HomeMy WebLinkAboutCity of Renton, Shoreline Substantial Development Permit and Shoreline VarianceCITY OF RENTON
I JUL 2 6 2017'
2 RECEIVED
3 CITY CLERKS OFFICE
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8 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
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10 City of Renton FINAL DECISION
11 Shoreline Substantial Development )
Permit and Shoreline Variance )
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LUA12-037, ECF, SM, SMV
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Summary
16 The Applicant is requesting a shoreline substantial development permit ("SSDP") and shoreline
17 variance for the construction of a six foot wide pedestrian trail along May Creek. The variance is
necessary because shoreline regulations only authorize four foot wide trails within the buffers of
18 Class III wetlands. The permit and variance are approved subject to extensive conditions. One issue
that has not been addressed by the Applicant or staff but is repeatedly addressed in shoreline policies
19 and regulations is parking. The conditions of approval require the Applicant to establish to staff that
20 any need for parking created by the project is fully mitigated.
21 Testimony
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Vanessa Dolbee, Renton Senior Planner, testified that exhibit 1 is a neighborhood detail
23 map. The map displays the location of the May Creek Trail. The proposal site is located at
24 4008 Meadow Avenue N and borders May Creek to the south for approximately 900 linear
feet. The site is near exit 7 of I-405, and I-405 borders the eastern portion of the proposed
25 trail. Lake Washington borders the western portion of the site. The north is bordered by the
proposed Hawks Landing Hotel development. May Creek is located in the Urban Shoreline
26 Conservancy Designation. Exhibit 2 is the site plan for the project. The trailhead will start by
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Lake Washington and will include an overlook point (along with an access point to the creek).
There are 2 access points proposed to the north -bordering property. Along the trail, 2benches,
2 interpretative signs, split -rail fencing, and a litter receptacle are proposed. The trail
alignment is colored brown in exhibit 2, with the section in the wetland buffer area colored red.
The shoreline variance permit is required to construct the trail at 6 feet in width instead of the
required 4 -foot width in a wetland buffer. The variance is only applicable to the "red" portion
of the trail in exhibit 2. There is a full regional trail planned, and, once the trail is completely
finished, it will end up being a 6 -mile trail that will run from Lake Washington to Cougar
Mountain Wildlife Park. The segment within the proposal site is a vital piece to the full trail.
Exhibit 9 is a mitigation and restoration plan which provides enhancement plantings along the
shoreline of May Creek and restoration of wetland A. 1.33 acres of stream buffer and wetland
enhancement are proposed to compensate for the disturbed trail area. There are two mitigation
scenarios proposed: base area 1 and additive alternative area 1. Exhibit 9 identifies the base
area 1 in yellow and the additive alternative area 1 is orange. As long as funding is sufficient,
both areas will be completed. If there is not enough funding, only base area 1 will be
completed. If the base area is completed, the mitigation ratio will be 4.8:1. If the additive area
is also completed, the mitigation ratio will be 6.5:1 (which exceeds code requirements). The
project underwent environmental review, and a determination of non -significance mitigated
was issued with 5 mitigation measures. There was a 14 -day appeal period which commenced
on June 22, 2012 and ended on July 6, 2012. Section 43090esub7d is a design standards table
in the Shoreline Code and includes a statement that docks may be 6 -ft wide if the property
owner qualifies for state disabled accommodations. This proposal is consistent with that code
section. Staff recommends approval of the shoreline variance, subject to one condition of
approval. The condition of approval is for the proposal to comply with all mitigation measures
identified in the environmental review.
Under questioning by the hearing examiner, Ms. Dolbee noted that there is no real
standard for trails under ADA (only guidelines). The trail width outside of the proposal site
(the brown section of exhibit 2) is 6 -ft.
Leslie Betlach, Parks Planning and Natural Resources Director, stated that the existing
trail on the other side of Lake Washington Blvd is 8 feet. The proposed trail section is
narrower because it is in a more sensitive area. As the trail moves closer to Cougar Mountain
Wildlife Park, it will become even narrower (4-5 feet). The proposed location is fairly flat and
provides visual access to the shoreline without removing any trees. The environmental
analysis included the base alternative and the additive alternate. The base alternative by itself
exceeds the code requirements.
