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HomeMy WebLinkAboutCH& Letter in Support CITY OF RENTON til j� tl•�y�) JUN 01 2015 f iZ IFW-RG' 4t:'-4PE V-1J I, i; .: RECEIVED 524 2nd Ave.Suite 500 Office 206 587 0700 CITY CLERK'S OFFICE Seattle,WA 98104 fax 206 587 2308 ,/—cairncross com CHC , June 1, 2015 VIA HAND DELIVERY TO THE CITY CLERK City Councilmembers City of Renton 1055 Grady Way Renton, WA 98057 Re: Henley's Letter in Support of Denying TPWAG's Appeal The Reserve at Tiffany Park Preliminary Plat City File No. LUA13-001572 Dear Councilmembers: This firm represents Henley USA, LLC ("Henley"), the contract purchaser for the property and applicant for The Reserve at Tiffany Park Preliminary Plat (the "Preliminary Plat"). By this letter, Henley asks the Council to deny the appeal ("Appeal") filed by the Tiffany Park Woods Advocacy Group ("TPWAG"). The TPWAG Appeal asserts ten errors in the City of Renton Hearing Examiner's Decision approving the Preliminary Plat. On May 4, 2015, in Response to Henley's Motion to Dismiss TPWAG's appeal, the Planning and Development Committee dismissed five of TPWAG's ten asserted errors, and dismissed portions of one of the remaining issues. The asserted errors from TPWAG's Appeal that remain for the Council's consideration are assertions 4 through 7, and a portion of assertion 3. None of TPWAG's assertions comes close to meeting the legal standards for reversing or modifying the Examiner's Decision. Pursuant to RMC 4-8-110(F)(5) and (8), TPWAG has the burden of proving that "a substantial error in fact or law exists in the record."Absent such proof, the Council must affirm the Examiner's Decision. The Council's consideration of the issues in TPWAG's Appeal "shall be based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional arguments based on the record by parties." RMC 4-8-110(F)(6). Matters outside the record are irrelevant and cannot be heard or considered. Id. The Council's decision on TPWAG's Appeal "shall be supported by substantial evidence in the record." RMC 4-8-110(F)(8). TPWAG's Appeal fails to raise any errors of fact or law, and its request for the extreme relief of overturning the findings and conclusions of expert City Staff and the Hearing Examiner, has no support in the record, and should be denied. Rather than argue that matters in the record nroeers,cr!cuirncross.cont Direct:(206)254-4417 ,02809432.DOCX;5} Mayor Law & City Councilmembers June 1, 2015 Page 2 demonstrate that the Examiner made a substantial error in fact or law, TPWAG's Appeal simply reiterates the same unsupported assertions made to the Hearing Examiner in its initial appeal. Based on the overwhelming weight of evidence in the record supporting the Examiner's Decision and the utter absence of evidence supporting the assertions in TPWAG's Appeal, the Council must deny TPWAG's Appeal and affirm the Hearing Examiner's Decision. 1. TPWAG Assertion#3: A portion of TPWAG's Assertion#3 has been dismissed.' The issues remaining for the Council's consideration are TPWAG's assertions that the wetlands delineation was done incorrectly, the Hearing Examiner's Decision did not fully evaluate the adverse environmental impacts on wetlands, and improperly deferred these issues to the construction permit stage. TPWAG's assertion finds no support in the record. The record demonstrates that there were extensive studies of the environmental impacts on wetlands and numerous experts confirmed that no probable significant adverse environmental impacts would occur. Henley submitted a Wetland Determination study dated October 30, 2013 and February 28, 2014, to account for revisions to the plat. Both reports were performed by wetlands expert C. Gary Schulz, Inc. Exhibits K(l)(c) and K(1)(d).2 At the request of the City of Renton, these studies were then reviewed by an independent third-party expert, Otak, which provided an"Independent Secondary Review of Wetlands by Otak dated April 3, 2014." Exhibit A(14). Upon receipt of the recommendations from the Otak study, Henley's expert updated and conducted additional investigation and analysis, and prepared a Revised Wetland Determination and Response in June 2014. Exhibit A(5) (Revised Wetland Determination and Response Letter dated June 3, 2014). Again, the City's third-party reviewer, Otak, specifically, Darcey Miller, a senior wetlands scientist, evaluated Henley's expert's reports. See