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HomeMy WebLinkAboutSEPA Helipad Zoning Appeal of Environmental ReviewMay 20, 2008 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION APPELLANT: Pegi Galster 2907 Mt. View Avenue N Renton, WA 98056 RESPONDENT: City of Renton Ann Nielsen, Assistant City Attorney File No.: LUA 08-004 LOCATION: 3001 Mt. View Avenue N SUMMARY OF APPEAL: Appeal of Environmental Review action to amend Helipad Zoning Code Amendment. PUBLIC HEARING: After reviewing the Appellant's written request for a hearing and examining available information on file, the Examiner conducted a public hearing on the subject as follows: MINUTES The following minutes are a summary of the May 6, 2008 hearing. The legal record is recorded on CD. The hearing opened on Tuesday, May 6, 2008, at 8:35 a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner. Parties present: Ann Nielsen, Assistant City Attorney representing City of Renton Erica Conkling, Development Services John Hempelmann, Attorney representing Charles Connor and Ann Simpson The following exhibits were entered into the record: Exhibit No. 1: Yellow file, LUA-08-004 ECF, containing the original application, various reports, correspondence file, SEPA documents, and Staff analysis. Exhibit No. 2: Yellow File by reference for LUA 07 - 097, Appeal of Temporary Use Permit Exhibit No. 3: Binder containing exhibits A -L Exhibit No. 4: Statement prepared by Pegi and Mark Galster Exhibit No. 5: Noise Level Regulations SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 2 The Examiner stated that the matter being reviewed was an Environmental Determination by the City for City Council action to amend a zoning code amendment. The City is taking action on its own accord to amend the ordinances and therefore it is the City's action to defend. Other parties may attend and testify but it needs to be relevant to the issues at hand. Pegi Galster, 2907 Mt. View Avenue N., Renton 98056 read a statement she and her husband prepared for today's hearing. They believe that the DNS was in error. Sec 2, Public Safety and Emergency Services stated that were an accident to occur, it most likely would take place over the lake or on the owner's property and not on neighboring properties. A helicopter using a shoreline helipad will be airborne much closer to neighboring properties. This will expose the neighborhood to greater risk from any loss of control of the aircraft. Further stating that the NTSB database on helicopter accidents contains a long record of aircraft returning to earth out of control and in a location and attitude other than that intended by the pilot during initial responses to that failure. The record showed further instances of failures that resulted in accidents, scattered debris and other dangerous situations. Construction or operation of a helipad along the shoreline would acquire an approved shoreline variance from the City of Renton, such helipad was built in 2006 without the required variance or review. This helicopter has been operating without the required approvals. The ERC should have noted that the due process was currently in place and should have withheld the DNS recommendation until an adequate process could be identified and implemented. There is the issue of nesting Bald Eagles and the disruption to their existence with the use of a helicopter. Fifty- three percent of Eagles seem to respond to helicopters that come close to nest trees, whereas only seven percent seem to respond to airplanes that come close to the same nest trees. Regarding noise, the ERC noted that the City of Renton did not have the jurisdiction to regulate the flight paths of aircraft. The City does have jurisdiction to regulate where and if, in residential neighborhoods, aircraft are allowed to take off and land. The FAA regulates size and other attributes of helicopter landing areas, distance to other airports, near military base, large trees or houses in the pathway. It does not address the appropriateness of the site with regard to noise or safety standpoint. The noise of a helicopter taking off from the shore is much louder than a seaplane taking off from the prescribed distance from the shoreline. The mean decibel level for seaplanes is lower than that of helicopters. According to the ERC one of the criteria for conditional use is an evaluation of noise. The City has failed to meaningfully evaluate the noise impact by granting a Temporary Use Permit, the same process cannot be adequate for the Conditional Use Permit, which has been proposed as a zoning code amendment. The review process currently in place seems to be demonstratively inaccurate. The DNS should be withdrawn and the threshold determination process re-initiated. Various sections of the code were cited by Mrs. Galster regarding the use, impact, actions which all impact the safety for residents along the shoreline. It appears that the City intends for these questions to be answered as part of the project specific review for multiple potential actions all within a mile and a half of each other. Lead agencies should withdraw a DNS if the DNS was procured by misrepresentation or lack of material disclosure. The City of Renton should respond accordingly. Upon questioning by Ms. Nielsen, Mrs. Galster stated that she understands that they are only dealing with the Code Amendment to an existing City Code that would allow a Hearing Examiner Conditional Use Permit, there is nothing specific at this stage. SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 3 Ms. Conkling stated that the staff and Planning Commission now recommend a Hearing Examiner Conditional Use. The initial recommendation was for an Administrative Conditional Use. Ms. Nielsen continued with questioning Mrs. Galster; she stated that she believed the DNS was administered with no expert authorities on the impact. She found nothing in the public record to show how they determined this or what information they used to come up with