Vanessa Dolbee commented that the future trail is intended to go under I-405 in a
specific section, thus there is no way to align the trail in a different manner.
Exhibits
The July 10, 2012 staff report and Exhibits 1-24 identified at page 2 of the staff report itself were
admitted into the record during the hearing.
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FINDINGS OF FACT
Procedural:
1. Applicant. City of Renton.
2. Hearing. The Examiner held a hearing on the subject application on July 10, 2012 at 10:00
am in the City of Renton Council Chambers.
3. Project Description. The Applicant is requesting a SSDP for the construction of a 0.27 mile
long trail along May Creek. In addition, the Applicant is requesting a shoreline variance from RMC
4-3-090(D)(2)(d)(ix)W(1) to construct the trail at 6 feet in width instead of the required 4 -foot width
in a wetland buffer. The site is located at 4008 Meadow Avenue N and is zoned Residential 8 (R-8)
units per acre. The site is approximately 3.09 acres in size and abuts approximately 900 linear feet of
May Creek. The trailhead would be located on Lake Washington Boulevard and would meander
throughout the project site, one view area would be provided for an overlook to May Creek and
access to a cobble beach. Two access points are proposed to the north to provide a connection to the
future development on the site to the north. The project would avoid removal of all trees and
preserve native plants.
The project site includes a Category 111 wetland that is 786 square feet in size. The proposed trail
runs through the wetland buffer and is 25 feet at its closest point to the wetland but is typically in the
outer 50 percent of the buffer.
The Applicant has also proposed a mitigation/restoration plan which would provide enhancement
plantings along the shoreline of May Creek and in Wetland A as outlined in the critical areas report
and the biological assessment. The mitigation plan includes a maximum of 1.33 acres of stream
buffer, wetland buffer, and wetland enhancement and compensation for 0.20 acres of disturbance for
trail development. Due to the potential for bid costs to exceed estimates, the Applicant has proposed
two mitigation scenarios; identified as the `Base Area" and "Additive Alternate No. 1" herein. The
Base Area would provide mitigation for 0.98 acres resulting in a mitigation ratio of 4.8:1. The
Additive Alternative No. 1 mitigation would provide mitigation for an additional 0.35 acres resulting
in a mitigation ratio of 6.5:1.
In addition to the site being located along May Creek, the proposed trail would also be located within
the flood plain of May Creek. Based on the provided application materials, the trail would be built on
grade resulting in approximately 250 cubic yards of soil removed and 230 cubic yards of soil
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imported to the site. However, the Applicant has indicated that the provided cut and fill would not
impact the flood hazard area as there would be no net fill after final construction.
4. Characteristics of Surrounding Area. The site is bordered by the old Pan Abode Homes
development to the north, zoned Commercial Office Residential (COR); to the east of I-405 and
across I-405, CA zoned property that is currently vacant; to the south is R-8 zoned property which is
currently vacant; and, to the west, across Lake Washington Boulevard, is the Barbee Mill
Development zoned R-10 and vacant COR property.
5. Adverse Impacts. There are no significant adverse impacts associated with the project. The
environmental impacts of the proposal have been thoroughly assessed and mitigation measures
recommended in a FEMA biological assessment (Ex. 17) and critical areas report (Ex. 16). Impacts
are more specifically addressed as follows:
A. Fish. As concluded at p. 30 of the critical areas report and p. 27of the biological
assessment, project impacts to baseline salmonid habitat would be minimal and beneficial
over time. The biological assessment further concludes at p. 30-31 that the project will
have no effect on Puget Sound Steelhead Trout, Southern Resident Killer Whale or its
habitat, or essential fish habitat. The restoration proposed by the Applicant should serve
to significantly improve fish habitat along the river and its biological functions. In the
past the project site has been cleared, filled and graded. Non-native species of plants
currently predominate the understory. The restoration proposed by the Applicant, which
extensively exceeds code requirements, will significantly bring the area back to natural
conditions that are more amenable to fish and wildlife habitat. Further, no significant
trees will be removed by the proposal (the restoration plan in fact includes the planting of
trees) and native vegetation will be minimally affected. As a result of the restoration
work, ecological indicators that are anticipated to improve are water temperature, large
woody debris, stream bank condition and riparian reserve. The critical areas report at p.
