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HomeMy WebLinkAboutSR_HEX_Final_Decision_Upon_Reconsideration_150226_v11 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: The Reserve at Tiffany Park Preliminary Plat Preliminary Plat and SEPA Appeals LUA13-001572, ECF, PP, CAE ) ) ) ) ) ) ) ) ) FINAL DECISION UPON RECONSIDERATION I. SUMMARY A. Alterations to Final Decision Resulting from Reconsideration Requests A Final Decision was issued on the above captioned matter on January 8, 2015. The Final Decision was subjected to two requests for reconsideration made by the SEPA Appellants and the applicant. This Final Decision Upon Reconsideration incorporates all the changes to the January 8, 2015 Final Decision resulting from the reconsideration requests. The Ruling on Reconsideration Requests, attached to this decision as Attachment C, identifies the basis for all the changes made to the January 8, 2015 Final Decision. None of the changes are significant. The only changes made to the January 8, 2015 Final Decision are those identified in the Ruling on Reconsideration Requests. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 2 B. Summary of Decision The applicant requests preliminary plat approval for the subdivision of 21.66 acres into single-family residential lots and several critical areas tracts located at the dead end of SE 18th Street and bordered by the Cedar River Pipeline along the southern property boundary and the Mercer Island Pipeline along the eastern property boundary. Two appeals of a mitigated determination of nonsignificance (“MDNS”) issued under the Washington State Environmental Policy Act (“SEPA”) were consolidated with the review of the preliminary plat. The Tiffany Park Woods Advocacy Group (“TPWAG”) filed one of the two SEPA appeals and the applicant submitted the second appeal. The preliminary plat is approved subject to conditions. The TPWAG SEPA appeal is denied. The applicant SEPA appeal is sustained, in part. TPWAG raised numerous issues in its SEPA appeal regarding the conversion of the 21.66 acre subject property from a community recreational resource to a residential subdivision. The property is entirely undeveloped and is covered with trails, tree forts and other similar structures that reveal years of community use. In its SEPA appeal TPWAG argues that the loss of this long-time recreational use is an environmental impact that should be subject to SEPA review. As detailed in this decision, the fact that the applicant has allowed neighbors to use its property in the past (or worse, the fact that neighbors may have trespassed in the past) does not justify the imposition of any SEPA requirements because the neighbors will lose that privilege as a result of the development. Similarly, the fact that the applicant has chosen to retain the trees on its land in the past and through that choice provided neighbors with an appealing arboreal view does not put the applicant in a position where it must now continue to offer that type of view to neighboring properties. With one exception the applicant proposes development that is aesthetically similar and compatible with surrounding uses. For this reason, there is no legal basis for imposing any further environmental review or mitigation to address aesthetic impacts. The one exception is retaining walls. The applicant proposes numerous retaining walls that will reach heights of up to 21 feet. Retaining walls of this height are not present in the vicinity and the aesthetic impacts of these structures are not similar or compatible to the structures on neighboring properties. Consequently, the MDNS mitigation measures will require ten foot wide perimeter landscaping designed to aesthetically buffer these walls from neighboring uses. TPWAG alleged more technical environmental impacts related to the geotechnical studies, hazardous materials, drainage, wetlands impacts, groundwater impacts, landslide hazards, seismic hazards, and retaining walls. The expert testimony and reports provided by the applicant, verified by experts from the City staff and in some cases, third party peer review, proved to be more compelling than the expert testimony provided by TPWAG, especially when factoring the substantial weight that must be given the SEPA responsible official’s determination that the proposal will not create any probable significant adverse environmental impacts. One issue that did require some additional 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 3 mitigation was hazardous waste. An appellant expert testified that the prior ownership of the property by the US Department of Defense raised a concern that the property may contain hazardous waste. The applicant refused to grant access to the subject property for purposes of testing for hazardous waste or any other site investigation. The applicant also acknowledged that it did a Phase I hazardous waste environmental review when it purchased the property, but never offered the review into evidence. Given the somewhat suspect conduct of the applicant, an MDNS condition of review will require that the applicant submit its Phase I review to staff prior to development, to verify that there is no hazardous waste issue with the site. The applicant’s SEPA appeal was more limited in scope and only challenged three of the City’s MDNS conditions, specifically Conditions 1, 3 and 6. At hearing the City and applicant agreed to revised language for Conditions 1 and 3. Condition No. 6 remained the only contested issue in the applicant’s appeal. The condition required a 15-foot landscaping buffer around the entire perimeter of the development. This decision only found a ten -foot buffer necessary, limited to areas adjoining proposed retaining walls to conceal the walls from neighboring view. A summary of testimony is attached as Attachment A. The summary is provided as a convenience and reference to those who would like an overview of the evidence presented at the two days of hearings on this application. The testimony section should not be construed as any formal findings of fact and also do not represent what was determined to be important to the final decision. CONTENTS I.  SUMMARY ......................................................................................................................... 1   II.  TESTIMONY ....................................................................................................................... 3   III.  EXHIBITS ............................................................................................................................ 3   IV.  FINDINGS OF FACT .......................................................................................................... 4   V.  CONCLUSIONS OF LAW ................................................................................................ 24   SEPA APPEAL ........................................................................................................... 25   PRELIMINARY PLAT .............................................................................................. 29   VI.  DECISION ......................................................................................................................... 40   II. TESTIMONY Please see Attachment A for testimony summary. III. EXHIBITS Please see Attachment B for the exhibits admitted during the hearing. Exhibits admitted after the hearing are as follows: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 4 Exhibit AS: City of Renton Preliminary Plat Condition Revision Response (December 11, 2014) Exhibit AT: TPWAG Post Hearing Closing Argument (December 14, 2014) Exhibit AU: TPWAG Motion – Late Filing (December 15, 2014) Exhibit AV: Henley Response to TPWAG Motion – Late Filing (December 15, 2015) Exhibit AW: Henley (Proposed) Order Denying TPWAG Motion – Late Filing (December 15, 2014) Exhibit AX: Hearing Examiner Ruling – Late Filing (December 15, 2014) Exhibit AY: Henley Response – TPWAG Post Hearing Closing Argument (December 19, 2014) Exhibit AZ: Henley Reply – City of Renton Preliminary Plat Condition Revision Response (December 19, 2014) Exhibit BB: City of Renton – TPWAG Post Hearing Closing Argument (December 22, 2014) IV. FINDINGS OF FACT Procedural: 1. Applicant. Henley USA, LLC. 2. Hearing. A consolidated hearing on the preliminary plat application and SEPA appeals was held on November 18, 2014 and continued to December 8, 2014 in the City of Renton Council City Chambers. The record was left open for the appellants to provide a SEPA Closing Argument by December 12, 2014. City staff was also given until December 12, 2014 to provide a SEPA Rebuttal. City staff and the applicant had until December 19, 2014 to provide SEPA closing arguments and preliminary plat comments. Substantive: 3. Project Description and Appeal. A. Project Description. The applicant requests preliminary plat approval for the subdivision of 21.66 acres into 97 single-family residential lots. There is an alternate plat with 96 lots to allow for 30% tree retention (Exhibit 3). The property is located at the dead end of SE 18th Street. It is bordered on the south by the Cedar River Pipeline and on the east by the Mercer Island Pipeline. Two appeals of a mitigated determination of nonsignificance (“MDNS”) issued under the Washington State Environmental Policy Act (“SEPA”) were consolidated with the review of the preliminary plat. The subject property consists of four parcels. The majority of the site is located in the R-8 zone. A small portion is located in the R-4 zone. All proposed lots are located in the R-8 zone. The proposed 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 5 lots would range in size from 4,500sf to 8,456sf. The average lot size is 5,399sf. Under either the 96 lot or 97 lot scenarios, density would be equal to or less than 5.70 dwelling units per acre. In addition to the residential lots, 13 tracts are proposed for sensitive areas, tree retention, storm drainage, access, pedestrian connections, and open space including an existing 10 foot wide vegetated buffer along the northern boundary. Access to the site would be gained from SE 18th Street with secondary access extended from 124th Place SE. The site is currently vacant with 1,305 significant trees. The applicant has proposed to retain or mitigate 188 trees in order to achieve the objective of 30% tree retention requirement. Adequate tree retention requires approval of the 96-lot alternative. The site slopes generally to the west/northwest at an approximate average slope of 10-15% with localized slopes of 25%. The site contains three Category 2 wetlands (Wetlands A, C, and, D) and two Category 3 wetlands (Wetlands B and E). The applicant is requesting a Critical Area Exemption for the extension of SE 18th Street through portions of the buffer associated with Wetland E. The applicant has submitted a Wetland Report, Drainage Report, Traffic Impact Analysis, Geotechnical Engineering study, Arborist Report, and Habitat Data Report. Independent secondary studies for Transportation and Wetlands are included with the application. B. SEPA Appeal. A mitigated determination of nonsignificance (“MDNS”) was issued for the proposal on September, 2014. Two timely appeals of the threshold determination were filed by the Tiffany Park Woods Advocacy Group (TPWAG) and Cairncross & Hempelmann on behalf of Henley USA, LLC. 1. Applicant SEPA Appeal. The applicant challenged three of the City’s MDNS conditions, specifically Conditions 1, 3 and 6 on the grounds that they impose unlawful obligations on the applicant and restrict the applicant’s ability to develop the plat. a. MDNS Condition 1. The applicant argued MDNS Condition 1 should be revised because the condition required earthwork to comply with an earlier, preliminary version of the geotechnical report which has since been superseded. The applicant requested the SEPA condition be revised to state the earthwork shall be consistent with the final geotechnical report submitted prior to construction (Exhibit J). City staff and the applicant then agreed upon the following language for Condition No. 1, which is found to adequately address pertinent environmental impacts: All earthwork performed, implemented by the applicant, shall be consistent with the recommendations of the geotechnical report, prepared by Associated Earth Sciences, Inc., dated September 28, 2012 or consistent with the recommendations of the final City-approved geotechnical report. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 6 b. MDNS Condition 3. The applicant’s concerns over MDNS Condition No. 3 became moot since the filing of its appeal and the City and applicant have been able to agree upon a revised condition that acceptably mitigates against environmental impacts. MDNS Condition 3 provides as follows, The applicant shall be required to retain 30% of the significant trees on site with exclusions for those trees that are considered dead, diseased, or dangerous, trees located within proposed rights-of-way, and trees located within the critical areas and their associated buffers. The applicant initially argued the condition should either be struck as a SEPA condition or modified to require compliance with the Tree Cutting and Land Clearing Plan, completed by Washington Forestry Consultants, Inc. (August 27, 2014) which complies with the 30% retention requirement (Appeal Exhibit A, Attachment 11). City staff disagreed. They argued that there are probable averse environmental impacts that are being mitigated by the MDNS condition. The City argued the MDNS Condition prevents the applicant from using mitigation under RMC 4-4-130(H)(1)(e)(i) to replace trees and instead requires retention of significant trees. The Tree Cutting and Land Clearing Plan, completed by Washington Forestry Consultants, Inc. (August 27, 2014) established that overall the proposal will actually meet the City’s SEPA 30% tree retention requirement. To meet this requirement, the applicant must retain or mitigate 188 on-site trees. The Washington Forestry Consultants plan proposes to save 181 of these trees and mitigate the final seven trees. The applicant’s tree retention plan analyzed just the 96 lot alternative. However, Mr. Galen Wright of Washington Forestry Consultants stated new field studies performed since the August 27, 2014 report have identified additional significant trees on-site beyond those mapped in the original field survey. These trees will be retained, bringing the total retention to well above the 188 required trees. Mr. Wright stated he was much more confident now regarding the location of trees, their health and which might be viably preserved. Since the applicant ultimately achieved the 30% retention objective, the City and applicant agreed to the following tree retention language as a condition of approval, The applicant shall provide a final Tree Retention Plan, complying with the 30% tree retention mitigation measure while demonstrating proposed walls would not impact trees proposed for retention. The Final Tree Retention Plan shall be submitted to, and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 7 approved by, the Current Planning Project Manager prior to construction permit approval. c. MDNS Condition 6. MDNS Condition No. 6 remains the only contested portion of the applicant’s appeal. MDNS Condition No. 6 as adopted by the SEPA responsible official required a 15-foot landscape buffer around the entire perimeter of the development. For the reasons identified in FOF No. 5, this perimeter has been reduced to ten feet and must only be placed in areas to conceal proposed retaining walls from neighboring view. 2. TPWAG SEPA Appeal. TPWAG raised several issues in its SEPA appeal, alleging both inadequate review and probable significant adverse environmental impacts. The impacts identified by TPWAG are addressed in FOF No. 5. 