their results. There was no mention of safety issues, noise issues none of these things would be impacted by a zoning change. She was trying to show that if the zoning amendment goes through there is a possibility of a large increase in helicopter traffic in this mile and a half section. The DNS is in error because with increased helicopter traffic there certainly is the possibility of problems occurring, this is a zoning change, not specific to one piece of property it may have an effect on over a mile and a half of waterfront in the City of Renton. Joan Roslin, 1023 N 301 Street, Renton, 98056 read a statement prepared in regards to the SEPA appeal. It appeared to her that the planning department and City are insisting there are no environmental impacts in their checklist dated January 10. The RCW clearly directs the local authorities to assess any environmental impacts on a project, further states that the responsible party should consult and obtain comments from any public agency, which may have special expertise with respect to environmental impacts. The Department of Fish and Game was not contacted or given a chance to show what impact a helicopter would have on the wildlife in this area. This decision before us today was made solely on information given to the City by Mr. Conner. She requests that the City use due diligence that is required by the State and follow the law in making a determination. Until full investigations are completed, the City does not have enough information to make an unbiased decision in this matter. Erika Conkling, Sr. Planner, Department of Community and Economic Development stated that she would give a brief presentation about the process that was used for the review of the helipad zoning code amendment and go through each of the items that were considered during this review. First, they received a request from the Planning Department to allow helipads along Lake Washington in the R-8 zone, which was prompted by Mr. Conner's request for a Temporary Use Permit. A SEPA review was initiated and as part of that review process for non -project actions they are required by law to publish the results of the DNS and allow for an open appeal period. They are also required by law to send the proposal to State Agencies. They further posted notice in four locations, Mt. View Avenue, Ripley Lane, near the intersection of Mt. View meets Lake Washington Blvd., and near the intersection where Lake Washington Blvd. meets Ripley Lane. Most lots on Lake Washington are extremely small and would not accommodate a helipad. The calculation of size varies due to the various sizes of the helicopters, rotors, etc. If there were likely to be helipads that were approved or eligible to go through the Conditional Use process, those helipads would be located within the vicinity of Mt. View Avenue or Ripley Lane. Therefore those locations were posted so people who frequented those locations would know that an environmental review was taking place. All interested parties for the Temporary Use Permit were mailed a notification of the proposed code change. Following the environmental review process they received a number of comments and issued the determination, which was appealed. The standard of review for a non -project action is very different from the standard of review for a project. The non -project action looks at a broader proposal rather than a specific site proposal. They do look at what types of activities are likely to result from the change in the regulation and whether or not they would occur at a different intensity than allowed by the current regulations. She further discussed the issues that they reviewed, for example, they looked at not necessarily current conditions but those conditions that could be characterized as urban levels of development along the lake such SEPA Helipad Zoning Appeai File No.: LUA-08-004 May 20, 2008 Page 4 as the presence of personal aircraft on the lake. There is a flight path for the Renton airport, which does go over Kennydale Hill as well as some other surrounding areas, there is the presence of wildlife and the public safety system that responds to aviation accidents. They further considered the baseline conditions allowed underneath the allowed regulations of the code. Under the current regulations of the code, people are allowed to develop to a certain extent and looking at the baseline conditions, one seaplane per residence is allowed with no special permitting and no requirements. Every residence on Lake Washington within the City of Renton is allowed to have one seaplane per lot without having to obtain a Conditional Use Permit. The City felt that with the allowing of a seaplane, a helicopter did not pose any additional significant adverse impact above what is currently allowed in the regulations. The change that is being proposed would not allow helicopters in addition to seaplanes. Property owners would be limited to one aircraft per site. Substituting a helicopter for a seaplane would not increase the level of impacts above what currently is allowed by the regulations. There may be impacts specifically related to helicopter use such as lot size, location, and proximity to neighbors, type of aircraft used, and other factors that could result in impacts for nearby property owners. Those impacts are project specific and are related specifically to a particular project and can be addressed through the Conditional Use process. FAA approval is required prior to any aircraft being permitted, if the aircraft were to change, the individual would no longer have FAA approval. The concern with hazardous materials primarily was in regard to the storage of fuels. This was highly unlikely, but if they wanted to store fuels, they would be required to go through the established permit process for that. There is no reason why helicopters would be more likely to ask for fuel storage than someone with a seaplane. Helicopters stored on land are less likely to leak fuel than seaplanes