29 concludes that the project would result in no net loss of ecological function and that no
direct impacts to May Creek are anticipated. The findings in the critical areas report are
adopted by this decision as they are based upon credible and thorough scientific analysis
and there is no evidence to the contrary.
B. Wildlife. As concluded at p. 32 of the critical areas report, the project will result in a net
increase in habitat function by improving and increasing native species diversity and
abundance. The species of vegetation selected in the mitigation plan are those known to
be beneficial to wildlife.
C. Wetland. As concluded at p. 32 of the critical areas report, the project would result in a
measureable functional lift to the on-site wetland. The restoration proposed for the
wetland area would improve vegetation structure and richness of species while removing
invasive species.
SSDP and Shoreline Variance - 4
I D. Stortnwater/Water Quality. No stormwater or water quality impacts are anticipated. The
trail will not be impervious, as it will be composed of bark atop a gravel base. As
2 concluded at page 1 of the technical information report, no stormwater improvements are
3 necessary because the trail will match existing grades and its porous composition will not
interfere with the sheet flow that currently serves to drain the project site. The report also
4 concludes that the vegetation proposed for the site will also not interfere with current
drainage. As noted at p. 30 of the critical areas report, the only water quality impacts that
5 could occur would be during construction and appendix A to the biological assessment
6 contains a Temporary Erosion and Sediment Control Plan and page 23 of the report
contains water quality and erosion control measures. All mitigation recommended in
7 critical areas report, technical information report and biological assessment are required
to be implemented by the mitigated determination of nonsignificance ("MDNS") for the
8 project, Ex. 20 and 21.
9 E. Floodplain. As concluded at p. 27 of the biological assessment, the proposal will not
10 result in any in increase to the baseline flood elevation so no floodplain impacts are
anticipated.
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12 F. View/Aesthetic Impacts. The proposal doesn't involve any structures above grade except
for benches, split rail fencing, interpretive signs and trash cans. No adverse view or
13 aesthetic impacts are anticipated.
14 G. Parking. There is nothing in the record that addresses parking. Given that the trail
segment is expected to generate high volume use, the issue needs to be addressed. The
15 conditions of approval will require that the Applicant demonstrate to the satisfaction of
16 staff that the parking needs generated by the proposal are adequately mitigated.
17 H. Archaeological. The project site is in a high probability zone for archaeological artifacts
given its proximity to Lake Washington and ethnographic associations. However, shovel
18 probes and a pedestrian survey have been conducted in the area and no archaeological
19 materials have been found. The recommendations of the archaeological assessment,
required as SEPA conditions, require the halting of construction and consultation with
20 specified qualified individuals should any archaeological deposits of unevaluated
significance be encountered during construction. These measures adequately protect
21 archaeological resources.
22 I. Historical/Cultural Resources. The project site is undeveloped and there is no evidence to
23 suggest that the proposal would have any adverse impact on historical or cultural
resources.
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25 J. Noise. The closest residential structures are located more than 100 feet from the project
and it doesn't appear that noise generated by trail use would adversely affect the
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inhabitants. The City's noise regulations will ensure that noise levels do not exceed
adverse levels.
6. Need for Variance. The variance to the four foot trail width requirement is necessary for the
reasonable use of the subject property.
The assessment of necessity hinges upon two factors: (1) whether the trail needs to go through the
wetland buffer; and (2) whether the trail width needs to be six feet as opposed to four feet.
The first consideration is an issue since a six foot width variance isn't necessary if the trail doesn't
have to go through the wetland buffer. Six foot trail width is already permitted for trails located
within the shoreline buffer of May Creek itself. The need for the location of the trail is not readily
apparent from the record. The staff report notes that due to the lot's narrow shape there is no feasible
way to continue the trail east without placing a portion of the trail within the wetland buffer. The site
plans don't appear to support this position, as there is plenty of space to keep the eastern -most trail
access point in place and still reconfigure the trail so that it completely avoids the wetland buffer.
