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HomeMy WebLinkAboutTPWAG Legal Brief CITY OF RENTON Date: Mon. June 1, 2015 JUN Q 12015 To: City Council City of Renton RECEIVED CITY CLERK'S OFFICE 1055 Grady Way Renton, WA 98057 From: Tiffany Park Woods Advocacy Group rrailto:rentor-oppositescosncast.net 1725 Pierce Avenue SE Renton, WA 98058 Subject: Reserve at Tiffany Park PP - Hearing Examiner Decision (LUA13-001572) TPWAG Legal Brief Supporting Notice of Appeal of Hearing Examiner Decision to City Council Dear Sir or Madam: This letter constitutes Tiffany Park Woods Advocacy Group's Legal Brief Supporting the Notice of Appeal to the City Council of the Final Decision Upon Reconsideration dated February 26, 2015 pursuant to RMC 4-8-080 and RMC 4-8-110(F)(3). Framework for City Council Decision Substantive Conditions Outlined in MDNS are not Treated as Threshold Determinations What makes this appeal unique is that the City of Renton used the alternative threshold determination process commonly referred to as the "mitigated determination of non-significance" set forth in WAC 197-11- 350. With a MDNS, promulgation of a formal EIS is not required. An applicant may clarify or change a proposal by revising the environmental checklist and permit application so that a MDNS can be issued for the revised project. WAC 197-11-350(2). Alternatively, the municipality may specify mitigation measures and issue a MDNS only if the proposal is changed to incorporate those measures. WAC 197-11-350(3). In Washington the courts have adhered to the definitions in WAC 197-11-300(2) and WAC 197-11-797 that threshold determinations are decisions whether to require an EIS. City of Olympia v. Thurston County Board of Commissioners, 135 Wn.App 85 (Wash. App. Div. 2 2005). Mitigation measures are not threshold determinations as defined by WAC 197-11-300(2) and WAC 197-11-797. Id. RMC 4-9-070(J)(7)(b) emphasizes: "Mitigation measures incorporated in the mitigated DNS shall be deemed conditions of approval of the permit decision and may be enforced in the same manner as any term or condition of the permit, or enforced in any manner specifically prescribed by the City." Thus, the mitigation measures listed in a MDNS when an EIS is not required become plat conditions and are treated and enforced as such under the RMC. TPWAG Legal Brief Supporting Notice of Appeal to City Council Page 1 of 5 It is vitally important for the members of the City Council to understand that in this appeal proceeding TPWAG is not challenging the COR's threshold determination which would focus exclusively upon whether or not the COR erroneously issued the MDNS. Instead TPWAG specifically questions the adequacy of the mitigation measures incorporated into the MDNS and preliminary plat approval pursuant to the hearing examiner's Final Decision Upon Reconsideration. These substantive conditions outlined in the MDNS are incorporated into the preliminary plat approval and are not treated as threshold determinations. Statutory Remedy Requires Preparation of EIS In a nutshell, this MDNS process is a mixed hybrid of both procedural and substantive SEPA because the threshold determination of the DNS (procedural component) is contingent upon the determination that mitigation measures (the substantive component) can alleviate any adverse environmental impacts. Professor William Rodgers, an eminent scholar at the University of Washington, emphasizes that the issue of a mitigated DNS has been hotly debated: "What this process approves is a kind of backroom bargaining outside of the normal glare of EIS procedures...As a result,the process should remain under sharp scrutiny." The SEPA rules provide that if a proposal continues to have a probable significant environmental impact after mitigation measures have been applied, an environmental impact statement shall be prepared. WAC 197-11- 350(2) clearly emphasizes: "If a proposal continues to have a probable significant environmental impact, even with mitigation measures, an EIS shall be prepared." In Anderson v. Pierce County, 86 Wn.App. 290, 304(Wash. App. Div. 2 1997) the court emphasized: "This touchstone of the SEPA review process provides protection from abuse: If a MDNS is issued and an appealing party proves that the project will still produce significant adverse environmental impacts, then the MDNS decision must be held to be "clearly erroneous" and an EIS must be promulgated." The full scope of mitigation measures were not specified and determined until the hearing examiner issued the Final Decision Upon Reconsideration. The gist of TPWAG's appeal to the City Council is that the hearing examiner's decision provides inadequate mitigation for the impacts on the environment and on the surrounding community of Applicant's proposed development. Since the proposal continues to have a probable significant environmental impact, even with mitigation measures, the statutory remedy should be applied: the preliminary plat application should be denied and an environmental impact statement must be prepared. Review of Record Leaves Definite and Firm Conviction that Mistake Committed Courts review a decision to issue a MDNS under the "clearly erroneous" standard. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the record is left with the definite and firm conviction that a mistake has been committed. Norway Hill Preservation& Protection Association v. King County Council, 87 Wn.2d 267, 274, 552 P.2d 674(1976). For the MDNS to survive judicial scrutiny, the record must demonstrate that "environmental factors were adequately considered in a manner sufficient to establish prima facie compliance with SEPA, and that the decision to issue a MDNS was based on TPWAG Legal Brief Supporting Notice of Appeal to City Council Page 2 of 5 information sufficient to evaluate the proposal's environmental impact. Sisley v. San Juan County, 89 Wn.2d 78, 82-83, 569 P.2d 712 (1977). In essence, what SEPA requires is that the presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations. It is an attempt by the people to shape their future environment by deliberation, not default. Norway Hill at 272. In order to achieve this goal, it is important that an environmental impact statement be prepared in all appropriate cases. The record clearly reflects: 1. The City and Applicant's wetland assessment understates the extent of wetlands on the site.The hearing examiner's decision fails to fully evaluate the significant adverse impacts on the environment resulting from the wetlands. Instead the decision improperly defers consideration of these issues to the construction permit stage where the public has little or no input. 2. The hearing examiner's decision recognizes that there is uncertainty as to whether the project site is free from hazardous waste, but does not adequately address the probable adverse impact on the environment resulting there from. 3. The hearing examiner's decision fails to adequately address the substantial adverse impacts resulting from the proposed storm drainage system for the site, including the detention vault, roof runoff and downstream impacts. Instead the decision improperly defers consideration of these issues to the construction permit stage where the public has little or no input. 