but would be addressed at a project specific level. The City feels that if the FAA approves a site for the safe landing of a helicopter then that is in fact, a site that is safe for a helicopter. The City's analysis shows that any activity within the shoreline area, as defined by the Shoreline Master Program, would be subject to shoreline regulations. This would include clearing of vegetation and would be reviewed at the project specific level. The City also reviewed wildlife and found that most wildlife has adapted to existing conditions along Lake Washington, including being located near a Municipal Airport, motorized boat traffic and other recreational uses and seaplanes. Wildlife living there currently have adapted to those conditions. There were two independent studies that showed that helicopters had no measurable impact on eagle populations. One report showed specifically that bald eagles had no response to helicopters. The City's review on noise showed two concerns, additional noise over Kennydale Hill and immediate neighbors may be affected by the noise. Kennydale Hill is in a very noisy area, aircraft landing at the Municipal Airport, traffic noise, and news helicopter traffic. Whether a helicopter is landing at the airport or a private lot on the lake, Kennydale neighbors will still have the impact from the noise. Currently there is no limit on the number of helicopters allowed to land at the airport. The perception of noise is affected by a multiple of factors, which are best handled at the project specific level. The Conditional Use process can limit or reduce the amount of noise by limiting hours of operation, limiting the type of aircraft, limiting number of trips and could also include things like berms or vegetative buffers and other measures that can help to reduce noise. Tab E in the Binder presented as Exhibit 3 was identified as the Renton City Council meeting minutes of March 24, 2008. It shows broad public support for the approval of the ordinance in general. Tab F is the preliminary issue paper that was written to present information to the planning commission about the proposed code change. All proposed code changes must be in compliance with the Comprehensive Plan. Tab G is a document that was handed out at the public hearing that explains the proposed code amendment. Upon questioning by Mrs. Galster, Erika Conklin g provided an affidavit of mailing dated January 17, 2008 which show that the City contacted the Department of Ecology, WSDOT Northwest Region, the US Army SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 5 Corps of Engineers, Department of Natural Resources, Washington Department of Fish and Wildlife, Duwamish Tribal Office, King County Wastewater Treatment Division, the Muckleshoot Indian Tribe Fisheries Department, Muckleshoot Cultural Resources Program, the Office of Archeology and Historic Preservation, the King County Development and Environmental Services, Metro Transit, Seattle Public Utilities, City of Newcastle, City of Kent, City of Tukwila, Puget Sound Energy and the State Department of Ecology, Northwest Regional Office. It is not required by law for any of these agencies to come on site and do any evaluations, however, she did hear from the Muckleshoot Tribe Fisheries Department and had a lengthy conversation with them. These groups are empowered with the authority of our Environmental Review process to implement conditions and mitigations or to require an EIS for the project. The instructions for non -project actions asks for consideration to be aware of the extent of the proposal, the types of activities that would result from the proposal and how they affect the item at a greater intensity than if the proposal were not implemented. She did not believe that allowing this helipad would increase the likelihood that more helipads would be constructed in the area. The FAA information was based on published documents for the approval of helipads and their guidelines. The documents contain approximately 200 pages with all the different factors that they consider, which were much broader than the items that Mrs. Galster described. There is a certain level of noise that is allowed under the current regulations, this proposal would not significantly increase the noise above the amount currently allowed, however, it did increase noise impacts on specific people within the vicinity of a helipad, those impacts could be addressed through the project specific permitting process or the proposal could be denied. Ms. Nielsen cited several codes with regards to noise level regulations. Charles F. Conner, 3001 Mt. View Avenue N., Renton 98056 stated that he is the applicant in the Temporary Use Permit appeal. He did submit information and testified at the City Council public hearing regarding this issue. He will be presenting testimony today as an interested citizen with respect to the proposed text amendment. One of the primary issues is safety. He has been a helicopter pilot since 1989, he reads all the helicopter publications, all the helicopter accident records. His initial flight training was in 1989, he does recurrent flight training on an annual basis and has been to a number of different flight schools relative to emergency procedures. Most of the accidents in helicopters are by doing things that other aircraft cannot do, helicopters can get in places where other aircraft cannot get. Very few accidents happen at airports or helipads where the pilots are familiar with those particular facilities. Mechanical failures account for 30% of all accidents, 70% are operator failure and 70% of those are lack of fuel. Departures are where most accidents are likely to occur, you are pulling torque out of the engine and as you do that it can cause things to break. On a map he showed the flight path from the Renton Airport, which is a circular pattern that runs north and south up to about Coleman Point. When they take off from the airport, they fly north then turn to the right