Nonetheless, due deference will be given to staff on this position given that there is no other evidence
to the contrary and the preservation of trees and other factors could well justify the buffer
encroachment. Further the criteria requiring necessity are based upon reasonable use of the property.
If the trail were not permitted to go through the wetland buffer, most of the property could not be
used for the trail and the currently proposed secondary trail to a shoreline outlook and access point
would be lost. It is unclear if there is any other location on the property for this shoreline
access/outlook point. Given that already only a small portion of the property will be used for the trail
and that the rest is restored and preserved and given the shoreline policies that strongly encourage
public access to the shorelines, the trail must be located within the wetland buffer to enable the
reasonable use of the property. It is also worth noting that an alternative property for the trail is also
not feasible, as it was concluded in p. 29 of the critical areas report that no alternative site is available
that would meet the objectives of the city's "Trails and Bicycle Master Plan".
As discussed in the staff report, six feet is necessary to accommodate the high volumes anticipated for
the trail as well as to provide sufficient width for wheelchairs to pass it each other. As testified by the
parks director, parts of the trail will only be 4-5 feet as the exterior trail system approaches Cougar
Mountain, but it is reasonable to conclude that the shoreline portions of the trail will be much more
heavily travelled both because of the views and the relatively flat topography. Parks staff clearly have
expertise in what type of recreational facilities are necessary for their community and their
conclusions that six feet is necessitated along the shoreline portions of the record is well supported by
the record and common sense.
Conclusions of Law
1. Authori . RMC 4-8-080(G) classifies shoreline substantial development permits as Type II
applications and shoreline variance as Type III applications. RMC 4-8-080(C)(2) requires
consolidated permits to each be processed under "the highest -number procedure". The shoreline
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variance has the highest numbered review procedure, so both shoreline permits must be processed as
Type III applications. As Type III applications, RMC 4-8-080(G) grants the Examiner with the
authority to hold a hearing and issue a final decision on them, subject to closed record appeal to the
City Council.
2. Zoning esi Designation. The subject property is zoned Residential 8 (R-8). Trails are not
identified in the table of uses governed by RMC 4-2-060, but it appears the use would have to be
considered authorized as a park or impliedly as a transportation facility. Further, as determined in
Conclusion of Law No. 30, the use is specifically authorized by the City's Shoreline Master Program
("SMP")/
3. Review Criteria. The criteria for shoreline substantial development permits are set by RMC
4-9-190(B)(7), which requires compliance with all SMP use regulations and substantial compliance
with SMP policies. RMC 4-9-190(I)(4)(b) sets the criteria for shoreline variances. The applicable
regulations and policies are quoted below in italics and applied through corresponding conclusions of
law:
SMP Policies
SMP Objective SH -F: Increase public accessibility to shorelines and preserve and improve the
natural amenities.
4. The project increases public accessibility by providing a shoreline link to the trail network of
the area. Natural amenities are improved by the proposed restoration plan.
SMP Policy SH -6: Existing natural resources should be conserved through regulatory and
nonregulatory means that may include regulation of development within the shoreline jurisdiction,
ecologically sound design, and restoration programs, including:
1. Water quality and water flow should be maintained at a level to permit recreational use, to provide
a suitable habitat for desirable forms of aquatic life, and to satisfy other required human needs.
2. Aquatic habitats and spawning grounds should be protected, improved and, when feasible,
increased to the fullest extent possible to ensure the likelihood of salmon recovery for listed salmon
stocks and to increase the populations of non -listed salmon stocks.
3. Wildlife habitats should be protected, improved and, iffeasible, increased.
4. Unique natural areas should be designated and maintained as open space for passive forms of
recreation and provide opportunities for education and interpretation. Access and use should be
restricted, if necessary, for the conservation of these areas.
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5. The criterion is satisfied. As determined in Finding of Fact No. 5, water quality and water
flow are not affected by the proposal. As further determined in Finding of Fact No. 5, the proposal
would be beneficial to aquatic habitat over time and is fully mitigated to prevent adverse habitat
impacts during construction. Wildlife habitat is increased by the proposed removal of invasive
vegetation and replacement with native vegetation and the addition of trees. The trail provides an
opportunity to observe and learn from the shoreline and ample preserved and protected vegetation of
the site.
