HomeMy WebLinkAboutLUA-05-089_Defoor Short Plat Preliminary Report to the Hearing Examiner.pdfPUBLIC
HEARING
City of Renton
Department of Planning / Building / Public Works
PRELIMINARY REPORT TO THE HEARING EXAMINER
A. SUMMARY AND PURPOSE OF REQUEST:
Public Hearing Date:
Project Name:
Applicant/Owner
Address
Contact/
Address
File Number:
Project Description:
Project Location:
October 3, 2006
Defoor Short Plat
Terry Defoor
GWC Inc.
24633 NE 133rd Street
Duvall, WA 98019
Debra Eby Ricci
Ricci Grube Aita, PLLC
Attorneys and Counselors at Law
1080 Broadacres Building
1601 Second Avenue
Seattle, WA 98101
LUA05-089, SHPL-H, ECF Project Manager: Jill K. Ding, Senior Planner
Subdivision of a 140,723 square foot (3.2 acre) lot into 5 lots for single family
residences and an Open Space Tract. The subject site is located within the
Residential - 8 dwelling unit per acre (R-8) zoning designation. The proposed lot
sizes range from 7,137 square feet to 10,198 square feet. Access to the proposed
lots would be provided via single family residential driveways onto Renton Avenue
S. A Class 3 steam, 3 Class 4 streams, a Category 3 wetland, Steep Slopes, and
High Coal Mine Hazard areas are located on the project site.
900 Renton Avenue S (parcel 0007200196)
City of Renton PIBIPW Department
DEFOOR SHORT PLA T
Preliminary Report to the Hearing Examiner'
LUA05-089, SHPL-H, ECF
PUBLIC HEARING DATE OCTOBER 3, 2006 Page 20'12
B. EXHIBITS:
Exhibit 1: Project file ("yellow file") containing the application, reports, staff comments, and other
material pertinent to the review of the project.
Exhibit 2: Neighborhood Detail Map (dated June 27,2005)
Exhibit 3: Preliminary Short Plat Map (dated June 2006)
Exhibit 4: Preliminary Landscape Plan (dated April 2005)
Exhibit 5: Preliminary Grading and Utility Plan (dated April 2005)
Exhibit 6: Tree Cutting / Land Clearing Plan (dated April 2005)
Exhibit 7: Slope Analysis (dated April 2005)
Exhibit 8: Environmental Review Committee Mitigation Measures (dated 6/27/06)
Exhibit 9: City's Determination of the Unmapped Streams/Wetland Classification (dated 11/3/05)
Exhibit 10: Reconsideration Request/Appeal of Determination of Unmapped Streams (dated 11/17/05)
Exhibit 11: City's Reconsideration of Unmapped Stream Determination (dated 12/7/05)
Exhibit 12: Hearing Examiner's Decision (dated June 8,2006)
Exhibit 13: Appeal to City Council of Hearing Examiner's Decision (dated June 22,2006)
Exhibit 14: Zoning Map Sheet G4 W Y2 (dated 2/16/06)
C. GENERAL INFORMATION:
1. Owner of Record: Terry Defoor
GWC Inc.
24633 NE 133rd Street
Duvall, WA 98019
2. Zoning Designation: Residential - 8 Dwelling Units per Acre (R-8)
3. Comprehensive Plan Residential Single-Family (RSF)
Land Use Designation:
4. Existing Site Use: The site is currently undeveloped.
5. Neighborhood
Characteristics:
North: Single family residential; zoned R-8
East: Single family residential; zoned R-8
South: Puget Sound Energy Right-of-Way; zoned R-8
West: Single family residential; zoned R-8
6. Access: Renton Avenue S
7. Site Area: 140,723 square feet (3.2 acres)
Defoor_HEXRPT.doc
City of Renton P/B/PW Department
DEFOOR SHORT PLA T
Preliminary Report to the Hearing Examiner
LUA05-089, SHPL-H, ECF
PUBLIC HEARING DA TE OCTOBER 3, 2006
8. Project Data:
Existing Building Area:
New Building Area:
Total Building Area:
area
N/A
N/A
N/A
D. HISTORICAUBACKGROUND:
Action
Annexation
Comprehensive Plan
Zoning
Stream Classification
Appeal
Land Use File No.
N/A
N/A
N/A
N/A
comments
N/A
N/A
N/A
Ordinance No.
1547
5099
5100
N/A
E. APPLICABLE SECTIONS OF THE RENTON MUNICIPAL CODE:
1. Chapter 2 Land Use Districts
Section 4-2-020: Purpose and Intent of Zoning Districts
Section 4-2-070: Zoning Use Table
Section 4-2-110: Residential Development Standards
2. Chapter 3 Environmental Regulations and Special Districts
Section 4-3-050: Critical Areas Regulations
3. Chapter 4 Property Development Standards
Section 4-4-030: Development Guidelines and Regulations
Section 4-4-060: Grading, Excavation and Mining Regulations
Section 4-4-080: Parking, Loading and Driveway Regulations
Section 4-4-130: Tree Cutting and Land Clearing Regulations
4. Chapter 6 Streets and Utility Standards
Section 4-6-060: Street Standards
5. Chapter 7 Subdivision Regulations
Page 30f12
Date
6/05/1956
11/01/2004
11/01/2004
10/26/2006
Section 4-7-050: General Outline of Subdivision, Short Plat and Lot Line Adjustment Procedures
Section 4-7-070: Detailed Procedures for Short Subdivisions
Section 4-7-120: Com patibility with Existing Land Use and Plan-General Requirements and
Minimum Standards
Section 4-7-150: Streets -General Requirements and Minimum Standards
Section 4-7-160: Residential Blocks -General Requirements and Minimum Standards
Section 4-7-170: Residential Lots -General Requirements and Minimum Standards
Section 4-7-220: Hillside Subdivisions
6. Chapter 9 Procedures and Review Criteria
7. Chapter 11 Definitions
F. APPLICABLE SECTIONS OF THE COMPREHENSIVE PLAN:
1. Land Use Element: Residential Single Family, objectives and policies.
2. Community Design Element:
3. Environmental Element:
Defoor_HEXRPT.doc
City of Renton P/B/PW Department
DEFOOR SHORT PtA T
PUBLIC HEARING DA TE OCTOBER 3, 2006
G. DEPARTMENT ANAL YSIS:
1. PROJECT DESCRIPTION/BACKGROUND
Preliminary Report to the Hearing Examiner
LUA05-089, SHPL-H, ECF
Page 40f12
The proposal is to subdivide a parcel totaling 140,723 square feet (3.2 acres) located within the
Residential - 8 dwelling units per acre (R-8) zone. The proposal would create 5 lots intended for
the development of detached single-family residences. The lots are proposed to range in size
from 7,137 square feet to 10,198 square feet. In addition, the applicant has proposed to include 1
open space tract.
The subject site slopes from east to west and has an average slope of approximately 26%. The
project meets the City's definition of a Hillside Subdivision as the average slopes exceed 20%.
The High Landslide Hazard Areas, Erosion Hazard Areas, and Steep Slope areas are located on
the western portion of the project site, primarily within the proposed open space tract. The site is
currently forested with a mix of deciduous and evergreen trees, shrubs, and emergent vegetation.
As proposed approximately 25% of the existing vegetation will be removed during the
construction of the proposed plat improvements. Preliminary earthwork quantities are estimated
at approximately 7,100 cubic yards.
A high coal mine hazard area is located on the western portion of the subject site. The majority of
the high coal mine hazard area is proposed to be located within the proposed open space tract.
An unmapped wetland and four unmapped streams (streams A, B, C, and drainage 1) are located
on the western portion of the subject site within the proposed open space tract. The wetland
have been classified as a category 3 wetland, stream A has been classified as a class 4 stream,
stream B as been classified as a class 3 stream, stream C has been classified as a class 4
stream, and drainage 1 has been classified as a class 4 stream. A class 3 stream requires a 75-
foot buffer and a class 4 stream requires a 35-foot buffer. The City's classification of streams B,
C, and drainage 1 is currently under appeal to the City Council. A Wetland Study, Stream
Assessment, Habitat Study, Watershed Restoration, and Mitigation Plan prepared by Talasea
Consultants, Inc. dated August 28, 2006 was submitted with the project application. The report
contests the City's classification of streams B, C, and drainage 1, however it also indicates that
the site could be developed with 5 residential lots provided averaging of the stream buffers is
permitted. The current proposal would reduce the eastern portion of the stream buffer along
streams A and B and would replace the reduced buffer on the parcel to the east. In addition the
flow within drainage 1 would be relocated to stream A.
Access to the proposed lots would be provided via single family residential driveways onto
Renton Avenue S.
2. ENVIRONMENTAL REVIEW
Pursuant to the City of Renton's Environmental Ordinance and SEPA (RCW 43.21 C, 1971 as
amended) on June 27,2006 the Environmental Review Committee (ERC) issued a Determination
of Non-Significance -Mitigated (DNS-M) for the project. The DNS-M included 3 mitigation
measures. A 14-day appeal period commenced on July 3,2006 and ended on July 17, 2006. No
appeals of the threshold determination were filed.
3. COMPLIANCE WITH ERC MITIGATION MEASURES
Based on an analysis of probable impacts from the proposal, the Environmental Review
Committee (ERC) issued the following mitigation measures with the Determination of Non-
Significance -Mitigated:
1. The applicant shall comply with the recommendations found in the geotechnical report prepared
by Icicle Creek Engineers dated June 10, 2005.
2. The applicant shall be required to provide a Temporary Erosion and Sedimentation Control Plan
(TESCP) designed pursuant to the Department of Ecology's Erosion and Sediment Control
Defoor_HEXRPT.doc
City of Renton P/BIPW Department
DEFOOR SHORT PLA T
PUBLIC HEARING DATE OCTOBER 3, 2006
Preliminary Report to the Hearing Examiner
LUA05-089, SHPL-H, ECF
Page 50f12
Requirements outlined in Volume II of the Stormwater Management Manual and provide staff
with a Construction Mitigation Plan prior to issuance of Construction Permits. This condition
shall be subject to the review and approval of the Development Services Division.
3. This project shall be subject to the 2005 King County Surface Water Design Manual for the
design of the detention facility, if detention is required per the 1990 King County Surface Water
DeSign Manual.
4. STAFF REVIEW COMMENTS
Representatives from various city departments have reviewed the application materials to identify
and address site plan issues from the proposed development. These comments are contained in
the official file, and the essence of the comments has been incorporated into the appropriate
sections of this report and the Departmental Recommendation at the end of the report.
5. CONSISTENCY WITH PRELIMINARY PLAT CRITERIA:
Approval of a preliminary plat is based upon several factors. The following preliminary plat
criteria have been established to assist decision makers in the review of the subdivision:
(a) Compliance with the Comprehensive Plan Designation. The subject site is deSignated
Residential Single Family (RSF) on the Comprehensive Plan Land Use Map. The objective
established by the RSF designation is to protect and enhance single-family neighborhoods. The
proposal is consistent with the RSF deSignation in that it would provide for the future construction
of single-family homes. The proposed plat is consistent with the following Comprehensive Plan
objectives and policies for Residential Single Family Land Use, Community Design, and
Environmental Elements:
Land Use Element
Objective LU-FF. Encourage re-investment and rehabilitation of existing housing, and
development of new residential plats resulting in quality neighborhoods that: 1) Are planned at
urban densities and implement Growth Management targets; 2) Promote expansion and use of
public transportation; and 3) Make more efficient use of urban services and infrastructure. The
project would add 5 residential lots to an existing neighborhood and would result in a net density
of 1.67 dwelling units per acre, which is less than the density desired under the Growth
Management Act, however the applicant has designed the plat with fewer dwelling units in the
effort to preserve sensitive areas.
Policy LU-147. Net development densities should fall within a range of 4.0 to B.O dwelling units
per net acre in Residential Single Family neighborhoods. The proposal for 5 lots on the subject
site would arrive at a net density of 1.67 dwelling units per net acre after the required deductions,
which is below the minimum density permitted in the R-8 zone, however the justification for a
density below 4.0 dulac is that there are high coal mine hazard areas located on the subject site
that are proposed to be preserved within a large open space tract.
Policy LU-14B. A minimum lot size of 5,000 square feet should be allowed on in-fill parcels of
less than an acre (43,560 sq. ft.) in single-family designations. Allow a reduction in lot size to
4,500 square feet on parcels greater than an acre to create an incentive for aggregation of land.
The site is greater than one acre and all lots would be greater than 4,500 sq. ft.
Policy LU-149. Lot size should exclude private sidewalks, easements, private road, and
driveway easements, except alley easements. A private access easement is proposed to serve
Lot 5. The area within the private access tract was not included within the individual lot area.
Community Design Element
Policy CD-16. During land division, all lots should front on streets or parks. Discourage single-
tier lots with rear yards backing onto a street. All lots are proposed to front on a Renton Avenue
S, which is a public street.
Defoor_HEXRPT.doc
City of Renton P/B/PW Department
DEFOOR SHORT PLA T
PUBLIC HEARING DATE OCTOBER 3, 2006
Preliminary Report to the Hearing Examiner'
LUA05-089, SHPL-H, ECF
Page 6 of 12
Objective CD-K: Site plans for new development projects for all uses, including residential
subdivisions, should include landscape plans. A conceptual landscape plan was submitted and as
part of the preliminary short plat submittal. Two trees are proposed to be located within the front
yards of planting strips of each of the lots and a 5-foot landscaped strip is proposed along existing
Cedar Avenue S right-of-way.
Policy CD-45. Existing mature vegetation and distinctive trees should be retained and protected
in developments. The applicant is proposing to remove approximately 25% of all vegetation within
the plat. Most of the vegetation retained would be preserved within the proposed open space
tract. The proposed open space tracts are also proposed to protect Protected Slope sensitive
areas, a High Coal Mine Hazard, a Category 3 wetland and its associated buffer, and three
streams and their associated buffers. In addition, two new trees per lot and street frontage
landscaping are required to be planted to compensate for the lost vegetation.
Policy CD-53. Landscape plans for proposed development projects should include public
entryways, street rights-of-way, storm-water detention ponds, and all common areas. A
conceptual landscape plan was submitted with the preliminary application and proposes 2 trees in
the front yards of each lot as well as a 5-foot landscaped strip along public rights-of-way.
Policy CD-55. Maintenance programs should be required for landscaped areas in development
projects, including entryways, street rights-of-way, storm-water retention/detention ponds, and
common areas. The applicant will be required to maintain all common improvements as part
creating a homeowners association or a maintenance agreement.
Environmental Element
Objective EN-C: Protect and enhance the City's rivers, major and minor creeks and intermittent
stream courses. Four streams (streams A, B, C, and drainage 1) flow from east to west across
the project site. Streams A, B, and C and their associated buffers are proposed to be located
within an open space tract, over which a Native Growth Protection Easement will be required to
be recorded. The flow within drainage 1 is proposed to be relocated into stream A.
Policy EN-70. Land uses on steep slopes should be designed to prevent property damage and
environmental degradation, and to enhance greenbelt and wildlife habitat values by preserving
and enhancing existing vegetation to the maximum extent possible. Protected slope areas are
located on the western portion of the subject site (within the proposed open space tract). No
development is proposed on the protected slope areas.
(b) Compliance with the Underlying Zoning Designation. The 3.23-acre site is designated
Residential - 8 Dwelling Units per Acre (R-8) on the City of Renton Zoning Map. The proposed
development would allow for the future construction of up to 5 new dwelling units and associated
plat improvements.
Density -The allowed density range in the R-8 zone is a minimum of 4.0 up to a maximum of 8.0
dwelling units per acre (dulac). Net density is calculated after critical areas, public rights-of-way,
and private access easements are deducted from the gross acreage of the site. After the
deduction of the area within the streams, wetland, protected slopes, and proposed access
easements (10,219 square feet) from the 140,723 gross square foot site area (140,723 gross
square feet -10,219 total deducted area = 130,504 net square feet = 3.0 net acres), the proposal
would arrive at a net density of 1.67 dwelling units per acre (5 units I 3.0 acre = 1.67 dulac),
which is below the minimum density allowed range permitted in the R-8 zone. The proposed
density is due to the presence of High Coal Mine Hazard areas on the subject site. A
geotechnical report prepared by Icicle Creek Engineers dated June 10, 2005 provides an analysis
of the High Coal Mine Hazard Area located on the subject site and recommended that no building
of single family residences occur over the High Coal Mine Hazard Area. Based on the
information provided by the applicant a waiver from the minimum density requirements has been
granted by the Development Services Director.
