2nd St PO Box 626 „LL + Renton, WA 98057-0626 Phone: 425,255.8678 �N�� Fax: 425.255.5474 = catch basins is transmitted to the northern portion of the subject property, through an existing 2 24-inch WSDOT storm pipe and discharges into the northern end of the Lake Washington Boulevard drainage ditch, located along the eastern right of way of Lake Washington Boulevard. a Stormwater from the subject property is also collected and discharged to the ditch at this 6 location. The open ditch extends approximately 500 feet to the south where it enters a 24-inch corrugated plastic pipe that flows an additional 60 feet south before discharging into May 8 Creek." 9 11. Third, Renton intends to eliminate the "ponding of water" by constructing a new 10 24-inch pipe to collect and treat 1-405 and Lake Washington Boulevard North runoff in a wet 11 bio-Swale, convey existing WSDOT runoff into the new 24-inch storm water pipe and provide 2 pipe stubs for existing areas that drain into the ditch. The project drainage report, in Exhibit A the Lake Wa. Blvd. Vicinity Map makes clear that based on the shape of the northern most part _ of the Pan Abode site, and the fact that Quendall Terminals is across Lake Washington - - Boulevard and farther north, the runoff or drainage of water from Pan Abode to Quendall Terminals is virtually impossible. 12. Petitioner also claims on petition pages 5-6, that the dissolving orange metal of 19 the abandoned Pan Abode buildings, on private property, is discharging into May Creek. 201 2'1 13. First, Petitioner is correct in surmising that due to many years of Pacific 22 Northwest rain, the building roof's protective coat has worn away and the roof has rusted. 2 14. However, the orange water substance in the ditch cannot be attributed to one 24 source since it could be from the abandoned buildings rusting roof, brake dust from vehicles on 25 Declaration in Support — Page 4 Renton City Attorney 100 S 2°d St * PO Box 626 „LL Renton, WA 98057-0626 Phone: 425.255.8678 �N�� Fax: 425.255.5474 - 1-405, and/or possibly the soil substances or minerals that could be naturally occurring in the soil. The northwest soils have naturally occurring sulfur bacteria, hydrogen sulfide, manganese, 3 iron and other metals. There is a high probability that the orange substance is naturally occurring. 6 15. The Stream Assessment, (Exhibit C, p. 2) noted that "[i]ron bacteria have turned 7 the water in the ditch orange." Irrespective of the source of the discoloration in the ditch, 8 Renton's project will utilize catch basins with sumps to settle solids such as rust from the 9 existing Pan Abode building or vehicle brake dust, and a bio-swale to further settle solids and 10 thereby clean and improve the drainage water quality. The proposed stormwater wet swale 11 facility has been proven by the State of Washington, via thousands of successful applications, to 12 13 be one of the best methods for water quality treatment. 14 16. Petitioner then claims on petition pages 10, 13, 15, and 18-19, that the storm 15 water infiltration/runoff from the proposed Hawk's Landing Hotel should be supported by some 16 sort of water quality facility and that the LWB Project is being done for the benefit of the still- 17 to -be -built hotel. Respectfully, that is not Renton's project. It is unknown to the City at this 16 time if the "Seahawk's Hotel", as Mr. Nicholson refers to it as its project name, will be built. 19 Furthermore, the Lake Washington Boulevard Project is for the benefit of the receiving stream 21 and will treat only runoff from the road right-of-way areas, not the "Seahawks' Hotel". 22 17. The Lake Washington Boulevard North Storm and Water System Improvement 2 3 Project (LWB Project), for which the appealed shoreline substantial development permit was issued, is a standalone project to assist the entire Exit 7 area to discharge better quality water, 25 Declaration in Support — Page 5 ��y O Renton City Attorney 100 S 2"d St V a: PO Box 626 Renton, WA 98057-0626 Phone: 425.255.8678 INTO Fax: 425.255.5474 3 6 20 21 212 23 24 25 deliver more reliable water flow to combat fires, and potentially to provide a framework for a soft -surface trail for the general public. The LWB Project is not related to any specific proposed development. Renton is retrofitting and improving an existing roadway storm runoff area and the water system to benefit Renton, and the environment in and around May Creek. This work also lays the foundation for a possible regional soft surface trail. 18. While I do not know what will happen with the "Seahawk's Hotel" project, I do know that the LWB Project has and will move forward regardless of the outcome of the "Seahawk's Hotel" project, which at the date of this signing still has not received funding to start construction. Additionally, and very significantly, if the "Seahawks' Hotel" project or any other project is initiated at the Pan Abode site, the project developer will be responsible for having to satisfy all applicable Renton codes and applicable state laws, including but not limited to, on -site drainage, and water runoff. 19. Petitioner, on petition pages 14-15, claims that Renton is involved in stream alteration. Renton is not altering May Creek. The only change to May Creek is that, because of the catch basins and wet bio-Swale, the water that will drain into May Creek after construction of the LWB Project will be cleaner. The flow of water in May Creek should remain the same after this project is completed. 20. Petitioner, on petition page 6, claims that Renton's "'revitalization permit will needlessly tear up the shoreline esthetics [sic] and disrupt habitat, permanently block the area from public access and enjoyment, and discharge its polluted water into May Creek." 21. Mr. Nicholson could not be more wrong. The LWB Project does the opposite by Declaration in Support — Page 6 iY Renton City Attorney t;> 100 S 2o' St PO Box 626 „a * Renton, WA 98057-0626 Phone: 425.255.8678 �N�[) Fax: 425.255.5474 8 9 10 11 12 22 2 24 25 1) improving the aesthetics of May Creek by Lake Washington Boulevard by filling in the orange water ditch that is outside the Shoreline buffer area; 2) not disrupting any natural habitat that contains any wetland buffers or the May Creek buffer areas per the Creek shoreline buffer area designation; 3) providing a pourous concrete sidewalk from which to view May Creek and allow safe pedestrian access along Lake Washington Boulevard; 4) stabilizing and improving municipal water flow to this region; 5) providing safer and more fire fighting flows to this Exit 7 area; and 6) cleaning drainage water thereby improving the quality of water entering May Creek and ultimately Lake Washington. 22. Additionally, where the pipes are being replaced, and where the bio-swale is being installed, there is little to no native vegetation in those areas. (See Exhibit C, p. 1-2, and 0 23. The discharge pipe is not being altered or replaced and does not trigger any other permits. 24. The net result of the LWB Project is a more reliable municipal water flow to the area, and cleaner and improved water quality discharging into May Creek and ultimately into Lake Washington. DATED THIS 4 November 2010, at Renton, Washington. CITY OF RENTON Declaration in Support — Page 7 Steve Lee Civil Engineer, P.E., CESCL, M.S. City of Renton Y Renton City Attorney r� 100 S 2nd St 41 PO Box 626 * Renton, WA 98057-0626 Phone: 425.255.8678 �N20 Fax: 425.255.5474 STATE o a � 7 y 1889 STATE OF WASHINGTON DEPARTMENT OF ECOLOGY RECHIVED SEP 0 201 CITY OF RENJTON UTILITY SYSTEMS Northwest Regional Office • 3190 160th Avenue SE • Bellevue, Washington 98008-5452 • (425) 649-7000 September 1, 2010 City of Renton Surface Water Utility Attn: Steve Lee 1055 South Grady Way Renton, WA 98057 Re: City of Renton Permit LUA10-041 -Approved City of Renton Surface Water Utility, Attn: Steve Lee — Applicant Shoreline Substantial Development Permit # 350 Dear Steve Lee: On August 31, 2010 the Department of Ecology received notice that the City of Renton approved your application for an SDP. Your permit is for stormwater and water line improvements within the shoreline jurisdiction of May Creek. By law, local governments must review all SDPs for compliance with: • The Shoreline Management Act (Chapter 90.58 RCW) • Ecology's Substantial Development Permit