and go out over Kennydale Hill. There is a lot of flight training done out of Renton Airport and there is pretty much a steady stream of traffic when the weather is reasonable. Helicopters are required to avoid fixed wing traffic. He explained other flight take off and landing patterns that happen around the Renton Airport. The safest approach and departure of a helicopter is going to be over water. A departure would be within 45 degrees of the shoreline and then ascend to an altitude that is below the fixed wing traffic and then go north. There is no altitude restriction for an airplane or helicopter when they are over water. SEPA Helipad Zoning Appeai File No.: LUA-08-004 May 20, 2008 Page 6 It is unlikely that there would be many helicopters operating from Lake Washington. Most likely those helicopters would be a light helicopter, less than 3,000 pounds. The larger helicopters tend to be 10-12,000 pounds gross weight. The smallest commercially manufactured helicopter would take a 65 -foot wide lot to land on, his helicopter would take a 68 -foot wide lot. Helicopters are allowed in Hunts Point without any restrictions, they are also specifically allowed in King County, the City of Sammamish allows helicopters on Lake Sammamish and Pike Lake. There are more seaplanes on the lakes than helicopters. Helicopters are not practical modes of short distance commuting. If you are in hurry, don't take the helicopter, there are too many checks that must be done prior to take off and at landing for this type of commuting to be beneficial. It is not practical, nor anticipated that helicopter use would increase on Lake Washington. As a lakefront resident, the lake is noisy, there are aircraft, from small planes to Boeing 737's taking off from the Renton Airport every day, boats are running up and down the lake at all times of the day and evening hours, and they don't hear much noise from I-405 because it is depressed. Aircraft are at their noisiest when they are directly overhead as they turn away from you it gets quieter. Tab J contains some written comments that Mr. Conner provided to the Planning Commission in response to the ERC determination. In trying to gather information on sound he asked a friend for a reference to a sound engineer, he was referred to Jim Catalano at Argus Pacific. He asked him what the degradation of sound is over distance? He found on a FAA website a table showing what a helicopter similar to his, the amount of noise that it actually makes. He had a brief telephone conversation with Mr. Catalano where he explained the source of the noise and asked for the degradation. He did some calculations and gave Mr. Conner some figures and followed up with an e-mail clarifying that the degradation numbers were correct. After taking some sound measurements of his own he found that his calculations seemed to agree with what Mr. Catalano had told him and that is the information he provided the Planning Commission. He has since come to understand that Jim Catalano is not an acoustical engineer, he did clarify that via letter dated May 3, 2008. There was no scientific study done by any exert. Upon questioning by Mrs. Galster, Mr. Conner stated the proposed zoning amendment change would affect the R-8 zones from the City boundary at the north to Coulon Park at the south end. Ms. Conklin g stated that the zoning amendment would affect those properties in the R-8 zone along Ripley Lane, which is north of the Seahawks facility. The property between the Seahawks facility, the old Barbee Mill site and the Quendall terminals is in a different category called Commercial Office Residential (COR). Then R- 8 runs south from that point all the way to the north edge of Coulon Park. Trea Johnson, 3233 Mt. View Avenue N., Renton, 98056 (officially, Daniel H. Johnson, III) stated that he has been flying for 23 plus years and is a commercial helicopter pilot and a commercial seaplane pilot and a local resident. He owns a seaplane, which is kept on a lift in front of his house. It seems that the issue breaks down to safety and noise. As a seaplane pilot on the lake he is very concerned with boat traffic, logs in the water and rough water. If he were in a helicopter, he would not have to worry about any of those things. He would make his approach over the water but would not have to navigate the water. As far as noise goes, it is a noisy neighborhood, there is lots of helicopter traffic and repeated noise from training traffic. The seaplane has to travel approximately 300 feet from shore before it is allowed to accelerate, but there is no restriction on the amount of noise it can make at the dock. He can tie the plane to the dock and do an engine check by revving the engine to full throttle. Repetition of noise seems to be the biggest problem, helicopters don't seem to add to the noise, SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 7 Upon questioning by Mrs. Galster, Mr. Johnson stated that it is his belief that boats and seaplanes must taxi 300 feet is due to speed, and safety in the area closest to shore and humans. John DuBois, PO Box 1187, Renton 98057 stated that he lives at 1608 Davis Avenue S in Renton. He has had 40 years flying experience. He is a retired airline pilot, he started his career by flying helicopters for the military for 4 years. He is qualified as a helicopter instructor. He has had four helicopter crashes, one that was mechanically related. There is a difference between a seaplane and a floatplane. The reason there has never been objections to seaplanes in Renton is due to the fact that they are actually floatplanes and are very much like a boat. They are started up at the dock and they are taxied out for a specific number of feet and then they take off under FAA regulations. The uses of helicopters and floatplanes are entirely different, as are the noise levels. Helicopters are most susceptible to accidents shortly after take -off, the reason is they are pulled up to full power, come to a hover