4. Surrounding Area. The subject site is surrounding on all sides by single family residential development. To the south it is bordered by the 100 foot wide Cedar River Pipeline. To the east, it is bordered by the 60 foot wide Mercer Island Pipeline. The zoning surrounding the subject on all sides is single family residential (R-8), though there is also a small portion of R-4 zoning to the east. 5. Adverse Impacts. The proposal does not create any probable significant adverse environmental impacts. Adequate public facilities and drainage control are provided as determined in Finding of Fact No. 6. As noted in Finding of Fact No. 5, two appeals to the threshold were filed. The issues on appeal from the applicant, Henley, are discussed first. The issues on appeal for the project opponent, the Tiffany Park Woods Advocacy Group, are then discussed. Finally, other impacts not related to either appeal but related to the preliminary plat are discussed below. A. Applicant SEPA Issue. As identified in FOF No. 3, only one issue remains in the Applicant’s SEPA appeal, specifically the need for perimeter landscaping. It is determined that only the applicant’s proposed retaining walls create probable significant environmental impacts and that these impacts can be reduced to nonsignificant levels with ten foot sight obscuring landscaping limited to perimeter areas in front of the retaining walls. 1. Proposed Development Aesthetically Compatible with Surrounding Development. With the exception of retaining walls (addressed separately), the proposed development does not create any probable significant impacts because of aesthetic incompatibility with the surrounding neighborhood. A site visit and aerial photographs (Ex. K.6.c) reveal that the surrounding neighborhoods are not exceptionally wooded or treed and that the amount of trees proposed for retention by the applicant would not be less than 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 8 surrounding development. Further, although the applicant proposes a modest increase in density, reasonable minds would certainly differ as to whether this difference in density would create a significant aesthetic impact. The developed portions of the plat are all in the R-8 zone, though the proposed residential density will be 5.7 dwelling units per acre. The minimum density requirement in the zone is 4.0 dwelling units per acre. All adjacent properties are zoned R-8. Proposed lot sizes would range from 4,500 square feet to 8,456 square feet with an average lot size of 5,399 square feet. While the proposed lots appear to be, on average, somewhat smaller than those of the surrounding developments, they are not significantly smaller and are at a density that is lower than would otherwise be allowed within this zone. Further, because of the presence of the two pipelines and the perimeter location of the critical areas tracts, very few of the lots will be directly adjacent to existing residential lots. The pipelines do not offer much in terms of vegetated screening but they do physically separate the proposed lots from existing lots. Any difference in the size of the lots will not be aesthetically significant, especially given the separation of the project from the surrounding neighborhood. 2. Loss of Trees Not a Probable Significant Environmental Impact. It is determined that the loss of trees beyond those required to be retained by City code does not qualify as a probable significant adverse environmental impact. In its environmental review, the City suggests that the perimeter is necessary to make up for the fact that a significant number of trees will be removed, thereby adversely affecting the views currently enjoyed by neighboring properties. Numerous adjoining property owners also commented on this impact. It is determined that the loss of trees owned by the applicant does not qualify as a significant adverse environmental impact. Of course, almost all development of vacant parcels involves the removal of trees. As discussed in COL No 5, in order to justify mitigation beyond the minimum standards set by the City’s landscaping code, the project must involve some fairly unique or significant impacts that were not anticipated in the adoption of that code. The existence of such a large parcel (and large number of associated trees) is arguably unique, but that argument is undermined to a large degree by the subjectivity involved in aesthetic review. Given that the applicant is retaining 30% of the trees, it is debatable whether the loss of the other 70% creates a significant aesthetic view impact to neighboring property owners, especially with the buffering that will be required by this decision to obscure retaining walls. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 9 The assessment of aesthetic impacts occasioned by the loss of trees is also tempered by the fact that it is debatable from a legal standpoint whether the applicant can be made to mitigate against the loss of a voluntary aesthetic benefit it has provided to the surrounding community. The applicant has had no obligation to retain all of the trees on its property in the past. Surrounding property owners have no entitlement to this currently existing aesthetic benefit. SEPA only requires mitigation and analysis of impacts created by development. The loss of trees in excess of those required by City code is not an impact created by the development, since those trees could have been removed at any time prior to development. The site visit, the record and the code do not reveal that any other properties in the vicinity have had to retain perimeter landscaping or that they provide a similar aesthetic benefit to the surrounding community. Given that no such need was found in the past when trees were removed by other development it is at least somewhat questionable why that is found necessary now in the absence of any code provision expressly requiring such a perimeter. 3. Retaining Walls Create A Probable Significant Adverse Environmental Impact. It is determined that the retaining walls proposed by the applicant in excess of four feet create a probable significant adverse environmental impact. As noted in the Staff Report, the applicant is proposing multiple walls on the proposed project. Some of the walls will be rockeries. Some walls are retaining walls which will face into the site. These are walls that allow for a finished grade for a lot to be below the surrounding grade. Other walls will be lock and load walls that allow for a finished lot grade above the surrounding grade. Six foot fencing is allowed on top of both types of walls. These walls are visible from outside the site. Staff notes the applicant has proposed lock and load walls ranging in height from four feet potentially up to 21 feet high. During testimony, Mr. Talkington stated revised grading plans may allow for reduced retaining wall heights. A site visit to the surrounding neighborhoods was conducted December 28, 2014. Though the subject is largely surrounded by pipeline easements, these easements are cleared of vegetation allowing a direct line of sight into the development and of the retaining walls. The site visit demonstrated that high retaining walls are not a common feature of the surrounding development. The applicant proposes solid rock or concrete walls of up to 21 feet in height. These walls will impact the view of the property from surrounding residences, especially given they are an uncommon feature in the area. As proposed, the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 10 view from surrounding residences will be significantly impacted as they change from forest canopy and surrounding homes to rock wall faces of nearly two stories tall in places. The Staff Report notes several walls will be seen by the public (proposed Lots 40, 41, 46, 47, 80, 82, 83-90, 93 and 94)1. When considering retaining wall impacts, the height of the wall affects the significance of the impacts. Low retaining walls do not block sunlight and air or obstruct views. The building codes only require building permits for retaining walls four feet or more in height (RMC 4-5-060(E)(2)(c)(iv)). This serves as a good threshold height for aesthetic impacts. Retaining walls lower than four feet do not obstruct views for a person of average height. They also tend to be more commonly found in neighborhoods since no building permit is required. For these reasons, the findings in the preceding paragraph on retaining wall aesthetic impacts are limited to retaining walls over four feet or more in height. Retaining walls less than four feet in height are not found to create probable significant adverse environmental impacts. 4. Ten Foot Perimeter Landscaping Fully Mitigates Retaining Wall Impacts. The aesthetic impacts of the retaining walls can be fully mitigated by the by a ten foot perimeter landscaping strip. The City is recommending a fifteen foot buffer of trees. During testimony, the applicant’s arborist stated a ten foot wide buffer with a staggered double row of conifers would create a very dense screen in 10 years. He noted a 15 foot buffer is not sufficient in width to plant a third row of conifers, which would require a 30 foot buffer. The City’s arborist concluded that at least 35 feet was necessary to provide for a site- obscuring buffer of trees and that ten verses fifteen feet would not make any material difference in screening (Decision Attachment A, page 7). Given that staff’s 15 foot recommendation is counter to the recommendation of its own arborist2 and that the applicant’s arborist provides a reasonably good 1 In any discussion of lot numbers, this decision is referring to the numbering scheme utilized in the 97-lot alternative (Exhibit 2). The nomenclature of the 96-lot alternative is exactly one lot lower for each lot because the Tree Retention Plan recommended the elimination of Lot 1 of the 97 lot alternative to maintain 30% tree retention. 2 1 Staff also advocated for a 15 foot buffer because it would help retain some of the treed character of the project site. See Exhibit A1, page 19. As outlined in FOF No.5.A.1, the applicant cannot be legally made to compensate for the loss of trees on its property. Further, staff also based its 15 foot buffer requirement upon RMC 4-4-070(F)(4)(b). This perimeter buffer provides for aesthetic screening between single and multi-family housing. This standard does serve as a good analogous standard for retaining wall impacts. Unfortunately, the standard only requires six foot high vegetation. A six foot high hedge set against a 21 foot high retaining wall does not accomplish a great deal of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 11 explanation of how a ten foot buffer can effectively screen the property, it is determined that the ten foot buffering advocated by the applicant’s arborist will provide a fully sight obscuring buffer to the retaining walls and as such will prevent the retaining walls from creating probable significant adverse environmental impacts. Limiting the landscape perimeters to the areas where the retaining walls are four feet or more in height should also completely obstruct them from the view of neighboring property owners. For these reasons, the conditions of approval will require the applicant to revise its landscaping plan to provide for site obscuring perimeter landscaping adjacent to areas where the retaining walls are four or more feet in height, specifically in the perimeter areas close to Lots 40, 41, 46, 47, 80, 82, 83-90, 93 and 94. B. TPWAG SEPA Issues. 1. Aesthetic Impact Due to Loss of Trees. The appellants argue there is a significant adverse aesthetic impact due to the loss of trees. With the exception of retaining walls (addressed separately), the proposed development does not create any probable significant impacts because of aesthetic incompatibility with the surrounding neighborhood. As discussed above in Finding of Fact 5.A.1, the surrounding neighborhoods are not exceptionally wooded or treed and the amount of trees proposed for retention by the applicant would not be less than surrounding development. As described in Finding of Fact 5.A.2, the is retaining 30% of the trees. The applicant has had no obligation to retain all of the trees on its property in the past. Surrounding property owners have no entitlement to this currently existing aesthetic benefit. The loss of trees in excess of those required by City code is not an impact created by the development, since those trees could have been aesthetic mitigation. For this reason, the RMC 4-4-070(F)(4)(b) buffer does not serve as an ideal analogous landscaping standard. What the RMC 4-4-070(F)(4)(b) and other RMC 4-4-070 perimeter buffer requirements does show is that the City Council was uncomfortable requiring more than a fifteen foot wide buffer in any situation. Requiring more than 15 feet does in fact to place an unreasonable burden upon the applicant for something as subjective as an aesthetic impact. It is for this reason likely that the City went against the findings of its arborist and only required a fifteen foot buffer instead of a 30 foot buffer. This was an appropriate approach, but did not go far enough since as testified by the applicant’s arborist, a fifteen foot would not provide for any significant protection beyond a ten foot buffer. Given that a 30 foot buffer would be unreasonable mitigation, the imposition of a ten foot buffer has to be found acceptable even though there a small chance it may not provide for 100% screening as concluded by the City’s arborist. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 12 removed at any time prior to development. It is also at best debatable whether the loss of the other 70% creates a significant aesthetic view impact to neighboring property owners, especially with the buffering that will be required by this decision to obscure retaining walls. 2. Potential Presence of Hazardous Materials. No impacts from hazardous materials are anticipated. The appellants demonstrated the subject property had at one time been owned by the Department of Defense. They alleged there might be hazardous materials on site based on this former user. For the past 65 years, for all intents and purposes, the site has been covered by a seemingly healthy forest canopy. The appellants were unable to demonstrate evidence of any overt signs of contamination visible on the site that might justify overturning the substantial weight due the SEPA official’s determination that the project site does not contain any hazardous waste necessitating further environmental review. However, nor were the appellants granted access to perform their own studies. The applicant also neglected to submit a Phase 1 Environmental Site Assessment it said was prepared for the proposal, even after the appellants made the study an issue during the hearing. The actions of the applicant on the hazardous waste issue create uncertainty as to whether the project site is free from hazardous waste. Given that this issue remains unresolved, a condition of approval will require the applicant to submit the results of the Phase 1 ESA to City staff for confirmation that there are no hazardous materials on site. 3. Wildlife Habitat and Connectivity. No probable significant adverse impacts to wildlife habitat are anticipated and the SEPA Responsible Official had sufficient information to adequately assess the impacts. The applicant submitted a Revised Wetland Determination and Response Letter (Exhibit 5), a Habitat Assessment (Exhibit 6), and two Habitat Assessment Technical Memorandums (Exhibits 16 and 17). The City required an independent secondary review of the wetlands report (Exhibit 14). As noted in Conclusion of Law 3.B below, the SEPA responsible official must make a prima facie showing that he has based his determination upon information reasonably sufficient to evaluate the impacts of a proposal (WAC 197-11-335). These multiple studies and memoranda were more than adequate to fully assess the wildlife impacts of the proposal as the appellants have not demonstrated any additional information that could have made any material difference in the official’s conclusions. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 13 No significant adverse impacts are anticipated for wildlife or habitat connectivity. With the exception of pileated woodpeckers and Townsend’s bats, the fish and wildlife habitat assessment found no listed or endangered species or priority habitat on site. Though the property may function as marginal habitat for many common species, it is geographically isolated from the Cedar River corridor by the Mercer Island Pipeline easement, a residential street, residential lots, a steep slope and the Bonneville Power Administration’s easement. Testimony from all sides spoke to the heavy human disturbance on the site including recreational walkers, bikers, unleashed dogs, and the presence of unpermitted structures and pits including forts and paint ball hides. The applicant’s wildlife expert, Racheal Villa of Soundview Consultants testified that the formalized protection of the wetlands and buffers on site would result in an improvement in habitat conditions for both pileated woodpeckers and Townsend’s bats over the present situation due to the fairly degraded condition of the habitat at present. 4. Seismic Hazards. The SEPA Responsible Official had adequate information to assess the seismic hazards and no probable significant adverse impacts are anticipated in regards to these hazards. As to adequacy of review, the applicant provided a geotechnical report by AES (Exhibit 7) that was reviewed, by the request of the applicant, by Earth Solutions, NW (Exhibit K.2). The AES conclusion in the geotechnical report stated the site, from a geotechnical engineering standpoint, is suitable for support of conventional paving, lightly loaded structures and typical buried utilities, all typical improvements in a single family residential subdivision. The AES preliminary geotechnical report and subsequent peer review by Earth Solutions, NW provide information reasonably sufficient to evaluate the environmental impacts of the proposal under WAC 197-11-335. The appellants note the nearest USGS mapped fault zone is 3.9 miles away, though they feel additional testing should occur to determine if there are unmapped fault zones. The appellants argued there was evidence of ground movement in the form of bent trees and hummocky land which could indicate several things including seismic shifting or landslide activity caused by a shallow groundwater table. The City has mapped the site as a Low Seismic Hazard area and outside of the Coal Mine Hazard areas. The applicant has provided a geotechnical report by AES that was reviewed at the applicant’s request by Earth Solutions, NW, the firm hired to perform geotechnical work for the applicant going forward. Mr. Coglas of Earth Solutions, NW testified 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 14 there are no seismic hazards on the property (Decision Attachment A, Page 21). Mr. Coglas went on to state with respect to site stability and groundwater, the stability of the predominantly flat to gently sloping property is good. In his opinion and based on geologic mapping and subsurface data for the site and surrounding area, the site is very similar to the surrounding developed residential area. There is nothing in the record to indicate an increased danger of seismic hazard beyond that of the surrounding properties. A single-family residential plat in this area is in no more probable seismic danger than the surrounding developed properties. The proposal will not create any probable significant adverse environmental impacts in regards to seismic hazards. 5. Landslide Hazards. The SEPA Responsible Official had adequate information to assess landslide hazards. They appellants argued the soil under the plat has structural anomalies that require further study to determine if there are landslide or other geologically hazardous conditions. The appellants point to bent trees and uneven surfaces located on the site may indicate shallow or slightly deeper ground movement which may be indications of landslide activity in the past or future propensity of slides. They note they requested access to perform their own studies but were denied. Specifically, the appellants have requested expanded soils tests, percolation tests and more test pits and borings to measure localized hydraulic conductivity. As noted above, the applicant has provided a geotechnical report by AES that was reviewed by Earth Solutions, NW. Mr. Coglas of Earth Solutions, NW testified there are no landslide hazards on the property (Decision Attachment A, Page 20). The City’s Development Engineering Manager, Mr. Lee, testified he concurred with Mr. Coglas’ assessment of the landslide hazard risk. Mr. Lee is a professional engineer with extensive experience in site development and civil engineering in Washington. He noted, the steep areas are very small (15-20’ feet long) and do not warrant slope stability analysis. Overall on the project site, the approximate slope is only 10% or so. There are no sensitive or protected slopes on the subject property. The majority of the subject site has less than 15 percent slopes. There are a few areas with slopes of 15 percent to 35 percent. These areas are characterized as Medium Landslide Hazard areas. Mr. Lee stated the City code does not require additional slope stability analysis for these areas. The appellant also asserted that the number and location of test pits were insufficient to evaluate slope stability. Mr. Lee testified there were sufficient numbers of test pits to gauge impacts on ground movement from groundwater 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 15 on site. He would have preferred to see a few more, especially in the vault area. However, as Mr. Coglas testified, the City may require extra analysis during final engineering as the design is finalized. He stated he does not typically require additional geotechnical analysis at this stage of the process. Mr. Lee felt the information provided was adequate to allow for a determination of impact on the site (See Decision Attachment A, Page 24). Mr. Lee’s objectivity as a staff employee and his engineering expertise are determinative on the slope stability issue. He clearly reviewed the geotechnical reports in detail and found no need for further investigation or additional information. The findings of the geotechnical analysis are also compelling on their own and the relatively modest slopes of the project site do not raise any apparent cause for concern. For these reasons, it is concluded that the SEPA responsible official had reasonably adequate information to assess the slope stability of the project site. 6. Groundwater. The SEPA Responsible Official had reasonably adequate information to assess the groundwater impacts and there are no probable significant adverse groundwater impacts associated with the proposal. The appellants argued there was insufficient study of the groundwater situation on site and the potential affect groundwater might have on development. They note they requested access to perform their own studies but were denied. Specifically, they appellants have requested expanded soils tests, percolation tests and more test pits and borings to measure localized hydraulic conductivity. The applicant provided a geotechnical report (Exhibit 7), a peer review of the geotechnical report (Exhibit K.2), a wetlands report and a revised wetlands report (Exhibit 5), and a drainage report (Exhibit 8). The wetlands reports were independently reviewed by Otak (Exhibits 14 and 15). The City’s Development Engineer, Mr. Lee stated the applicant had provided a sufficient number of test pits to gauge impacts of potential groundwater on site (Decision Attachment A, page 24). Given the extensive information provided and the peer review, the applicant has provided information sufficient for the SEPA Responsible Official to issue a threshold determination with respect to groundwater impacts. There are no anticipated adverse impacts related to the groundwater table. The appellants argue groundwater saturation levels at this site make it undevelopable. They point to the AES geotechnical report (Exhibit 7), the Shultz wetlands report (Exhibit 5), the Technical Information Report by 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 16 Barghausen and the Otak wetlands reviews (Exhibits 14 and 15) as all demonstrating the groundwater table is at or within seven inches of the surface in all wetland areas. Groundwater near the surface is defining feature of wetlands. However, the appellants argue the water table is a flat contour throughout the project site and, as a consequence of a high water table, water intrusion will disrupt or prevent proper installation of utilities, foundation drains and the stormwater vault. The applicant’s geotechnical engineer, Ray Coglas, testified there is perched groundwater on the site, rather than a flat table, a statement Mr. Lee concurred with during testimony (Decision Attachment A, pages 22 and 25, respectively). If the site had a flat water table close to the ground surface all over the site; the whole site would be underwater because of the varying topography, which is of course not the case. He stated perched waters trapped by impervious soils are limited in area and capacity and will drain away when cuts are made to hillsides. The water AES encountered was seepage from perched water rather than the actual groundwater table (Decision Attachment A, page 22). Mr. Coglas referred to the AES test pits and stated they showed no caving or seepage which would indicate weakness in the soils or significant groundwater at or near the surface outside of wetland areas. He stated though there will be some groundwater seepage, he does not expect the site will require dewatering or extensive pumping. AES found no groundwater in its test pits. Mr. Coglas stated even if the appellants are correct and that groundwater is at zero elevation, it could be managed without damaging the feasibility of the project. Mr. Lee also concurred with this statement. Mr. Coglas noted the soils at the subject are not unique to this subject. The entire subject is surrounded by existing development at a similar intensity to the proposed development on similar topography and soils. There is no indication from the record or from the site visit to suggest the utilities; infrastructure or house foundations in the surrounding neighborhoods have failed due to perched groundwater or a high water table. Mr. Coglas noted the presence of groundwater will not preclude development if best management practices are followed. Given Mr. Lee’s concurrence in the opinion of Mr. Coglas and the substantial weight required of the findings of the SEPA responsible official, it is determined that the proposal will not create any probable significant adverse groundwater impacts. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 17 7. Downstream Impacts. The SEPA Responsible Official has information reasonably sufficient to evaluate the downstream impacts of the proposal. The City required a Level 1 downstream analysis. The proposed Level 2 Flow Control (Exhibit A, page 31) will restrict the flow of the 2-year release rate to 50% of the pre-developed site conditions, which will help to reduce an existing drainage issue. Mr. Lee stated the City is uncertain of a segment of the pipeline that takes the water downstream of the project site and have therefore requested a Level 2 downstream analysis to be performed prior to building permit approval. They want to make sure the project will not exacerbate existing downstream flooding issues. An NPDES permit will be required for the project, which will stipulate the allowable discharge into the conveyance system (Decision Attachment A, Page 25). The City additionally established a SEPA mitigating condition requiring Level 2 downstream analysis for ¼ mile from the project site. All of the requirements must be met before a building permit or construction permits are issued. With these conditions in place, the City has reasonably sufficient information at this stage of review to evaluate down stream impacts. 