SMP Policy SH -11. Critical areas in the shoreline should be managed to achieve the planning
objectives of the protection of existing ecological functions and ecosystem wide processes and
restoration of degraded ecological functions and ecosystem -wide processes. The regulatory
provisions for critical areas should protect existing ecological functions and ecosystem -wide
processes. In protecting and restoring critical areas within the shoreline, the City should integrate
the full spectrum of planning and regulatory measures, including the comprehensive plan, interlocal
watershed plans, local development regulations, and state, tribal, and federal programs.
6. As is evident from the critical areas report, much of the project design and mitigation
measures result from City code and policy requirements. The result has been, as determined in
Finding of Fact No. 5, that all critical areas at the site are fully protected.
SMP Policy SH -12: The City shall implement the Restoration Plan provided as an adjunct to The
Shoreline Master Program in coordination with other watershed management agencies and groups,
and shall manage public lands and may acquire key properties and provide for off-site mitigation on
city or other public or private sites.
SMP Final Restoration Plan Table 4-1. Shoreline Restoration Strategies by Reach, May Creek
Lake Washington Boulevard to I-405: This is a relatively intact reach with mature native riparian
vegetation. Preservation of a buffer can be expected to I-405 with future residential development.
Planting of conifers within the buffer area in accordance with May Creek Basin Plan
Recommendation 13 to supplement the existing deciduous trees will establish a mix of vegetation and
over the longer term establish offorest canopy that will provide ongoing recruitment of large woody
debris (LWD). As an interim measure, Recommendation 12 calls for installation of LWD to make up
for an existing deficit and promote natural channel processes.
7. As discussed in the critical areas report, a large number of conifer trees will be planted as
recommended by the Final Restoration Plan and the addition of trees may ultimately result in the
addition of LWD to the creek. P. 7 of the critical areas report acknowledges a deficit in LWD, but
notes that the Washington State Department of Fish and Wildlife has issued a report concluding that
the installation of LWD would not be beneficial because May Creek in this area is not wide enough to
accommodate additional LWD.
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SMP Policy SH -20. Public access should be provided consistent with the existing character of the
shoreline and consideration of opportunities and constraints for physical and visual access, as well
as consideration of ecological functions, as provided in Policy SH -31 Table of Public Access
Objectives by Reach, and in conjunction with the following policies.
8. The policy is met. The proposal involves the preservation and restoration of most for the site for
shoreline habitat. The relatively modest amount of the project site that will be developed will provide
for physical and visual shoreline access to the general public. All other policies and reach objectives
are satisfied as outlined below.
SMP Policy SH -21: Public access to and along the water's edge should be available throughout
publicly owned shoreline areas although direct physical access to the water's edge may be restricted
to protect shoreline ecological values.....
9. The trail provides access both parallel to the water's edge as well as directly to the water's
edge on the eastern portion of the site.
SMP Policy SH -24. Public access to and along the water's edge should be located, designed, and
maintained in a manner that protects the natural environment and shoreline ecological functions and
is consistent with public safety as well as compatible with water -dependent uses. Preservation or
improvement of the natural processes shall be a basic consideration in the design of shoreline areas
to which public access is provided, including trail systems.
10. As determined in Finding of Fact No. 5, the project will not adversely affect the natural
environment, natural processes or ecological functions and will in fact result in a substantial benefit
to those shoreline resources.
SMP Policy SH -26: Both passive and active public areas should be designed and provided.
11. The trails, benches and shoreline access point of the proposal provide both passive and active
recreational opportunities to the public.
SMP Policy SH -27: In order to encourage public use of the shoreline corridor, public parking
should be provided at frequent locations on public lands and rights of way and may be required on
private development.
12. There is nothing in the record that addresses parking. Given that the trail segment is expected
to generate high volume use, the issue needs to be addressed. The conditions of approval will require
that the Applicant demonstrate to the satisfaction of staff that the parking needs generated by the
proposal are sufficiently addressed.