Lot Dimensions -The minimum lot size permitted in the R-8 zone is 4,500 square feet for parcels
greater than 1 acre in area or 5,000 square feet for parcels less than 1 acre in area. The subject
Defoor_HEXRPT.doc
City of Renton P/B/PW Department
DEFOOR SHORT PLA T
PUBLIC HEARING DATE OCTOBER 3, 2006
Preliminary Report to the Hearing Examiner
LUA05-089, SHPL-H, ECF
Page 70f12
site totals 3.23 acres in area; therefore a minimum lots size of 4,500 square feet is required.
Pipestems of lots are shall not be included in the lot area. A minimum lot width of 50 feet is
required for interior lots and 60 feet for corner lots. Lot depth is required to be a minimum of 65
feet.
The Hillside Subdivisions requirements indicate that the City may impose larger lot sizes than
permitted under the zoning regulations. Staff has reviewed the proposed lot sizes. The applicant
has proposed larger lot sizes than the minimum required in the R-8 zoning standards, in addition
the lots are proposed to be located on a portion of the site that does not contain steep slopes;
therefore the proposed lot sizes appear adequate.
Proposed lot widths range from 48 to 76 feet and lot depths range from 139 feet to 161 feet. The
proposed lot widths for Lots 1 and 2 would have lot widths of 48 feet, which is less than the
minimum lot width required of 50 feet. Lot 3 is a pipestem lot with a lot width that has a lot width
of 60 feet, which exceeds the minimum lot width. It appears that the dimensions of Lots 1, 2, and
3 could be adjusted to provide a minimum lot width of 50 feet for each of the propose lots. Staff
recommends as a condition of approval that a revised short plat map be submitted to the
Development Services Division project manager prior to the approval of the final short plat
showing each lot with a minimum lot width of 50 feet. The proposed short plat would create 5 lots
with the following lot sizes:
Lot Number Lot Size (square feet)
1 7,137
2 7,309
3 7,489
4 10,198
5 9,471
Access
Renton Avenue S
Renton Avenue S
Renton Avenue S
Renton Avenue S
Renton Avenue S
As proposed, all lots appear to be in compliance with the required lot depth and size standards as
prescribed in the R-8 zone. In addition, the proposal includes 1 open space tract, which totals
96,919 square feet in area.
Staff recommends a condition of approval requIring the establishment of a homeowner's
association or maintenance agreement for the development, which would be responsible for any
common improvements and the proposed open space tract within the plat prior to final short plat
approval.
Setbacks -The required setbacks for the R-8 zone are 15 feet in front for the primary structure
and 20 feet for the attached garage, 5 feet along interior side yards, 15 feet for the primary
structure for side yards along streets (including access easements) and 20 feet for the attached
garage for side yards along streets (including access easements), and 20 feet for rear yards. The
preliminary plat map indicates the setback lines on each lot. The setbacks will be verified at the
time of building permit review, however each of the proposed lots appears to provide adequate
area to comply with the required setbacks.
Building Standards -The R-8 zone permits one single-family residential structure per lot. Each of
the proposed lots would support the construction of one detached unit. Accessory structures are
permitted at a maximum number of two per lot at 720 square feet each, or one per lot at 1,000
square feet in size.
Building height in the R-8 zone is limited to 2 stories and 30 feet for primary structures and 15
feet for detached accessory structures. Maximum building coverage is limited to 35% of the lot
area or 2,500 square feet, whichever is greater, for lots over 5,000 square feet in size. The
Defoor_HEXRPT.doc
City of Renton PIBIPW Department
DEFOOR SHORT PLA T
PUBLIC HEARING DATE OCTOBER 3, 2006
Preliminary Report to the Hearing Examine;
LUA05-089, SHPL-H, ECF
Page 80f12
proposal's compliance with each of these building standards will be verified prior to the issuance
of building permits for each individual structure.
Parking -Each detached dwelling unit is required to provide two off-street parking stalls per unit.
The proposed building pads appear to be adequately sized for the provision of the required
parking. However, verification of two off-street parking stalls will be necessary at the time of
building permit review.
(c) Compliance with Subdivision Regulations.
Lot Arrangement: Side lot lines are to be at right angles to street lines, and each lot must have
access to a public street or road. Access may be by private access easement street per the
requirements of the Street Improvement Ordinance.
The side lot lines of the proposed lots are at right angles to the Renton Avenue S. All lots would
gain access directly to Renton Avenue S, a public roadway. As proposed, lots comply with
arrangement and access requirements of the Subdivision Regulations.
Lots: The size, shape and orientation of lots shall meet the minimum area and width
requirements of the applicable zoning classification and shall be appropriate for the type of
development and use contemplated.
Each of the proposed lots satisfies the minimum lot area and depth requirements of the R-8 zone.
Lots 1 and 2 are proposed with lots widths that would be less than the minimum lot width
required. However, it appears that the dimensions of Lots 1, 2, and 3 could be adjusted such that
all of the lots would comply with the minimum lot width requirement. When considering the
required setbacks, as well as access points for each lot, the proposed lots appear to have
sufficient building area for the development of suitable detached single-family homes.
The preliminary plat is classified as a Hillside Subdivision. The Hillside Subdivision Section, RMC
4-7-220, states that lots may be required to be larger than the underlying zoning minimum lot
size. All of the lots proposed within the subdivision are proposed to be larger than 4,500 sq. ft.
Due to the proposed extensive grading on the site the topography will be substantially altered and
the slope of the proposed building pads will be greatly diminished. It appears that the applicant
has proposed adequate lot sizes for the subdivision after the consideration of the grading that will
occur for the construction of the building pads.
Proposed Lots 1 and 2 are rectangular in shape. Lots 3-5 are irregularly shaped lots, however the
presence of the streams on the project site and the shape of the original lot prevents these lots
from being rectangular shaped. All of the lots are oriented to provide their front yards facing to
the east towards Renton Avenue S.
Property Corners at Intersections: All lot corners at intersections of dedicated public rights-of-way,
except alleys, shall have minimum radius of 15 feet.
There are no property corners to be dedicated for right-of-way purposed as part of this plat.
(d) Reasonableness of Proposed Boundaries
Access and Street Improvements: The subdivision proposes to provide access to the new lots via
new residential driveways onto Renton Avenue S. Half street improvements including sidewalks,
curb and gutter, paving, storm drainage, street lighting, and street signs are required fronting the
site in Renton Avenue S.
The proposed short plat is anticipated to generate additional traffic on the City's street system. In
order to mitigate transportation impacts, staff recommends a condition of approval be placed on
the project requiring a Transportation Mitigation Fee based on $75.00 per net new average daily
trip attributed to the project. Each new lot is expected to generate approximately 9.57 new
Defoor_HEXRPT.doc
City of Renton P/BIPW Department
DEFOOR SHORT PLA T
PUBLIC HEARING DA TE OCTOBER 3, 2006
Preliminary Report to the Hearing Examiner
LUA05-089, SHPL-H, ECF
Page 90f12
average weekday trips. The fee for the proposed short plat is estimated at $3,588.75 ($75.00 x
9.57 trips x 5 lots = $3,588.75) and is payable prior to the recording of the short plat.
Topography: The topography of the subject site slopes from east to west and has an average
slope of approximately 216% The project is classified as a Hillside Subdivision as the average
slopes across the site exceed 20%. High Landslide Hazard Areas, Erosion Hazard Areas,
Protected Slopes, and Sensitive Slope areas are located within the proposed open space tract. A
geotechnical report prepared by Icicle Creek Engineers dated June 10, 2005 was submitted with
the project application. The report provides recommendations for the development of single
family residences on the project site.
The Hillside Subdivision Section, RMC 4-7-220, requires that additional information regarding the
soils, geology, drainage patterns, and vegetation be submitted with the project application. In
addition, detailed grading plans and erosion control plans are also required. As previously stated
a geotechnical report was submitted with the project application and provided additional
information on the soils, geology, drainage patterns, and vegetation located on the subject site.
Preliminary earthwork quantities are estimated at 7,100 cubic yards (100 cubic yards of cut and
7,000 cubic yards of fill). The preliminary grading plans indicate that the eastern portion of the
site would be regarded such that the slopes on the project site will be reduced creating adequate
areas for the construction of building pads.
Temporary Erosion and Sediment Control Plan (TESCP) and the use of Best Management
Practices would serve to mitigate potential erosion and off-site sedimentation impacts. The
project application includes a Construction Mitigation Plan, which is subject to final approval prior
to the issuance of construction permits for the project. In addition, the project will be subject to
the 2001 DOE manual regarding erosion control, as conditioned by the ERC.
A high coal mine hazard area is located on the western portion of the subject site. The high coal
mine hazard area is proposed to be located within the open space tract. The geotechnical report
submitted by the applicant recommended that no single family residential structures be built
within the high coal mine hazard area. The City's Environmental Review Committee imposed a
mitigation measure requiring that the applicant comply with all of the recommendations found in
the geotechnical report.
Four unmapped streams and an unmapped wetland are located within the proposed open space
tract. As previously stated in the Project Description/Background section of this report the City's
determination of the Classification of three of the streams (Stream B, Stream C, and Drainage 1)
is under appeal by the applicant. Stream B has been classified as a Class 3 stream with a 75-
foot buffer, and Stream C and Drainage 1 have been classified as Class 4 streams with 35-foot
buffers. The wetland (Wetland B) has been classified as a Category 3 wetland with a 25-foot
associated buffer and Stream A has been classified as a Class 4 stream with a 35-foot
associated buffer.
In an attempt to move forward with the proposed short plat, the applicant has proposed to
relocate the flow within Drainage 1 into the channel of Stream A and average the buffers of
Stream A and B. The buffer areas of Streams A and B would be reduced down to a minimum of
25 feet along the eastern portion of Stream A where the stream borders Lots 3 and 4 and 37.5
feet along the eastern portion of Stream B where the stream borders Lot 1. The proposed
location of the expanded stream buffer areas is off site on the parcel to the west of the project site
which was previously reviewed as a preliminary plat under LUA05-093. The City's critical areas
regulations require that mitigation for impacts to critical areas or their buffers be located onsite
where possible. It appears that there is adequate room onsite to provide the additional stream
buffer required while maintaining the proposed buffer reductions. Therefore, staff recommends
as a condition of approval that a revised Wetland Study, Stream Assessment, Habitat Study,
Watershed Restoration and Mitigation Plan be submitted to the Development Services Division
project manager for review and approval prior to the approval of the final short plat. The revised
report shall include an onsite buffer averaging plan for the proposed impacts to the buffers of
Streams A and B.
Defoor_HEXRPT.doc
City of Renton P/BIPW Department
DEFOOR SHORT PLAT
PUBLIC HEARING DATE OCTOBER 3, 2006
Preliminary Report to the Hearing Examine~
LUA05-089, SHPL-H, ECF
Page 100f12
Wetland B and Streams A, B, and C and the majority of their associated buffer areas would be
located within the proposed open space tract. A portion of the buffer area for Stream A would be
located within the side yard areas of Lots 3 and 4 and a portion of the buffer area for Stream B
would be located within the side yard area of Lot 1. The City's critical area regulations require
that critical areas (including protected slopes, wetlands, and Class 2-4 streams) be protected
under a Native Growth Protection Easement (NGPE). Therefore, the proposed open space tract
and the portions of the stream buffers located within the side yard areas of Lots 1, 3 and 4 shall
have a NGPE recorded over them. Staff recommends as a condition of approval that the
submitted short plat map be revised to show a Native Growth Protection Easement over the
proposed open space tract and the side yard areas of Lots 1, 3, and 4 where the stream buffer
extends into the side yards. The Native Growth Protection Easement shall be shall be recorded
prior to or concurrent with the recording of the final short plat map. In addition, staff further
recommends as a condition of approval that the Native Growth Protection Easement be
delineated with a split rail fence and identified with signage as approved by the Development
Services Division Project Manager. A fencing and signage detail shall be submitted to the
Development Services Division project manager at the time of Utility Construction Permit for
review and approval and that such fencing and signage shall be installed prior to the recording of
the final short plat.
Relationship to Existing Uses: The subject site is currently undeveloped. The surrounding area
includes single-family residences developed under the R-8 zoning deSignations. The proposed
lots are compatible with other existing and newly created lots in this area of the City. The
proposal is consistent with the intent of the both the Comprehensive Plan and Zoning Code and
would not be out of character with the existing or recent development in the area.
Community Assets~ The entire site is forested with a variety of trees, shrubs, and ground cover.
As a result of the development of the proposed short plat, approximately 25 percent of the
existing vegetation would be removed along the western portion of the project site. To mitigate
for the removal of existing mature vegetation and trees the City's landscaping regulations require
the installation of landscaping within the public right-of-way. The minimum amount of
landscaping required for sites abutting a non-arterial public street is 5 feet provided that if there is
additional undeveloped right-of-way in excess of 5 feet, this shall also be landscaped. A
determination has been made that if no additional area is available within the public right-of-way
due to required improvements, the 5-foot landscaped strip may be located within private property
abutting the public right-of-way. The landscaping proposed shall either consist of drought
resistant vegetation or shall be irrigated appropriately. In addition, the applicant will be required
to plant two ornamental trees, a minimum caliper of 1-1/2 inches (deciduous) or 6 - 8 feet in
height (conifer), within the 15-foot front yard setback area for the proposed lots or within the
proposed planting strip.
A landscape plan was submitted with the short plat application indicating that 2 trees would be
planted within the front yards or planting areas of each lot. However, no information was
provided regarding the minimum 5-foot landscape strip required along Renton Avenue S. Staff
recommends as a condition of approval that a revised conceptual landscape plan be submitted to
the Development Services Division project manager prior to the recording of the final short plat
showing a minimum 5-foot wide planting strip along Renton Avenue S.
A detailed landscape plan shall be submitted at the time of Building Permit Application detailing
the location and species of the proposed vegetation. The landscaping shall be installed prior to
building occupancy.
(e) Availability and Impact on Public Services (Timeliness)
Police and Fire: Police and Fire Prevention staff indicate that sufficient resources exist to furnish
services to the proposed development, subject to the condition that the applicant provide Code
required improvements and fees. Staff recommends a condition of approval requiring the
applicant to pay a Fire Mitigation Fee based on $488.00 per new single-family lot. The fee is
Defoor_HEXRPT.doc
City of Renton PIBIPW Department
DEFOOR SHORT PLA T
Preliminary Report to the Hearing Examiner
LUA05-089, SHPL-H, ECF
PUBLIC HEARING DATE OCTOBER 3, 2006 Page 11 of 12
estimated at $2,440.00 (5 new lots x $488.00 = $2,440.00) and is payable prior to the recording
of the final short plat.
Recreation: The proposal does not provide on-site recreation areas for future residents of the
proposed plat. There are no existing recreational facilities in the immediate vicinity of the subject
property and it is anticipated that the proposed development would generate future demand on
existing City Parks and recreational facilities and programs. Therefore, staff recommends as a
condition of approval that the applicant be required to pay a Parks Mitigation Fee based on
$530.76 per each new single family lot. The fee is estimated at $2,653.80 (5 new lots x $530.76
= $2,653.80) and is payable prior to the recording of the final short plat.
Schools: The site is located within the boundaries of the Renton School District No. 403.
According to the Draft Environmental Impact Statement for the City of Renton Land Use Element
(January 16, 1992), the City of Renton has a student generation factor of 0.44 students per
single-family residential dwelling. Based on the student generation factor, the proposed plat
would potentially result in 2 additional students (0.44 x 5 = 2). The schools would include: Tiffany
Park Elementary School, Nelsen Middle School, and Renton High School. The school district has
indicated that they would be able to handle to additional students coming from the proposed
development.
Storm Water: The applicant submitted a Drainage Report prepared by Core Design, Inc. dated
June 2005. The existing runoff sheet flows west across the subject site and is collected in one of
three existing stream channels.
The surface water runoff that will be created as a result of the construction of the plat
improvements and subsequent single-family residences is proposed to be directed to a series of
level spreaders. The report indicates that detention would not be required.