8. Discharge into Wetlands. The proposed discharge of roof run-off into wetlands will not create a probable significant adverse environmental impact. The detailed local, state and federal standards applicable to stormwater run-off are determinative on the existence of adverse impacts. If the proposed drainage is compliant with applicable regulations, there are no adverse impacts. The appellants assert that the proposed roof run-off into wetlands is in violation of the Clean Water Act. As noted by the applicant, the King County Surface Water Drainage Manual specifically excludes drainage from roofs (except untreated metal roofs) from consideration as pollution generating sources (Exhibit AF). The appellants have not provided any citation or court opinion that roof run off discharge constitutes a violation of any applicable regulation and no such violation is apparent from the reading of the Clean Water Act. Mr. Talkington, in his testimony for the applicant, noted that discharge of clean or non-point source polluted stormwater into wetlands is common practice and is required to hydraulically charge the wetlands. Mr. Lee stated the applicant had complied with all city, state and federal code requirements with respect to stromwater. Mr. Lee testified the codes are sufficient to address all probable stormwater impacts. He further noted a National Pollution Discharge and Elimination System permit will be required for the project, which will ensure that no stormwater pollutants are released into wetlands or groundwater. The permit will include background 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 18 and discharge monitoring. No building permit or construction permits will be issued until the NPDES conditions are met. Since the proposed stormwater discharge is consistent with all applicable regulations, is a standard practice for development and also meets the approval of staff, it is determined that the proposed discharge to wetlands will not create any probable significant adverse environmental impacts. 9. Air Quality. No significant adverse impacts to air quality are anticipated. During the construction phase of the project, there will be exhaust from trucks and heavy equipment. However, after the construction phase is over, the subdivision will function similarly to the surrounding development with respect to emissions and air quality issues. The proposed development is functionally the same as the existing development pattern. Nothing in the record indicates there will be significant adverse impacts with respect to air quality. C. Other Impacts Related to the Preliminary Plat. 1. Wetlands. As proposed and conditioned, the proposal will not create any significant adverse impacts to wetlands. There are five wetlands on site. Three of the wetlands are Category 2; the others are Category III. The applicant submitted a Wetland Determination, prepared by C. Gary Schulz, Inc. (October 30, 2013) and a revised Wetland Determination in response to revisions to the plat including the use of a drainage vault, instead of a drainage detention pond, and the inclusion of a vegetated buffer along portions of the site perimeter (February 28, 2014). Based on public comments (See Exhibit 10.6), staff required an evaluation by an independent qualified professional regarding the applicant’s wetland analysis and the effectiveness of any proposed mitigating measures. On April 3, 2014 an independent secondary wetland review was provided to the City by Otak (Exhibit A, Attachment 14). Following the completion of recommendations in the Otak memo, the applicant submitted a Revised Wetland Determination and Response (June 3, 2014) (Exhibit A, Attachment 5). At the hearing, members of the public expressed concern regarding the protection of wetlands and wildlife habitat. There was specific concern regarding removal of trees and wetland hydrology. During testimony, Ms. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 19 Villa of Soundview Consultants stated she was hired by the applicant to perform supplementary wetland review for fish and wildlife habitat. In her study, she found no state or federally listed or protected species on the site. She noted the habitat is fairly disturbed now with evidence of a lot of human intrusion. In her opinion, protection of the wetlands and habitats with proper fencing and signage would result in better protection for the habitat than exists currently. The Otak Supplemental Independent Secondary Review concluded water quality, wetland hydrologic function and flood storage will be protected. The applicant proposes buffer averaging provisions (RMC 4-3-050(M)(6)(f)). The buffer averaging plan provides additional buffer area at ratios that range from 1.6:1.0 to 9.5:1.0. Wetlands A, B, C, and D would have buffer areas significantly greater following the buffer averaging proposal. However, staff are concerned the proposed adjustments will not provide adequate buffering on the north and east sides of Wetlands B and C to take into account the proposed “lock & load walls” in those locations. The applicant will be required to submit a Final Mitigation Plan (RMC 4-8-120(W)) demonstrating appropriate mitigation for all wetlands and buffer impacts prior to permit approval. The applicant has requested a critical areas exemption allowing a permanent buffer impact to 14sf of the Wetland E buffer. The exemption would allow the applicant to construct the required full street improvements at SE 18th Street (RMC 4-6-060). This area (219sf) has already been impacted by past infrastructure construction. Staff recommends approval of the critical areas exemption with mitigation for the impact. The critical areas on site have a total area of 118,494 square feet (2.72 acres) and would be located in (Tracts B, G, K, & M). The applicant is proposing to increase wetland buffers which would result in a total native open space used to preserve native forest habitat of approximately 175,199 square feet (4.02 acres). As conditioned, no impacts to wetland habitat are anticipated. Given the extensive review of wetland impacts, staff’s review and approval of wetland mitigation, and the applicant’s compliance with all applicable wetland regulations, it is concluded that the proposal will not create any adverse impacts to wetlands. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 20 2. Tree Retention Required. The proposal provides for adequate tree retention because it complies with the City’s tree retention standards, RMC 4-4-130(C). The applicant submitted two versions of the preliminary plat application. The first version is a 97 lot alternative that does not achieve 30% significant tree retention. The second plat alternative is a 96-lot preliminary plat that achieves 30% significant tree retention and implements the applicant’s Tree Protection Report (Exhibit 3). Since the 96-lot alternative implements the applicant’s tree retention plan and is consistent with the agreed upon SEPA mitigation measure requiring 30% retention, this is taken as the applicant’s proposal and is the design approved by this decision. If the applicant was still intending to pursue a 97-lot design, it should request reconsideration. No other significant impacts are reasonably anticipated from the evidence contained within the administrative record. 6. Adequacy of Infrastructure/Public Services. The project will be served by adequate infrastructure and public services. Preliminary adequacy of all infrastructure facilities has been reviewed by the City’s Public Works Department and found to be sufficient. Specific infrastructure/services are addressed as follows: A. Water and Sewer Service. This site is located in the City of Renton water service boundary. There is an existing 8-inch water main stubbed to the site in SE 20th Court, in SE 19th Court and SE 18th Court. This site is located in the 590-water pressure zone. Static pressure in the area ranges from 65-82 psi. The site is located in the City of Renton sewer service area. There is an 8-inch sewer main in SE 18th Street. B. Police and Fire Protection. Police and Fire Prevention staffs indicate that sufficient resources exist to furnish services to the proposed development; subject to the provision of Code required improvements and fees. A Fire Impact Fee, based on new single family lots, will be required in order to mitigate the proposal’s potential impacts to City emergency services. The fee is payable to the City as specified by the Renton Municipal Code. Currently the fee is assessed at $479.28 per single family residence. This fee is paid at time of building permit issuance. C. Drainage. As conditioned, the proposal provides for adequate drainage facilities. In order to address concerns raised by staff, as recommended by them a condition of approval requires a Level 2 downstream analysis for ¼ mile from the project site to determine if the proposed project would exacerbate existing downstream capacity issues. The applicant submitted a Preliminary Drainage Report prepared by Barghausen, dated 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 21 February 24, 2014 (Exhibit 8). Staff has determined that the preliminary plan is consistent with the 2009 King County Surface Water Manual and City of Renton Amendments to the KCSWM, Chapters 1 and 2. Full compliance with the Manual will be required during engineering review. D. Parks/Open Space. The proposal is consistent with adopted parks and open space standards and, therefore, provides for adequate parks and open space. RMC 4-2-115, which governs open space requirements for residential development, does not have any specific requirements for open space for residential development in the R-8 district. However, the applicant is proposing a total of 1.26 acres of passive and active open space, in addition to critical areas on site, for the open space needs of the subdivision. The applicant will also be require to pay park impact fees prior to building permit issuace to ensure that the development pays its fair share of system wide park improvements. E. Streets. The proposal, as conditioned, provides for adequate streets and associated infrastructure. The applicant is proposing two points of ingress and egress into the plat; SE 18th St and 124th Place SE. The primary neighborhood streets which would serve project traffic include 116th Avenue SE, 126th Avenue SE, SE 168th Street, SE Petrovitsky Road, S. Puget Drive, and 108th Avenue SE-Benson Road S. The project site is currently served by King County Metro Route 148 with Routes 102 and 155 also operating within the vicinity of the subject site. The nearest transit stop for Route 148 is located on Lake Youngs Drive SE and 123rd Avenue SE. Staff received comments from interested parties with respect to traffic specifically related to the need for additional analysis, trip generation, lack of public transit, level of service, sight distance, the Edmonds Avenue SE/SE 16th Street-Edmonds Way SE intersection, the use of speed bumps for traffic calming, stop signs, and traffic impact fees (See Exhibit 10). The applicant submitted a Traffic Impact Analysis (TIA) prepared by TranspoGroup, (November, 2013) as part of the original submittal. Based on public comments received, staff required an evaluation by an independent qualified professional regarding the applicant’s transportation analysis and the effectiveness of any proposed mitigating measures. The TIA concludes that all affected intersections will continue to operate at an acceptable level of service, except the intersection of Benson Drive S/S Puget Drive, which will fall to LOS E by 2018 with or without the proposed project. The addition of AM peak hour project traffic would add approximately five seconds of average delay to this intersection. Staff concluded that this minor amount of delay did not justify 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 22 additional mitigation and the reduction in LOS will not violate the City’s adopted level of service. The applicant will be required to pay traffic impact fees prior to issuance of building permits, which provides adequate mitigation against the modest traffic impacts created by the proposal. The TIA noted limited sight distance exists today for southbound motorists on Monroe Avenue SE approaching SE 18th Street due to the roadway geometrics and existing obstructions (fence and on-street vehicle parking). The site distance issue was remedied by an MDNS condition that requires the applicant to install a stop sign. Included in the Independent Secondary Review (Exhibit 13) was a recommendation for sight distance analysis at the 124th Place SE and SE 158th Street intersection. The report identifies this intersection as a possible sight distance concern. Given the provided TIA does not include an analysis of the sight distance at this intersection, a SEPA mitigation measure was issued requiring the applicant submit a revised TIA including an analysis of the 124th Place SE and SE 158th Street intersection sight distance and recommend appropriate mitigation if needed (Exhibit 22). Site distances at all other study intersections were deemed adequate with the exception of Beacon Way SE at SE 16th Street. The vertical curve of SE 16th Street presents a visibility concern. A crest vertical curve obstructs sight distance where SE 16th Street crosses Beacon Way SE especially if car speeds exceed posted speed limit signage. There are existing signs (Steep Hill, Slippery When Wet, Advisory 15MPH Speed) at SE 16th Street northeast of Beacon Way SE which help to calm existing traffic at this intersection. Approximately 60% of the project’s trips are anticipated to utilize this intersection. Therefore, the ERC issued a SEPA mitigation measure requiring the applicant to install an additional warning sign for a CROSSROAD (W2-1 symbol) with a 15MPH advisory speed on the southwest directional approach to Beacon Way SE, along the north side of SE 16th Street (east of Beacon Way SE) (Exhibit 22). The ERC issued another SEPA mitigation condition at this intersection to reduce cut thru traffic. The applicant is required to install directional information signage (white letters on green background) at S. Puget Drive and 116th Avenue SE facing west (Exhibit 22). The signs are required to read “TIFFANY PARK” with a left arrow and “CASCADE” with a right arrow. Several public comments requested the use of speed bumps as a traffic calming measure along SE 16th Street to address sight distance (including vertical), cut through traffic, and spin out concerns which