and then somewhere between a hover and 200 feet of altitude, depending on the helicopter and the diameter of the blades is what is called the death curve. If you have an engine failure during that altitude there is going to be a serious crash. The next most serious is in landing. Over flights are not the concern, take off and landings are the issue. He does find seaplanes and floatplanes completely compatible with a residential area, he does not find helicopters compatible. He has lived on the lake for a number of years and the noise of boats, jet boats, seaplanes and jet skis are noise, but he has accepted that noise because he wants to live on the lake. John Hempelmann stated that he reads all of the Washington appellate decisions with respect to SEPA and other matters of interest to his law practice. He has never read a case where a DNS on a non -project text amendment was ever overturned. There are hundreds of amendments to development regulations every single year. Some change permitted uses, which are DNS'ed. It is only where there are major overhauls, major Comprehensive Plan Amendments, where you see a non -project EIS. In the case of this proposed text amendment it is not for a permitted use, it is for a use that would have to go through a subsequent process, a conditional use hearing process, where all of the issues would have to be addressed under conditional use criteria if not under other regulations as well. In this proposed text amendment, whether it be administrative conditional use or Hearing Examiner conditional use, in addition to having all the criteria to review the kinds of issues that the appellant was concerned about, those decision are also appealable. There is a considerable amount of process even if the text amendment was adopted. Mrs. Galster read a typed transcript of a telephone conversation with Mr. Catalano. The conversation took place April 28, 2008 at 1:00 pm. Mr. Catalano stated that he never conducted any on-site testing at the Conner residence. Mr. Catalano stated he was an industrial hygienist and not an acoustical engineer. He further pointed out that the linear sound degradation in Mr. Conner's letter is only accurate in an open field environment and in the presence of self -reflective structures, such as houses, provide additional point sources of noise. Mrs. Galster continued with her closing statement, that this is an issue that takes in much more than just the local property owners. It takes in what they want Renton to do, what part of the shoreline they want to protect. Most people come to the water because it is more quiet and serene, an equal number of people might disagree an increase in noise as being one of the things that people are working very hard to make Renton a wonderful place to live. With an airport within a mile of the lake, it does not make sense that this neighborhood should be submitted to additional noise. Please consider what the people of Renton really want the shoreline to be. They have worked very hard to not have large buildings and not over build the City or to degrade the shoreline. They do not want to see these sorts of structures or aircraft come into the City, they hold themselves higher and she hopes that the Examiner will see these things as well. SEPA Helipad Zoning Appeai File No.: LUA-08-004 May 20, 2008 Page 8 Ms. Nielsen stated that it was clear from the record of the hearing today and all records reviewed and the public response to this, it is a very passionate issue to all of the residents whether they are in favor or not in favor of this action. They are not unfounded issues, but they are not properly before the Hearing Examiner. The issues that the appellant complained of belong in a legislative arena. Before the Hearing Examiner today is an appeal of the SEPA determination by the City's responsible SEPA official via the Environmental Review Committee. The review committee came to a determination and that determination was one of non -significance. Mrs. Galster has been given the burden to overcome this, a decision by the environmental review committee or City staff shall carry substantial weight in any appeal proceeding. In addition to the RMC, the RCW state that that deference must be given to the agency determination. She further felt that the appellant has not met her burden to show that the City's determination was clearly erroneous. The appellant needs to show that there was a probable adverse impact on the proposed code amendment. We are talking about a non -project action proposed text amendment. The issues brought forward today are best addressed at the project specific level and that will occur. Simply allowing a text amendment to go through does not in any way insure that any of the residents are automatically going to get a helicopter. She further directed the Examiner to WAC 197.11.7.94. All this proposal seeks to do is to permit or give individuals a choice between a helicopter and a seaplane. This does not mean that people are going to go out and get a helicopter, they would still be subject to other conditions and have to go through another discretionary process by the Hearing Examiner. She asked that the Examiner uphold the decision of the Environmental Review Committee. Mrs. Galster stated that by allowing this, it is opening the door for expansion and may not happen in the near frame of time, but it will happen. It is unnecessary to have a rezone, this is a residential area and people move there for that reason. They didn't want to move into a heliport. The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and no further comments from staff. The hearing closed at 12:30 p.m. FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: The City received an appeal of a Determination of Non -Significance (DNS) that it issued for a proposed change to its R-8 (Residential, Single Family) Zone to allow helipads by Conditional Use Permit along the shoreline of Lake Washington. The appellant, Pegi Galster, filed the appeal in a timely manner. 