Staff from the City's Plan Review Section reviewed the applicant's storm drainage report and
noted that it complied with the requirements of the 1990 King County Surface Water Design
Manual. As a condition imposed by the City's Environmental Review Committee, this project is
required to meet a higher standard for flow control if it is determined upon further review that
detention is required. If detention is required under the 1990 KCSWDM, this project is required to
comply with the 2005 King County Surface Water Design Manual.
All of the roof downspout systems shall be tightlined. Strip drains shall be required at the end of
driveways where the slope exceeds 8%.
A Surface Water System Development Charge, based on the current rate of $759.00 per new
single-family lot, would be required prior to the issuance of construction permits for the plat.
Water and Sanitary Sewer Utilities: There is an 8-inch water main in S. 9th Street and a 4-inch
water main in Renton Ave South. Available fire flow in Renton Ave is less than 1,000 gpm. The
proposed project is located in the 490 Water Pressure Zone and is outside an Aquifer Protection
Zone. Static pressure in the area is approximately 80 psi. Pressure reducing valves will be
required to be installed on the domestic water meters.
The minimum fire flow required for single-family residences is 1,000 gpm. Hydrants are required
within 300 feet of all structures. Existing hydrants to be counted as fire protection will be required
to be retrofitted with a 5-inch storz quick disconnect fitting. To provide a minimum of 1,000 gpm
to proposed Lots 1-5, the proposed short plat will be required to tie into an existing 8-inch water
main located generally at the intersection of S. 9th Street and Renton Avenue South and extend
an 8-inch main south in Renton Ave to S. 10th Street. A tie in to the 4-inch in S. 10th will be
required. This will provide 1,250 gpm. If the proposed residences exceed 3,600 square feet
(including garage area), 1,500 gpm is required. Continuing the extension of an 8-inch main in
S.1Oth Street to the east and tying into the 12-inch main in Grant Ave will provide 2,000 + gpm.
New hydrants will be required to be installed as part of the water main extension in Renton Ave S.
All short plats shall provide separate water services to each building lot prior to recording of the
short plat. Separate permits and fees for water meters will be required.
Defoor_HEXRPT.doc
City of Renton PIBIPW Department
DEFOOR SHORT PLA T
PUBLIC HEARING DATE OCTOBER 3, 2006
Preliminary Report to the Hearing Examiner
LUA05-089, SHPL-H, ECF
Page 120f12
A System Development Charge at the current rate of $1,956 per single-family building lot shall be
paid at the time of Utility Construction Permit.
There is an existing 8-inch sewer main fronting the site in Renton Ave South. All short plats shall
provide separate sewer stubs to each building lot prior to recording of the short plat. Separate
permits and fees for side sewers will be required. Dual side sewers are not allowed and minimum
slope shall be 2%.
A System Development Charge at the current rate of $1,017 per new single-family lot shall be
paid at the time of Utility Construction Permit.
H. RECOMMENDATION:
Staff recommends approval of the Defoor Preliminary Short Plat, Project File No. LUA-05-089, SHPL-H,
ECF subject to the following conditions:
1. The proposed short plat map shall be revised to show each lot with a minimum lot width of 50
feet. The revised short plat map shall be submitted to the Development Services Division project
manager prior to the approval of the final short plat.
2. A homeowner's association or maintenance agreement shall be created concurrently with the
recording of the plat in order to establish maintenance responsibilities for this development. A
draft of the document(s), if necessary, shall be submitted to the City of Renton Development
Services Division for review and approval by the City Attorney and Property Services section prior
to the recording of the short plat.
3. A Transportation Mitigation Fee based on $75.00 per net new average daily trip attributed to the
project shall be paid prior to the recording of the short plat. Each new lot is expected to generate
approximately 9.57 new average weekday trips. The fee for the proposed short plat is estimated
at $3,588.75 ($75.00 x 9.57 trips x 5 lots = $3,588.75).
4. A revised Wetland Study, Stream Assessment, Habitat Study, Watershed Restoration and
Mitigation Plan shall be submitted to the Development Services Division project manager for
review and approval prior to the approval of the final short plat. The revised report shall include
an onsite buffer averaging plan for the proposed impacts to the buffers of Streams A and B.
5. A revised short plat map showing a Native Growth Protection Easement over the proposed open
space tract and the side yard areas of Lots 1, 3, and 4 where the stream buffer extends into the
side yards shall be submitted to the Development Services Division project manager prior to the
approval of the final short plat. The Native Growth Protection Easement shall be shall be
recorded prior to or concurrent with the recording of the final short plat map.
6. The Native Growth Protection Easement shall be delineated with a split rail fence and identified
with signage as approved by the Development Services Division Project Manager. A fencing and
signage detail shall be submitted to the Development Services Division project manager at the
time of Utility Construction Permit for review and approval and that such fencing and signage
shall be installed prior to the recording of the final short plat.
7. A revised conceptual landscape plan shall be submitted to the Development Services Division
project manager prior to the recording of the final short plat showing a minimum 5-foot wide
planting strip along Renton Avenue S.
8. A Fire Mitigation Fee based on $488.00 per new single-family lot shall be paid prior to the
recording of the final short plat. The fee is estimated at $2,440.00 (5 new lots x $488.00 =
$2,440.00).
9. A Parks Mitigation Fee based on $530.76 per each new single family lot shall be paid prior to the
recording of the final short plat. The fee is estimated at $2,653.80 (5 new lots x $530.76 =
$2,653.80).
EXPIRATION PERIODS:
Preliminary Plats (PP): If the final plat is not filed within five (5) years of the dates of approval, the preliminary plat
shall be null and void.
Defoor_HEXRPT.doc
NEIGI-lOORHOOD DETAIL MAP
DEFOOR PROPERTY SHORT PLAT
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CITY OF RENTON
DETERMINATION OF NON-SIGNIFICANCE-MITIGATED
MITIGATION MEASURES
APPLICATION NO(S): LUA05-089, SHPL-H, ECF
APPLICANT: Terry Defoor, GWI, Inc.
PROJECT NAME: Defoor Short Plat
DESCRIPTION OF PROPOSAL: The applicant is proposing to subdivide a 140,723 square foot (3.2 acre)
site zoned Residential - 8 dwelling units per acre (R-8) into 5 lots and an open space tract (Parcel B). The lots
are proposed to range in size from 5,500 square feet to 11,574 square feet. The lots are intended for the
eventual development of single-family residences. The subject site contains a Class 3 stream, 2 Class 4 streams,
a Class 3 wetland, steep slopes, and high coal mine hazard areas.
LOCATION OF PROPOSAL:
LEAD AGENCY:
MITIGATION MEASURES:
900 Renton Avenue S
The City of Renton
Department of Planning/Building/Public Works
Development Planning Section
1. The applicant shall comply with the recommendations found in the geotechnical report prepared by Icicle Creek
Engineers dated June 10, 2005.
2. The applicant shall be required to provide a Temporary Erosion and Sedimentation Control Plan (TESCP) designed
pursuant to the Department of Ecology's Erosion and Sediment Control Requirements outlined in Volume " of the
Stormwater Management Manual and provide staff with a Construction Mitigation Plan prior to issuance of
Construction Permits. This condition shall be subject to the review and approval of the Development Services
Division.
3. This project shall be subject to the 2005 King County Surface Water Design Manual for the design of the detention
facility, if detention is required per the 1990 King County Surface Water Design Manual.
ERe Mitigation Measures Page 1 of 1
~.~-
~.
..a ......
Kathy Keolker-Wheeler, Mayor
November 3, 2005
Michael Chen
Core Design, Inc.
14711 NE 29th Place, Suite 10 1
Bellevue, W A 98007
CITY (~F RENTON
PlanninglBuildinglPublic Works Department
Gregg Zimmerman P.E .. Administrator
Subject: Administrative Determination of Un-;mapped StreamlWetland
Classification for Defoor Properties (parcel Nos. 0007200196,
0007200194, and 2023059085)
Dear Mr. Chen:
This letter is in response to your request for the classification of 4 un-mapped streams
and two unmapped wetlands as identified, in the Wetland Study, Stream Assessment,
Habitat Study, Watershed Restoration, and Mitigation Plan prepared by Talasea
-Consultants, Inc. dated June 28, 2005 (revised October 3, 2005).
BACKGROUND
A Wetland Study, Stream Assessment, Habitat Study, Watershed Restoration, and
Mitigation Plan prepared by Talasea Consultants, Inc. dated June 28, 2005 was submitted
to the City of Renton with the preliminary short plat and preliminary plat applications for
the Defoor Preliminary Short Plat and theDefoorPreliminary Plat. The report identified
3 streams, 2 drainages, and 1 wetland on the subjeCt properties. The report recommended
that Streams B and C and Drainages land 2 be classified as Class 5 streams', which are
exempt from the City' scritical areas regulations per RMC 4-3-050B.l. Stream A was
recommended to beClassified asa Class 4 stream,which requires a 35-foot-buffer and
Wetland A was recommended to be a Class 3 :wetland with 25-foot required buffers. The
Watershed Company (City's environmental consultant) conducted a site visit August 25th ,
2005 and reviewed the applicant's report. A comment letter from The Watershed
Company dated September 15, 2005 concurred with the applicant's recommended
-classification for Wetland A, Stream A, and Stream C, however did not concur with the
applicant's recommended classification for Sti"eamB and Drainage 2 and identified a
wetland that had not been delineated. The W~tershed Company recommended that
StreamB be classified as a Class 3 stream, that Drainage 2 be identified as an extension
of Stream A, a Class 4 stream, and ih,at the unmapped wetland be classified as a Class 3
wetland.
Arevised Wetland Study, Stream Assessment, Habitat Study, Watershed Restoration, and
Mitigation Plan prepared by TruaseaConsuitants, Inc. (revised October 3, 20()5) was
submitted to the City OctoberS, 2005. The revised report identified Drainage 2 as an
extension of Stream A (a Class 4 stream), delineated the unmapped wetland arid labeledit
as Wetland B, and Stream B was labeled as a Class 3 stream with a 75-foot required
~ --:"~---'-'-~--l-OS-S-S-o-uth~G~ra-:-d-y"'-W:-ay---R-e-n-to-n,-W:-a-sh-i-ngt'--o-n-9-:-g-0-SS------R E N TON * This_papercontalns 50% ~ material, 30% post consumer A-HEAD OF THE CURVE
buffer. However, Talasea requested a reconsideration of the classification of Stream B as
a Class 3 stream and recommended that Stream B be reclassified as' an unregulated Class
5 stream. City staff met with Hugh Mortensen of The Watershed Company to discuss the
, classification of the streams and drainage. Particularly the City's classification criteria of
streams (RMC 4-3-050L.l.a) was reviewed.
Per Section RMC 4-3-OS0L.l.c.iii of the City's critical areas regulations, "Classification
of an unmapped stream or lake is effective upon expiration of the fourteen (14) day
appeal period following the Adininistrator's determination." The Administrator has
reviewed the City's critical areas regulations (RMC 4-3-050), and the Wetland Study,
Stream Assessment, Habitat StudY, Watershed Restoration, and Mitigation Plail prepared
by Talasea Consultants, Inc and has rendered a decision.
FINDINGS/CONCLUSION
1. The applicant has requested the d~~lJIY:nation of the classification of 3' streams,
one drainage, and two weU_:' ..
, _",-:k>"'<' I,. ,
2. The applicant submittea!1i ~tland"Study, Stre," sessment, Habitat Study,
Wat~rshed Restora~,~d :Mi~gatiOn.P:lan pte ,~ Talasea Consultants, Inc.
(reVised October J; 20(5)1i'. ' . <, ~ ..
3. The City's Admitf' ,tciufud environmental co~t, (the Watershed
Company) bav~eVl th~W'," .. ~1; Str~ Assclssment, Habitat Study,
Watershed Restora1jon,i an " -,. . .~ ... , epaied by 1lIasea Consultants., Inc.
(revisedOctob@r 3<,.0(5).' , ., cal area.lltions found in RMC
4-3-050. ' "
DECISION
The City concurs that Wetl~'" ana B shalt~c~sifidd ategory 3 wetlands, and
'that·Stream A shall be classitl~ a Cl38$;4 streiun. . lent infonnation has !ill! been
provided to the City to show that·~.~ Sbou",'_.. sifted as a Class 5 Stream, that
StreamC shall be classfied as a Class 5 stream, andthat Drainage 1 shallbec1assfied as a
CI~s: 5 stream.
The A'<iministrator deternlined that: 1) Drainage 1 shall be classified as aCtass 4 stream;
2) StreamB shall be classified as a Class 3 stream; and 3) Stream C shall be classified as
a Class 4 stream. Therefore, the decision has been made not to accept the Wetland Study,
Stream Assessment, Habitat Study, Watershed Restoration, and Mitigation Plan prepared
by Talasea Consultants, Inc, revised October 3, 2005.
RECQNSIDERA TION. Within 14 days of the effective date of the decision, any party ,
may request that the Administrator reopen a decision. The Adininistratorniay mOdify his
decision if material evidence not readily discoverable prior to the original decision is
found or if he finds there was misrepresentation of fact. After review of the
rec.onsideration request, if the Administrator finds insufijcient evidence to amend the
.anginid decision, there will be no further extension of the appeal period. Any person
wishing to take further action must file a fOInlal appeal within the following appeal
timeframe.
'APPEAL. This administrative d~ision will become final if not appealed in writing
to the Hearing Examiner on or before 5:66 PM on November 17, 2ooS. Appeals to
the Exariliner are governed by City of Renton Municipal Code Section 4-8-110.
Additional infoInlation regarding the appeal process may be obtained from the Renton
City Clerk's Office, (425) 430-6510. Appeals must be filed -in writing, together with the
required $75.00 application fee, to: Hearing Examiner, City of Renton, 1055 South
Grady Way, Renton, WA 98055. .
If you have any questions, you may cQntactJiIl Ding, Associate Planner at 425-430-7219.
Sincerely,
tJedJUWr
Neil Watts
Developmep:t Services Direc~6f
cc: ~e;~:nru~.~('"0If;~~;~':J·~
Jill Ding "
Terry Defoor/Applicant, . _ ....'1·.
Ro~ CS Teng\;L:~~~4eng'1eng, Mei..:lllT~-t>~g,
WeI Kang Kho,<\10-Cl'W Tuan/Owners 11('#
Parties of Record' ,y,~,
ffilffi To~~!r~!E~PMENl S~
.. CITY OF RENTON
NOV 18 2005
17 November 2005 RECEIVED
Mr. Neil Watts, Development Services Director
City of Renton
1055 South Grady Way
Renton, WA 98055
CITY OF RENTON
NOV 1 7 Z005 /:'/() ~
RECEIVED J)t:...
CITY CLERK'S OFFICE
h Q.\\d-dQ Ii 'i ~r e.cL loy .r Cl.So tt tJo..l. ~ r
who s+o.+eci v-e.r'~ly +h.A.:-t· flu;
',S 0.. ((.J~e.s t fi,-(' A7ec.opsidev-a..I-r. ~
1\ j .• l TAL-931".". . ""If! 7t1 T1I< tt ~""''''' ~3
t;.>CGLm,'t1 e.r. tt9~
e.t·. ti+y A+-I-oftre.r
1-1 ea.r i Y1 j E;qa.m (.,., Q. y-
Subject:
Reference:
Defoor Properties (Parcel Nos. 0007200196, 0007200194, and 2023059085)
Request for Reconsideration and Appeal ( L-uA -(J 5 -0 8 e; )
Dear Mr. Watts:
We have reviewed your 3 November 2005 letter addressed to Michael Chen of Core Design in
regards to the classifications of four un-mapped streams and two un-mapped wetlands on the
Defoor properties.
Due to the availability of additional information, both enclosed and forthcoming, we request a
reconsideration of your determination, and request your examination of the information and
historical factors that have effectively created several drainage features on the subject
properties. We also request a reconsideration of the decision to allow a Class 5 rating for
Stream S, Stream C and Drainage 1 based upon historical evidences suggesting the feature's
artificial origin and past precedent set by the City in the previous review and classification of
similar features. To preserve our options for a formal appeal, we also request that this
notification be filed at this time for this purpose.