would be aggravated by traffic generated by the proposal. The 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 23 City does not support the use of speed bumps on public streets. Speed bumps are not desired due to noise, excessive speeds between installations (so drivers can make up time), and result in a reduction in response time of public safety vehicles such as fire engines and aid cars. Several public comments requested internal pedestrian connectivity, connections to neighboring developments/abutting pipelines, connectivity to Tiffany Park Elementary, and the crossing at SE 16th St and Edmonds Way SE intersection (See Exhibit 10.22). No frontage improvements are required on adjacent street frontage. The internal public streets have been proposed with a right-of-way width of 53 feet which meets the City’s complete street requirements for residential access streets. Pavement width of 26 feet, 0.5 foot wide curbs, 8 foot wide landscaped planters (on both sides of the street), 5 foot wide sidewalks (on both sides of the street), drainage improvements, and street lighting are required. The applicant is proposing two pedestrian connections to neighboring developments and an abutting pipeline via Tracts C and E. City staff evaluated the intersection of Edmonds Avenue SE/SE 16th Street-Edmonds Way SE with respect to pedestrian improvements in 1996, 2005 and again in 2007 and determined that crosswalks were not warranted at this location. The additional development traffic will not exceed the threshold to warrant installation of a crosswalk at this location. As noted in staff testimony above, the proposal will not exceed six dwelling units per acre and therefore is not required to provide alley access. Several public comments dealt with construction traffic (See Exhibit 10.30). The developer will be required to comply with the Renton Municipal Code for haul hours, construction hours, and noise levels. A final Traffic Control Plan complying with the Renton Municipal Code will be required to be submitted and approved prior to construction. F. Parking. Sufficient area exists, on each lot, to accommodate required off street parking for a minimum of two vehicles per dwelling unit as required by City code. G. Schools. The Renton School District anticipates it can accommodate any additional students generated by this proposal at the following schools: Tiffany Park Elementary (0.4 miles from the subject site), Nelson Middle School (1.7 miles from the subject site) and Lindberg High School (0.9 miles from the subject site). RCW 58.17.110(2) provides 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 24 that no subdivision be approved without making a written finding of adequate provisions for safe walking conditions for students who walk to and from school and/or bus stops. Tiffany Park Elementary and Lindberg High School are within walking distance of the subject site while Nelson Middle School would require future students to be transported to school via bus. As part of the proposed project, sidewalks would be constructed along on-site roadways which would connect to the existing sidewalk system providing adequate provisions for safe walking conditions for students who walk to and from school and/or bus stops. Sidewalks would provide a route between the project site and nearby Tiffany Park Elementary School, including available marked crosswalks at the Kirkland Avenue SE/Lake Youngs Way intersection. The Kirkland Avenue SE/Lake Youngs Way intersection is approximately 300 linear feet from where SE 18th St intersects Lake Youngs Way. Given the number of homes proposed, it is very likely that a large influx of students would attempt to cross Lake Youngs Way SE, at the SE 18th Street intersection, which does not currently have a marked crosswalk. In order to provide a more practical safe route to Tiffany Park Elementary from the project site, a SEPA mitigation measure was issued requiring the applicant provide a marked crosswalk at the intersection of SE 18th Street and Lake Youngs Way. No current bus stops exist for this property as it is currently undeveloped. The Renton School District will be making provisions for the location of bus stops for those students who will be attending Nelson Middle School. A School Impact Fee, based on new single-family lots, will also be required in order to mitigate the proposal’s potential impacts to Renton School District. The fee is payable to the City as specified by the Renton Municipal Code at the time of building permit application. Currently the fee is assessed at $5,455.00 per single family residence and would increase to $5,541.00 on January 1, 2015. V. CONCLUSIONS OF LAW 1. Authority. RMC 4-7-020(C) and 4-7-050(D)(5) provide that the Hearing Examiner shall hold a hearing and issue a final decision on preliminary plat applications. RMC 4-9-070(R) and RMC 4-8-110(A)(2) grant the Examiner authority to review and make final decisions on SEPA appeals. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 25 2. Zoning/Comprehensive Plan Designations. The majority of the subject property is zoned Residential 8 dwelling units per net acre (R-8). A small portion of the subject property is zoned Residential 4 dwelling units per net acre (R-4). Only the R-8 portion of the property is proposed for residential development. The comprehensive plan map land use designation is Residential Single Family (RSF) and Residential Low Density (RLD). SEPA APPEAL 3. Review Standard. There are two reasons a DNS can be overturned to overturned: (1) there are unmitigated probable significant adverse environmental impacts; or (2) the SEPA responsible official has not undertaken an adequate review of environmental factors. Each grounds for reversal will be separately addressed below. A. Probable Significant Adverse Environmental Impacts. The primary relevant inquiry for purposes of assessing whether County staff correctly issued a DNS is whether the project as proposed has a probable significant environmental impact. See WAC 197- 11-330(1)(b). WAC 197-11-782 defines “probable” as follows: ‘Probable‘ means likely or reasonably likely to occur, as in ‘a reasonable probability of more than a moderate effect on the quality of the environment‘ (see WAC 197-11-794). Probable is used to distinguish likely impacts from those that merely have a possibility of occurring, but are remote or speculative. This is not meant as a strict statistical probability test. If such impacts are created, conditions will have to be added to the DNS to reduce impacts so there are no probable significant adverse environmental impacts. In the alternative, an environmental impact statement would be required for the project. In assessing the validity of a threshold determination, the determination made by the City’s SEPA responsible official shall be entitled to substantial weight. WAC 197-11-680(3)(a)(viii). An appeal of an MDNS is judicially reviewed under the clearly erroneous standards. Under the clearly erroneous standard, the decision of the SEPA responsible official can only be overturned if, after reviewing the entire record, the decision maker is left with the definite and firm conviction that a mistake has been made. RMC 4-8-110- (E)(12)(b)(v). The procedural determination by the Environmental Review Committee or City staff shall carry substantial weight in any appeal proceeding. RMC 4-8-110(E)(12)(a). B. Adequate Environmental Review The second reason a DNS can be overturned is if the SEPA responsible official did not adequately review environmental impacts in reaching his threshold determination. The SEPA responsible official 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 26 must make a prima facie showing that he has based his determination upon information reasonably sufficient to evaluate the impacts of a proposal. WAC 197-11-335. C. No Grounds for an EIS. TPWAG has not demonstrated a need for additional SEPA mitigation, environmental review or the issuance of an environmental impact statement. All of the grounds for SEPA appeal are addressed in Finding of Fact No. 5. As determined in that finding, none of the impacts identified by TPWAG qualify as probable significant adverse environmental impacts and TPWAG has not identified an impact for which the SEPA responsible official did not have sufficient information to reasonably assess impacts. D. Perimeter Landscaping. MDNS Condition No. 6 is modified to only require 10 foot perimeter landscaping along the retaining walls that are over four feet in height, specifically in proximity to lots 40, 41, 46, 47, 80, 82, 83-90, 93 and 94. The applicant argues that no perimeter buffering is required because the City’s landscaping standards do not require buffering and that those standards should be determinative in assessing the need for landscaping. The applicant is correct up to a point. RCW 36.70B.030(3) and RCW 43.21C.240(2)(a) does allow a city to use its development standards as the exclusive source of mitigation for environmental impacts. However, RCW 43.21C.240(2)(a) provides that in order to use development regulations in this manner the City must make a determination in the course of permit review that the development standards in question are adequately addressed by the development regulations. RCW 43.21C.240(4) further clarifies that for development standards to be found to adequately mitigate impacts, imposition of the standards must either avoid or mitigate the impacts; or the legislative body of the city has determined that the development standard sets acceptable levels of impact. Renton’s landscaping standards do not adequately address all of the aesthetic impacts created by the proposal. As noted previously, one of the two ways that a development standard can be found to adequately address impacts is if the City Council intended the standard to set acceptable levels of impact. See RCW 43.21C.240(4)(b).The Renton City Council expressly determined that the landscaping standard would not set acceptable levels of aesthetic impact, stating the purpose clause of the landscaping standards that “it is not the intent of these regulations that rigid and inflexible design standards be imposed, but rather that minimum standards be set.” The other, more difficult issue involved in ascertaining whether the landscaping standards would adequately address aesthetic impacts is if the standards actually mitigate the impacts. Given the subjectivity of aesthetic perimeter impacts, one would have to conclude that in the vast majority of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 27 typical subdivisions the landscaping standards do set an adequate standard. In not imposing any perimeter landscaping requirements between single family residential uses, the City Council must have determined that for the typical subdivision, such landscaping is not necessary. However, the proposed subdivision is not typical. As determined in Finding of Fact No. 6, the proposal will involve up to 16.6 foot high retaining walls that will create a stone wall to the neighborhoods across from it, which in turn can be topped with 6 foot fences. The site visit revealed that no other homes in the vicinity have such retaining walls or similar edifices bordering on public roads. Consequently, the impacts of the subdivision are not typical and likely not the type of impact the City Council considered when it omitted any buffer requirements for adjoining residential uses. Additional mitigation through SEPA is well justified in this case to mitigate against the impact of retaining walls. The City’s environmental report also cites that buffering is necessary to off-set the impacts of the densities of the proposal, which are higher than adjoining densities. This does not serve as an adequate justification for buffering. Setting a threshold for adverse aesthetic impacts based upon a difference in density or lot sizes is a completely arbitrary action in the absence of any legislative guidance. The difference in density between the proposal and adjoining uses is not so high that reasonable minds would share the same opinion as to whether the difference is aesthetically adverse. Though both the surrounding areas and the subject are zoned R-8, the developed density of the proposal will not exceed 5.7 dwelling units per acre. Indeed, unlike the retaining walls of the project, differences in residential densities are something that one would reasonably anticipate the Council would have considered in adopting its landscaping standards, and it adopted no perimeter requirements between residential zoning districts with different densities, except as between multi- family and less intense residential uses. For these reasons, the comparatively higher density of the proposal does not create a probable significant adverse environmental impact. Another issue with respect to the SEPA’s mitigation measure is to ensure that the City has adopted a SEPA policy that requires the impact to be addressed. RCW 43.21C.060 requires that SEPA mitigation must be based upon policies adopted by the local government authority. Interestingly, the City hasn’t adopted its development standards as part of its SEPA policies, so the purpose clause of the landscaping regulations, which promote aesthetic compatibility, can’t be used. There are plenty of other SEPA policies that promote aesthetic compatibility. RMC 4-2-070(M)(2)(ii) provide that one of the goals of SEPA review is to assure aesthetically pleasing surroundings. The City’s comprehensive plan is another adopted SEPA policy. One of its community design goals is to “raise the aesthetic quality of the city”. Objective CD-M recognizes that well designed landscaping provides aesthetic appeal and makes an important contribution to the health, safety, economy and general welfare of the community. Policy CD-88 provides that street trees and landscaping should be required for new development to provide an attractive streetscape in areas subjected to a transition of land uses. All of these policies are served by the perimeter landscaping required by this decision, since such 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 28 landscaping will raise the aesthetic quality of the city, provide for aesthetic appeal and buffer against the transition from the higher density residential development and its associated retaining walls to the lower surrounding residential densities. The applicants argue in their briefing that requiring perimeter landscaping would be unreasonable because homes would lose yard space. In the alternative, of course, the applicant may have to lose some lots. Given the judicial construction of “reasonable” in due process and takings cases, the