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I SMP Policy SH -28: In planning for public access, emphasis should be placed on foot and bicycle
paths consistent with the Renton Bicycle and Trails Master Plan, rather than roads, except in areas
2 where public boat launching would be desirable.
3 13. It is unclear from the proposal whether the trail is intended to accommodate bicycle traffic, as
4 there is no mention of bicycles anywhere in the staff report or the studies done for the project. The
Trails and Bicycle Master Plan designates the trail as "multi -use", but it's not possible to determine
5 from the Plan whether
from necessarily includes bicycles. Since the trail surface will be
6 composed of bark, bicycles may be excluded from the trail. The shoreline policy does not require
public access for both bicycles and pedestrians in all instances. Given that the City has a master plan
7 for trails and the proposal is consistent with that master plan, any preference for pedestrian as
g opposed to bicycle usage in the master plan should take precedence over the policy above.
9 SMP Policy SH -31 Table of Public Access Objectives by Reach, May Creek From Lake
10 Washington Boulevard to 1-405: There is currently no public access in this reach. At the time of
redevelopment, public access should be provided from a trail parallel to the water along the entire
11 property with controlled public access to the water, balanced with goals of preservation and
enhancement of ecological functions. Public agency actions to improve public access should include
12 provisions to cross 1-405 to connect with trail systems to the east.
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14. The reach policy is well met, as the proposal includes a trail both parallel to the shoreline as
14 well as directly to the water's edge. As determined in Finding of Fact No. 5, the proposal also
15 involves extensive restoration and mitigation that will enhance ecological functions.
16 SMP Objective SH -G: Water -oriented recreational activities available to the public should be
encouraged to the extent that the use facilitates the public's ability to reach, touch, and enjoy the
17 water's edge, to travel on the waters of the state, and to view the water and the shoreline.
18 15. Since the trail is designed to provide public access to the shoreline, it qualifies as a "water
19 enjoyment" and hence "water oriented" use under the Chapter 4-11 RMC definitions. As a water
oriented use, the proposal succeeds in facilitating public access to the water's edge and to view the
20 water from the shoreline.
21 SMP Policy SH -32: Water -oriented recreational activities should be encouraged.
22 1. Accessibility to the water's edge should be improved in existing parks and new development,
23 substantial alteration of existing non -single family development, and intensification of existing uses
where consistent with maintaining ecological functions...
24 4. Both passive and active recreational areas should be provided.
25 16. The proposal provides for access to the water's edge. It apparently does not provide for active
26 recreation, since passive recreation in Chapter 4-11 RMC is defined to include walking. Active
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recreational facilities are not feasible for the project area given the critical areas on site and the
amount of restoration involved.
SMP Policy SH -35: Public land, including city parks and public aquatic lands, should be managed
to provide a balance of public recreation, public access to the water, and protection and
enhancement of ecological functions.
17. The proposal adds a segment to a high priority trail while also providing for significant
restoration and mitigation of environmental impacts. The policy is well met.
SMP Policy SH -37: Provision of recreation facilities and use shall be consistent with growth
projections and level -of -service standards established by the comprehensive plan.
18. Completion of the trail segment is designated a priority project in the Trails and Bicycle
Master Plan, so it presumably is consistent with growth projections and level of service standards,
since all planning documents of the City are required to be consistent with the City's comprehensive
plan, which would include its growth projections and level of service standards.
SMP Policy SH -43: Trails should be developed to enhance public enjoyment of and access to the
shoreline:
1. Trails within the shoreline should be developed as an element of non -motorized circulation, of the
City's Parks, Recreation and Open Space and Trails and Bicycle Master Plan and of the Shoreline
Public Access program. Trails provide the potential for low impact public physical and visual access
to the shoreline.
2. Trails should be developed as an element of a system that links together shoreline public access
into an interconnected network including active and passive parks, schools, public and private open
space, native vegetation easements with public access, utility rights of way, waterways, and other
opportunities.
3. Public access to and along the water's edge should be linked with upland community facilities and
the comprehensive trails system that provides non -motorized access throughout the City.