We understand that there has been some difference of opinion, and subsequent internal
discussion and meetings regarding the definition of a Class 5 classification for Stream C and
Drainage 1. From communication between Hugh Mortensen (The Watershed Company) and
Per Johnson (Talasaea Ecologist) on 25 October 2005, and from your 3 November letter, we
understand that the City has declined the guidance of their peer review consultant and is
attempting to regulate artificial drainages that have been intentionally created due to the
discharge of untreated and undetained stormwater. Furthermore, Jill Ding, of the City of
Renton, told us (in a telephone conversation on 25 October 2005) that the City desires to
conduct a hearing regarding the Defoor project to clarify the new code for the purpose of
defining City policy. If future meetings are scheduled between the City's peer review consultant
and staff to discuss the Defoor properties, we would appreciate the opportunity to attend and
provide any necessary information or clarification, as this would expedite the coordination and
correspondence involved for this project, and associated time and costs for all parties. We wish
to continue a dialogue with the City on this issue and avoid a hearing if at all possible, as it is
Resource <& Environmental Planning
15020 Bear Creek Road Northeast • Woodinville, Washington 98077 • Bus: (425) 861-7550 • Fax: (425) 861-7549
Mr. Neil Watts
17 November 2005
Page 3
existence, of Stream B, Stream C and Drainage 1. We request the decision provided in the 3
November 2005 letter is reconsidered and, if necessary, be addressed in an appeal hearing
(barring all other available means in which we can discuss and potentially resolve this issue).
Please contact Per Johnson or me at (425) 861-7550 if you have any further questions at this
time. Thank you for the consideration of the City in this matter.
Sincerely,
c::;?2(:
Jason Walker, RLA, ASLA ------....
Senior Project Manager
Attachment
cc: Michael Chen, Core Design
Terry Defoor, Owner
Site Area, 1946
Site Area, 1965
Site Area, 1975
.• ~ ... + ... ... ---. .
I<..athy Keolker·Wbeeler, Mayor
December 7, 2005
Jason Walker, RLA, ASLA
Talasea Consultants, Inc.
15020 Bear Creek Road NE
Woodinville, WA 98077
CITY <jF RENTON
PlanninglBuildinglPublicWorks DePartment
Gregg Zimmerman P.E., Administrator
Subject: Reconsideration Request of Administrative Determination of Un-mapped
StreamlWetland Classification for Defoor Properties (parcel Nos.
0007200196,0007200194, and 2023059085)
Dear Mr. Walker:
. This letter is in response to your letter dated November 17, 2005 requesting
reconsideration of the classification of 3 un.;.mapped streams (Stream B, Stream C, and
Drainage 1) as identified in the Wetland Study, Stream Assessment, Habitat Study,
Watershed Rest-oration, and Mitigation Plan llr'Cpared by Talasea Consultarits, Inc. dated.
June 28, 2005 (revised October 3, 20(5)~ In yOUT letter you indicate that the creation of
the 3 un-mapped streams was·the result of erosion due to point-discharge of st()rmwater
and sQould be considered artificial and reJUlatedaSClass 5 streams. RMC 4,.3-
050L.l.a.v defines a Class 5 stream as non~regulated waters that "flow within an
artificially constructed channel where no naturally defined channel had previously
existed." The point discharge of stormwater onto the subject site does not constitute an
. artificially constructed channel that would be clasSified as a Class 5 stream.
In your letter you also cite a previous project within the City, Sunnybrook Preliminary
Plat (LUA05-127, SA-H, PP, ECF), where the modification of7 drainage channels was
pennitted. You indicat~ that the previous approval should serve as a precedent for the
streams located on the subject property. Since "the review and approval of the
Sunnybrook Preliminary Plat, subsequent critical area regulations have been adopted,
which include a new stream definition and stream claSsification system. Therefore, as the
current project was submitted under the subsequent regulations, the previous approval of
the alteration of 7 drainages would not be a precedent. The previous determination of the
classification of the streams dated November 3, 2005 stands. .
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(!) This paper contains 50% recycled material, 30% post consumer AHEAD OF THE CURVE
,Oefoor Reconsideration
Oecember 7, 2005
Page 2 of2
'
The reconsideration request letter also requested ~ appeal. The appeal of the
determination will continue. You will be notified of the date of the appeal-bearing when'
the Office of the Hearing Examiner has scheduled it. Please feel free.to contact Jill Ding
at (425) 430-7219 if you h~e any questions. -
Sincerely,
Neil Watts
Development ,Services Director
Cc: ProjecfFiIe
Jennifer Hehning ',,<_,~_,
,Jill Ding' , '_'i;:'iiij'<"~'jJx'(C~ "y' 'vC"1
Terry DefoorlAppbc~~'~ ,;' "
Michael ChenlCont,tL,~ , , ""-.c"<,,,,, ,''''
Ronnie CS Teng-, ng~~~eng, Mei-Yu· te.g' """; ~'liIb
-Wei KangKho, -C(l~uaDIOwners -"
Parties of Reeo'" if
APPELLANT
PUBLIC HEARING:
OFFICE OF THE HEARING EXAMINER
CITY OF RENTON
Jason Walker
Talasea
15020 Bear Creek Road NE
Woodinville, WA 98077
Representing: Terry DeFoor, Appellant
Debra Eby Ricci
160 1 2nd Avenue. Ste. 1080
Seattle, W A 98 WI
Counsel for: Terry DeFoor, Appellant
Zanetta Fontes
City of Renton, Assistant City Attorney
Jill Ding, Development Services
Hugh Mortensen, Watershed Company
Defoor Short Plat Appeal
File No.: LUA 05-089, SHPL-H
June 8,2006
After reviewing the Appellant's written requests for a hearing
and examining available information on file, the Examiner
conducted a public hearing on the subject as follows:
MINUTES
The foOowing minutes are a summary of the May 2, 2006 hearing.
The legal record is recorded on CD.
The hearing opened on Tuesday, May 2, 2006, at 9:02 a.m. in the Council Chambers on the seventh floor of the
Renton City Hall. Parties wishing to testifY were affmned by the Examiner.
Parties present: Zanetta Fontes, Assistant City Attorney
Jill Ding, Development Services
Hugh Mortensen, Watershed Company
Debra Eby Ricci
Attorney at Law
1601 2nd Avenue.Ste. 1080
Seattle, WA 98101
Jason Walker
Talasea
15050 Bear Creek Road NE
Woodinville, WA 98077
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 2
The following exhibits were entered into the record:
Exhibit No.1: Yellow file containing correspondence
asking for the appeal, request to Mr. Watts and his
response and the correspondence setting up the appeal
hearing.
Exhibit No.3: Talasea Letter dated November 17,
2005 Requesting Reconsideration
Exhibit No.5: GeoTech Engineers Letter dated May
1,2006
Exhibit No.7: Large Map Showing Topography of
Site
Exhibit No.9: Copy of Aerial Photograph dated 1936
Exhibit No. 11: Drawing by Maryann Reinhart of a
Cross Section of Stream B, West of Big Leaf Maple.
Exhibit No.2: Stapled packed dated May 1,2006
Exhibit No.4: Icicle Creek Letter dated March 24,
2006 signed by Brian R. Beaman
Exhibit No.6: More Defmed Original Page 5 of
Exhibit 2.
Exhibit No.8: Renton Coal Mine Map with
Underground Features
Exhibit No. 10: Actual Aerial Photograph of Exhibit
9
The various parties introduced themselves and the parties they were representing. The Examiner stated that he
had received a packet this morning and has not had an opportunity to review the information.
A short break was taken so Ms. Ricci could look over the yellow file.
Jason Walker briefly described the packet presented this morning and the information contained within. The
first 15 items were plans and photographs which will be discussed in detail later, the second stapled item was the
reconsideration request that is part of the yellow file, the third and fourth stapleditems were letters from the
consultants that will be testifying today.
The site is located on the eastern side ofI-405, the northeast corner is located at 9th Street and Renton Avenue S.
The site is a short plat adjacent to the preliminary plat of the same name. This site has two identified streams,
Stream B to the north and Stream A and Drainage 1 are to the south and in the same corridor but separate
channels, Drainage 1 is just south of Stream A. Offsite to the west is another drainage, Stream C and two
wetlands to the west, Wetland A is offsite and Wetland B is onsite and associated with Stream B.
This request was to address the Renton Municipal Code under the description of Class 5 Stream. They believe
that this stream was of man made origin. A Class 5 Stream is defined as a flow within an artificially constructed
channel where no naturally defmed channel had previously existed. They requested that Stream B be considered
as a Class 5 and not a Class 3 stream as the City had rated this stream.
Stream B originates from a 12-inch concrete pipe adjacent to Renton Avenue S. The upper basin of Stream B
conveys stoI111 water from Jones Avenue along 9th Street. There appear to be no detention or treatment
structures for this runoff given that it was constructed prior to water quality standards. There are also some
Defoor Appeal
File No.: LUA-05-089, SHPL-H
Jtme 8, 2006
Page 3
catch basins along lOth Avenue South and a portion of Renton Avenue drains down towards Stream A. Stream
C, off the southern portion of Cedar Avenue is also fed by stormwater fWloff and is conveyed by the drainage
channel.
A photograph of:a 12-inch concrete pipe adjacent to Renton Avenue and the source point of Stream B hydrology
were presented. Stream B is comprised of two channels in this eastern portion of the drainage adjacent to
. Renton Avenue S. These channels are incised features that are eroded and form a confluence into a single
channel farther west. Vegetation is primarily alder with some black cottonwood and Big Leaf Maple. The
northern channel of Stream B is incised to a depth of 6-feet and flows tmder the root mass of a Big Leaf Maple.
There is a fair amount of erosion occurring in that drainage channel. At the northern end of Stream B the Big
Leaf Maple is at the confluence, the eroded channel is beyond the confluence to the western side as it leaves the
site. The remainder of Stream B is incised and eroded tmtil it outfalls in a wetland area, the offsite wetland is
the location of a historic mining entrance. All the eroded material is dispersed in this area. Stream B joins with
Stream C at this-point, with a similar drainage feature coming off of Cedar Avenue and then leaves the site at the
same location.
Stream A is in the southern portion of the site and has more natural characteristics.
The Examiner stated that he was reluctant to get into Stream A, it may be different or exhibit characteristics that
make it more natural, however, this hearing is dealing with Stream B and it's characteristics, it doesn't matter
how it contrasts with another stream. He did decide to allow the testimony at this time.
Ms. Ricci stated that they had experts present that can speak to the comparative differences between the two
streams. Stream B is not a naturally occurring stream, it is the result of high-pressure storm water flowing down
from the early development of the City of Renton over the last few years. Stream A is a naturally occurring
stream that existed as a process over time.
Mr. Walker continued his testimony that Stream B is in a location where a previously naturally occurring
channel did not exist prior to the intentional discharge of tmdetained stormwater. The intentional release of
stormwater on a highly erodable surface is basically the result of human intervention and that these features are
artificially constructed. There were more photographs of the Stream and it's rounded side slopes.
Upon cross-examination by Ms. Fontes. Mr. Walker stated that earlier he mentioned an adjacent site, and that
site is to the west, under the same ownership and was approved earlier. He did believe that the maple tree was
60-80 years old, the core was rotten and so it was difficult to be sure of the exact age. There are a number of
Big Leaf Maple trees on the site, but this is the only one directly in the stream channel. All photographs were
taken on Wednesday, April 26, 2006. All measurements for the conceptual drawings were taken at the same
time as the photographs.
Diagram #4 of Exhibit 2 is a conceptual diagram of the two channels, the drawing is approximately to scale.
The land between the channels is relatively flat with some undulation. The two channels are approximately 3-
feet in depth and 18-inches to 2-feet wide. He didn't know if there was any grotmd water in thes,e channels.
Stream B deposits into Wetland A that is on the adjoining parcel to the west (the Defoor Preliminary Plat) and
Stream C skirts the perimeter, it does not enter the wetland. Stream A and the confluence of Stream B and C
join another tributary south of the site known as Rolling Hills Creek.
Previously in history there has been some activity on the site, there h3s been a lot of earth moved because of the
previous coal mine activities, some of that is still in evidence today. As far as ditching the channels, they are
characteristic of ditches, but have been formed by erosive flows from stormwater.
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 4
Upon questioning by Ms. Ricci, Mr. Walker stated that Big Leaf Maples are not known to grow directly within a
channel of a stream unless that stream would have changed course. This tree is a very mature tree, his opinion is
that the tree pre-dates the existence of those channels. The roots are being undermined by the water.
Brian Beaman, Icicle Creek Engineers, 230 NE Juniper Street, Ste., 101, Issaquah, WA 98027 stated that he is a
principal engineer and hydrologist and that he was asked to review how this stream was fonned. They
excavated test pits across the site and drilled deep borings into to the coalmines. They are aware that the site,
including Stream A and Stream B, is underlain by about 5-6 feet of weathered bedrock, below that is the hard
bedrock itself.
It is important to compare the whole site, not just the Stream B corridor because the rest of the site is an example
of what should happen should water flow across the ground surface. Stream A to the south has a more natural
layer including smooth slopes that lead down to a channel with good topographic relief, there are other swales
across the property with similar features of Stream B, they start out fairly flat and then there is somewhat of a
broad swale that occurs but the other swales are dry. It is important to understand that Stream B is being fed
from the culvert, that is the uphill side, then down from there towards Wetland A. There is a natural process that
creates swales across this slope but it may have been redirected and instead of sheet flowing it created the
swales, but with the construction of Renton Avenue, the water has not been redirected. The topography on page
5 of Exhibit 2 is probably aerial, it is therefore quite generalized, there are no other swale like features to the
north where Stream B runs. Exhibit 7 shows field topography of the upper portion of Stream B, if the stream
contours were removed and the erosion features were taken out and the contours brought straight across, it
would be a fairly level from the street for about 125-feet or so. As you go further down the channel it does start
to develop that swale-like appearance. Looking at the adjacent property to the west, there are other dry swale
features across that site. (On Exhibit 7 the dry swales were highlighted in blue).
Once the glaciers retreated from this area, the landscape was more than likely barren, the climate was rainier and
wetter and certainly a lot of features fonned during that time before vegetation took place. That is most likely
when these swales fonned. They have a water shape feature but are dry.
The site has a long history of coal mine development dating to the late 1800's, this portion of the site was not
impacted by the mining, the area just to the w¢st of it was. The original main entry to the Renton Coal Mine
was located almost where Wetland A is located, and that would have involved roads being built in this area,
there was an open mine shaft into the ground at about an 11 degree angle below horizontal. It would not have
made much sense to put their mine entry where water surface was going to flow. Some of the historical coal
mine maps do show surface topography. The main tributary, Rolling Hills Creek, was shown on the map, there
was no stream coming down across the area where Stream B is located today. This map does not show Stream
A orB.
They also looked at a 1936 aerial photograph of the area. Cedar Avenue and Renton Avenue were identified.
The mines closed in the late 20's and this aerial is probably within 5-10 years after the Renton mine closed
permanently. He pointed out the Stream A corridor on the photograph, which extends beyond the property to
the east. Looking at the Stream B area, there is no topographic or vegetation pattern that would show an
additional stream. The watershed for Stream A is visible with a channel like feature that extends off the
property.
Upon questioning by Ms. Ricci, Mr. Beaman stated that going back during the active mining days, it is likely
that the culvert did not exist so there was no water coming down the slope into the area of the main mine
operation for the slope. After the mine closed, once water was introduced to the slope area, it found the path of
least resistance, created these incised channels and found its way to the old mine entry which was probably
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8, 2006
PageS
somewhat of a low spot. The grading of the stream transitions from a steep slope to a fairly flat area so a lot of
depositions occurred and has filled in that area with eroded sediment and created that wet area.
On questioning by Ms. Fontes. Mr. Beaman stated that stonn water versus water hitting impervious surfaces and
making their way into a stonn water system would mean that less water would be getting into the ground. On
Exhibit 7, he redefined what affect the glacial flows had on the land today. Not all naturally occurring streams
have identical characteristics is a fairly general statement, there are certain characteristics which, comparing the
Grand Canyon to the Duwamish they are both naturally occurring streams and they both have different
characteristics.
Miners woulq have been able to redirect Stream B, if it had been there because it was a small stream. Stream B
flows to Wetland A today, but there is no way to mow if Stream B was there in 1936 or ifit was ifit outflowed
there or somewhere else. The site evaluation and seeing the character of the Stream B corridor and the 1936
aerial photograph show that there most likely was no stream there prior to the installation of the culvert on
Renton Avenue South.