Exhibit A(15). As to the wetland delineation method, which TPWAG alleges was done incorrectly, Otak's July 9, 2014 memo confirms that there would be no difference in delineated wetland edges regardless of the methodology used. Either the USACE 1987/2010 manuals or delineation under the Ecology 1997 manual would result in the same delineated wetlands. Exhibit A(15). The Hearing Examiner reviewed all of these studies in reaching his Final Decision approving the Preliminary Plat and specifically held that"[g]iven 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." Final Decision on Reconsideration, pg. 19. In fact, the project does more than simply ' TPWAG's Assertion#3 originally included a claim that TPWAG should have been given access to the property in order to perform its own wetland assessment. However,the Planning and Development Committee dismissed that issue in its ruling on Henley's Motion to Dismiss,explaining that the City is without authority to require a private property owner to allow TPWAG access to the property. Consequently,TPWAG's access to the site is no longer an issue before the Council. z All references to Exhibits provided herein are to the official Exhibits from the Preliminary Plat hearing that were admitted at the hearing(or after the hearing,as referenced in Section III of the Hearing Examiner's Final Decision Upon Reconsideration). (02809432.DOCX;5 ) Mayor Law & City Councilmembers June 1, 2015 Page 3 avoid adverse impacts to the wetlands. As the Examiner noted, "[t]he 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." Final Decision on Reconsideration, pg. 13. TPWAG also alleges that some unstated environmental impacts will occur because the Examiner allegedly deferred consideration of wetland impacts to the construction stage. TPWAG misunderstands the City's code-mandated process, which Henley, City staff, the Hearing Examiner and the City Council must follow. The only matters deferred to the time of construction permitting are matters that can be addressed only after engineering plans have been prepared. For example, Conditions 7 and 8 of the Examiner's Decision require Henley to submit revised mitigation plans for areas that will be disturbed by construction activities. See Final Decision on Reconsideration,pg. 41 (Conditions 7 and 8). It is a common practice to impose such conditions, since detailed plans for mitigating specific development impacts can only be created once engineering plans have been submitted that show the precise location and extent of the work to be conducted. Contrary to TPWAG's allegations, the Examiner properly evaluated wetland impacts. The evaluation of environmental impacts on wetlands and the wetlands delineation are the product of several iterations of expert review and recommendations, and revisions of the Preliminary Plat by Henley to meet these recommendations. This process culminated in an informed and proper decision by the Hearing Examiner approving the Preliminary Plat. The Council must affirm the Examiner's Decision and reject TPWAG's Appeal. 2. TPWAG Assertion#4: TPWAG's fourth asserted error alleges that there is uncertainty as to whether the project site is free of hazardous waste, asserting that the Examiner did not "adequately address the probable adverse impact" resulting therefrom. This argument stems from the belief that the property was once subject to two easements in favor of the Department of Defense and therefore the property might have been exposed to hazardous substances at some point in the past. TPWAG's allegations relate to sections 3 and 4 of a recorded 1957 summary of five different even older grants, conveyances, and easements. Exhibit G, pg. 6, Exception 6 (Commitment for Title Insurance—referencing mineral rights reserved by Northern Pacific Railway Company in a 1957 deed). At most, TPWAG's allegations establish that there was a grant of an easement to the Defense Plant Corporation in 1944 across a 14 foot strip of land somewhere in this area, that may or may not include a portion of the land within the plat. TPWAG's allegations are purely speculative as to the presence of hazardous material. TPWAG has provided no evidence of the existence of hazardous materials on the property. As highlighted by the Hearing Examiner, TPWAG was "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." Final Decision on Reconsideration,pg. 12. Accordingly, TPWAG's assertion that there are probable adverse impacts is unsupported by the f 02809432.DOCX;5} .Mayor Law& City Councilmembers June 1, 2015 Page 4 record. TPWAG's bald speculation about possible hazardous waste on the site fails to carry its burden ofrp oving that"a substantial error in fact or law exists in the record." RMC 4-8-110(F)(5). Further, the Council cannot modify or reverse the Examiner's Decision on this basis because there is no evidence in the record to support modification or reversal, as required by RMC 4-8-110(F)(8). The Council must deny TPWAG's appeal and affirm the Preliminary Plat approval. 