2. The City is in the process of amending regulations that would allow helicopters to land on single family lots located along a portion of the Lake Washington Shoreline generally north of Coulon Park and south of the City's northern border. There is an estimate that approximately one to one and a half miles along Lake Washington's shoreline would be covered by the proposed changes. The property affected by the proposed changes are zoned R-8. It was noted the helicopters can already be stationed at property located along the lakeshore on the COR zoned property subject to other regulations. The proposed Text Amendment is considered a Non -Project Action. A non -project action is one in which no actual development or physical changes are proposed to occur, such as changing the text of a zoning regulation. Nothing would be built and no disturbance, clearing or physical environmental change would occur. A non -project action may result in change as result of the text amendment but the SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 9 text amendment itself does not create any physical alterations. 4. A heliport had been operating in this area for a while, both without a permit and then subject to a Temporary Use Permit, which is the subject matter of a separate appeal. The existing helicopter use has provided some examples of noise. The appellant and neighbors have discussed this experience. The appellant alleges that the City did not appropriately consult with other expert agencies before issuing its DNS. The appellant alleges that take -off and landings will increase noise levels in the residential neighborhood and that no study was done about decibel levels resulting from allowing helipads and especially, the noise affects on immediate neighbors. Neighbors and the appellant indicate that they can hear the noise of this helicopter and it is intrusive. The FAA regulates most aspects of flight including the lot sizes for certain helicopters. The City cannot regulate flight paths but can find uses inappropriate in certain areas and the appellant believed that the City should do that at this time. The applicant argues that just because there is already noise does not mean more noise or additional sources of noise is justified. The appellant also raised safety concerns regarding helicopter use in residential areas. The appellant objected to the ERC determination that if an accident were to occur it would either occur over the lake or on the owner's property and not likely to involve neighbors or neighboring property. The appellant cited some statistics about helicopter accidents and the scattered debris that can result from helicopter accidents. The appellant noted that eagles frequent the area and may nest nearby and introduced studies showing eagles reacted to noise from helicopters and less so than planes. The appellant also noted that the helipad should require a shoreline variance but that one was not granted. The issue, even if true, is not relevant to this review. 7. The City provided notice to State and other public agencies as required by law. These agencies included Department of Ecology, WSDOT, Department of Fish and Wildlife, King County Wastewater Treatment Division, Office of Archeology and Historic Preservation, Seattle Public Utilities, and other nearby cities. Native American tribes including the Duwamish and Muckleshoot were also notified. None of these agencies are required to respond but do receive notice. They also posted notices at Mt. View Avenue, Ripley Lane, near the intersection of Mt. View and Lake Washington Boulevard and the intersection of Ripley Lane and Lake Washington Boulevard and sent notice to any parties of record that were involved in the Temporary Use permit application. 8. The City, using FAA criteria, determined that most lots in the area covered by the text amendment would be too small to allow helicopter use. The City estimates that approximately seven (7) lots would accommodate helicopters. Maybe a few more could support helicopter use depending on circumstances. For a non -project action, the City reviews the broad impacts of the proposed changes and judges the changes and intensities against what is currently permitted by existing regulations. The determination is not based on the precise conditions in the area but on what current regulations might allow. In this case current regulations permit seaplanes in this same area of the shoreline. The City used as its baseline for determining the impacts of the helicopters the fact that seaplanes are already allowed at any of the parcels that would accommodate helicopters. The fact that there are not many seaplanes does not change the fact that they can be permitted outright without any additional review. The City determined that the noise of taxiing planes is equivalent or worse than helicopters. They also noted that the area is just north of the Renton Airport and jets land and take -off not far from this area of the shoreline and that any number of motorboats and other motorized watercraft can ply the waters near this area. The City did reason that helicopter noise impacts would depend on the size of the lot, location, proximity to neighbors and the size/character of the helicopter. These individual characteristics would be used for SEPA Helipad Zoning Appeat File No.: LUA-08-004 May 20, 2008 Page 10 determining appropriateness as specific applications were processed and subject to Environmental and Conditional Use review. Each specific project could be conditioned to frequency of flight, time of operation, land use factors including clearing of vegetation and similar matters. 10. The City also reviewed wildlife and determined that this developed shoreline habitat was already noisy and that wildlife in this area have adapted to a noisy environment. They reviewed independent studies showing no substantial impacts of helicopters on eagles and noted that the flight path was generally out toward the lake and then along the lake as additional altitude was gained or lost depending on take -off or landing. 