If a lot of water were pushed down the steep slopes an incised channel vertically sided similar to what is seen in
the field today would occur. This would be considered man made because the water is introduced by something
that man has done, the water creates the ditch, but the water is directed to that area by man's activities.
Maryann Reinhart, GeoEngineers, 8410 I 54th Ave NE, Redmond, WA 98052 stated that she is a fluvial
geomorphologist and her expertise is in the area of evaluating land forms, their development and particularly so
the characteristics of streams from both small creeks all the way to large river systems. She has additional
expertise in the area of sediment transport in fluvial systems, including erosion and deposition.
She was asked by Talasea Consultants to look at the two streams of interest on the Defoor property, Stream A
and Stream B. She did go the property on April 26, 2006.
Landforms in the Puget Sound area are basically developed as a result of glaciation of continental ice masses
that receded from this area somewhere between 10,000 and 13,000 years ago. There were drainage patterns that
were left by the receding glaciers and in exchange for that there is a good bit of melt water that was coming
from the melting ice. The process of the grinding, advance and recession of the glaciers, as well as the runoff of
their melt waters developed much of the landforms and topography here in Puget Sound. In this particular area,
some of the drainage swales that are glacially derived played a large roll in the development of the area. One of
the key characteristics that seems to be missing from the story is the development of drainage basins. Drainage
basin is synonymous with the tenn of watershed. Watershed is a little more informative of what happens in a
natural drainage basin. Water falling from the sky as precipitation or snow runs off of the surface of a
watershed and coalesces in a channel through which it then is conveyed to a receiving body, in Western
Washington it is either Lake Washington or Puget Sound.
The distinction here is important with respect to the origin of Streams A and B on the property. Stream A
receives water from upgradient of Renton Avenue South. The watershed extends upstream of Renton Avenue
South, that water historically collected off the ground surface of the watershed and was delivered to the main
stem channel and then moves down slope. Watersheds tend to deliver water to the receiving channels, those
channels, over a period of time, have an opportunity to adjust to the discharge that ends up in that channel as a
result of the surface water runoff. There is a defmite relationship between the dimensions of the channel that
receives water from the watershed and the size of the watershed. Several things can alter the shape and size of
the channel, the geologic ·materials that produce the soils, the gradient of the channel from upstream to
downstream, and the climate. In Puget Sound streams there is a general relationship that is typically used with
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 6
regard to the dimensions of the stream that has had an opportunity to evolve and adjust to all of the conditions
that prevail over the period of that watershed. The channel will range about three times wider than it is deep.
The Examiner stated that he would have to decide on the Sub A defmition of flow within an artificially
constructed channel where no naturally defmed channel has previously existed. What does artificially
constructed actually mean. The fact that it is there does not mean that the channel was artificially constructed,
no one was out there ditching it with a shovel or backhoe to create it. It may have formed due to some alteration
. of the flow upstream, with or without a culvert, the road may have taken a dip and risen something like a wash.
Ms. Reinhart stated that artificially created could mean that you go in with a backhoe and create a channel where
formally there was none. It is very difficult to draw a line between a ditch that is cleared out by a backhoe and
an incised gully that is created by the discharge of energized water or just water flowing down the slope where
previously there was not a natural drainage pattern within the watershed.
ill Stream A there is an incised bottom channel showing that probably more water was added recently or more
abruptly, maybe caused by urbanization patterns upstream.
ill the case of Stream B it is a deeply incised channel, six. feet deep by two feet wide. The sidewalls are very
vertical. It is a very unnatural form for a channel in this environment, meaning the soils, gradient, and the
climate does not favor development of an incised gully. From a fluvial geomorphic position Stream B is
actually a gully. Based on her observations in the field, water does not flow off the sides of the gully and ifleft
alone the sidewalls would not lay back to an angle of repose with flowing water. She was surprised at her visit
to the site, she was looking to the bottom swale that is defined as a dip in the road, that is Stream A, Stream B is
located up on the right limb of the Stream A swale, it is at the top, it is a very unusual place for a stream to
develop. The Stream B channel does not angle into the Stream A corridor, it makes its own path directly down
stream along the fall line. This is not a typical pattern seen in any drainage basin in this area. The channel is
getting its water fed to it by the culvert, it is not receiving surface water runoff from the area on either side of the
channel, the only water that stream is conveying is water that is fed to it directly from the culvert.
ill terms of a channel that forms naturally in a watershed or small sub-basin, Stream B does not fit with what is
typically seen in the Puget Sound area. If the discharge from the culvert was left to run the way it does now, it is
possible that continued incision could be seen, there is bedrock that is seen in the base of the channel which is
slightly more erosion resistant than the weathered material, that may represent a bed control feature. The
erosion may take a little longer. The characteristics of the sidewalls of the channel are either vertical or concave
and the channel is still attempting to adjust to the discharge that is being conveyed by the channel. If it is not
allowed to incise further it may broaden slightly, but there will continue to be very unstable sidewalls.
This type of channel configuration is very consistent with similar channels that have formed in the direct
response to stormwater runoff directed to an area that has not previously seen surface water runoff form a
channel.
Stream B is truly a gully, which is defined as a straight walled deep channel that is much deeper than it is wide
and is typically associated with unmitigated runoff. Gullies are natural, but gullies that develop into streams
generally will adjust to gradients, soil types, basin sizes which help the channel to become more stable. A gully
is very unstable by definition, the sidewalls can cave in, it will incise, it is not predictable in the form that it will
take in terms of the depth and the width of the channel. The gully that matures into a well adjusted conveyance
channel of natural waters, the sidewalls will typically, in these soils, lay back to near the angle of repose, they
will become stabilized with vegetation. Just because a gully is natural, it does not mean that it should be in that
particular location.
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8,2006
Page 7
An unstable gully will typically have a flat floor and will be wider at the base than it is at the top, which means
that from a developmental perspective the water began to coalesce with the inception of the channel and then
rapidly, in adjustment to the discharge, it begins to incise and cut down. This channel has probably been
developing on the order of decades, as opposed to Stream A that has been developing and adjusting to its
conditions for probably thousands of years.
The Examiner asked questions regarding how the stream could have started, rivers get their start somewhere and
if everyone culverted or filled them there might not be a Columbia River or Cedar River today. Somehow this
channel was formed, was it natural or not natural.
There was much discussion as to how water courses across this land and how streams are formed and how water
has a tendency to flow downstream and what kind of a course might be formed to get the water from point A to
point B. The conditions do not seem to be present to generate another channel that have the dimensions and
character of Stream B given the watershed area that was discussed.
Upon questioning by Ms. Ricci, Ms. Reinhart stated that in a couple of applications, she was familiar with the
term hydraulic sluicing and that it is a known form of constructing channels. Hydraulic sluicing is used in a
number of different applications, one the direction of discharge from a hose intending to create a depression or
channel. If the water source were cut off, there most likely would not be water in that channel and vegetation
would eventually take over.
Ms. Fontes objected to the question.
The Examiner stated that the culvert either could have created the channel or could exacerbate th~ creation of
the channel, it would have a sluicing effect.
Ms. Reinhart stated that was correct.
More discussion continued on sheetflow and natural obstacles on the slope and the affect that would have had on
the channel. If the culvert alone did not cause this channel, it might have still been created in this location from
any number of reasons. It seems to be doing quite well now that it is there, it does not seem to want to go
towards Stream A. Stream B now seems to have a life of its own. If water were merely flowing over the
surfaces as surface runoff without the influence of the discharge coming from the culvert, you would have
surface water that would make its way down slope by some preferred pathway. It doesn't become a big deal
until the discharge is increased over and above what is being generated by the natural surface water runoff from
precipitation in that area. The Big Leaf Maple did not grow in the channel, it has been undermined by what is
presently the channel. Surface water runoff from the slope from normal precipitation would not have the
momentum and energy to cause that type of erosion. A much larger source of discharge with a much higher
level of energy would be needed to create that channel.
Upon questioning by Ms. Fontes, Ms. Reinhart stated that her opinion regarding the source of the water in the
culvert is coming from the urban development and the stormwater runoff from roofs, driveways, and paved
areas. A portion of the runoff could be from ground water. She did not know if there were any naturally
occurring springs in the area.
A drainage channel is either created or happens as a result ofan action, urban runoff that is directed to an
existing channel, which is attempting to adjust to the increase in runoff from the urban development.
Sometimes water channels will move and take different courses, that is part of the adjustment of channels. It is
her opinion that Stream A began because of a glacier. There appears to be 200 feet between Stream A and
Stream B. Channels can be formed by the discharge of ground water.
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 8
Ms. Ricci asked further questions of Ms. Reinhart, who stated that there was no indication on the 1936 aerial
photo that Stream B existed, and so it mostly likely is on the order of decades old. That is a very recent time
frame.
There is some point in time in which it could be said that the stream was created decades ago. With respect to
the two streams, it is necessary to look at the information provided by the two streams and the environment and
what is known about the natural drainage systems and say that it would be unusual at the very best for a channel
with these dimensions, that is being very much deeper than it is wide, to be the same age as Stream A, this is a
very youthful stream. If you cut off the water, the stream would go dry. A stream must be able to feed itself
with water and this one cannot.
It would be very hard to cut off the water to Stream A. it is being served by the watershed. If you cut off the
water coming from upslope of Renton Avenue South you could create a small dam and -it would basically
change the hydrology of the stream, it will still get some runoff from the sidewalls downstream, it will not be the
stream that it is today.
Lunch Break: 12:47 pm
Reconvened: 2: 15 pm
Pat Conger, 1301 South 9th Street, Renton, W A 98055 stated that she lives on the SE corner of 9th Street and
Renton Avenue South directly across the street from this parcel. She is directly across the street from the culvert
that has been discussed. There is water in the culvert year round, even when there has been no rain. She has
lived in this location for the past 12 years.
Upon questioning by Ms. Ricci. Ms. Conger stated that the people do water their lawns, wash their cars and
other outside things around their homes. Some water is getting into the system all the time throughout the year.
She can hear the sound of the water and sometimes there is more water than at other times.
Brian Beaman stated that he is a professional engineer with Civil as a specialty. He routinely looks at plats and
short plats, single-family residences, and roadcprojects for discharge of storm water from street drainages. They
do not assess the piping, but do assess the outfall and what that outfall might do where it crosses natural ground
surfaces or on re-entering streams. He routinely is called on to locate culverts under similar conditions to what
is on this site. Based on his knowledge of the soil conditions on this site, with a culvert outflow at that location,
he would expect that water would sluice out a,ditch following the fall line of the slope. It is not necessary to dig
out the trench, the water just creates its own pathway.
Hugh Mortensen, Watershed Company, 1410 Market Street, Kirkland, WA 98033 stated that he is an ecologist
with over eleven years doing stream and wetland reconnaissance and delineation, he also is an on-call consultant
to the City of Renton to review development proposals that come before the planning department. City of
Renton, Kirkland, Shoreline, Monroe, Sammamish and Issaquah have called upon him to check classifications
of streams. He did the classification of the streams on the Defoor property. On his inspection, he thought that
Stream B was a Class 3, he never believed that it was a Class 5 stream.
He spoke with Neil Watts regarding the descriptions of various classes of streams in the City of Renton, they
further discussed artificially constructed streams and the fact that it had to be where a channel did not previously
exist. Regarding Stream C, to the west and appears to start at the comer of the subject property and the
adjoining parcel, his initial classification was that it was a Class 5. After talking with Mr. Watts he looked at the
definitions more closely and he saw the words "artificially constructed" channel, and after reviewing the
elements, he changed his classification to a Class 4.
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8,2006
Page 9
He always consKlered Stream B as a Class 3 stream. In his opinion, this is not a Class 5 stream because he has
observed it flowing in late August, since August is the month with the least amount of rainfall in this region, the
end of August is the most appropriate time to be looking at a stream to see if it is perennial or not. He checked
the rainfall record for the preceding month and it showed to have had little to no rainfall for the 25 days prior to
his site visit.
When people water their lawns the water sometimes goes into both the stormwater pond and the ground water.
The flow in the stream seemed to be more than what could be caused by lawn watering and car washing.
Looking at the 1936 aerial photo, there was no retention pond or stormwater pond related to this system in. Just
not seeing a stream does not mean that it is not there. If the stream is supported by ground water and has a very
low flow, the channel could be in the neighborhood of 6-inches wide and it would not be seen on this scale of
photograph.
Without a detention pond or stormwater pond storage, water collects on impervious surfaces and runs off while
it is raining and for a short time following that storm event it continues to run off. In August, the water that was
in Stream B, he believed it to be ground water.
Looking at Exhibit 7, in the NE comer of the subject site there are dashed buffer lines around Wetland B, there
appears to be some evidence of a broader swale formation and to a lesser extent it represents the same swale
formation where Stream A runs.
Rainfall in the Puget Sound area falls on the ground and in areas where it can infiltrate, natural areas and non-
paved areas, it percolates into the ground and becomes an enormous detention pond, it stores water, the ground
is porous, it can store large or small amounts, that water is released down gradient and sometimes at great
distances from where the water actually fell. Water seepage is characterized by a very steady metered flow over
long periods of time. Water channels can move.
The likelihood of a channel forming as a result of water discharging at any point along the gradient upstream is
highly plausible. The distance between Stream A and Stream B is 200 feet measured at the point where the
culvert is shown on the map.
Upon questioning by Ms. Ricci. Mr. Mortensen stated that he has a broad background in studying natural
resources. He has a degree in Ecology from Evergreen State College, but no degree in Geology or Civil
Engineering. He has been a consultant to the City of Renton for approximately 2 years. He works with
geomorphologists at his firm as well as stream biologists and engineers and has been involved in various aspects
with designing streams and stream channels.
Ms. Ricci asked and received confIrmation to his previous testimony today. He did not take any readings from
the culvert or as to the water flow from the culvert. He confirmed that his classifIcation of this stream was based
on his one visit to the site in August 2005.
Although there was ground water naturally occurring in this area, it is not causing the majority of water flow
through the culvert. Stormwater is the majority of the water flowing through that culvert, stormwater that is
collected up stream of the culvert. He was certain that stormwater has affected this channel.
Referencing Exhibit 7, he stated that on this map he sees a smaller swale formation compared to Stream A. He
does not necessarily believe that the stream cut that, but that that is an area where the stream channel would
ordinarily flow. He did not see any evidence of ground water interceptions in the channel of Stream B and that
the channel did not seem to be picking up ground water further down the hill. The ground water situation is that
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 10
the stonnwater system is picking up ground water above the culvert and then shooting it down the hill. The
ground water at one point in time did create a small channel subsequent to that and this erosive force of the
stonnwater has deepened the existing channel and down cut it.
Neil Watts, Development Services Director, City of Renton stated that he often is asked to interpret the language
of the code and in particular as this case relates to stream classifications. An artificially constructed channel is a
channel that has been created as a ditch, typically that would be something like a roadside ditch. It is something
that is entirely manmade. Sluicing could be interpreted as a process of artificially creating a ditch.
Mr. Watts stated that he is a licensed Civil Engineer, with a degree from Seattle University. He has been
involved in land use aspects and land use reviews with Seattle and Renton for over 20 years. He has reviewed
this project and has visited the site half a dozen times summer of 2005.
Regarding the storm system located on Renton Avenue South and the culvert at that location, the water going
through that system, at some point created the stream that it now resides in. There has been a watercourse
coming down the hill for a very long time, it has been altered by different influences by man, building yards,
ditches, culverts, and storm systems. It is not an entirely natural system any longer. It appears that Stream A
and B are far enough apart and that they are defmed enough channels that this has been going on to some degree
before the roads were built. The underground storm system on 9th Street is pure speculation as to where and
how that water ran prior to being constructed.
Upon questioning by Ms. Ricci. Mr. Watts stated that he had not reviewed the extent of the area of the collection
system on 9th Street nor did he have any sense of the volume that comes through that culvert onto the Defoor
property. If the culvert were closed off, it could be expected that there would be some flooding on the other side
of the street. The source of the stream is actually the headwaters that are much further upstream. If the drainage
course were closed off, the water would cease to flow. Stream B would cease to exist unless it was being fed by
ground water sources below that point of closure. All the water that flows through the pipe dumps onto the
Defoor property and created the stream channel. They have been unable to find any records or civil engineering
records of what was there when the culvert was built.