approval criteria (Chapter 173-27-150 WAC) • The City of Renton Local Shoreline Master Program Local governments, after reviewing SDPs for compliance, are required to submit them to Ecology. Your approved SDP has been received by Ecology. What Happens Next? Before you begin activities authorized by this permit, the law requires you wait at least 21 days from the "date of receipt" — the date you receive this letter. Date of receipt is defined in RCW 43.21B.001 as: (1) "Business days" means Monday through Friday exclusive of any state or federal holiday. (2) "Date of receipt" means: (a) Five business days after the date of mailing; or L0i City of Renton Surface Water Utility September 1, 2010 Page 2 (b) The date of actual receipt, when the actual receipt date can be proven by a preponderance of the evidence. The recipient's sworn affidavit or declaration indicating the date of receipt, which is unchallenged by the agency, shall constitute sufficient evidence of actual receipt. The date of actual receipt, however, may not exceed forty-five days from the date of mailing. This waiting period allows anyone (including you) who disagrees with any aspect of this permit, to appeal the decision to the state Shorelines Hearings Board. You must wait for the conclusion of an appeal before you can begin the activities authorized by this permit. The Shorelines Hearings Board will notify you by letter if they receive an appeal. We recommend you contact the Shorelines Hearings Board before you begin permit activities to ensure no appeal has been received. They can be reached at (360) 459-6327 or http://www.eho.wa.gov/ If you want to appeal this decision, you can find appeal instructions (Chapter 461-08 WAC) at the Shorelines Hearings Board website above. They are also posted on the website of the Washington State Legislature at: htti)://apps.leg.wa.gov/wac. Other federal, state and local permits may be required in addition to this shoreline permit. If you have any questions about this letter, please contact Barbara Nightingale at 425-649-4309. Sincerely, Barbara Nightingale, Regional oreline Planner Shorelands and Environmental Assistance Program BN:cja By certified mail: 7009 2820 0001 7154 2941 cc: Vanessa Dolbee, Senior Planner, City of Renton 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE SHORELINES HEARINGS BOARD LN AND FOR THE STATE OF WASHINGTON RECEOVED In re the appeal of Renton's Shoreline Substantial ) Case No, AUG 2 6 2010 Development Permit LUA10-041, ECM, SM: ) Petition for Review ENVIRONMENTAL Brad Nicholson, ) HEARINGS OFFICE Petitioner, ) V. City of Renton Respondents. Name and address of Petitioner: Brad Nicholson 2302 N.E. 28th Street Renton, WA 98056 425 445 0658 brad827@hotmail.com Name and address of Respondents: Vanessa Dolbee/Steve Lee City of Renton Storm Water Utility 1055 South Grady Way Renton WA. 98057 Parties necessary for just adjudication: Property Owner: Port Quendall Company 111437 Ann, Steve Van Til 505 Union Station, 505 5th Avenue South #900 Seattle, WA 98104 PotiUon for Roview Brad Nicholson PagoI of20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Proponent: Spencer Alpert Alpert International, LLP 10218 Richwood Ave NW Seattle, WA 98177 Represented by: Jack McCullough 701 5t Avenue, Ste. 7220 Seattle, WA 98104 Parties Served: Washington State Department of Ecology 3190 160th Avenue Southeast Bellevue, WA 98008-5452 Washington office of the Attorney General Rob McKenna 800 5th Avenue Suite 2000 Seattle, WA 98104-3188 This is a request for Shorelines Board review of the decision to approve a Shoreline Substantial Development Permit designated LUA10-041, ECR, SM, issued on August 9, 2010, signed and approved by Renton's planning director "Clip" Vincent. A copy of the decision is attached herewith. I. INTRODUCTORY FACT Evidently, Renton's planning priorities are severely misplaced. The decision has the effect of approving of a Shoreline variance even though no evidence of the necessary criteria is present' The attached decision contains a bulleted list that claims to describe "each part" of the proposed project while incognizant of the need for a decision balancing the needs of the public. The burden of proof for a variance RCW 90.58.140(7) is on the applicant. Among other requirements, the circumstances must be "extraordinary" to be consistent the with requirements RCW 90.58.100(5) Petition for Review Brad Nicholson Pagc 2 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The decision claim that "each part" is included on the bulleted list is very far from being the truth. The words "each part" are misleading, hiding many facts of the true nature and contents of the permit. The following provides a description of some of the absent parts with a bulleted list that is reasonable, truthful, and appropriate: • On the north of the site, a functionally interrelated, interdependent, connected, non -priority, non - water related, non-public, 100% impervious, 5 story tall pre -approved 173 room Hotel with a spa, fitness center, restaurant, and parking lot named "Hawk's Landing depends on the project. Even though required by the SMA to do so, the true proponents of the permit never sought the necessary Shoreline permits, and never sought the necessary storm water or infrastructure facilities on another segment of the same project under a different designation - LUA-09-060, ECF, SA-M, SA-H. The project will have around 350,000 sq. ft. of impervious surface. The Hotel does nothing to further public access or water related or aesthetics interest but instead interferes with those interests. The defective permit is the latest of a series of surprises with regard to how the project's water runoff will be handled. At the Hotel's SEPA hearing, they were able to sneak approval of the bogus "Rain Garden" that violates code and isn't a "Rain Garden at all until after SEPA was performed. They said the "Rain Garden" was going to discharge to the "Ditch" Even though it has been improperly decided to designate the only portion of the "Urban" shoreline that is still undeveloped, the decision is still incorrect and the permit should still be reversed because it does nothing to allow the public to have access to the Shoreline. Some people believe them that there is a "50 foot setback" applicable to the project. • On the west, there is a 500 foot long orange scum containing drainage "Ditch" that is obviously contaminated with metals with a very high elevation conveyance output pipe that ponds the site's extremely large quantity of water runoff and infiltrates a significant portion of that water runofftc Quendall Terminals and Lake Washington. Now they are going to fill the "Ditch", which is the opposite of what the project described in the SEPA application for the Hotel project. This would be in lieu of the developer's responsibility, evidently because he refiises to mitigate the impacts o the hotel; a "bait and switch" tactic inconsistent with the previous pleas and decisions. Now, they contend the "Ditch" should be filled with imported material, under the guise that such action is ar Petition for Rerew Brad Nicholson Page 3 of20 I 2 3 4 5 6 7 g 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 acceptable continuation of a "direct discharge" to May Creek. It is simply not the case and not true. It is not a direct discharge to May Creek ---it presently significantly infiltrates to Lake Washington. What the natural hydrologic regime would be in a natural environment in the area has been totally disregarded, One thing is clear and that is that they dont know if infiltration water will impact Lake Washington and Quendall Terminals or not, but it is easy to see (consistent with the other actions pleas) that the decision was made in support of the contention that the area is already degraded, and that since they are doing nothing to exacerbate the issues, the proposal has no impact. It is evidently hoped that chances of reversal in appeals that may cite impact to the superfund site directly downstream containing extremely hazardous chemicals would be reduced with the tactic, i.e, they will contend that it has already been decided, The "wet biofiltration swale" is being separately permitted on this project for another project it is intended to service, while both have separate numbers which is the first indication that there is a