4. Although the hearing examiner's decision recognizes that there is a substantial probable adverse impact resulting from the extensive use of structural retaining walls on the project, the hearing examiner's decision fails to fully and adequately address the adverse impacts resulting from this extensive use of an intricate network of rockeries, modular block retaining walls, lock and load retaining walls, and extensive grading operations and provides inadequate mitigation for the impacts on the environment and the community. Instead the decision improperly defers consideration of these issues to the construction permit stage where the public has little or no input. 5. The hearing examiner's decision fails to adequately address the traffic impacts directly related to ingress and egress for the site, including but not limited to the impact of converting SE 18th Street and 124th Place SE from quiet Cul-De-Sacs into arterials and the reduction in property values resulting there from. As a result, additional traffic studies should be performed to investigate and revise access routes to the project. 6. The hearing examiner's decision requires Applicant to submit additional documentation to the Current Planning Project Manager prior to construction permit approval, including an updated geotechnical report, revised preliminary plat and landscaping plan, revised wetland mitigation plan, final mitigation plan for retaining walls and phase one environmental site assessment. All of this documentation should have been prepared and should be prepared prior to preliminary plat approval. Otherwise the public will have little or no input on these issues. The importance of the preliminary plat approval within the scheme of planning and approving this development should not be overlooked. The preliminary plat application is meant to give COR and the public a clear picture of how the final subdivision will look. While the process anticipates negotiations and modifications during the give and take of the approval process, the preliminary plat approval has real consequences. The COR cannot conditionally approve a preliminary plat and then disapprove a final plat TPWAG Legal Brief Supporting Notice of Appeal to City Council Page 3 of 5 ,application for a project that conforms to the conditions of the preliminary approval. The failure to challenge environmental issues at the preliminary plat stage could result in decisions by the COR that have a " binding impact" on TPWAG and other interested parties without their consent or participation. Upon preliminary plat approval the public is effectively cutoff from further participating in the process. Moreover, at the preliminary plat approval stage, the City Council, as the local legislative body with authority to approve a plat must " inquire into the public use and interest proposed to be served by the establishment of the subdivision" and determine " If appropriate provisions are made for ... the public health, safety, and general welfare ... [RCW 58.17.110(1). " A proposed subdivision ... shall not be approved" unless the legislative body " makes written findings that: (a)Appropriate provisions are made for the public health, safety, and general welfare and (b)the public use and interest will be served by the platting of such subdivision...." RCW 58.17.110(2) (emphasis added). " The City Council's review of the record should lead to the definite and firm conviction that it would be a mistake to rubber stamp this preliminary plat. The extensive mitigation measures outlined in the hearing examiner's Final Decision Upon Reconsideration, and discussed above, are a reliable indicator of major action with significant environmental effects.The mitigation measures do not reduce all significant adverse environmental impacts below the threshold level of significance, but merely postpone their evaluation to the construction permit stage. Consequently the City Council should deny the preliminary plat application and require an environmental impact statement pursuant to the remedy mandated in WAC 197-11-350(2). Conclusion The members of TPWAG are proud that we have persevered in the face of considerable adversity at the consolidated SEPA/preliminary plat hearing. Given that the deck was stacked so highly against TPWAG and in favor of the Applicant, it is remarkable that we were able to prevail with the hearing examiner so that the Applicant was required to provide the plethora of additional documentation to COR prior to construction permit approval. Most of these issues were simply glossed over or ignored by the Environmental Review Committee's threshold determination and were not included as mitigation measures. Rather than providing reasonable mitigation of adverse environmental impacts, all of this additional documentation is tantamount to a reliable indicator of and suggests significant environmental impacts. Once the Applicant provides this additional documentation, we are confident that it will reveal a wide array of marginal impacts that are very important to the neighbors and together result in significant environmental impacts. TPWAG initially organized to advocate for the preservation of the character of the woods at Tiffany Park as a unique and mature forest in an urban area, habitat for wildlife and sanctuary where community residents hike or simply find peace in the middle of the city. Over time it became apparent that the Applicant provided insufficient and inadequate information to truly understand the massive scope of the proposal and its detrimental impact on the environment. We now have the definite and firm conviction that it was a mistake to excuse an EIS which should give detailed consideration to the alternative possibilities that Applicant's preliminary plat is proportionally and aesthetically out of touch and not compatible with the neighborhood; that existing streets are inadequate to safely handle ingress and egress for the site; that "backroom bargaining" understated and minimized the wetland requirements for the site; that unlawful discharges to the wetlands may destroy the wetlands or cause flooding downstream; that the geotechnical information for the site may be inadequate to understand the risks associated with the massive grading operation, the extensive excavation necessary for the drainage vault, or the construction of an extensive and intricate network of TPWAG Legal Brief Supporting Notice of Appeal to City Council Page 4 of 5 retaining walls; and that the proposed storm water system may exacerbate downstream storm water capacity issues that the City already considers an environmental nuisance. This proposal continues to have a probable significant environmental impact, even with mitigation measures, so it is important that an environmental impact statement be prepared For all of these reasons, we strongly urge the City Council to deny the preliminary plat application and require an environmental impact statement. Tiffany Park Woods Advocacy Group RENATE BEEDON President TPWAG Legal Brief Supporting Notice of Appeal to City Council Page 5 of 5