3. TPWAG Assertion#5: TPWAG also asserts that the Hearing Examiner's Final Decision inadequately addresses adverse impacts resulting from the proposed storm drainage system, including the detention vault, roof runoff and downstream impacts. Again, TPWAG's arguments lack support in the record. The Hearing Examiner based his approval of the Preliminary Plat on a thorough analysis of more than adequate studies and technical plans to address storm drainage and TPWAG did not present any evidence to the contrary. Exhibit A(8) (Drainage Report by Barghausen Consulting Engineers, Inc.). The Examiner, after describing the testimony of Henley's and the City's drainage experts, specifically concluded that"[a]s conditioned, the proposal provides for adequate drainage facilities." Final Decision on Reconsideration, pg. 20. The Examiner noted that a"Level 2 downstream analysis [is required] for '/4 mile from the project site to determine if the proposed project would exacerbate existing downstream capacity issues."Id. The Examiner further noted that Henley's drainage consultant submitted a preliminary drainage report that staff had determined "is consistent with the 2009 King County Surface Water Manual and City of Renton Amendments to the KCSWM, Chapters 1 and 2." Final Decision on Reconsideration, pgs. 20-21. The City has fully evaluated the impacts resulting from the storm drainage system, and the record does not support TPWAG's contrary, unsupported assertions. TPWAG asserts that the Examiner's Decision improperly defers consideration of drainage issues to the construction permit stage. The Code, however, does not require exhaustive final plans at this preliminary plat application step, but instead provides a logical and reasonable multistep process by which supplementary materials are added to appropriately fine tune the project as needed. Requiring Henley to submit extremely detailed plans that are required at later stages would be contrary to law. TPWAG has established no error of fact or law in the record that would support reversal of the Examiner's Decision. The Council must affirm the Hearing Examiner's Decision because the Preliminary Plat complies with the City's development regulations and environmental review procedures. 4. TPWAG Assertion#6: The Council also must reject TPWAG's argument that the Hearing Examiner failed to adequately mitigate environmental impacts resulting from the use of structural retaining walls. TPWAG's assertion misunderstands the Examiner's findings regarding retaining walls. The Hearing Examiner found that retaining walls that are greater than four feet in height and that are visible off- site have an aesthetic impact that requires mitigation. The impact found by the Hearing Examiner is an aesthetic impact only, not an impact to wildlife, critical areas, or other similar elements of the natural environment. Even though the Examiner identified an aesthetic impact, he also expressly concluded that "[t]he aesthetic impacts of the retaining walls can be fully mitigated...by a ten foot {02809432.DOCX;5 } ,Mayor Law& City Councilmembers June 1, 2015 Page 5 perimeter landscaping strip." Final Decision on Reconsideration, pg. 10. The Examiner then imposed a revised condition in the DNS-M to mitigate the aesthetic impact of retaining walls greater than four feet in height that are visible off-site.3 Final Decision on Reconsideration, pg. 40, Condition 1(b). TPWAG also asserts that the mitigation for retaining wall impacts is improperly deferred to the construction permit stage; however, the final detailed landscape plan for mitigating aesthetic impacts via the ten foot perimeter landscape buffer can be created only after the engineering for the retaining walls has been completed. At that stage, the heights of