problem. Without utilizing precedent for decisions in the KCSWDM, they want to conceal facts so as to affirm the developer's position regarding refusal to dedicate any Land with the hope that the inconsistencies with the City's Shoreline Management Program will go unnoticed. • On the southern 200 feet of the site, there is untouched State Shoreline meeting the criteria for designation as a "Conservation Environment" under Renton's Shoreline Management Plan'. Two regulated wetlands, and a Class one Salmon Stream that should be protected by the Shoreline Management Act and numerous valuable species of wildlife including species listed as "Threatened" and "Endangered" by the ESA that are directly downstream from the Hotel, At least 10,000 square feet of the site area of the shoreline have been permitted to be bulldozed, and a pit would be excavated and fenced for storm water facilities that are not approved by the Storm water manual3 and would violate important regulatory requirements of the SMA, Renton's SMP and Renton's code. It is represented as an "improvement" over existing conditions even though such representation is unsupported by substantial evidence, and while there is no authority in the 3 The King county Surface water Design Manual (KCSWDM) 2005 or 2009 edition requires the enhanced basic water quality menu to be used for this project. A "wet biofiltradon Swale" is a feature listed on the `Basic" menu and therefore is not allowed. Petition for Review Brad Nicholson Page 4 of 20 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SMA indicating "improvement" is all that is required. More than an "improvement" is required by the SMA and Renton's Shoreline Management Plan. No restoration has been proposed. • With an ill considered location the experimental non -infiltration drainage facility inconsistent with the impositions imposed by the City in previous environmental review will be directed to May Creek should the permit stand. It thereby increases its flow, inconsistent with Renton's SMP with regard to stream alteration causing unknown downstream damage. Increasing the flow of the Creek might be a way to permit the project without drain to Quendall Terminals, but no facts are available indicating that such a decision is consistent with SMA are available. Few if no dissolved pollutants will be removed by the "Swale" even though there is a problem with metal according to the 303(d) Map, the KCSWDM, hydrologic survey of the Creek, (see exhibits) transportation estimates in excess of those permitted, and huge galvanized buildings that are dissolving into the Creek that the developer insisted would remain. It was discovered by the applicant during the SEPA hearing that one of the buildings would not be removed. The galvanized building is about 20,000 sq ft. and "straddling" the Shoreline jurisdictional line. • The decision inappropriately and unreasonably permits a very large "Mystery Area" of available land straddling the shoreline regulatory limits delineation and that is right down the middle of the project. It has never been articulated what development or use will take place on the "Mystery Area" and thus its reasonableness cannot be determined, but it is suitable and possible and natural in size and characteristics to support the facilities that are listed on the "enhanced basic" water quality menu or public use elements. If they don't consider that the metals from the building in the "mystery area" dissolve and drain into May Creek, the permitted project violates the City's own code. Considering the public interest nature of the regulations that are intended to protect those interests with specific design criteria suggest only that the permit is saving the "mystery area" with this stab at approval in hope that more tax generating development can be added later, Depending on whether the dissolving zinc warehouse and other pollution generated by the project would be permitted to remain with absolutely no disclosure as to what use the area of land will be put ---only that it is proposed to be continually dissolving heavy metals into the environment and discharging to May Creek ----untreated is an important issue that has never been addressed. The permit should also be reversed because of the high traffic and high pollution generating nature of Petition for Review Brad Nicholson Page 5 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 [4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the project. Perhaps the Seabawk's or Spencer Alpert may propose that the use on the 1-2 acre "Mystery area" in the center of the project within Shoreline jurisdiction be described later, on another unlawfully segmented part of the project like was done with the transportation and storm water facilities and previous plans. Originally, Spencer Alpert International applied for this project with the "Mn Garden A Whether the current project is the best or correct course of action is a very important question. It was insisted at SEPA that the project would comply with the 2005 KCSWDM, but this project does not comply with it nor is it consistent with the SNIP or SMA. This segment of the project is alleged to be only for the transportation and infrastructure segment of the project including storm water. From the outset there have been so many surprises with regard to the project like the "Rain Garden" and the "filling of the "Ditch" The City issued the permit to itself. It would certainly be more compliant with full disclosure if environmental review would be conducted on actual projects, or if subsequent segments would be consistent with the previous, or if the entire true project could be reviewed all at once. The environmental review concluded that the water would be appropriately handled with respect before being discharged to the "Ditch" but now the ditch is proposed to be filled. Surprises like these that include features that have never been fully reviewed will probably continue if this type of procedure is used. The City has segmented the review to include only what is being proposed on each step of what is needed to avoid imposing the Shorelines regulations or impositions on the developer, evidently being driven the idea of securing snore economic development. Perhaps that is why it is so frustrating to try to convince the applicant there are appropriate and reasonable solutions to the projects shortcomings. Closing their eyes to the obvious need for a variance or exception to the SMA, SMP, or complying with the storm water manual, evidently relying upon misinformation and misplaced priorities instead, the shoddily and poorly planned piecemeal City "revitalization" permit will needlessly tear up the shoreline 4 Ever since the surprise discovery that the Hawk's Landing "Rain Garden" was really an impervious perforated pipe conveyance system, petitioner and others have put it in quotation marks and it is continued here. Petition for Review Brad Nieholson Page 6 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 esthetics and disturb habitat, permanently block the area from public access and enjoyment, and discharge its polluted water into May Creek, a "Shoreline of the State", and a "Class 1 Salmon stream" This appeal seeks to prevent the inherent harm caused by the uncoordinated and piecemeal development of Washington's Shorelines and disregard of numerous provisions of RCW 90.58 and Renton's Shoreline Management Plan. I R. BACKGROUND FACTS On or around September 10, 2009 Spencer Alpert International applied for and obtained approval for a Master Site Plan for a 5 story, 60 foot high, 122,000 square foot, 173 room hotel, including retail space, a fitness center, a spa, and a restaurant at 4350 Lake Washington Boulevard North in Renton. Proposing to cut 32 trees and proposing to hydro -seed the Shoreline, the Seahawk's considered the project essential for their football operations -although essentially submitted without lawfully articulated street and storm water improvements or a clear picture of the layout of the entire site plan. Another project that is across the street and downstream of this project is a 20 some acre parcel commonly called Quendall Terminals, that is presently being scoped for an EIS for 800 residential units and a subdivision for "mixed use" retail development and is the subject of an EPA superfund investigation. No