He does not know if there has always been a drainage channel in this exact specific location. He also had no
information of a previously existing channel in that exact location. The hill has not gone away and there has
always been water running down the hill in some fashion and at some point the water has been directed into a
man made system. The water now moves through a man made system.
He is charged with determining the language of the code that consultants to the City draft. He is familiar with
the term ''hydraulic sluicing" which is an attempt to make a ditch or channel by using water from a stream or a
fire hose.
If a culvert was installed and water was diverted through it, you would get a very steep banked erosive channel
for a period of time, as the decades go by it would start to become a more naturally appearing slope, the slopes
would start to become less steep, vegetation would set in and after a period of time it would look and function as
a natural stream channel. With steep slopes the initial beginning would be to incise the channel.
Ruth Larson, 714 High Avenue S, Renton, WA 98055 stated that on Exhibit 5, page 2 she owns the 3rd house
down from South 7th Street on High A venue South and has lived there since 1963. She did not know when the
stormwater system and culvert were installed. They have tom up High Avenue South three times since she has
lived there, but she doesn't--know what they were doing.
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June 8, 2006
Page 11
Uphill from the Renton Avenue South location there are two springs that she has seen, one is located on the SE
comer of High Avenue South and South 9th Street and the second one is located on the comer of South 9th Street'
and Grant Avenue South. Along High Avenue South her house is the fIrst one that has a basement, none of the
other homes were allowed to have a basement when they were built because of the water table. She has never
seen the people living south of her property ever water their lawns, except for when the lawn was fIrst planted.
Brian Beaman stated that he has gone to the site approximately IS times to do test pits, drilling and general
reconnaissance, some of that for coal mine research. They have issued reports to Defoor and those most likely
have been submitted to the City. He has done detail studies of the site. The road enwankment is creating the
contours across the site and because Renton Avenue requires fIll on the downhill side, there has been a
modifIcation of the contour and likely the house development added fIll as well. The culvert didn't extend out
far enough so they had to pull the embankment back in to meet the culvert so that it would not get covered. The
channel like contouring feature has been created in his opinion.
The springs that Ms. Larson spoke of would most likely feed into Stream A as seen in the 1936 aerial photo.
Wetland B is 196 square feet and the dotted line around the wetland is the buffer.
Ms. Ricci gave her closing statement wherein she recapped the testimony heard today and stated that it is their
fIrm belief that a Class 5 classifIcation is much more consistent with the nature of conditions of this particular
set of water features.
Ms. Fontes gave her closing statement wherein she recapped their testimony and stated that their expert when
Jieviewing the site saw flowing water and classified Stream B as a Class 3 stream. Stream B is the main focus of
today, that is the area where they want to build and has the most impact for them. The water that comes out of
the culvert has certainly affected this stream, however, that is not the issue. The issue is whether the streambed
was artificially constructed by sluicing, digging or whatever method.
Ms. Ricci stated that they did establish that there was no pre-existing channel until the City introduced
stormwater, collected and dispersed it onto the Defoor property.
The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and
no further comments from staff. The hearing closed at 4:08 pm.
FINDINGS. CONCLUSIONS & RECOMMENDATION
Having reviewed the record in this matter, the Examiner now makes and enters the following:
FINDINGS:
1. The appellant, Jason Walker, hereinafter appellant, fIled an appeal of an administrative decision
affecting property in the City of Renton. The decisions involved the classifIcation of water courses that
cross the subject property.
2. At the same time, the appellant sought reconsideration of the original decision by the Development
Services Director. The original decision was issued on November 17, 2005'. The decision denying the
reconsideration was issued on December 7,2005. At that time the appeal became active and a hearing
was scheduled. The appellant sought a couple of continuances, which were granted.
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File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 12
3. For purposes of semantics and attempting to use tenns that do not foreclose the appellant's appeal or
immediately define the subjects of this appeal or prejudge the questions, this office will refer to the three
water channels that cross portions of the subject site at issue as "water courses" rather than creeks,
gullies, streams or ditches. Those other tenns may be used in this decision when describing how other
parties other than the Hearing Examiner referred to those features.
4. The subject site is located on the west side of Renton Avenue North. The site is located generally south
of South 9th Street if that street were extended west of Renton Avenue. South 10th Street would
intersect the southeast comer of the site if that street were extended west of Renton Avenue. The
subject site is a trapezoidal shaped parcel where the western property line is shorter than the eastern
property line.
5. A number of water courses cross the subject site. They generally flow east to west across the parcel,
which slopes down to the west They are identified on Page 2 of Exhibit 2 and the descriptive names
are taken from that page:
Drainage I enters the site west of the intersection of Renton Avenue and S. lOth Street.
It runs in a northwest direction and joins Stream "A."
Stream "A" enters the site from approximately halfway along the eastern boundary of the
subject site and runs generally in a southwest direction. Stream "A" continues off-site.
It joins an "unnamed tributary to Rolling Hills Creek."
Stream "B" runs from what would be the southwest corner of the intersection of Renton
Avenue S and S 9th Street. Stream B emerges from a culvert under Renton Avenue S.
Not far from where it emerges from the culvert Stream "B" splits into two channels and
then merges back into one channel. It generally runs west across the site and enters the
north side of Wetland A. Stream "B" according to the map ends at the wetland and then
merges with Stream "C".
Stream "c" enters at the extreme northwest comer of the subject site and runs south. It
turns west and leaves the site continuing to flow along the western edge of Wetland A.
Wetland A is located off-site. Wetland A was described as being the location or near the
location of a former coal mine entrance.
Wetland B is located at the eastern end of Stream B.
6. The appellant challenged the City's stream classifications of three water courses, Streams B and C and
Drainage 1. The allegation in each case is that these are not natural streams but that each is an
"artificially constructed channel."
7. The appellant was proposing the side-by-side development of a Preliminary Plat and a Short Plat. The
Preliminary Plat has been approved and its design would not be affected by this decision. The Short
Plat review has been placed on ho~d, as its design would be affected by this decision. These water
courses flow across one or the other or both sites. In preparation for the City's review of those plans the
applicant submitted a series of reports. The appellants reports recommended that Streams B and C and
Drainage 1 (the only water courses at issue for the pending appeal) "be classified as Class 5 streams
exempt from the City's critical areas regulations per RMC 4-3-050B.l." (Letter from Development
Services Administrator to Michael Chen, November 3, 2005). The City's consultant determined that
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File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 13
Stream B should be classified as a Class 3 stream and Drainage 1 be identified as an extension of
Stream A. a Class 4 stream. Appellant sought reconsideration of Stream B's classification asking that it
be classified as an unregulated Class 5 stream.
8. On November 3, 2005 the Administrator found that "sufficient infonnation was not (underlined in
original) provided to show that Stream B should be a Class 5 Stream, that Stream C be classified as a
Class 5 stream, and that Drainage I shall be classified as a Class 5 stream."
9. "The Administrator detennined that: 1) Drainage 1 shall be classified as a Class 4 stream; 2) Stream B
shall be olassified as a Class 3 stream; and 3) Stream C shall be classified as a Class 4 Stream." This
effectively rejected the reports, to wit: "Therefore, the decision has been made not to accept the Wetland
Study, Stream Assessment, Habitat Study, Watershed restoration, and Mitigation Plan prepared by
Talasea €onsultants, Inc, revised October 3,2005."
1 O. The appellant alleges that these streams "are the direct result of intentional man-made activities (i.e.
erosion .due to point-discharge of stonnwater) and should therefore be considered artificial by provisions
of the RMC." They based this claim on historic aerial photographs, which they say do not show them as
distinguishable in 1936 and 1946. They say that they do show as defined after 1965. They attribute this
to point-rlischarge of unrestrained stonnwater onto a highly erodable soil surface. At the hearing the
appellant produced additional evidence they claim shows that these water courses are not natural (see
below).
1 1. The appellant states: "We believe Stream B, Stream C, and Drainage 1 were created as a result of the
implementation of roadway and drainage improvements after 1946 ... These features exhibit 'flow within
an artificially constructed channel where no naturally defined channel had previously existed' (RMC
4.3.050. (L).l.a.v), and should therefore be considered artificial, meeting the definition of Class 5
Water."
12. The appellant in its appeal and reconsideration letter went on to note that similar drainage channels
created by erosion were previously determined as artificial and unregulated. The Director found this
line of argument unpersuasive noting that the code provisions had been specifically changed and
therefore, prior decisions were not applicable.
13. The appellant then goes on to describe a mitigation and restoration plan to stabilize these water courses.
These matters are not pertinent to this review since the only issue at this time is the legal classification
of the water courses. The classification will determine what protections they are entitled to and what
modifications, if any, are pennitted.
14. The appeal was filed in a timely manner.
15. The appellant provided information to contrast the cross section profiles of Stream A and Stream B.
The parties agree Stream A is a naturally occurring creek and show its geomorphology, that is, its
historic origins and character. Stream A appears to follow or be located in a swale area that originates
upstream or above Renton Avenue South. They suggest that it fonned over several thousand years
(page 2, GeoEngineers, Report of May 1,2006). They note its stable side-slopes and angle of repose
adjusting over the course of its long-tenn location. It was noted that Stream A is incised at its base
probably due to additional water flow resulting from upstream urbanization. Stream B, which the
appellant claims is an artificially constructed water course, is deeply incised, the purported absence of a
natural swale or depression upstream (east of Renton Avenue) that would have directed the channel in
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File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 14
this location and the stream's location at what is termed a "topographic high point." Streams A and B
are approximately 200 feet apart.
16. Stream B enters the site and not far downstream of the culvert, splits into two channels. The two
channels are approximately 18 inches to 2 feet wide and 3 feet deep. The two channels rejoin (the
confluence) approximately 125 to 150 feet down the slope from the culvert. At that point the single
channel is approximately 2 to 3 feet wide and 5 to 6 feet deep.
17. Stream B may be fed by a paved and developed area on the east side of Renton Avenue although
neighbors report that there is a spring and wet area upslope. These neighbors also report that a storm
drain or catch basin located on the opposite side of Renton Avenue, at Renton and 9th, that presumably
feeds the culvert always has a strong flow of water in it including during the dry months. The
appellant's expert agreed it was a perennial stream but was not sure if ground water contributed to the
flow. The appellant's witnesses all agreed that Stream B was formed by erosive flow or hydraulic
sluicing generated by stormwater.
18. The two experts noted that the location, on a high topographic aspect, and features of Stream B (deeply
incised) do not generally coincide with features of a naturally occurring creek and the erosion signs, soil
type, location on slope all support the conclusion it is not a natural stream.
··19. There are other swales like Stream B located along the slope but they are dry and still others are more
gently curved. The general topography of the area was formed about 10,000 years ago.
20. It was pointed out that some trees including Big Leaf Maples located near Stream B are not generally
associated with wet areas. The Maple is approximately 60 to 80 years old according to a tree ring
review. Since the tree is damaged, an accurate count of its rings was not possible. The soil under it is
eroded and it is approximately 4 feet above grade. This purports to show that such a tree would not
have grown straddling a creek.
21. There are no "as-built" engineering drawings or plans dating back to the 1950's near when the culvert
feeding Stream B was constructed. The culvert is 12 inches in diameter.
22. Stream B enters Wetland A off site where it deposits materials and joins with Stream C.
23. The historic aerial photograph from 1936 does not appear to show Stream B but does show Stream A's
course. It shows that the road system has not changed much.
24. A general history of stream formation was presented by the appellant to show how natural versus
artificial streams are formed. A stream over time is affected by geologic composition, gradient, and
climate. Stream A is approximately 3 times wider than deep, whereas Stream B is "gully-like" and
deeply eroded which is not generally natural. Stream B does not appear to follow a natural stream
location or evolution. The appellant presented testimony that it is in an unusual place and not a typical
pattern. Stream B shows signs of being fairly "youthful" in its steep-walled profile, meaning it is
decades old but not anywhere near as old as Stream A appears to be. The appellant alleges Stream B
appears to be the result of hydraulic sluicing which was intended to create a depression or channel. The
witness agreed that "gully" is not exclusive to a created channel and they do occur naturally. The
proximity of Streams A and B make it appear, at least, unusual to be the same age. This office finds
there is no evidence that there was an intent to create a channel as opposed to just releasing water from a
culvert on the downslope side of the roadway.
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File No.: LUA-05-089, SHPL-H
June 8, 2006
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25. The appellant indicated that the old coal mine maps showing surface features do not show either Stream
A or Stream B but do show the more major Rolling Hills Creek.
26. The City's expert is familiar with the streams and definitions and helped draft the City's stream
regulations. He found no evidence of "construction" such as spoils or ditching in any of the water
courses. He had changed opinion on Stream C to Class 4 from initially believing it was a Class 5 based
on this lack of pwposeful ditching evidence. The expert also noted that the stream was perennial and
was flowing in late August. He noted it was a normal August as far as rainfall. That is it was relatively
dry with only one event, an approximately 0.05 inch rain on August 18, 2005. He did not believe that
lawn watering or car washing or similar human water generating uses would have generated sufficient
water to keep Stream B flowing in August, that is, lawn watering, etc would not create runoff that lasted
a significant length of time. He noted that there were no detention or retention systems for stormwater
or other runoff in the vicinity and that such facilities were generally not required until the 1970's or
1980's. As for the absence of a definitive stream course in the 1936 aerial photos, he noted that a six-
inch (6") creek or one with a very low flow would not be very visible on a photo of this scale when the
photo was taken. He also noted that water channels can and do move and change location over time.
The City emphasized that with water flowing in Stream B all year, it probably has its source in natural
ground water from the hillside above the culvert. Stream B, they allege, would appear to be fed by
water that does not originate from only storm events and therefore, drains natural, perennial water. The
City's expert did not believe that either stream was constructed.
27. The location of the two natural springs noted by neighbors are in the vicinity and southeast of High
Avenue and 9th and at 9th and Grant Avenue. It was noted by the appellant that these could be feeding
Stream A, the natural stream.
28. The Administrator who made the decision noted that Stream A and B are far enough apart to support
two naturaIdrainage courses. He acknowledges that human intervention has altered the flow and
possibly the character of Stream B. The appellant's expert noted the same urbanization probably
affected Stream A. There are no records that document the situation before the culvert was constructed.
He did speculate that directing water through a culvert, even into a natural shallow swale, could create a
steep banked erosive channel that eventually, over additional time, would attain a more natural slope
and appearance, but that with steep slopes that occur on this hillside, an incised channel would probably
be fonned initially.
CONCLUSIONS:
1. The appellant has the burden of demonstrating that the decision of the City Official was either in error,
or was otherwise contrary to law or constitutional provisions, or was arbitrary and capricious (Section 4-
8-110(E)(7)(b). The appellant has demonstrated that the action of the City should be modified or
reversed. The decision regarding the classification of the streams is affmned.
2. Arbitrary and capricious action have been defined as willful and unreasoning action in disregard of the
facts and circumstances. A decision, when exercised honestly and upon due consideration of the facts
and circumstances, is not arbitrary or capricious (Northern Pacific Transport Co. v Washington Utilities
and Transportation Commission, 69 Wn. 2d 472,478 (1966).
3. An action is likewise clearly erroneous when, although there is evidence to support it, the reviewing
body, on the entire evidence, is left with the definite and firm conviction that a mistake has been
committed. (Ancheta v Daly, 77 Wn. 2d 255, 259 (1969). An appellant body should not necessarily
substitute its judgment for the underlying agency with expertise in a matter unless appropriate.
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8,2006
Page 16
4. Section 4-8-110(E)(7)(a) requires that the decision of the City official be given substantial weight:
"Substantial Weight: The procedural detennination by the Environmental Review Committee or City
staffshall carry substantial weight in any appeal proceeding. (Ord. 3891, 2-25-1985) The Hearing
Examiner shall give substantial weight to any discretionary decision of the City rendered pursuant to
this Chapter/fitle. (Ord. 4346,3-9-1992)."
In other words the appellant must show clear and convincing evidence of mistake. First, in the matter of
Stream C and Drainage I the appellant provided little if any testimony directed to those two water
courses. The appellant certainly did not provide any compelling evidence that the Director was
incorrect in classifying these two water courses.