11. The underlying applicant testified mechanical failure causes approximately 30% of accidents, pilot error the other 70% of which 70% of those are caused by lack of fuel. He testified that most accidents occur due to using helicopters in odd situations such as lifting where airplanes or other equipment cannot function. Mechanical failures generally happen on take -off where more torque is applied as opposed to once in flight or landing. When close to the ground, helicopters can be brought in for safe descents unlike planes. 12. The only apparent operator of a seaplane in the potentially affected area (seaplanes can operate as of right), noted that he can test his engines and plane by running at full throttle without restriction right on shore where he houses his plane. He does have to taxi to approximately 300 feet for take -off but that does not restrict the noise while on shore. 13. The City argues that even if the text changes are adopted helipads and by extension helicopter use in the affected areas would be a Conditional Use and subject to further land use and environmental review. As it now stands, the Conditional Use permit would be subject to Hearing Examiner approval after a public hearing. It appears that the original review would have been Administrative without a public hearing. CONCLUSIONS: The decision of the governmental agency acting as the responsible official is entitled to substantial weight. Therefore, the determination of the Environmental Review Committee (ERC), the city's responsible official, is entitled to be maintained unless the appellant clearly demonstrates that the determination was in error. The appellant has failed to demonstrate error. 2. The Determination of Non -Significance in this case is entitled to substantial weight and will not be reversed or modified unless it can be found that the decision is "clearly erroneous." (Hayden v. Port Townsend, 93 Wn 2nd 870, 880; 1980). The court in citing Norway Hill Preservation and Protection Association v. King County Council, 87 Wn 2d 267, 274; 1976, stated: "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Therefore, the determination of the ERC will not be modified or reversed if it can meet the above test. For reasons enumerated below, the decision of the ERC is affirmed. The clearly erroneous test has generally been applied when an action results in a DNS since the test is less demanding on the appellant. The reason is that SEPA requires a thorough examination of the environmental consequences of an action. The courts have, therefore, made it easier to reverse a DNS. A second test, the "arbitrary and capricious" test is generally applied when a determination of significance (DS) is issued. In this second test an appellant would have to show that the decision clearly flies in the face of reason since a DS is more protective of the environment since it results in the SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page I1 preparation of a full disclosure document, an Environmental Impact Statement. 4. An action is determined to have a significant adverse impact on the quality of the environment if more than a moderate impact on the quality of the environment is a reasonable probability. (Norway, at 278) Since the Court spoke in Norway, WAC 197-11-794 has been adopted, it defines "significant" as follows: Significant. (1) "Significant" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. (2) Significance involves context and intensity ...Intensity depends on the magnitude and duration of an impact.... The severity of the impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred. Also redefined since the Norway decision was the term "probable." Probable. "Probable" means likely or reasonably likely to occur, ... Probable is used to distinguish likely impacts from those that merely have a possibility of occurring, but are remote or speculative. (WAC 197-11-782). The appellant did not provide a basis that could be used to reverse the City's determination. The appellant did not provide any noise studies that would show the general use of helicopters would be more intense than that of permitted seaplanes. The general text amendment would allow helicopters by Conditional Use Permit. They would not be permitted outright whereas seaplanes are currently permitted. In other words before any helicopter can be based on one of the affected lots, the applicant would be required to apply for a Conditional Use Permit. At this time, if the amendment is passed, a public hearing on the Conditional Use Permit would be held before the Hearing Examiner but only after an environmental review on the individual permit and its impacts on environment including impacts on neighboring property. 7. At this juncture, the question for the reviewing body is whether the proposed change in law would have more than a moderate impact on the quality of the environment. As noted, currently, City Code permits seaplanes to be based at any of the affected properties. Seaplanes apparently are expected to take -off and land approximately 200 to 300 feet from the shoreline meaning that flight occurs away from the shoreline and homes located on the shoreline. The limitation appears to be based on regulations applying to boats and how fast they can travel near the shoreline. The limitation on speed does not affect how much power, equated to noise generation, can be used to taxi to and from the upland home sites to the landing or take -off location. Nor is there any regulation on testing seaplane engines at full - throttle while on the shore. The text amendment would obviously permit helicopters on residentially zoned property and based on current facts, allow, at least, the placement of one helicopter in the affected area, if a conditional use permit were approved. This does not appear to have more than a moderate impact on the quality of the environment given background or baseline standards. Clearly, this area of the lake is subject to individual seaplane noise, flight noise from any number of aircraft using the nearby Renton Airport and motor craft traffic from larger boats to personal watercraft. The text amendment permitting additional uses, in this case helicopter use, in the affected area, by conditional use permit does not appear to create substantial impacts on the environment. It appears that appropriate other agencies were consulted. Their concerns or absence of concerns helped SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 12 the ERC make its decision. It appears that the ERC did consider impacts on wildlife including eagles. They did review noise in relation to existing noise and specific noise sources and they did consider accidents and the FAA evaluation of parcel size and conditions. 