coordinated storm water plan is ye in place for the area. In yet another project, the Seahawk's practice facility next door was able to totally exclude the public from enjoying the shoreline. A Substantial Shoreline development permit was needed for the Seahawk's Hotel project to proceed to perform deconstruction and storm water work and/or stream alteration work within 200 feet of the high water mark on the State's Shoreline, but during it's SEPA hearing surprise Counsel insisted that the area would not be "touched" or deconstructed and thus a shoreline permit would not be required. Placing flower pots on the existing impervious asphalt was mentioned as a possible way to mitigate the distraction. It looks like the way that the proponent will keep his word now is that Planning director Chip Vincent already approved a Shoreline Permit to the City for the project's construction. Spencer Alpert an his Counsel argued that storm water improvements should be identified at the permit stage of the project PeUdon for Rcriew Brad Nicholson Page 7 of 20 I 2 3 4 5 61 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 and appropriate facilities would be determined at that time. Counsel for Spencer Alpert also argued that if the City does not take action within 45 days, then the project should be approved automatically. 1400 new trips per day were purported to be generated, parking was to be provided both below the hotel, and on 124 new surface parking spaces, including a number of spaces for `°Tesla" electric vehicles. In addition to proposing to constrict a "Koi Pond", his bogus "Rain Garden", and installing capillary break building drains to release groundwater just below the sites surface affecting the Hotel, the applicant planned to move 4, 450 yards of cut soil, and place 15,000 cubic yards of hill soil over the top of the existing asphalt. Even though the groundwater is nearly at the surface, it was contended that "best management practices" could be used to protect the environment during construction but none were specifically identified. Perhaps the construction water is proposed be directed to the "wet biofiltration swale" but it doesn't say. From a perspective of groundwater flow inferred from test pits and scientific measurements, the "Ditch" water is infiltrating directly upstream into the Port Quendall Superfund site and thence flows to Lake Washington. Port Quendall is severely polluted from past manufacturers of wood preservative products that dumped large amounts of chemicals in numerous areas of the site over decades. In summation, the "ditch" along Lake Washington Blvd is very deep and around 500 feet long, infiltrating a significant portion of its storm water directly to Quendall Terminals. See Massman declaration. In addition to not knowing exactly how much water infiltrates and how much runs off, it is not known how much of the superfmid chemicals are being forced or "fluxed" into Lake Washington, this recent discovery was after the Hotel's SEPA hearing. See EPA attachment. There are large patches of percolating chemicals at Quendall 4-6 feet thick at significant depth significantly impacting the water quality of Lake Washington. In order to clean up Quendall Terminals, there will probably need to be hundreds of thousands of cubic yards of contaminated soil removed and replaced on that site. Relevant here, were facts discovered that indicate a significant amount of water from the hotel project and "Ditch" could enter the superfund site through groundwater flow. Massman exhibits. The remediation plan is presently in progress, being conducted by the EPA to guide clean up of Quendall Terminals. EPA Exhibits. The Dept. of Ecology evidently has given up on it. No facts regarding how the remediation facts Petition for Review Brad NicboNon Page 8 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 might affect the project are available. Obviously, the results are not included in any review of the project because they are not available. The questions raised by the results were the essence of a previous SEPA appeal. SEGB and Brad Nicholson's SEPA appeal to Renton's Hewing Examiner cited the lack of the Hotel projects' compliance with SEPA and the SMA, and lack of a coordinated and compliant Storm water Plan. The entire record of the information contained in the appeal is hereby incorporated into this appeal. The conclusion and decision for the Hotel project indicated that it was normal for the storm water system to remain un-designed and unarticulated until issuance of permits at which time the code would be applied. That is one of the problems. See Declaration of Brad Nicholson. Counsel for Spencer Alpert insisted on splitting the Hotel's hearings into two separate hearings one for SEPA issues and one for substantive site plan code issues. SEGB and Brad Nicholson obtained the testimony of Hydrogeologist Dr. Joel Massman to opine on the issues. On reconsideration to the City's Hearing Examiner, Dr. Massman found that a significant amount of the storm water from the ditch supplies groundwater flow into Quendall Terminals and that the groundwater flows to Lake Washington. The downstream area contains cancer causing chemicals impacting groundwater to depths up to 50 feet, such as (PAH) Poly -cyclic aromatic hydrocarbons, Pentaclorophenol, and (BTEX) Benzine, Tolulene, Ethyl Benzine, and Xylene.. The PAH chemical family and the site contains chemicals such as P-Dibenzodioxin and P-Dibenzofuran. They are considered to be extremely dangerous. The groundwater in that zone flows to Lake Washington. It does not flow to May Creek. The area was and still is of particular concern because, like May Creek the area is considered prime habitat for Puget Sound Chinook Salmon, Coastal Cutthroat and Steelhead Trout. EPA exhibits. There also recreational swimming areas nearby that pose a threat to humans. May Creek basin and Lake Washington are supporting habitats for the American Bald Eagle and numerous other valuable species. May Creek's Steelhead trout and Puget Sound Chinook Salmon and Coho Salmon are ESA listed species. Recently Dr. Massman's conclusion that there is significant groundwater flow into Lake Washington has Pedfion for Review Brad Nicholson Page 9 of 20 2 3 4 5 6 7 8 9 10 11 I2 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 been verified by the EPA; through the underwater data that has been collected around Lake Washington's shoreline as part of the superfund investigations. Dr. Massman calculated the Storm water infiltration/runoff from the Seahawks Hotel that should be supported by what was then an unarticulated water quality facility that would comply with the 2005 KCSWDM, to be 20-25 acre feet per year, which amounts to an annual average 18,000 to 22,500 gallons per day. He noted that 75,214 square feet of Buildings would be removed, but his calculation probably die not take into account the lack of footing drains on the one building that counsel and Spencer Alpert pledged would "not be touched". At least initially, it is also true that his calculations did not take into account other impervious calculations such as transportation mitigation measures or what a "Rain Garden" consisted of according to Spencer Alpert. With the fractionated review, it is next to impossible for anyone to check the calculations with regard to current project's storm water facility size (even though it is on the wrong menu) effectively excluding the public from participating in that aspect of the project. When asked to reconsider based upon the fact that the very high outlet pipe to May Creek causes the ditch to pond and infiltrate significantly to Quendall Terminals, Renton's Hearing Examiner refused, citing "that there is no need" because he had decided the use of the "Best Available Science" was a mandatory requirement and requiring that May Creek was "not to be put into jeopardy" would suffice, and then at Spencer Alpert's insistence Renton's City Council overturned his decision by changing the terminology to the use of "Best Management practices" and that "whatever "Rain Garden" feature" could be used as long as it would satisfy the 2005 design manual and be discharged to the "Ditch" They never decided or addressed whether more storm water flow would be added to May Creek or not or whether or where a different compliant feature