5. The City summed up the issues quite accurately -here we have a disagreement between experts. There
would appear to be reasonable grounds to accept the view of either set of experts. But code requires that
the decision below be given substantial weight. So while it may be unlikely that a natural stream might
have originated in the immediate vicinity of the culvert, it was not shown that it would be very unlikely.
A number of factors can allow this office to detennine that a natural stream, albeit, possibly a narrow
and shallow stream existed in this location. Somewhere upslope sufficient water accumulates over the
course of a year to create a permanent, some might say, perennial stream, Stream B. This water is not
generated by single storm events since it flows even in August, a relatively dry month. Neighbors
report it flows through a catch basinjust east of the culvert all year.
6. A number of issues that were not explored also could lead one to believe some stream or storm flow
crossed the subject site in this general location. The property in question was undoubtedly private
property when the road and culvert were put in. Yet there is no record that was produced showing any
objections from the then property owner about the effect this culvert and steam flow would have on
their private property. In other words, it would appear that for some reason the past owner or owners
permitted the City to instigate harm using erosive forces to create the water course on the subject site.
Or, another alternative might be that the culvert merely formalized a natural drainage course that was
located in this general location. As the record demonstrates, the storm drain or catchment on the
opposite side of the road appears to always have a flow of water. These may at one time all been
surface flows, small creeks, perhaps, that were captured and piped and conveyed to the culvert under
Renton Avenue. Again, while the record does not contain any explicit evidence, you would surmise that
if private property was being harmed by the culvert and sluicing action of the stormwater, the owner of
the property would have raised some objection. Of course, it is possible that it was an absent owner but
nonetheless, their interests were being harmed unless water always flowed onto and across the property
in this location.
7. The old surface maps fail to show Stream A, the larger and natural stream but do show the more major
Rolling Hills Creek. If Stream A was present when these old maps were drawn then it would appear
that even this more natural larger stream was considered too small to document. Stream B might have
been even smaller still and it might not show up on old aerial photos. Relying on historic maps certainly
does notreliably help decide if Stream B existed. The resolution of aerial photographs from the 1930's
probably left out smaller detail. Interpreting what details we see in older photographs using our 21st
Century mindset could lead to misinterpretations. As we know, current aerial photographs now show
incredible detail but that could lead one to believe good detail would be found in 60 and 70 year old
photos. The photo evidence is not in itself compelling.
8. Then we have the code wherein it classifies streams with certain characteristics. Class 5 waters:
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 17
"(a) Flow within an artificially constructed channel where no naturally defmed
channel had previously existed ... "
The Code does not specifically define "artificially" or "constructed." "Artificially" constructed would
seem to mean that there was an intent to "construct" the water course as opposed to just releasing the
water from an outfall onto a slope where nature took its course.
Webster's Third New International Dictionary (unabridged) defines "artificially" as "in an artificial
manner." It defines "artificial" as "contrived through human art or effort and not by natural causes
detached from human agency: relating to human direction or effect in contrast to nature."
The same source defines "construct" as "to form, make, or create by combining parts or elements :
Build, Fabricate (in constructing a new freeway).
9. As noted in the findings, there was no evidence that someone dug a ditch. There were no spoils or piles
of material along Stream B. The Director admitted that over time, the culvert could have sluiced the
soils and added to Stream B's downward cutting (erosion) or might have created it. But erosion was
probably not intended. It does not appear that anyone intentionally planned for erosion to create or
deepen Stream B. There is no evidence that anyone purposefully "artificially constructed" Stream B.
Stream B might have always been there. Focused by a culvert and unaccompanied by some form of
dissipater as would now be installed (if piping to the bottom of the hillside were not required) Stream B
could certainly be the gully-like formation we now see. It was also noted that Stream A showed signs of
incising although not at the scale of Stream B. Could Stream B have been a very gentle, shallow swale
with stream flow, and then been deeply incised after the culvert was installed? There is no answer.
10. Also, while the experts testified that this location would be an unusual location for Stream B to develop,
we have the unusual situation where Stream B actually naturally split into two separate channels for a
distance of some 120 feet before rejoining in what has been called a confluence. That is something,
some impediment whether rock, soil type, log or fit of nature caused a stream that was only one channel
to suddenly branch out and create a second parallel channel. Since this was described as an area where
no natural channel would naturally form we now have two side-by-side channels. So whatever force of
nature created a second channel on this section of sidehill might have been the precursor to a similar
event years ago that first created Stream B as opposed to having it been created solely by the installation
of the culvert.
11. The appellants have speculated, based on normal geological history, that Stream B was not natural but
speculation does not meet the appellant's burden. This office, too, can speculate: Water has probably
always flowed down this hillside in various shallow rills. Historically it was channeled or captured into
a storm or piped system and culverted and conveyed under Renton Avenue and, in what now would be
considered a primitive manner, released unimpeded on the west side of Renton Avenue. This release
point might possibly be where it originally crossed the road or hillside. The appellant has the burden of
demonstrating that the decision was erroneous and speculation does not meet that burden.
12. The decision below is entitled to substantial weight and will not be overturned unless there is clear and
convincing evidence that an error has occurred. If reasonable minds could reach differing conclusions,
an error is not substantiated. The decision below must be affmned.
,.
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File No.: LUA-05-089, SHPL-H
June 8, 2006
Page 18
DECISION:
The decision of the Director is affirmed.
ORDERED THIS 8th day of June 2006.
TRANSMITTED TIllS 8th day of June 2006 to the parties of record:
Zanetta Fontes
Assistant City Attorney
Renton, W A 98055
Pat Conger
1301 S 9 th Street
Renton, W A 98055
Brian Beaman
Icicle Creek Ettmeers
230 NE Juniper Street, Ste., 101
Issaquah, W A 98027
Neil Watts
Director, Development Services
City of Renton
William Collins
420 Cedar Ave S
Renton, W A 98055
Ronnie CS Teng, Leng-Sheng
Teng, Mei-Yu Teng Dang, Wei
Kang Kho, Chiu-Chu Tuan
835 Elm Avenue
San Gabriel, CA 91107
lason Walker
Talasea
15020 Bear Creek Road NE
Woodinville, W A 98077
Debra Eby Ricci
Attorney at Law
16012nd Avenue, Ste. 1080
Seattle, W A 9810 1
Maryann Reinhart
GeoEngineers
8410 154th Ave NE
Redmond, W A 98052
Ruth Larson
714 High Avenue South
Renton, W A 98055
Tim Burkhardt
4927 197th Ave E
Bonney Lake, W A 98390
TenyDeFoor
SWI, Inc
24633 NE B3M Street
Duvall, W A 98019
Jill Ding
Development Services
City of Renton
Renton, W A 98055
Hugh Mortensen
Watershed Company
1410 Market Street
Kirkland, W A 98033
Eric & Karen Bernard
PO Box 58306
Tukwila, WA 98138
Michael Chen
Core Design, Inc.
14711 NE 29th Place, Ste. 101
Bellevue, WA 98007
Defoor Appeal
File No.: LUA-05-089, SHPL-H
June 8,2006
Page 19
TRANSMITTED THIS 8th day of June 2006 to the following:
Mayor Kathy Keolker
Jay Covington,Chief Administrative Officer
Julia Medzegian,Council Liaison
Lany Warren, City Attorney
Gregg Zimmennan, PBPW Administrator
Alex Pietsch, Economic Development
Jennifer Henning, Development Services
Stacy Tucker, Development Services
Stan Engler, Fire Marshal
Larry Meckling, Building Official
Planning Commission
Transpiration Division
Utilities Division
Neil Watts, Development Services
Janet Conklin, Development Services
King County Journal
Pursuant to Title ,IV, Chapter 8, Section 10OGofthe City's Code, request for reconsideration must be fIled in
writing on or bJfore 5:00 p.m., June 22.2006. Any aggrieved person feeling that the decision of the
Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the
discovery of new evidence which could not be reasonably available at the prior hearing may make a written
request for a review by the Examiner within fourteen (l4) days from the date of the Examiner's decision. This
request shall set forth the specific ambiguities or errors discovered by such appellant, and the Examiner may,
after review of the record, take further action as he deems proper.
An appeal to the City Council is governed by Title N, Chapter 8, Section 110, which requires that such appeal
be filed with the City Clerk, accompanying a filing fee ofS75.00 and meeting other specified requirements.
Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City
Hall. An appeal must be fIled in writing on or before 5:00 p.m •• June 22. 2006.
U the Examiner'S Recommendation or Decision contains the requirement for Restrictive Covenants, !I!£
executed Covenants will be required prior to approval by City Council or final processing ofthe1ile. You
may contact this office for information on formatting covenants.
The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur
concerning pending land use decisions. This means that parties to a land use decision may not communicate in
private with any decision-maker concerning the proposal. Decision-makers in the land use process include both
the Hearing Examiner and members of the City Council.
All communications concerning the proposal must be made in pUblic. This public communication permits all
interested parties to know the contents of the communication and would allow them to openly rebut the
evidence. Any violation of this doctrine would result in the invalidation of the request by the Court.
The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as
Appeals to the City Council.
RICCI GRUBE AlTA, PLLC
ATTORNEYS AND COUNSELORS AT LAW
10RO BROADACR.I'S J3UILDING CITY OF RENTON .
1601 SECOND AVENUE JUN 2-2 2006
SEATTLE, WASHINGTON 98101
TEL. (206) 770-7606
FAX (206) 770·7607
CITY~WsE8mCE
/+ffro,!. Z.p.fh. A.(AJ
FACSIMILE TRANSMITTAL SHEET
TO:
Renton City Clerk
COMPANY:
"AX NUMBER:
4254306516
PHONE NUMBER:
F'ROM;
Karen Orehoski
DATE!:
6/2212006
TOTAL NO. OF PII.GF.S INCLUDING COVER:
11
RE:
Defoor Appeal of Hearing Examiner's
Decision
LVA 05-089, SHPL-H
o URGENT 0 FOR YOUR FILE 0 FOR YOUR REVIEW 0 pl.eA.SE RBPL Y 0 PLEASE RECYCLE
NOTES/COMMENTS:
Dear Clerk:
Following this page you will find my client's Appeal of Hearing Examiner's Decision, File
No. LUA 05-089, SHPL-H. I am sending the originals via U.S. Mail today. I am also faxing
a receipt indicating that we paid the required $75.00 to your office on June 16, 2006.
If there are any questions or if you do not receive all the pages, please contact me
.immediately. You can reach me at (206) 838-8650
Best regards,
Karen Orehoski
THE DOCUMENTS ACCOMPANYING TJIIS FACSIMILE TRANSMISSION CONTArN
INFORMATION THAT )S OR MAY BF; CONFIDENTIAL AND/OR PROTECTED BY TUt
AT1'ORNEY-CLJF.NT PRIVILEGE. TJlE INFORMATION IS INTENDED FOR THE SOLE USE
OF THE INDJVrDt'AL NAMED ON THIS TRANSMISSION SHEET ONLY. JJI YOU ARE NOT
TlJE lNTr.ND~D RECIPrENT, OR AN AGENT OR EMPLOYEE OF TJlE REClPUNT, PLEASE
BE AWARE THAT ANY DISCLOSURE, COPYING, DISTRIBUTION, OR un OF TJUS
INFORMATION IS PROHIBITED. IF YOU HAVE RECEIVED TlJIS FACSIMILE
TRANSMrSSION IN ItRROR. PLEASl NOTIFY US BY COLLECT n:r.EPIION:t CALL
IMMED.tATILY, AND WE WILL ARRANGE FOR THE RETRIEVAI~ OF' TUE DOCUMENTS.
THANK YOU.
et: dltr. Marney
Veil tUaHs
Fftd 1{t:/ld'tnQI1
,-
..
06/22/2006 13:39 2067707607 RICCI GRUBE AITA PLA PAGE 02/11
APPEAL OF HEARING EXAMINER'S DECISIONIRECOM1dENDATIOlQITYOF RENTON
L I ~ L1 TO RENTON CITY COUNCIL JUN 1 ! 2006
Fll..ENO. vrn ()S"-oeq /5HPL-J-j ,
APPLICATION NAME Door ghl?rt Plat-Cl1Y(~L~~EfsE8FACE
. ffDt ~ e·"", MJ/ The undemgned interested party hereby files its Notice of Appeal from the decision or recommendation of the
Land Use Hearing Examiner, dated . J lit YI -< ~ , 20Q,Yz.
1. IDENTIFICATION OF PARTY
APPELLANT:
Name: T~ r I1L. j)~ h-crr REP~ENTATIVE (IF ANY): Name:j(I{~· 6rwbe thTq, pl"I-Cc.
Address: 2l//,? 3/ NG /PZr?i S:/.
j
DvfV~/1; wA 1?"tJ 1'7
2. SPECIFICATION OF ERRORS (Attach additiona1 sheets,ifneccssary)
Set forth below are the specific errors or law or fact upon which this appeal is based:
FlNDING OF FACI': ~lease designate number as denoted in the Examiner's Report)
No. _ Error: :P 1-111 r../ S"..t'( PI--ti71 c.. h ~ cI /Yl.{ m #7' ///7 d t/l tn
IJlldrl»)/IZ1. 41/ -trltlrT l/V7'rn b"n4//l'jf'
Correction: tJ f-f7r c.. j-.
CONCLUSIONS:
No. _ Error: P /1 PI f..( S"...(.f A t/?I c h ./ q' fJ.11 m p 1'7/ n d (/l /1/)
tfI~/dr/ss/n1 a/I -('!'orS WITn (JlfnC!IA£IDn)'.
Correction: _________________________ _
OTHER:
No. Ettor. _______ ~ _______ ._... __________________ ~--
Comoction: __________________________________________ __
3. SUMMARY OF ACTION REQUESTED The City Council is requested to grant the following relief:
(Attach explanation, if desired)
X Reverse the decision or recommendation and grant the following relief:S (" -c"'" " tfi;Jvn ~q"
Modify the decision or recommendation as follows: /}1./ m tTYt?/ j/) t?! 11//h
Remand to the Examiner for funher consideration as follows:
Other
APpell~entatiVeignatUre J)at~ l
NOTE: Please refer to TilialV, Chapter 8, of the Renton Municipal Code, and Section 4-8-110F, for specific appeal procedures.
"~\r.'TY (;r .F.R K\A pp~ T .\A PPF.A ,_ tn C".nuncil.doc
ATTACHMENT TO APPEAL OF HEARING EXAMINER'S
DECISIONIRECOMMENDATION TO RENTON CITY COUNCIL
FILE NO. LUA 05-089, SHPL-H
APPEAL OF JUNE 8, 2006 REARING EXAMIN£R'S DECISION
SPECIFICATION OF ERRORS:
FINDINGS OF FACT:
No. 17 Error: The Hearing Examiner states in ~ 17 of his Findings ofFaet that neighbors
of the Defoor property testified that there is a spring and wet area slope feeding Stream
B. The Hearing Examiner improperly assigns this information as a Finding of Fact
because the neighbors did not testify as experts and there was no evidence presented that
Stream B is fed by a spring.
Correction: ~ 17 should read. that there was no evidence supporting the neighbors'
testimony and that the neighbors are not experts. The only evidence presented to support
that a wet area slope and/or a spring is feeding Stream B was non-expert testimony by
neighbors of the property. Further, the existence of ground water is irrelevant to the
ultimate decision which is whether or not this watercourse was artificially created.
No. 23 Error: The Hearing Examiner states in ~ 23 of his Findings of Fact that the 1936
aerial photograph does not appear to show Stream B (emphasis added).
Correction: This Finding of Fact should read that the 1936 aerial photograph does not
show Stream B.
No. 24 Error: In the last sentence of~ 24, the Hearing Examiner states, "This office :finds
there is no evidence that there was an intent to create a channel as opposed to just
releasing water from a culvert on the downslope side of the roadway." It should be noted
that no evidence was presented at all regarding the intent of the City when the culvert
system and roadway were constructed. Further, intent is ilTelevant to determine the
matter at hand as Renton Municipal Code (RMC) does not address intent.
Correction: This sentence should be stricken because (1) no evidence was presented to
support the Hearing Examiner's conclusion on intent and (2) intent is irrelevant in
constnting the relevant RMC provisions.