9. The appealing party has a burden that was not met in the instant case. The decision of the ERC must be affirmed. DECISION: The decision of the ERC is affirmed. ORDERED THIS 20th day of May 2008. FRED J. K F MAN HEARING LAMINER TRANSMITTED THIS 20th day of May 2008 to the parties of record: Karen Black Patience Plano Kelly Grace & Peter Spouse 911 N 34th Street 1110 N 34`h Street 3011 Mountain View Ave N Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Monica Fix Steve & Marcie Maxwell Charles F. Conner 3007 Mountain View Ave N PO Box 2048 3001 Mountain View Ave N Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Mike Lowry Marc & Kaaren Pritchard Gary & Helen Young 3326 Park Avenue N 2807 Mountain View Ave N 3115 Mountain View Ave N Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Robert Ziegler Jim & Laura Morgan Roger &Marlene Winter 922 N 34th Street 3103 Mountain View Ave N 2731 Mountain View Ave N Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 Joan Rosling Martin & Pegi Galster John Hempelmann Cairncross & Hempelmann, P.S. 1023 N 34th Street 2907 Mountain View Ave N 524 Second Avenue, Ste. 500 Renton, WA 98056 Renton, WA 98056 Seattle, WA 98104 Robert Burr Dan Savoy Marsha Spengler 3013 Mountain View Ave N 3015 Mountain View Ave N 2902 Lk. Washington Blvd. N Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 R.C.B. Marshall Eddi Shajari Martha C. Klingen 2902 Mt. View Avenue N 3009 Mt. View Avenue N 3014 Lk Washington Blvd. N Renton, WA 98056 Renton, WA 98056 Renton, WA 98056 SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 13 William & Janice Stoneman 3101 Mt. View Avenue N Renton, WA 98056 Greg & Karen Krape 1101 N 27"' Place Renton, WA 989056 Tom Dahlby 3213 Mt. View Avenue N Renton, WA 98056 R. L. Goetz 3209 Mt. View Avenue N Renton, WA 98056 Mark Hancock PO Box 88811 Seattle, WA 98138 Nabil Hamaeh 2908 Mt. View Avenue N Renton, WA 98056 Kent Phillips 3119 Mt. View Avenue N Renton, WA 98056 Nancy Porter 3205 Mt. View Avenue N Renton, WA 98056 Colleen Lindberg 3111 Mt. View Avenue N Renton, WA 98056 James Reynolds 3004 Lk. Washington Blvd. N Renton, WA 98056 Richard Bisiak 2801 Mt. View Avenue N Renton, WA 98056 Daniel H. Johnson, III 3233 Mt. View Avenue N Renton, WA 98056 Bill & Debra Keppler 2805 Mt. View Avenue N Renton, WA 98056 Karen Wakefield 1101 N 17'h Place Renton, WA 98056 Randy Ritualo 701 N 30`11 Street Renton, WA 98056 John Burroughs 2815 Mt. View Avenue N Renton, WA 98056 TRANSMITTED THIS 20th day of May 2008 to the following: Mayor Denis Law Jay Covington, Chief Administrative Officer Julia Medzegian, Council Liaison Marty Wine, Assistant CAO Gregg Zimmerman, PBPW Administrator Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Darius Richards 718 N 30th Street Renton, WA 98056 Kim Bowden 2727Mt. View Avenue N Renton, WA 98056 Lori Larson 2727 Mt. View Avenue N Renton, WA 98056 John DuBois PO Box 1187 Renton, WA 98057 Vicki Richards 3605 Lk. Washington Blvd N Renton, Wa 98056 Lisa Lord 3307 Mt. View Avenue N Renton, WA 98056 Jerry, Mary & Kelly Brennan 3009 Mt. View Avenue N Renton, WA 98056 Dave Pargas, Fire Larry Meckling, Building Official Planning Commission Transpiration Division Utilities Division Neil Watts, Development Services Janet Conklin, Development Services Renton Reporter Pursuant to Title IV, Chapter 8, Section 100Gof the City's Code, request for reconsideration must be filed in writing on or before 5:00 p.m., June 3, 2008. Any aggrieved person feeling that the decision of the Examiner is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the discovery of new evidence which could not be reasonably available at the prior hearing may make a written request for a review by the Examiner within fourteen (14) days from the date of the Examiner's decision. This request shall set forth SEPA Helipad Zoning Appeal File No.: LUA-08-004 May 20, 2008 Page 14 the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the record, take further action as he deems proper. An appeal to the City Council is governed by Title IV, Chapter 8, Section 110, which requires that such appeal be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City Hall. An appeal must be filed in writing on or before 5:00 p.m., June 3, 2008. If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the executed Covenants will be required prior to approval by City Council or final processing of the file. You may contact this office for information on formatting covenants. The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur concerning pending land use decisions. This means that parties to a land use decision may not communicate in private with any decision -maker concerning the proposal. Decision -makers in the land use process include both the Hearing Examiner and members of the City Council. All communications concerning the proposal must be made in public. This public communication permits all interested parties to know the contents of the communication and would allow them to openly rebut the evidence. Any violation of this doctrine would result in the invalidation of the request by the Court. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council.