might be located or what type or size it might be because at the time, no complete plan was in existence. Neither was a Shoreline permit sought at that time. They reiterated that "best management practices" would be used during the dewater operation needed for construction but did not identify any of them. Sometime after the appeal requesting more consideration of the impacts of the project, the City identified State money citing community revitalization interests to provide mitigation measures for the Enterprise. This appeal follows: Petition for Review Brad Nicholson Page 10 of2o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I1. TIMING L. This petition is timely filed according to WAC 461-08-340 because it is filed within 21 days of he date the decision was made. WAC 461-08 states that, "A petition for review by any person aggrieved )y the granting, denying or rescinding of a permit on shorelines of the state shall be filed with the board vithin twenty-one days of the "date of filing" as defined in WAC 461-08-305, V. JURISDICTION �. The permit appeal issues are regulated by RCW 90.58.140(1) stating a development shall not be mdertaken on the shorelines of the state unless it is consistent with the policy of the chapter and, after adoption or approval, as appropriate, the applicable guidelines, rules, or master program, and RCW )0.58.140(2) stating, "A substantial development shall not be undertaken on shorelines of the state vithout first obtaining a permit from the government entity having administrative jurisdiction under this :hapter' ; 3. State Law RCW 90.58.180(1) provides that "Any person aggrieved by the granting, denying, or escinding of a permit on shorelines of the state pursuant to RCW 90.5 8.140 may, except as otherwise )rovided in chapter 43.21 L RCW, seek review from the shorelines hearings board by filing a petition for -eview within twenty-one days of the date of filing as defined in RCW 90.58.140(6), STANDING appellant Brad Nicholson is a resident of the City of Renton and member of SEGB who lives a very she listance from the site, and uses the May Creek Shoreline and Lake Washington waters bodies adjoining he site. Declaration of Brad Nicholson. Brad Nicholson has an active interest in the integrity of City of Zenton's land use and environmental review processes, has actively participated in past land use )rocesses including appeals relating to the site and its shoreline, and seeks to ensure that the City abides 'eGflon for Review 'ago 11 of 20 Bred Nicholson 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 its prior decisions and local and state SMA policies, procedures, and mandates and conducts all project reviews in an open, proper and ethical manner, and is negatively impacted by the improper processing lack of appropriate designs in connection with this project. As a result of the impacts caused by the permit approval, Nicholson will suffer harm from increased damage to the shoreline quality envisioned by RCW 90.58 and Renton's Shoreline plan, including lower water quality in May Creek and Lake Washington than envisioned by local and State Shoreline policies, loss of visual and recreational amenities, and harm to Steelhead Trout and other Salmonids and numerous other wildlife that use these Shorelines that he enjoys. Declaration of Brad Nicholson. Nicholson also has a longstanding interest in the land use decisions of the City of Renton and has made and participated in appeals concerning water quality and environmental protection of fish and wildlife in the past. As a result of the City's improper segmentation and fractionated review and decision making with regard to the shoreline permit, Nicholson is already suffering from an inability to comment on a full and completed review of a single true project application and the projects lack of attention to design criteria and shoreline management purposes. He enjoys the wildlife in Lake Washington and May Creek basin areas, frequently walks, boat, fish, bicycle, or swim with his family or desires to do so and observe the areas of May Creek surrounding the proposed project, and will be impacted by the loss of water quality and wildlife, recreation, and esthetic enjoyment associated with this project. See declaration of Brad Nicholson. The improper review of the permit fails to improve the situation that will impact him, using inadequate methods to enhance the natural systems and water quality will impact him, and he will be impacted by the degradation to amenities protected by the SMA, loss of access required by code, and water quality and harm to fish habitat associated with the proj ect's water runoff to either Lake Washington or May Creek. He wants to have his community planned and development consistent with the provisions of the Renton Comprehensive Plan Environment Element and Renton's Shoreline Master Program and State Law, and will be injured by the City's denial of the right to such a community without reversal of the Shoreline Permit and consideration of all the facts that are relevant to this appeal. Declaration of Brad Nicholson, PeUdon for Review Pago 12 ol'20 Brad Nicholson i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VI. JOINDER WAC 461-08-445 applies inthis case. The presiding officer is requested to join parties including permittee, permitting agency and any other interested person or entity in accordance with civil rule 19. I VII. ASSIGNMENTS OF ERROR A. Without a variance or exception, Director Chip Vincent erroneously or arbitrarily and capriciously approved the Shoreline Substantial Development permit even thoup-h the following required design criteria of Renton's Shoreline Master Program and 90.58.020 RCW have not been incorporated into the proiect's design: 1. Renton Shoreline Master Program Urban Designation regulations § 5.03.01(D) reading as follows, "To enhance waterfront and ensure maximum public use, industrial and commercial facilities shall be redesigned to permit pedestrian waterfront activities" and, "Where practicable, various access points ought to be linked to non -motorized transportation routes, such as bicycle and hiking paths" note: A hote and parking structure is not a water -dependent use given priority for shoreline development under RCW 90.58.020 see Gislason v. Town of Friday Harbor, SHB No. 81-22 (1981); Clifford, et al, v City of Renton and Boeing, SHB No. 92-52 (1993). Development consisting of a unified structure, such as a connection pipe to a storm water facility servicing the project, which is part in and part out of the shoreline with a potential for an adverse shoreline effect, is "within" the shoreline for the purposes of the SMA, see Weyerhaeuser v. King County, 91 Wn.2d 721, 592 P. 2d 1108 (1979). Since the pipe is connected and the storm water facilty is intended for the Hotel, it is also "on" the shoreline under RCW 90.58.140(2), and requires a shoreline permit for the entire project. Public access and habitat protection will be needed, as reflected by the master provision, an important value under the SMA. RCW 90.58.020 see Silver Lake Community Council v. City of Everett, SUB No. 80-04 (1980). Petition for Review Page 13 of20 Brad Nicholson 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Public access and habitat preservation are both part of the public trust values, which inhere in the SMA. see Caminiti v. Boyle, 107 Wn.2d 262 (1987). Because the Decision Maker failed to inhere those values, the permit as approved fails to meet the requirements of both SEPA and the SMA 2. Renton Shoreline Master Program Utilities Landscape Native Vegetation regulations § 7.19.01 (A) (1) reading as follows, "The native vegetation shall be maintained whenever possible" note: Public access is not the only shoreline value protected under public trust through the SMA. The policies of the SMA specifically contemplate "protecting against adverse effects to the public health, the land and its vegetation and wildlife, and the waters of the state and their aquatic life... RCW 90.58.020. 