No. 26 Error: The Hearing Examiner'S summary of the City expert, Hugh Mortensen's,
testimony fails to note that the Mr. Mortensen's conclusion that the stream was perennial
because it was flowing in late August was based on one site visit. Mr. Mortensen
presented no field notes or other evidence to support his testimony. Mr. Mortensen based
his conclusion that Stream B should be classified as a Class 3 stream on one site visit and
does not have the field notes to support that finding. Mr. Mortensen states that a possible
reason Stream B is not seen in the 1936 aerial photograph is because a six inch stream
would not be visible on a photograph of this scale. The Hearing Examiner fails to note in
his findings that this is speCUlation on Mr. Mortensen's behaJf and there was no evidence
FILE NO. 05-089, SHPL-H
APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006
06/22/2006 13:39 2067707607 RICCI GRUBE AlTA PLA PAGE El4/11
supporting a finding that Stream B was in existence at aU in 1936 and certainly no
evidence supporting a finding that it was six inches in width at that time. Further. the
Hearing Examiner fails to note that no evidence was presented supporting Mr.
Mortensen's conclusion that water other than storm water is feeding Stream B.
Correction: 11 26 should note that Mr. Mortensen's conclusions are based upon one site
visit and no other evidence was presented supporting his speculation that Stream B was in
existence at aU in 1936. The paragraph should also reflect that there was no evidence
presented that water other than stonn water is feeding Stream B.
CONCLUSIONS:
No.5 Error: In 11 5 of the Conclusion section, the Hearing Examiner states that he
believes this matter has come down to a disagreement betwcen experts. The Hearing
Examiner then goes on to state that the decision below must be given substantial weight.
While this is true, it goes against reason to assign substantial weight to the decision of the
Development Services Director when that decision was based upon one site visit by the
City's expert, Hugh Mortensen, and when Mr. Mortensen is unable to support his
findings by field notes or any other data. The Appellant presented several
geomorphologic experts, all of whom agreed that Stream B is an artificiaIly constructed
watercourse and all of whom presented scientific data based upon scveral visits to the site
in question. The Hearing Examiner does not appear to give any wejght at all to this
testimony and evidence. While City Ordinance 4346 does require the Hearing Examiner
to give substantial weight to the decision below, it does not mean that evidence presented
to the contrary should not be assigned the proper weight.
The Hearing Examiner concludes that because there may be water, other than
storm water that runs in Stream B it is perennial and therefore qualities as a Class 3
stream. This conclusion ignores the evidence that Stream B was fozmed by actions taken
by the City of Renton and not through natural means. The Hearing Examiner bases his
conclusion that Stream B is a Class ~ stream on testimony that it has a perennial flow.
However, according to RMC, the perennial nature of a watercourse does not bar that
watercourse from being a Class 5 stream:
Class 5: Class 5 waters are non-regulated non-salmonid-bearing waters which
meet one or more of the following criteria:
(a) Flow within an artificially constructed channel where no naturally defined
channel had previously existed; and/or
(b) Are a surficially isolated water body less than one-haIf(0.5) acre (e.g., pond)
not meeting the criteria for a wetland as defined in subsection M of this Section.
RMC 4-3-050(L)(a)(v).
The Hearing Examiner's conclusion in ~ 5 is based on a flawed reading ofRMC.
Whether or not the watercourse has a perennial flow is irrelevant to whether it was
artificially constructed. The drafters ofRMC did not address the nature of the flow of an
FILE NO. 05-089, SHPL-H
APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006
~t:Jbllt:J/bt:J1
artificially constructed watercourse and the Hearing Examiner cannot now base his
decision on an element that is not addressed in RMC. Further, the Hearing Examiner
does not assign the proper weight to the testimony and evidence presented by the
Appellant's experts. The Hearing Examiner fails to note that the City presented no
evidence, other than speculation. that Stream B is a naturally occurring stream while the
Appellant's experts testified and pre~ented evidence that it is an artificially constructed
watercourse.
Co.rr.ection: Because the Hearing Examiner did not take into consideration all the
testimony and evidence presented during the hearing, the Hearing Examiner'S decision
should be reversed based on the evidence and testimony presented by the Appellant's
experts. According to RMC, the perennjal nature of Stream B does not preclude it from
qualifying as a Class 5 stream and inasmuch as the Hearing Examiner's decision is based
on the possible perennial nature of Stream B, the decision should be reversed.
No.6 Error: In" 6, the Hearing Examiner concludes that because there were no
objections from the previous property owner when the road and culvert were installed,
that tllere must have been a pre-existing stream. There was no evidence presented to
support this conclusion of the Hearing Examiner. The decisions of a prior property
owner are irrelevant to these proceedings. It is improper for the Heaiing Examiner to
surmise what a past owner would do and certainly when no evidence was presented that
the past owner did not object to the City.
Correction: This should be stricken from the Hearing Examiner's decision and the
decision should be reversed in that it was partly based on irrelevant information that was
not supported by testimony or evidence.
No.7 Error: The Hearing Examiner addresses the photographic evidence presented by
the Appellant and concludes that Stream B not appearing in the aerial photographs is not
compelling evidence that Stream B did not exist prior to The City's construction of the
roadway and culvert. This conclusion by the Hearing Examiner fails to recognize that
there was also testimony from the Appellant's experts that Stream B is likely only
decades old. This testimony is based on geomorphologic data. The Hearing Examiner
failed to consider the photographic evidence and the testimony presented by the
Appellant's expert in conjunction wjth each other. The City failed to present any
evjdence or testimony to support that Stream B was ill existence before the road and
culvert were constructed.
Correction: The Hearing Examiner's decision should be reversed because the Hearing
Examiner failed to consider all the evidence and testimony presented during the hearing.
No.8 Error: The Hearing Examiner addresses the definitions of "artificially" and
"constructed" as used in RMC 4-3-050(L)(a)(v) to define a Class 5 stream. RMC does
not define "artificially" or "constructed". It is widely recognized in the law that when a
statute fails to define a tenn, that term will be construed in accordance with its general
dictionary definition. City of Yakima v. Johnson. 16 Wn.App. 143, 146,553 P.2d 1104,
1105-1106 (J 976). As the Hearing Examiner notes, Webster's Third New International
Dictionary defines "artificial" as "contrived through human art or effort and not by
natural causes detached from human agency: relating to human direction or effect in
FILE NO. 05-089, SI-IPL-H
APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006
06/22/2006 13:39 2067707607 RICCI GRUBE AlTA PLA
contrast to nature." "Construct" is defined as "to form, malee, or create by combining
parts or elements: Build, Fabricate." WhlIe the Hearing Examiner recognizes that
ordinary meaning must be assigned to these words, he states in ~ 8 that artificially
constructed seems to mean there was intent to construct the water course. The Hearing
Examiner extends the definitions provided by Webster's Third New International
Dictionary by adding the element ofiotent. The definitions do not speak to intent nor
does the RMC.
Correction: The Hearing Examiner's decision should be reversed because the ordinary
meaning of "artificially" and "construct" do not contain an element of intent and RMC
does not require that the City intentionally construct an artificial channel in order for a
watercourse to be a Class 5 stream. The drafters of RMC did not include an element of
intent in their definition and the Hearing Examiner cannot now base his decision on lack
of intent.
PAGE 06/11
No.9 Error: The Hearing Examiner's conclusions in ~ 9 are based upon his finding that
the City did not ;ntentionally construct a watercourse. As noted above, this is in error
because neither the ordinary meaning of "artificially" and "constructed" nor RMC require
that there be intent Reading the definition of a Class 5 stream as a whole, it is clear that
Stream B is a Class 5 stream: "Flow within an artificially constructed channel where no
naturally defined channel had previously existed." The City offered no evidence that
Stream B existed prior to the construction of the road and culvert system. On the other
hand, the AppeJlant's experts presented ample evidence that this watercourse was not in
existence prior to the constru.ction of the road and eulvert system.
Correction: The Hearing Examiner's decision should be reversed because he mistakenly
bases his decision on lack of intent by the City where intent is not an clement in the RMC
or the ordinary definitions of "artificially" or "constructed".
No. 10 Error: The conclusions reached by the Hearing Examiner in ~ 10 are not
supported by any evidence presented by the City. These conc1usions are not supported
by any Finding of Fact in the record.
Correction: The Hearing Examiner's decision should be reversed because his
conclusions are not based on evidence of record.
No. 11 Error: The Hearing Examiner states the Appellant has speculated that Stream B is
artificial and that speculation does not meet the Appellant's burden. The record reflects
that the Appellant's case is based on much more than speCUlation. The Appellant's case
is based on geomorphologic science and this qualifies as more than speculation.
However, the City's case appears to be based on a conclusion reached by one person who
made one visit to the site at issue. The expert testimony and evidence presented by the
Appellant qualifies as more than speculation and should be given more weight than the
Hearing Examiner is willing to assign to it. Even while giving substantial weight to the
decision below, the ample evidence presented by thc Appellant met the Appellant's
burden in this matter, demonstrating that the decision below was in error by a showing of
clear and convincing evidence.
Correction: The Hearing Exarnjner'~ decision should be reversed because he fails to base
his decision on evidence of record.
FILE NO. 05-089, SHPL-H
APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006
~t:lbllt:l/bt:ll ~!~~! ~~U~C AliA ~LA
1\
\. . J
No. 12Error: As stated above, the Appel1ant met the burden of demonstrating that the
decision below was in error and did so with clear and convincing evidence. The record
itself clearly demonstrates that Stream B was artificially constructed by the City's
construction of the roadway and oulvert system. The Hearing Examiner fails to assign
the prQpcr weight to testimony and evidence presented by the Appellant.
Correction: The Hearing Examiner's decision should be reversed because the Appellant
did meet his burden of demonstrating error with the decision below and did so by
presenting clear and convincing evidence to the Hearing Examiner.
SUMMARY OF ACTION REQUESTED:
The Appellant respectfully requests that the Renton City Council reverse the June
8.2006, decision of the Hearing Examiner and grant the following relief:
Classify Stream B as a Class 5 stream based upon the evidence in the record
demonstrating that Stream B was artificially constructed when the City of Renton
constructed the roadway and culvert system.
FILE NO. 05-089, SHPL-H
APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006
:If::lb I 1f::l/oEll RICCI GRUBE AlTA PLA PAGE 09/1::'
REQUEST FOR CITY COUNCIL TO ACCEPT NEW EVIDENCE
FILE NO. LUA 05-089, SHPL-H
RE: APPEAL OF HEARING EXAMINER'S DECISION OF JUNE 8, 2006
The Appellant, T eny Defoor, respectfully requests that the City Council accept
new evidence in this matter attached to this Request as Exhibit A. This affidavit was not
avaiJable to the Appellant at the time of the hearing before the Hearing Examiner as the
author of the affidavit. Larry Fisher of the Washington Department ofFish and Wildlife,
did not make a site visit until after the hearing took place. In accordance with RMC 4-8-
110F(5), this evjdence was not available to the Appellant at the time of the hearing before
the Hearing Examiner.
FILE NO. 05-089, SHPL-ll
REQUEST FOR CITY COUNCIL TO ACCEPT NEW EVIDENCE
rl-\I'::II::' ltJl II ~uu"u,ou,
EXHIBIT A
Defoor Appeal of June 8~ 2006 Hearing Examiner's Decision LUA 05~089, SHPL-H
EXHmIT A -Declaration of Larry Fisher
1
2
3
4
5
6
7
8
9
10
11
12
13
Lt:lbllt:l/bt:ll ~lCCl ~~UH~ ALIA ~LA
APPEAL OF .TUNE 8~ 2006 lIEAiUNG EXAMINER'S
DECISIONIRECOMMENUA nON TO .RENTON erTY COUNCIL
~AGE 11111
RE: DEFOOR APPEAL FILE NO. LUA 05-089, SHPL-H
DECLAR4. nON OF T..ARR Y FISHER
I, Larry Fisher~ certify and declare a:; follows;
1. I am an Area. Habitat Biologist with the Washi"-Q;ton Department of Fish and Wildlife.
2. I have rcviewed rhe fea.tures on the Defoor propElJ'ty located in the City of Renton
14 referred to as Stream B and Drainage ].
]5 3. My review of Stream Band DrZlinage 1 took: place: on Friday May 30, 2006, at the
) 6 propeny site at issue. 1 was accompanied by WHtiam Shiels. Principal of Talasaea
]7
18
19
20
21
22
23
24
25
Consultant3.
4. BlI.Sed on the goomorphologic charact-cristics of Stream B aJld Drainage 1~ it is my
opinion tha.t Stream B and Orainage ] atc 'he r~ult of erosion due to the discharge of
~ormwztcr aJong Renton A'\'enue South. and are therefore artificial wa.tercourses.
DATED at 'E?<. Jl~yv!" , Washington t]lis Z2. ~day of ~oJ"'" (, .2006.
~ O-;:~-f)~ -
Lan:y Fisher
Area Habitat Biologist
Washington J)epartri:lt~nl ofFish and Wildlife
DECLARA nON OF LARRY flSHBR RB: D8P'OOR .
APPEAL TO RENTON CITY COl.1NCn. -P"CC I of 1
c
"'-__ Jf \....~V',o
City of Renton Municipal Code; Title IV, Chapter 8, Section 110 -Appeals
4-8-110C4
The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-170, the fee schedule of
the City. (Ord. 3658, 9-13-82)
4-8-11OF: Appeals to City Council -Procedures
1. Time for Appeal: Unless a specific section or State law providing for review of decision of the
Examiner requires review thereof by the Superior Court or any other body, any interested party
aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the
City Council, upon a fonn furnished by the City Clerk, within fourteen (14) calendar days from the
date of the Examiner's written report.
2. Notice to Parties of Record: Within five (5) days of receipt of the notice of appeal, the City
Clerk shaH notify all parties of record of the receipt of the appeal.
3. Opportunity to Provide Comments: Other parties of record may submit letters in support of
...... their positions within ten (10) days of the dates of mailing of the notification of the filing of
.;. the notice of appeal.
4. Transmittal of Record to Council: Thereupon the Clerk shall forward to the members of the
City Council all of the pertinent documents, including the written decision or
recommendation, findings and conclusions contained in the Examiner's report, the notice of
appeal, and additional letters submitted by the parties. (Ord. 3658,9-13-1982)
5. Council Review Procedures: No public hearing shall be held by the City Council. No new or
additional evidence or testimony shall be accepted by the City Council unless a showing is made by
the party offering the evidence that the evidence could not reasonably have been available at the time
of the hearing before the Examiner. If the Council detennines that additional evidence is required,
the Council shall remand the matter to the Examiner for reconsideration and receipt of additional
evidence. The cost of transcription of the hearing record shall be borne by the applicant In the
absence of an entry upon the record of an order by the City Council authorizing new or additional
evidence or testimony, and a remand to the Hearing Examiner for receipt of such evidence or
testimony, it shall be presumed that no new or additional evidence or testimony has been accepted by
the City Council, and that the record before the City Council is identical to the bearing record before
the Hearing Examiner. (Ord. 4389,1-25-1993)
6. Council Evaluation Criteria: The consideration by the City Council shall be based solely
upon the record, the Hearing Examiner's report, the notice of appeal and additional
submissions by parties.
7. Findings and Conclusions Required: H, upon appeal of a decision of the Hearing Examiner
on an application submitted pursuant to RMC 4-1-050Fl, and after examination of the
record, the Council determines that a substantial error in fact or law exists in the record, it
may remand the proceeding to Examiner for reconsideration, or modify, or reverse the
decision of the Examiner accordingly.
8. Council Action: If, upon appeal from a recommendation of the Hearing Examiner upon an
application submitted pursuant to RMC 4-1-050F2 and F3, and after examination of the record, the
Council determines that a substantial error in fact or law exists in the record, or that a
recommendation of the Hearing Examiner should be disregarded or modified, the City Council may
remand the proceeding to the Examiner for reconsideration, or enter its own decision upon the
applica~on.
9. Decision Documentation: In any event, the decision of the City Council shall be in writing and shall
specify any modified or amended findings and conclusions other than those set forth in the report of
the Hearing Examiner. Each material finding shall be supported by substantial evidence in the record.
The burden of proof shall rest with the appellant (Ord 3658,9-13-1982)
10. Council Action Final: The action of the Council approving, modlfying or rejecting a decision
of the Examiner shall be final and conclusive, unless appealed within the time frames
established under subsection 05 of this Section. (Ord. 4660,3-17-1997)
F4 • 17 T23N R5E W 112
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