the walls will be finalized and the perimeter buffer can be applied to those areas where the retaining walls will be greater than four feet in height and visible off-site. The condition quantifies that an impact will occur when retaining walls are greater than four feet in height and visible off-site, and the condition dictates the required mitigation as the installation of a ten foot perimeter landscaping buffer to screen views of such walls. No environmental issue has been deferred improperly to a later stage. Again, the Hearing Examiner's careful analysis and thoughtful Decision should not be disturbed in the face of the unsupported allegations presented by TPWAG. TPWAG has failed to establish an error of fact or law to support reversal. The Council must reject TPWAG's appeal and affirm the Hearing Examiner's approval of the Preliminary Plat. 5. TPWAG Assertion#7: TPWAG's last argument asserts that the Hearing Examiner failed to adequately address the project's traffic impacts. TPWAG's argument lacks any support in the record, as the Hearing Examiner's Final Decision was based on extensive traffic studies submitted by Henley and verified by the City's independent consultant, and these studies concluded that the impacts on traffic were either within the acceptable levels of service or sufficiently mitigated by the required DNS-M conditions. Exhibit A(9) (TranspoGroup Traffic Impact Analysis dated April 23, 2014) and Exhibit A(13) (Independent Secondary Review of Traffic by Perteet Engineers, dated May 16, 2014). The Hearing Examiner reviewed the Traffic Impact Analysis prepared by TranspoGroup and the Independent Secondary Review requested by the City and prepared by Perteet, the City's third-party transportation reviewer. Id. These studies fully captured any adverse traffic impacts resulting from the project and TPWAG again failed to present any evidence to the contrary. TPWAG also asserts that there will be significant adverse impacts from the conversion of SE 18th Street and 124th Place SE from cul-de-sacs to supposed"arterials." In fact, these residential roadways will remain residential roadways. No such conversion of these roads into arterials is contemplated by the Preliminary Plat. Both roadways were long planned to connect to serve this site, whether it was developed as a school; or a residential subdivision. 3 The appeal issues before the Council are strictly limited to those raised by TPWAG.RMC 4-8-110(F)(6)(limiting the Council's consideration in the appeal to"the record,the Hearing Examiner's report,the notice of appeal and additional arguments based on the record by parties." The Examiner's Final Decision on Reconsideration regarding retaining wall height and design(see pgs. 31-32)was not appealed by TPWAG. Therefore,that issue is not before the Council.Even if it had been appealed,the Examiner correctly noted that the City lacks authority to impose height limits on retaining walls. Final Decision,pg. 31;see also Henley's legal analysis submitted in letters dated November 18,2014, and December 8,2014,including letter and enclosures regarding limitations on retaining wall height(Exhibit K(11)). t02809432.DOCX;5 l Mayor Law& City Councilmembers June 1, 2015 Page 6 Pursuant to a review of the various traffic studies and expert opinions, the Hearing Examiner made an informed technical decision that any adverse impacts to traffic would be sufficiently mitigated by the conditions imposed. Final Decision on Reconsideration, pgs. 21-23. Again, Henley is not disputing any of these conditions and plans to comply with them. Thus, the Council must affirm the Hearing Examiner's Final Decision approving the Preliminary Plat and deny TPWAG's unsubstantiated appeal. Conclusion Pursuant to RMC 4-8-110(F)(5) and (8), TPWAG has the burden of proving that"a substantial error in fact or law exists in the record."Absent such proof, the Council must affirm the Examiner's Decision. The Council must consider the issues in TPWAG's Appeal "based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional arguments based on the record by parties." RMC 4-8-110(F)(6). Matters outside the record cannot be heard or considered. Id. As described above, TPWAG has failed to establish any error of fact or law in the record. The Council must deny TPWAG's Appeal and affirm the Hearing Examiner's Decision. Very truly yours, Nancy Bai ridge Rogers {02809432.DOCX;5}