loss of a few lots or yard space would not be considered unreasonable. As a final matter, SEPA mitigation can only be used to impose mitigation against probable significant adverse environmental impacts. As determined in the Finding of Fact No. 5, the solid walls created by the higher portions of the retaining wall easily qualify. No reasonable minds could differ on the opinion that high retaining walls are at odds with the general design of the community and create a mass of rock or concrete wall that is aesthetically adverse. The remaining issue is how high the wall should be to be considered adverse. Again, reference to existing codes is useful as it provides an objective and consistent standard for application. Retaining walls fewer than four feet in height do not require building permit review. Consequently, it can be reasonably anticipated that decorative retaining walls under four feet may not be that uncommon, whereas property owners will only go through the time and expense of building permit review for higher walls when they are necessitated for stability as opposed to decorative purposes. A four feet height is also still low enough to retain the views of surrounding trees, vistas and other natural and landscaped features. For this reason, those portions of the proposal with retaining walls that exceed four feet in height shall be subject to the 10 foot wide perimeter landscaping requirement imposed in the MDNS. E. Conclusion of Law 3(E) has been renumbered to Conclusion of Law No. 7.5 as directed by the Ruling on Reconsideration. F. Loss of Recreational Use. The appellants assert that the project site has been used as a recreational resource by the surrounding community for decades and that its loss is a probable significant adverse environmental impact. The loss of recreational use from the property is not an environmental impact of the proposal subject to SEPA review and mitigation. Even if it were, that loss does not result in any violation of the City’s detailed park policies and regulations, compliance of which assures that development will not create demand upon park facilities that exceeds legislatively adopted level of service standards. As a preliminary matter, it should be noted that this decision does not address the prescriptive rights claims made by the appellants to the project site. As ruled in Ex. AG, the Examiner has no authority to address the prescriptive easement claims asserted by the SEPA appellants. Practically speaking, this decision will not prejudice the appellants’ prescriptive rights claims if the appellants diligently 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 29 pursue those claims in superior court, the proper forum for such a claim. Should the appellants actually succeed in persuading a court that the public has prescriptive rights to the public school property (which appears unlikely at this juncture), they could acquire injunctive or other judicial relief to prevent development of the proposal. No additional SEPA review or mitigation is merited on the recreational use issue because the loss of that use cannot be considered an impact of the proposal. In the absence of any prescriptive rights to the project site, project opponents are left with the argument that the applicant should fund further environmental review or provide for additional mitigation to compensate for the fact that either (1) the applicant was benevolent enough to allow the public to use its property; or (2) the public repeatedly trespassed on the applicant’s property. From an equitable standpoint, such a position borders on the absurd. More importantly, the applicant could prevent the public from using its property at any time, with or without the proposal. For this reason, the loss of recreational use should not be considered an impact of the proposal for purposes of environmental review. Even if loss of the recreational use of the site could be legitimately considered an environmental impact for purposes of SEPA, its loss would not qualify as a probable significant adverse environmental impact. The City’s comprehensive plan, park impact fees and open space requirements are all designed to assure that each developer is required to provide its proportionate share contribution to the park needs of the city and that the park needs of the public will be met as development progresses. The applicant’s proposal is consistent and compliant with all of these requirements. In point of fact the applicant will be required to pay park impact fees at the time of building permit issuance. The applicant is also providing for 1.2 acres of open space, even though no open space is required for subdivisions in the R-8 zone. As would be expected, none of the City’s park policies or regulations penalizes a developer for withdrawing the ability of the public to use or trespass upon its property. Since the applicant is acting fully within the requirements of the City’s detailed park policies and regulations, its proposal cannot be considered to create adverse impacts to the City’s (i.e. public’s) parks and recreational system. PRELIMINARY PLAT 6. Review Criteria. Chapter 4-7 RMC governs the criteria for preliminary review. Applicable standards are quoted below in italics and applied through corresponding conclusions of law. RMC 4-7-080(B): A subdivision shall be consistent with the following principles of acceptability: 1. Legal Lots: Create legal building sites which comply with all provisions of the City Zoning Code. 2. Access: Establish access to a public road for each segregated parcel. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 30 3. Physical Characteristics: Have suitable physical characteristics. A proposed plat may be denied because of flood, inundation, or wetland conditions. Construction of protective improvements may be required as a condition of approval, and such improvements shall be noted on the final plat. 4. Drainage: Make adequate provision for drainage ways, streets, alleys, other public ways, water supplies and sanitary wastes. RMC 4-4-080(I)(7): a. Benefits of: Joint use driveways reduce the number of curb cuts along individual streets and thereby improve safety and reduce congestion while providing for additional on-street parking opportunities. Joint use driveways should be encouraged when feasible and appropriate. (Ord. 4517, 5-8-1995) b. Where Permitted: Adjoining commercial or industrial uses may utilize a joint use driveway where such joint use driveway reduces the total number of driveways entering the street network, subject to the approval of the Department of Community and Economic Development. Joint use driveways must be created upon the common property line of the properties served or through the granting of a permanent access easement when said driveway does not exist upon a common property line. Joint use access to the driveway shall be assured by easement or other legal form acceptable to the City. 7. As to compliance with the Zoning Code, Finding I(2) of the staff report in the portions related to density, lot dimensions, setbacks and building standards (Pages 12-13) are adopted by reference as if set forth in full, with all associated recommended conditions of approval adopted by this decision as well. As depicted in the plat map, Staff Report Ex. 2, most of the lots will directly access a public Road (Road A, SE 18th Street or 124th Place SE). As noted in Finding of Fact 6.G, shared driveways are proposed for Lots 12-14, Lots 15-17, Lots 38-40 and Lots 79-81. Staff additionally suggests Lot 11 and Lots 78 take access from the shared driveway. There are no topographical or critical areas issues to preclude these three lots from having shared access. The shared access would reduce the number of curb cuts at the entrance of the plat at 124th Place SE and along the cul de sac at the end of the same street. Potential vehicle and pedestrian conflicts would be lessened by consolidating driveways. However, the applicant testified use of the shared driveway for Lot 11 is problematic because the driveway would be at an angle to the roadway which would also change the design of the house to allow side loading of the garage. The applicant objected to the inclusion of Lot 78 in a shared driveway. There appear to be no material differences between Lots 78 and 81 in terms of orientation or width. As these lots are very near to the subdivision entrance, limiting potential vehicle and pedestrian conflicts is desirable. Though a change to the design of the house on Lot 11 is not an unreasonable accommodation to allow for vehicular and pedestrian safety at the cul de sac, the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 31 driveway for Lot 11 would be at an undesirable angle to the shared driveway. The cul de sac serves a limited number of houses. In this instance, the safety effect of removing one driveway access to a cul de sac does not outweigh the impact to Lot 11 caused by the creation of off kilter driveway. The approval will be conditioned to require the inclusion of Lots 12-14, Lots 15-17, Lots 38-40 and Lots 78-81 in shared driveways. As determined in Finding of Fact No. 5 and 6, the project is adequately designed to prevent any impacts to critical areas and will not cause flooding problems. As determined in Finding of Fact No. 6, the proposal provides for adequate public facilities. 7.5 Retaining Wall Height. The six-foot retaining wall height limitation recommended by staff will not be adopted. Renton does not have any standards imposing height limits on retaining walls outside of setback areas. There is nothing in the record that establishes the potential for any adverse impacts other than aesthetic, and those impacts will be adequately addressed by the staff’s recommended landscape perimeter. The retaining wall condition presents two code interpretation issues: (1) whether the City’s fence and hedge regulation (RMC 10-4-040) applies to retaining walls, and (2) if RMC 10-4-040 does apply, whether it imposes a six foot height limit on retaining walls. As to the first issue, RMC 10-4-040 probably does apply to retaining walls. RMC 4-4-040(A) provides that the purpose of RMC 4-4-050 is to regulate the material and height of “fences and hedges.” “Fence” is not defined in the RMC. However, walls are addressed throughout RMC 4-4-040. Most pertinent, RMC 4-4-040(C)(1) provides in relevant part that, “In cases where a wall is used instead of a fence, height shall be measured from the top surface of the wall to the ground on the high side of the wall.” This sentence strongly suggests that the wall in question can include retaining walls, since the sentence acknowledges that one side of the wall can be at a higher grade than the other. Retaining walls that project above the higher grade would meet this definition. The applicant argues that this reference to “wall” as well as others pertains to “European or California-style stone walls.” Nothing in the language of RMC 4-4-040 suggests that walls be limited to stone walls. In addition to providing some clarity on the applicability of RMC 4-4-040 to retaining walls, RMC 4- 4-040(C)(1) also establishes that retaining walls that do not project past the higher grade have a height of zero feet, which is below all the height limits set for walls by RMC 4-4-040. The sentence clearly states that retaining wall height is to be measured from the “high side of the wall”, which would be zero in the case of the retaining walls proposed by the applicant. This result makes sense in light of the other limitation of RMC 4-4-040, that it applies only “in cases where walls are used instead of a fence.” If a retaining wall does not extend above the higher grade, it doesn’t take the place of a fence and hence is not subject to the height limit. In short, retaining walls that only serve to retain soil, as proposed by the applicant, are not subject to the height limits of RMC 4-4-040. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 32 Practically speaking, this means that RMC 4-4-040 doesn’t apply to retaining walls solely used to stabilize grade separations, since no other provisions in RMC 4-4-040 apply as well. Since the six foot height limit is not required RMC 4-4-040, staff would have to find some other code provision to require the fence. Plat criteria requiring conformance to the comprehensive plan, see RMC 4-7-080(I)(1), include the policies addressing aesthetic impacts identified in COL No. 5.A.1. As determined in Finding of Fact No.6.C, the aesthetic impacts of the retaining walls can be fully mitigated by perimeter landscaping. Staff acknowledged as much at page 13 of the staff report. Therefore, the record contains no adequate justification for a limitation on retaining wall height. RMC 4-7-080(I)(1): …The Hearing Examiner shall assure conformance with the general purposes of the Comprehensive Plan and adopted standards… 8. The proposed preliminary play is consistent with the Renton Comprehensive Plan as outlined in Finding I(1) of the staff report, which is incorporated by this reference as if set forth in full. RMC 4-7-120(A): No plan for the replatting, subdivision, or dedication of any areas shall be approved by the Hearing Examiner unless the streets shown therein are connected by surfaced road or street (according to City specifications) to an existing street or highway. 9. As shown in Staff Report Ex. 2, the internal road system connects to SE 18th Street and 124th Place SE, both public roads. RMC 4-7-120(B): The location of all streets shall conform to any adopted plans for streets in the City. 10. The City’s adopted street plans are not addressed in the staff report or anywhere else in the administrative record. However, the proposed internal road system extends two existing stub roads, SE 18th Street and 124th Place SE. Both extensions will be constructed to City road standards. Consequently, the criterion above is construed as satisfied by the proposal. RMC 4-7-120(C): If a subdivision is located in the area of an officially designed [sic] trail, provisions shall be made for reservation of the right-of-way or for easements to the City for trail purposes. 