3. Renton Shoreline Master Program Local Service Utility specifications § 7.19.04 (D) (1) covering discharges of pollutants reading as follows, " Discharges of pollutants into water courses and ground water shall be subject to the Department of Ecology, Corps of Engineers, and the Environmental Protection Agency for review of permits for discharge" note: It is necessary for Renton to comply with the terms of the NPDES permit issued to it as an MS4 jurisdiction. See Puget Soundkeeper - Stormwater is recognized as the leading contributor to water quality pollution in urban waterways in the United States. Ex. MUM-0127, Fact Sheet, p. 8. In December 1999, the federal Environmental Protection Agency (EPA) issued new rules regarding the regulation of municipal stormwater. Ex. COA-0028, Moon Testimony. EPA finalized the Phase 11 rules in 2000 (EPA Phase H Rules), which applied the NPDES permit program to certain small municipal separate stormwater sewer systems (called MS4s). Ex. MUNI- 0127, Fact Sheet, p. 3. Emmett Testimony. The EPA Phase H Rules provide that the permits must require regulated MS4s to "develop, implement, and enforce a stormwater management program (SWMP) designed to reduce the discharge of pollutants ... to the maximum extent practicable (MEP), to protect water quality, and to satisfy the appropriate water quality requirements of the Clean Water Act." 40 C.F.R. §122.34(a). cite, Puget SoundkeeperAlliance, People for Puget Sound, Coalition of Governmental Entities v. State of Washington Department of Ecology, Department of Transportation PCHB NOS. 07-022, 07-023 4. Renton Shoreline Master Program Stream Alteration regulations § 7.17.02 (A) (B) reading as follows, "Stream Alteration in unique and fragile areas is prohibited" and "Stream alteration solely for the purpose of enlarging the developable. area of a parcel of land or increasing the economic potential of a parcel of Petition for Review Page 14 of20 Brad Nicholson 1 2 3 4 5 6 7 9 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 land is prohibited" note: RCW 90.58.020 "The legislature finds that the shorelines of the state are among I the most valuable and fragile of its natural resources and that there is great concern throughout the state relating to their utilization, protection, restoration, and preservation" and "In addition it finds that ever increasing pressures of additional uses are being placed on the shorelines necessitating increased coordination in the management and development of the shorelines of the state" and, " To this end uses shall be preferred which are consistent with control of pollution and prevention of damage to the natural environment, or are unique to or dependent upon use of the state's shoreline" 5. Renton Municipal Code 4-6-030 (A)(1)(2)(3), Renton Municipal Code 4-6-030 (C), Renton Municipal Code 4-6-030 (D)(2), Renton Municipal Code 4-6-030 (E)(3)(h)(ii) note: Maple Valley Citizens for Responsible Growth v. City of Maple Valley and Richard and .fill Brown SHB NO. 03-014 is distinguished in that the proposal discharging to Pipe Lake was not on the shoreline, not a salmon bearing water, it did comply with the KCSWDM, and they provided money and resources to insure by covenant that it would not pollute the Lake. None of those facts exist here. 6. KCSWDM 2009 edition § 1.2.8 Core Requirement 48 Water Quality, KCSWDM 2009 edition § 1.2.8.1 Area Specific Water Quality Facility Requirement, KCSWDM 2009 edition Definitions section page 13, KCSWDM 2009 edition § 6.1.2 Enhanced Basic Water Quality Menu. Note: a "wet biofiltration swale" is not an infiltration feature and not a stand alone enhanced basic feature, 7. The permit is inconsistent with RCW 90.58,020, "Alterations of the natural condition of the shorelines of the state, in those limited instances when authorized, shall be given priority for single family residences and their appurtenant structures, ports, shoreline recreational uses including but not limited to parks, marinas, piers, and other improvements facilitating public access to shorelines of the state, industrial and commercial developments which are particularly dependent on their location on or use of the shorelines of the state and other development that will provide an opportunity for substantial numbers of the people to enjoy the shorelines of the state" The hotel is not on the list. 8. The permit is inconsistent with RCW 90.58,020 design criteria, "Permitted uses in the shorelines of the state shall be designed and conducted in a manner to minimize, insofar as practical, any resultant damage to the ecology and environment of the shoreline area and any interference with the public's use of the water" Petition for Review Page 15 of 20 Brad Nicholson 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 t8 19 20 21 22 23 24 25 26 27 28 9. The permit is inconsistent with RCW 90.58,020 policy, "The legislature further finds that much of the shorelines of the state and the uplands adjacent thereto are in private ownership; that unrestricted constriction on the privately owned or publicly owned shorelines of the state is not in the best public interest; and therefore, coordinated planning is necessary in order to protect the public interest associated with the shorelines of the state while, at the same time, recognizing and protecting private property rights consistent with the public interest" 10. The permit is inconsistent with RCW 90.58.020 policy, "There is, therefore, a clear and urgent demand for a planned, rational, and concerted effort, jointly performed by federal, state, and local governments, to prevent the inherent harm in an uncoordinated and piecemeal development of the state's shorelines" B. Renton's Planning Director Chip Vincent, by approving the Substantial Development Permit approved a fractionated and piecemeal protect in violation of core requirements of the SMA 90.58 RCW. 1. A proposed development that includes both shorelines and uplands is properly reviewed in its entirety for consistency with the SMA. see Merkel Y. Port of Brownsville, 8 Wn. App. 844 (1973). The S_-VA review is applicable to those portions of a proposed development that lie within the shoreline as defined under RCW 90.58,030 and those portions of a project than may have adverse impacts on the shoreline. See also Weyerhaeuser v. King County, 91 Wn.2d 721 (1979); Allegra Development Company. Inc. v. Wright Hotels v. City of Seattle, SHB No. 99-08 (1999). The reference to "adjacent lands" in the shoreline management act (RCW 90.58.100(2) (e)), is a reflection of the legislative scheme that lands adjacent to shorelines must be considered together with the area extending 200 feet inland from high water in order to achieve the consistency necessary for a systematic and intelligent management of the I shorelines. "A single improvement or project of a governmental agency including and having an interrelated et on both uplands and shorelines cannot be divided into segments for purposes of complying with provisions of the environmental policy act and the shoreline management act" cite: Appletree C Protection Fund v. Kitsap SUB No. 93-55 I PeUUon fer Review I Page 16 of20 Brad Nicholson 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The issue applicable here, the piecemeal consideration of environmental impacts from development plans, "is one which strikes at the very core of both the State Environmental Policy Act and the Sho; Management Act". Appletree Cove Protection Fund v. Kitsap SHB No. 93-55 (emphasis supplied) The question, therefore, is whether the City may take a single project and divide it into segments purposes of SEPA and SMA approval. The frustrating effect of such piecemeal administrative approvals upon the vitality of these acts compel answer in the negative. The factual situation in Merkel and Appletree cove is remarkably similar to present case. In Merkel and Appletree Cove, an overall scheme of development existed, but only c piece was submitted for environmental review. In the instant case, an overall Project Master Plan exi and has been reviewed, but at that time only part of the project was submitted for environmental review Now they are doing the storm water and transportation measures inconsistent with that review. 