4. A system of trails on separate rights of way and public streets should be designed and implemented
to provide linkages along shorelines including the Lake Washington Loop, the Cedar River, the
Black/River Springbrook Creek, and the Green River.
19. As previously noted the proposal completes a segment of a six mile trail connecting Cougar
Mountain to Lake Washington, designated as a high priority in the Trails and Bicycle Master Plan.
SMP Objective SH -J: Provide for the timely restoration enhancement of shorelines with impaired
ecological functions. Such restoration should occur through a combination of public and private
programs and actions. This Master Program includes a restoration element that identifies restoration
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opportunities and facilitates appropriate publicly and privately initiated restoration projects. The
goal of this effort is to improve shoreline ecological functions.
20. As determined in Finding of Fact No. 5, the proposal involves significant restoration that will
improve shoreline ecological functions. As previously determined in Conclusion of Law No. 7, the
proposal meets the restoration objectives of the SMP Final Restoration Plan.
SMP Use Regulations
RMC 4-3-090(D)(3):
a. No Net Loss of Ecological Functions:
i. No Net Loss Required.• Shoreline use and development shall be carried out in a manner that
prevents or mitigates adverse impacts to ensure no net loss of ecological functions and processes in
all development and use. Permitted uses are designed and conducted to minimize, in so far as
practical, any resultant damage to the ecology and environment (RCW 90.58.020). Shoreline
ecological functions that shall be protected include, but are not limited to, fish and wildlife habitat,
food chain support, and water temperature maintenance. Shoreline processes that shall be protected
include, but are not limited to, water flow; erosion and accretion; infiltration; groundwater recharge
and discharge; sediment delivery, transport, and storage; large woody debris recruitment; organic
matter input; nutrient and pathogen removal; and stream channel formation/maintenance.
ii. Impact Evaluation Required.• In assessing the potential for net loss of ecological functions or
processes, project -specific and cumulative impacts shall be considered and mitigated on- or off-site.
iii. Evaluation of Mitigation Sequencing Required: An application for any permit or approval shall
demonstrate all reasonable efforts have been taken to provide sufficient mitigation such that the
activity does not result in net loss of ecological functions. Mitigation shall occur in the following
prioritized order:
(a) Avoiding the adverse impact altogether by not taking a certain action or parts of an action, or
moving the action.
(b) Minimizing adverse impacts by limiting the degree or magnitude of the action and its
implementation by using appropriate technology and engineering, or by taking affirmative steps to
avoid or reduce adverse impacts.
(c) Rectifying the adverse impact by repairing, rehabilitating, or restoring the affected environment.
(d) Reducing or eliminating the adverse impact over time by preservation and maintenance
operations during the life of the action.
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(e) Compensating for the adverse impact by replacing, enhancing, or providing similar substitute
resources or environments and monitoring the adverse impact and taking appropriate corrective
measures.
b. Burden on Applicant: Applicants for permits have the burden of proving that the proposed
development is consistent with the criteria set forth in the Shoreline Master Program and the
Shoreline Management Act, including demonstrating all reasonable efforts have been taken to
provide sufficient mitigation such that the activity does not result in net loss of ecological functions.
21. As determined in Finding of Fact No. 5, the proposal will result in no net loss of ecological
functions and processes. This was expressly determined in the critical areas report and the substantial
amount of mitigation and restoration provides solid support for this determination. Mitigating
sequencing has been properly met by minimizing encroachments into the shoreline and wetland
buffers by maintaining a relatively narrow trail width, using porous materials for its construction, and
avoiding the removal of any trees. Adverse impacts are also rectified by the substantial restoration
associated with the proposal.
RMC 4-3-090(1))(2)(d)(ix)f Recreational or Educational Activities: Outdoor recreational or
educational activities which do not significantly affect the function of the wetland or regulated buffer
(including wildlife management or viewing structures, outdoor scientific or interpretive facilities,
trails, hunting blinds, etc) may be permitted within Category II, III, or IV wetlands or their buffers
and within a Category I wetland buffer if the following criteria are met:
(1) Trails shall not exceed four feet (4) in width and shall be surfaced with gravel or pervious
material, including boardwalks;
(2) The trail or facility is located in the outer fifty percent (5001o) of the buffer area unless a location
closer to the wetland edge or within the wetland is required for interpretive purposes;
(3) The trail or facility is constructed and maintained in a manner that minimizes disturbance of the
wetland or buffer. Trails or facilities within wetlands shall be placed on an elevated structure as an
alternative to fill;
(4) Wetland mitigation in accordance with subsection D2dx of this Section.