11. According to the Renton Trails and Bikeways Map (Exhibit 20) a pedestrian trail is designated within the Seattle Pipeline abutting the site. The applicant would be required to obtain right-of-way or an access easement across the pipeline for secondary access via 124th Place SE (see Finding 35.6, Streets). In addition, the applicant would be required to provide a safe crossing for the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 33 designated trail across the extension of 124th Place SE. As a condition of approval, the applicant shall submit a revised plat plan depicting a safe pedestrian crossing, across the 124th Place SE extension, for the Seattle Waterline Pedestrian Trail. RMC 4-7-130(C): A plat, short plat, subdivision or dedication shall be prepared in conformance with the following provisions: 1. Land Unsuitable for Subdivision: Land which is found to be unsuitable for subdivision includes land with features likely to be harmful to the safety and general health of the future residents (such as lands adversely affected by flooding, steep slopes, or rock formations). Land which the Department or the Hearing Examiner considers inappropriate for subdivision shall not be subdivided unless adequate safeguards are provided against these adverse conditions. a. Flooding/Inundation: If any portion of the land within the boundary of a preliminary plat is subject to flooding or inundation, that portion of the subdivision must have the approval of the State according to chapter 86.16 RCW before the Department and the Hearing Examiner shall consider such subdivision. b. Steep Slopes: A plat, short plat, subdivision or dedication which would result in the creation of a lot or lots that primarily have slopes forty percent (40%) or greater as measured per RMC 4-3-050J1a, without adequate area at lesser slopes upon which development may occur, shall not be approved. … 3. Land Clearing and Tree Retention: Shall comply with RMC 4-4-130, Tree Retention and Land Clearing Regulations. 4. Streams: a. Preservation: Every reasonable effort shall be made to preserve existing streams, bodies of water, and wetland areas. b. Method: If a stream passes through any of the subject property, a plan shall be presented which indicates how the stream will be preserved. The methodologies used should include an overflow area, and an attempt to minimize the disturbance of the natural channel and stream bed. c. Culverting: The piping or tunneling of water shall be discouraged and allowed only when going under streets. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 34 d. Clean Water: Every effort shall be made to keep all streams and bodies of water clear of debris and pollutants. 12. The land is suitable for a subdivision. As determined in Finding of Fact 5.B, the stormwater design assures that it will not contribute to flooding and all critical areas will be protected. As determined in Finding of Fact No. 5.B, no lots with primarily 40% slopes will be created. No piping or tunneling of streams is proposed. Trees will be retained as required by RMC 4-4-130 as determined in Finding of Fact No. 5.A. RMC 4-7-140: Approval of all subdivisions located in either single family residential or multi- family residential zones as defined in the Zoning Code shall be contingent upon the subdivider’s dedication of land or providing fees in lieu of dedication to the City, all as necessary to mitigate the adverse effects of development upon the existing park and recreation service levels. The requirements and procedures for this mitigation shall be per the City of Renton Parks Mitigation Resolution. 13. City ordinances require the payment of park impact fees prior to building permit issuance. See also the discussion on loss of recreational use in Conclusion of Law 3.F above. RMC 4-7-150(A): The proposed street system shall extend and create connections between existing streets unless otherwise approved by the Public Works Department. Prior to approving a street system that does not extend or connect, the Reviewing Official shall find that such exception shall meet the requirements of subsection E3 of this Section. The roadway classifications shall be as defined and designated by the Department. 14. As shown in Staff Report Ex. 2, the proposed internal roads extend two existing stubs, SE 18th Street and 124th Place SE. The internal Road A creates a loop connection between the two public streets which did not exist previously. RMC 4-7-150(B): All proposed street names shall be approved by the City. 15. As conditioned. RMC 4-7-150(C): Streets intersecting with existing or proposed public highways, major or secondary arterials shall be held to a minimum. 16. None of the proposed streets intersect with a public highway or arterial. RMC 4-7-150(D): The alignment of all streets shall be reviewed and approved by the Public Works Department. The street standards set by RMC 4-6-060 shall apply unless otherwise approved. Street alignment offsets of less than one hundred twenty five feet (125') are not desirable, but may be 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 35 approved by the Department upon a showing of need but only after provision of all necessary safety measures. 17. As determined in Finding of Fact 6, the Public Works Department has reviewed and approved the adequacy of streets, which includes compliance with applicable street standards. RMC 4-7-150(E): 1. Grid: A grid street pattern shall be used to connect existing and new development and shall be the predominant street pattern in any subdivision permitted by this Section. 2. Linkages: Linkages, including streets, sidewalks, pedestrian or bike paths, shall be provided within and between neighborhoods when they can create a continuous and interconnected network of roads and pathways. Implementation of this requirement shall comply with Comprehensive Plan Transportation Element Objective T-A and Policies T-9 through T-16 and Community Design Element, Objective CD-M and Policies CD-50 and CD-60. 3. Exceptions: a. The grid pattern may be adjusted to a “flexible grid” by reducing the number of linkages or the alignment between roads, where the following factors are present on site: i. Infeasible due to topographical/environmental constraints; and/or ii. Substantial improvements are existing. 4. Connections: Prior to adoption of a complete grid street plan, reasonable connections that link existing portions of the grid system shall be made. At a minimum, stub streets shall be required within subdivisions to allow future connectivity. 5. Alley Access: Alley access is the preferred street pattern except for properties in the Residential Low Density land use designation. The Residential Low Density land use designation includes the RC, R-1, and R-4 zones. Prior to approval of a plat without alley access, the Reviewing Official shall evaluate an alley layout and determine that the use of alley(s) is not feasible… 6. Alternative Configurations: Offset or loop roads are the preferred alternative configurations. 7. Cul-de-Sac Streets: Cul-de-sac streets may only be permitted by the Reviewing Official where due to demonstrable physical constraints no future connection to a larger street pattern is physically possible. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 36 18. As shown in Staff Report Ex. 2, the proposed street system contributes to the grid system by creating loop access which did not previously exist. Both of the intersecting public streets are currently stub roads. Alley access is not required because the proposed density does not meet the 6 dwelling unit/acre threshold. The internal roads are looped as encouraged by the criterion above. The cul de sacs proposed cannot be extended to connect the road network because of the presence of two pipeline easements. The criterion is met. RMC 4-7-150(F): All adjacent rights-of-way and new rights-of-way dedicated as part of the plat, including streets, roads, and alleys, shall be graded to their full width and the pavement and sidewalks shall be constructed as specified in the street standards or deferred by the Planning/Building/Public Works Administrator or his/her designee. 19. As proposed all roads will meet City street profile standards for road with and frontage improvements. RMC 4-7-150(G): Streets that may be extended in the event of future adjacent platting shall be required to be dedicated to the plat boundary line. Extensions of greater depth than an average lot shall be improved with temporary turnarounds. Dedication of a full-width boundary street shall be required in certain instances to facilitate future development. 20. As shown in Ex. 2 to the Staff Report, the proposed roads may not be extended due to the presence of pipeline easements. The subject is surrounded on all sides by existing residential development. RMC 4-7-170(A): Insofar as practical, side lot lines shall be at right angles to street lines or radial to curved street lines. 21. As depicted in Staff Report Ex. 2, the side lines are in conformance with the requirement quoted above. RMC 4-7-170(B): 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 standards. 22. As previously determined and conditioned, each lot has access to a public street. RMC 4-7-170(C): 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. Further subdivision of lots within a plat approved through the provisions of this Chapter must be consistent with the then-current applicable maximum density requirement as measured within the plat as a whole. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 37 23. As previously determined and as conditioned, the proposed lots comply with the zoning standards of the R-8 zone, which includes area, width and density. RMC 4-7-170(D): Width between side lot lines at their foremost points (i.e., the points where the side lot lines intersect with the street right-of-way line) shall not be less than eighty percent (80%) of the required lot width except in the cases of (1) pipestem lots, which shall have a minimum width of twenty feet (20') and (2) lots on a street curve or the turning circle of cul-de-sac (radial lots), which shall be a minimum of thirty five feet (35'). 24. The applicant has proposed several lots including Lots 14, 15 and 38 which do not meet the minimum frontage width requirement. As discussed below in Conclusion of Law 27, each of these lots must be eliminated or revised to meet the minimum frontage width requirements. Or, as discussed in Conclusion of Law 5 above, the applicant may also submit an alternative plat plan which includes a combination of all lots fronting onto a public street meeting minimum lot widths and those portions of the lots now proposed for shared driveway/access easements. RMC 4-7-170(E): No residentially zoned lot shall have a depth-to-width ratio greater than four-to- one (4:1). 25. As conditioned, all pipestem lots will be eliminated or revised to meet minimum lot width requirements which will bring all of the lots into compliance with this criterion. RMC 4-7-170(F): All lot corners at intersections of dedicated public rights-of-way, except alleys, shall have minimum radius of fifteen feet (15'). 26. As proposed all lots meet this criterion. RMC 4-7-170(G): Pipestem lots may be permitted for new plats to achieve the minimum density within the Zoning Code when there is no other feasible alternative to achieving the minimum density. Minimum Lot Size and Pipestem Width and Length: The pipestem shall not exceed one hundred fifty feet (150') in length and not be less than twenty feet (20') in width. The portion of the lot narrower than eighty percent (80%) of the minimum permitted width shall not be used for lot area calculations or for the measurement of required front yard setbacks. Land area included in private access easements shall not be included in lot area calculations. Pipestem lots shall not abut one another. 27. The proposal exceeds the minimum density of 4.0 dwelling units per acre by 1.7 dwelling units per acre and therefore pipestem lots are prohibited. The applicant has proposed several pipestem lots including Lots 12, 14, 15, 17, 38, 40 and 79. As a condition of approval, each of these lots must be eliminated or revised to meet the minimum frontage width requirements. As an alternative, the applicant may also submit an alternative plat plan which includes a combination of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 38 all lots fronting onto a public street meeting minimum lot widths and those portions of the lots now proposed for shared driveway/access easements as discussed above in Conclusion of Law 5. RMC 4-7-190(A): Easements may be required for the maintenance and operation of utilities as specified by the Department. 28. As conditioned. RMC 4-7-190(B): Due regard shall be shown to all natural features such as large trees, watercourses, and similar community assets. Such natural features should be preserved, thereby adding attractiveness and value to the property. 29. Trees will be retained as required by City code as determined in Finding of Fact No. 5. There are no other natural features that need preservation as contemplated in the criterion quoted above. RMC 4-7-200(A): Unless septic tanks are specifically approved by the Public Works Department and the King County Health Department, sanitary sewers shall be provided by the developer at no cost to the City and designed in accordance with City standards. Side sewer lines shall be installed eight feet (8') into each lot if sanitary sewer mains are available, or provided with the subdivision development. 30. As conditioned. RMC 4-7-200(B): An adequate drainage system shall be provided for the proper drainage of all surface water. Cross drains shall be provided to accommodate all natural water flow and shall be of sufficient length to permit full-width roadway and required slopes. The drainage system shall be designed per the requirements of RMC 4-6-030, Drainage (Surface Water) Standards. The drainage system shall include detention capacity for the new street areas. Residential plats shall also include detention capacity for future development of the lots. Water quality features shall also be designed to provide capacity for the new street paving for the plat. 33. The proposal provides for adequate drainage that is in conformance with applicable City drainage standards as determined in Findings of Fact No. 5 and 6. The City’s stormwater standards, which are incorporated into the technical information report and will be further implemented during civil plan review, ensure compliance with all of the standards in the criterion quoted above. RMC 4-7-200(C): The water distribution system including the locations of fire hydrants shall be designed and installed in accordance with City standards as defined by the Department and Fire Department requirements. 31. Compliance with City water system design standards is assured during final plat review. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 39 RMC 4-7-200(D): All utilities designed to serve the subdivision shall be placed underground. Any utilities installed in the parking strip shall be placed in such a manner and depth to permit the planting of trees. Those utilities to be located beneath paved surfaces shall be installed, including all service connections, as approved by the Department. Such installation shall be completed and approved prior to the application of any surface material. Easements may be required for the maintenance and operation of utilities as specified by the Department. 32. All utilities including the stormwater vault are proposed to be placed underground. As conditioned, utility installation will be inspected and approved prior to paving of surface materials above the utilities. RMC 4-7-200(E): Any cable TV conduits shall be undergrounded at the same time as other basic utilities are installed to serve each lot. Conduit for service connections shall be laid to each lot line by subdivider as to obviate the necessity for disturbing the street area, including sidewalks, or alley improvements when such service connections are extended to serve any building. The cost of trenching, conduit, pedestals and/or vaults and laterals as well as easements therefore required to bring service to the development shall be borne by the developer and/or land owner. The subdivider shall be responsible only for conduit to serve his development. Conduit ends shall be elbowed to final ground elevation and capped. The cable TV company shall provide maps and specifications to the subdivider and shall inspect the conduit and certify to the City that it is properly installed. 33. As conditioned. RMC 4-7-210: A. MONUMENTS: Concrete permanent control monuments shall be established at each and every controlling corner of the subdivision. Interior monuments shall be located as determined by the Department. All surveys shall be per the City of Renton surveying standards. B. SURVEY: All other lot corners shall be marked per the City surveying standards. C. STREET SIGNS: The subdivider shall install all street name signs necessary in the subdivision. 34. As conditioned. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 40 VI. DECISION The proposed 96-lot preliminary plat as depicted in Ex. 33 to the staff report, and critical area exemption as described in the findings of this decision, are approved subject to the following conditions: 1. The applicant shall comply with the mitigation measures issued as part of the Determination of Non-Significance Mitigated, dated September 22, 2014 except as modified below: a. MDNS Condition 1 shall be revised as follows: All earthwork performed, implemented by the applicant, shall be consistent with the recommendations of the geotechnical report, prepared by Associated Earth Sciences, Inc., dated September 28, 2012 or consistent with the recommendations of the final City-approved geotechnical report. b. MDNS Condition 6 shall be stricken and replaced with the following [as modified by the Ruling on Reconsideration]: The applicant shall revise its landscaping plan to provide for a 10 foot wide on-site street frontage landscape strip as required by RMC 4-4-070(F)(1) for all lots and a 10 foot wide, site obscuring perimeter landscaping adjacent to areas where the retaining walls are four or more feet in height. Landscaping at maturity must exceed the height of the adjacent retaining wall. The final detailed landscape plan shall be submitted to and approved by the Current Planning Project Manager prior to construction permit approval. Such landscaping shall include a mixture of trees, shrubs, and groundcover as approved by the Department of Community and Economic Development. 2. The applicant shall be required to demonstrate compliance with the minimum 50-foot lot width requirement for all lots with less than 50 feet in width at the foremost points (where the side lot lines intersect with the street right-of-way line) pursuant to RMC 4-11-120. The average distance between the side lines connecting front and rear lot lines shall be submitted to the Current Planning Project Manager prior to construction permit approval. 3. Condition No. 3 has been deleted as directed in the Ruling on Reconsideration. 3 All references to the plat map in this decision in the findings and conclusions have been to Exhibit 2 of the staff report. Those references are accurate. However, the plat approved by this decision is depicted in Exhibit 3 of the staff report, which is the 96 lot subdivision as opposed to the 97 lot subdivision. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 41 4. The applicant shall be required to submit a revised plat and landscaping plan, which are elements of the City’s required construction plan set, depicting curb bulbouts at street intersections where on-street parking is located or calling for no curb bulbouts and installation of “no parking” designations where street parking is prohibited at street intersections. The revised plat and landscaping plan shall be submitted to and approved by the Current Planning Project Manager prior to construction permit approval. 5. The applicant shall eliminate individual access directly from internal public streets for those lots abutting private streets and/or shared driveway access easements, specifically Lots 12- 14, Lots 15-17, Lots 38-40 and Lots 78-81 in shared driveways. Said lots shall be required to take access from the abutting private street and/or access easement and shall not exceed access thresholds pursuant to RMC 4-6-060.J and K. Lot 11 may access the public street directly. The revised plat plan shall be submitted to, and approved by, the Current Planning Project Manager prior to construction permit approval. Furthermore, the access restriction for such lots is required to be noted on the face of the Final Plat prior to recording. 6. The applicant shall revise the proposed mitigation plan to depict all retaining walls on site, including lock & load walls on the north and east sides of Wetlands B and C. The applicant shall also identify if proposed walls are anticipated to impact critical area buffers and provide appropriate mitigation for such impacts. A Final Mitigation Plan, pursuant to RMC 4-8- 120.W, shall be submitted to, and approved by, the Current Planning Project Manager prior to construction permit approval. 7. The temporary buffer impacts consisting of minor intrusions or disturbance from construction activities shall be restored with appropriate grading, soil amendments, and the planting of native species to the satisfaction of the Current Planning Project Manager. The revised mitigation plan shall be submitted to, and approved by, the Current Planning Project Manager prior to construction permit approval. 8. The existing wetland mitigation plan already assures that 1,331 square feet of additional wetland buffer area is being provided to mitigate for both existing buffer impacts to Wetland E that are not associated with the Plat, as well as the loss of 14 square feet of the Wetland E buffer which loss is associated with the extension of SE 18th Street. To provide an additional offset for the impacts resulting from the requested exemption associated with the fill of 14 square feet of buffer to extend SE 18th Street. The applicant has agreed to provide and shall provide enhancement to the Wetland ‘E’ buffer immediately abutting SE 18th Street, as well as enhanced plantings adjoining that buffer area within Tract M. A revised mitigation plan shall be submitted to, and approved by, the Current Planning Project Manager prior to construction permit approval. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 42 9. The applicant shall be required to establish a Native Growth Protection Easement over those parts of the site encompassing wetlands and their associated buffers and place fencing and signage along the outer buffer edge prior to Final Plat approval. 10. The applicant shall be required to submit a fill source statement, if fill materials are brought to the site, in order to the City to ensure only clean fill is imported prior to construction. 11. The applicant shall provide a final Tree Retention Plan, complying with the 30% tree retention SEPA mitigation measure while demonstrating proposed retaining walls would not impact trees proposed for retention. The Final Tree Retention Plan shall be submitted to, and approved by, the Current Planning Project Manager prior to construction permit approval. 12. The applicant shall submit a revised plat plan, which is an element of the City’s required construction plan set, depicting a safe pedestrian crossing, across the 124th Place SE extension, for the Seattle Waterline Pedestrian Trail. The revised plat plan, as part of the construction plan set, shall be submitted to, and approved by the Current Planning Project Manager, Community Services Department, and the Transportation Department prior to construction permit approval. 13. The applicant shall be required to obtain right-of-way or a public access easement through the Cedar River Pipeline, for the extension of 124th Place SE, to the satisfaction of the Plan Reviewer prior to construction permit approval. 14. Pedestrian lighting shall be depicted on the lighting plan at the entrances of Tracts C and E (from the proposed right-of-way). The lighting plan shall be submitted to, and approved by, the Current Planning Project Manager and the Plan Reviewer prior to construction permit approval. 15. The Preliminary Plat plan shall be revised so that no more than 4 lots may gain access via a shared driveway and that at least one such lot shall meet minimum lot width requirements along a street frontage pursuant to RMC 4-7-170.D (a minimum of 80% of the required lot width/40 feet or 35 feet along a street curve). The lot(s) which provides physical frontage along the street shall only be allowed vehicular access from the shared private driveway. In order to provide shared access, Lots 14, 17 and 38 shall be widened to 35 feet and take primary access from the shared driveway. The revised plat plan shall be submitted to and approved by the Current Planning Project Manager prior to construction permit approval. 16. The plat plan shall be revised so that all lots have no less than a 40-foot lot width where side lot lines intersect with the street right of way or for radial lots be a minimum of 35 feet in width. Specifically, proposed Lots 14, 17, and 38 would be required to be widened to 35 feet 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 43 in order to comply with the condition. The revised plat plan shall be submitted to and approved by the Current Planning Project Manager prior to construction permit approval. 17. The applicant shall submit a revised plat plan depicting the elimination of all pipestem lots (lots which are less than 40 feet in width where the side lot lines intersect with the street right-of-way or for radial lots are less than 35 feet) within the subdivision. Specifically, proposed Lots 12, 14, 15, 17, 38, 40, and 79 would be required to be eliminated or revised to meet minimum frontage width requirements. The applicant may also submit an alternative plat plan which includes a combination of all lots fronting onto a public street meeting minimum lot widths and those portions of the lots now proposed for shared driveway/access easements could be placed in Shared Driveway Tracts with easements placed over them pursuant to RMC 4-6-060, Street Standards. The revised plat plan shall be submitted to and approved by the Current Planning Project Manager prior to construction permit approval. 18. Any proposal to convert the Stormwater vault within Tract A to a Stormwater detention pond be considered a Major Plat Amendment subject to the requirements outlined under RMC 4-7- 080M.2. 19. The applicant shall be required to create a homeowners’ association and maintenance agreement(s) for the shared utilities, landscape areas and maintenance and responsibilities for all shared improvements of this development. A draft of the document(s) shall be submitted to Current Planning Project Manager for review and approval by the City Attorney and Property Services section prior to the recording of the final plat. 20. The applicant shall submit the results of the Phase 1 Environmental Site Assessment to the City for review. Appropriate mitigation, if any, shall be completed prior to issuance of building permits. 21. All road names shall be approved by the City. 22. Easements may be required for the maintenance and operation of utilities as specified by the Department. 23. Sanitary sewers shall be provided by the developer at no cost to the City and designed in accordance with City standards. Side sewer lines shall be installed eight feet (8') into each lot if sanitary sewer mains are available, or provided with the subdivision development. 24. Any cable TV conduits shall be undergrounded at the same time as other basic utilities are installed to serve each lot. Conduit for service connections shall be laid to each lot line. 25. Concrete permanent control monuments shall be established at each and every controlling corner of the subdivision. Interior monuments shall be located as determined by the 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PRELIMINARY PLAT - Preliminary Plat - 44 Department. All surveys shall be per the City of Renton surveying standards. All other lot corners shall be marked per the City surveying standards. The subdivider shall install all street name signs necessary in the subdivision. 26. [This condition added as directed by the Ruling on Reconsideration to address Roof run-off]. Roof run-off that impacts wetlands shall not be allowed mix with polluting surfaces. Category 2 wetlands may not be structurally or hydrologically engineered for runoff quantity or quality control as required by KCSWDM Reference 5. City staff shall require design adjustments as authorized by KCSWDM 1.2 to the extent necessary to prevent adverse impacts to wetland hydrology caused by roof runoff. DATED this 26th day of January, 2015. City of Renton Hearing Examiner APPEAL RIGHTS AND VALUATION NOTICES RMC 4-8-080 provides that the final decision of the hearing examiner is subject to appeal to the Renton City Council. RMC 4-8-110(E)(14) requires appeals of the hearing examiner’s decision to be filed within fourteen (14) calendar days from the date of the hearing examiner’s decision. There is no right to reconsideration as the decision has already been subject to reconsideration. Additional information regarding the appeal process may be obtained from the City Clerk’s Office, Renton City Hall – 7th floor, (425) 430-6510. The City Council’s jurisdiction to hear SEPA appeals is contested by the applicant. The City Council shall determine whether it has any jurisdiction to hear an appeal of the SEPA portion of this decision. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.