'I fractionated review is why significant questions about shoreline impacts have never been addressed. conclusion that the City has an obligation to conduct a review of its entire Master Plan under the and lay out the overall Master Plan of development including a storm water plan, public access related use plan, and location of and priorities of the facilities in the context of the Shorelines application, prior to proceeding with a permit for one portion of the Plan is in order. At the same tin failing to use that master plan (which is what has occurred) to assess the overall environmental impacts future development under this permit only leads to preventable damage to the natural environment is the right of all citizens of the state. The test that is employed is that, the connection or link must be "dependant" on the other piece, Piecemeal review is impermissible where a "series of interrelated steps [constitutes] an integrated plan' and the current project is dependent upon subsequent phases. see Cheney v. Mountlake Terrace, K Wn.2d 338, 345, 552 P.2d 184 (1976) also, Murden Cove Preservation and Protection Association v. Kitsap county 41 Wn. App. 515 stating, WAC 197-10-060 (1) and (2) provide in part: (2) The total proposal is the proposed action, together all proposed activity functionally related to it. Future activities are functionally related to the pr Petition for Review Page 17 of20 Bred Nicholson 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 proposal if: "(a) The future activity is an expansion of the present proposal, facilitates or is necessary operation of the present proposal; or "(b) The present proposal facilitates or is a necessary prerequisite future activities. The latest codification is as follows: WAC 197-11-060 (b) Proposals or parts of proposals that are related to each other closely enough to be, in effect, a course of action shall be evaluated in the same environmental document. Proposals or parts of prc are closely related, and they shall be discussed in the same environmental document, if they: (i) Cannot or will not proceed unless the other proposals (or parts of proposals) are I simultaneously with them; or (ii) Are interdependent parts of a larger proposal and depend on the larger proposal as justification or for their implementation. VIII. GROUNDS FOR REVERSAL A. The protect is reversible as piecemeal because it is related to Hawk's Landing closely enough to be a single proiect and because it can not or will not proceed unless the other proposal is implemented simultaneously and because it is an interdependent part of the larger proposal and depends on the larger yroposal as justification for its implementation" Note: The overarching purpose of the SMA is to protect the state shorelines as fully as possible. Buechel v. Department of Ecology, 125 Wn.2d at 203, 884 P.2d 910 (1994), Consistent with this objective and the broad regulatory reach of the statute, the shoreline permit application should describe the full, unified, and integrated physical project, both within and without the shorelines of the state. The facilities or future activity and functionally related work necessary that the project depends on to proceed consistent with the SMA that been ignored by the Decision Maker in this case are as follows: 1. A redesign of the project to permit public access to waterfront activities is needed. 2. The project depends on dedication of Land for location of Storm water Facilities in areas where it is possible to locate outside of the native vegetation, A Redesign of the Shoreline with "preference" to Petition for Review Page 18 ol'20 Brad Nicholson 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 facilities that would be more representative of that of the natural environment is needed and depends on the entire site plan for its location. 3. The project depends on obtaining additional shoreline permit to remove the zinc galvanized metal warehouse distracting to the shoreline experience and adding pollution. It needs to identify requirements for the Hotel proj ect's necessary work to be performed on the shoreline to remove the building. 4. It is necessary to re -do the original application for the Hotel, to disclose and review that the applicant proposes to alter the flow of the Creek by filling the "Ditch" and requiring the description of the work to be performed on the Development site. They need to include identification of piping and outfall work to be performed on the Shoreline. It depends on whether it is appropriate to issue a permit that has a priority to restore and enhance the natural environment with respect to May Creek water flow. 5. The project depends on additional planning work and additional land dedication necessary to comply with the KCSWDM 2009 edition and Renton's code requirements for the "enhanced basic water quality { menu" The land dedication will need to come from the site. The redesign will need to include a design for the project that this permit is intended to serve, such as Treatment Train, Stormwater Wetland, and Stormfilter CF like is outlined on the "enhanced basic" water quality menu lB. The Errors enumerated above are grounds for reversal, X. RELIEF REQUESTED A. A declaratory order addressing whether the above Shoreline Substantial Development Permit issued the City of Renton is consistent with the Shorelines Management Act, the Renton Shoreline Managem Program and their implementing regulations, ordinances, and statutes in the following respects: Issue no. 1: Whether adequate provisions for public use consistent with the Shorelines Management Act, Renton' Shoreline Master program, regulations, ordinances, and statutes have been provided. Issue no. 2 Whether the "Wet Biofiltration Swale" as permitted is adequate to nunimize, "insofar as practical pollution to meet the requirements of the Shoreline Management Act, Renton's Shoreline Maste program, and other code regulations, design manuals, ordinances, and statutes. Petition for Review Brad Niehohn Pop 19of2o 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Issue no. 3: Whether it is possible and appropriate for the "Wet Biofiltration Swale" or for that matter any other water facility to be located on a location different than where it is. Issue no. 4: Whether a variance should have been sought for any of the issues, and whether a variance should b granted for the project. Issue no.5: Whether the project is a prohibited uncoordinated and piecemeal development of the State's Shorelines, B. For any and all other relief that the Board deems to be appropriate and just. I have personal knowledge of the facts in this appeal and believe the facts herein to be true and correct Petition for Review Dated this 21' day of August, 2010 Brad Nicholson Brad Nicholson Page 20 of 20 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 BEFORE THE SHORELINES HEARINGS BO E C E �j W F IN AND FOR THE STATE OF WASHINGT �J AUG 2 6 2610 In re the appeal of Renton's Shoreline Substantial Development Permit LUA10-041, ECM, SM: Brad Nicholson, Petitioner, V. City of Renton Respondents. I, Brad Nicholson, do hereby declare as follows: Case No: ENVIRONMENTAL HEARINGS OFFICE Declaration of Brad Nicholson 1. I am a life resident of Renton, and I have lived about 12 blocks from the above Seahawks Landing Proposal for approximately 30 years. 2. I have a much greater interest in the integrity of the City's processing for this project and the outcome of the City's approvals than the general public or an average citizen of Renton. I created a Washington non-profit corporation specifically for the purpose protecting amenities that this appeal seeks to protect. I have invested a great deal of time and energy participating in land use proceedings and monitoring land use decisions regarding the above and other development proposals. I am the dynamic that inspired ideas that could solve the present design issues for the project, 3. I am aggrieved by the approval of the Shoreline substantial development permit for numerous reasons. I want to review information on the whole project at one time not just a number of pieces of the project, like regarding the storm water facilities such as facility size, placement, capacity, and effectiveness, and public access areas. I want to have my ideas considered and I want to comment on the entire proposal because I would like to have my community planned and developed consistent with the provisions of the Renton's Shoreline Master Program, the Shoreline Management Act RCW 90.58, and a compliant design plan to protect my interests. I find it impossible to consider the reasonableness of the project when some of the most important areas of the project are always being left out. No one can even figure out what they are doing or which improvements they would be willing to do, I am aggrieved by the Declaration Brad Nicholson Pagel of 1 2 3 4 5 6 7 s 9 10 11 12 13 14 15 16 17 la 19 20 21 22 23 24 25 26 27 28 City's denial of my rights to such a community and aggrieved by the fact that development planning doe; not appear to be properly prioritized. By ignoring State policy and the procedural and substantial protections contained in the Renton Municipal Code, its Shoreline Plan and State Laws, the City's' decisions deprived me of a Shoreline environment that is so described and that is contrary to the letter an the spirit of those laws. I am aggrieved that practical and reasonable means and methods of protecting water quality and my rights to a shoreline developed consistent with the Laws are not being used or proposed when I know that there has been so much effort by the Department of Ecology to assist the City to develop practical measures to protect our interests according to Federal Laws. I have a wife and son and we enjoy taking walks in May Creek Park just a short distance upstream from the proposal and seeing Salmon and Trout. A few years ago, I personally saw an adult steelhead in May Creek. I have seen sockeye in the Creek just a few feet away from where the project is permitted to take place. We often enjoy seeing Bald Eagles that cruise the area where we live above the May Creek Basin and know that they also depend on water quality and the area habitat. I have seen Hawk's landing above the project site while bicycling. I enjoy boating and fislvng in lake Washington. We have a nice canoe that we want to use but we are frightened by the threats the water quality in the area poses, but we enjoy the pleasant break that the May Creek Shoreline provides and wish to improve it. On a few occasions I have enjoyed seeing Deer slipping into the cover of the May Creek Shoreline on the very area that the permit will bulldoze and fence. 4. I am injured by the permit decision in a number of ways. Procedurally, I am harmed by the City's improper processing of the application, including failure to study and properly describe all of the project's required physical characteristics and size and feature calculations required by the code. I am harmed by the failure to properly categorize or identify those features, and failure to submit a complete unified design so that I can develop input and be able to review and comment on an honest proposal. The project is riddled with proposals that have not notified me as to what they are really proposing, I am harmed by the City's failure to conduct a proper consistency review of the storm water design with the SMA and Renton's program for Shorelines. I will be harmed by the damage done to the State's Shoreline amenities by changes in flow and quality of May Creek. 5. Substantively, I will be injured if the project is constructed in noncompliance with the City's code. For example, Renton's past decision and code requires that the storm water features comply with the 2001. Deelara6on Brad Nicholson Paga 2 af4 2 4 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 King County storm water manual and certain Shoreline regulations, conform to the Shoreline Master Plan, and Comprehensive Plan's elements, goals, objectives and policies, and must mitigate impacts (such as impacts to threatened or endangered species and opportunity for access to the Shoreline's amenities and protection of native vegetation) as well as clear prohibition on alterations and illicit discharges into salmon bearing streams. The City should bear the burden of proof to show the method that will be used to avoid or abate pollution and comply with the above requirements but on this project they have consistently avoided review by submitting segmented and bogus facilities that do not truly explain the full extent of what they are doing. I will be injured if the plan is not designed by taking into account what the natural environment should be. The City's Shoreline plan requires the City to explain the methods that will be used to mitigate pollution impacts to May Creek and demonstrate the necessity of developing the State's Shoreline but they have not done so. The proposal submitted fails to meet any of these criteria. I am injured by the City's failure to follow its own laws and that of the State. 6. If the project is built on May Creek according to inferior standards for Shoreline protection and means of achieving water quality standards in May Creek while being incompatible with the neighboring superf ind site, I will suffer harm from the inappropriate risks and direct impacts caused by the project. The urban designations intended to protect my interests should be used and storm water measures to protect my interestsshould be used to protect my interests but as approved in the cty's decision they do not provide the degree of protection to my interests as the code or Shoreline plan does and I would want the City to use those measures to protect my interests and the interests of my family. I want to review and comment on a compliant plan or honest effort to formulate such a plan but I have been deprived of that right because of the applications without them. My opinion is that the developer Spencer Alpert is just plain refusing to perform many of the requirements, I would have to do the design, do all of the design work for them, while speculating as to the type of facilities or strategies they might contest. In the past, they have allowed applications to be submitted and reviewed even though they are nc the real project. They fooled us and Dr. Massman by saying that they were using a "Rain Garden" in the last application, and this time by saying that the flow of May Creek will not be altered. We actually thought it was a "Rain Garden" and that wasted a lot of our time and resources. I would like to see some effort made to restore natural conditions to the area, which there has not been. Dedaraiion Brad Nicholson Page 3 of 4 1 2 3 4 5 6 7 s 9 10 11 12 13 14 is 16 17 is 19 20 21 22 23 24 25 26 27 28 7. 1 do not have anything against the Seahawk's in general nor do I contend it is likely to be impossible ti build a Hotel on the site. But the developer with a great deal more resources than ordinary citizens that come to Renton to have taxpayers like me pay with not only money, but with our Shoreline amenities for the needs of a private enterprise while causing the impacts I complain of does not impress me in the least. Most disturbing of all to me, is the fact that it appears it is nothing more than a strategy to disregard the City's Shoreline and to save money by using Lawyers to argue the project permits. In Renton they charge $250.00 for each appeal and it is necessary to take the issues to the Council in most instances. That is $500.00 for each LUA, and double or triple that when it is done in pieces. It looks like they just warn to wear people down, ....very few people can afford to participate. I am offended that variances are not being sought with regard to non -discretionary design requirements. If they are able to just approve the prof ect without variances, it is just the same as changing the code in response to the particular application. No other people around the area get to do that either. I think it is impacting the vitality of our Shorelines and Health, our Codes, our Laws, and the SMA and in turn the vitality of our community and economy. What it looks like to frustrated citizens like me that take the time to consider the permits is that the developer is just submitting a "low quality and low budget" proposal to save money and then using the Lawyers to cause so much litigation that anyone would want to just forget about it. I consider that to be very foolish and that it will be tragic to the City's long term fixture. My neighborhood and community is what is suffering now and what will suffer when the project is built. I will suffer and so will my family. In my opinion, compelling the City and the developer to adjust their priorities and plans with Shorelines Board power is the only thing that will improve the situation and protect my interests, that is why I made the appeal. I have personal knowledge of the facts stated in this declaration. DATED this 21th day of August, 2010. Respectfully, rad Nicholson Declaration Brad Nicholson Page 4 of 4