22. The trail width exceeds four feet and that deviation is approved below through a shoreline
variance. Some parts of the trail are within the inner 50% of the buffer area and the record does not
identify why that is the case. The proposal will be conditioned upon the Applicant demonstrating the
trail must be located within the inner 50% for interpretive purposes as required by the criterion
above. From the site plans for the proposal, it appears that a re-routing of the trail outside the inner
50% of the buffer may require the removal of one or more significant trees. Policies and regulations
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pertaining to the protection of trees only require minimization of impacts whereas the trail is
absolutely prohibited from being located within the inner 50% except for interpretative purposes. For
this reason, the need to protect significant trees shall not excuse the location of the trail within the
inner 50% of the wetland buffer. As previously discussed in Conclusion of Law No. 21 the proposal
minimizes impacts to the ecological functions of the site. Compliance with subsection D2dx is
addressed below.
RMC 4-3-090(D)(2)(d)(x): Wetland Mitigation Requirements: Activities that adversely affect
wetlands and/or wetland buffers shall include mitigation sufficient to achieve no net loss of wetland
function and values in accordance with subsection D7 of this Section and this subsection.
Compensatory mitigation shall be provided for all wetland alteration and shall re-establish, create,
rehabilitate, enhance, and/or preserve equivalent wetland functions and values.
(a) Preferred Mitigation Sequence: Mitigation sequencing shall take place in the prioritized order
provided for in subsection D2aiii of this Section.
(b) Consistency with Policies and Publications Required: Wetland mitigation requirements shall be
consistent with the applicable standards for studies and assessment in Chapter 6 of Washington
State Department of Ecology U.S. Army Corps of Engineers Seattle District, and U.S. Environmental
Protection Agency Region 10, March 2006; Wetland Mitigation in Washington State — Part 1:
Agency Policies and Guidance (Version 1); and Washington State Department of Ecology
Publication No. 06-06-011a, Olympia, WA, except in cases when this Code provides differing
standards.
(c) Wetland alterations: Compensation for wetland alterations shall occur in the following order of
preference:
(1) Re-establishing wetlands on upland sites that were formerly wetlands.
(2) Rehabilitating wetlands for the purposes of repairing or restoring natural and/or historic
functions.
(3) Creating wetlands on disturbed upland sites such as those consisting primarily of
nonnative, invasive plant species.
(4) Enhancing significantly degraded wetlands...
(e) Mitigation Ratio for Wetland Buffer Impacts: Compensation for wetland buffer impacts shall
occur at a minimum 1:1 ratio. Compensatory mitigation for buffer impacts shall include
enhancement of degraded buffers by planting native species, removing structures and impervious
surfaces within buffers, and other measures...
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(i) Location: Compensatory mitigation shall be provided on-site or off-site in the location that will
provide the greatest ecological benefit and have the greatest likelihood of success; provided, that
mitigation occurs as close as possible to the impact area and within the same watershed sub -basin as
the permitted alteration.
0) Protection: All mitigation areas whether on- or off-site shall be permanently protected and
managed to prevent degradation and ensure protection of critical area functions and values into
perpetuity. Permanent protection shall be achieved through deed restriction or other protective
covenant in accordance with RMC 4-3-050E4.
(k) Timing: Mitigation activities shall be timed to occur in the appropriate season based on weather
and moisture conditions and shall occur as soon as possible after the permitted alteration.
(Z) Wetland Mitigation Plans Required: Wetland mitigation plans shall be prepared in accordance
with RMC 4-3-050M16. All compensatory mitigation projects shall be monitored for a period
necessary to establish that performance standards have been met, but generally not for a period less
than five (5) years. Reports shall be submitted quarterly for the first year and annually for the next
five (5) years following construction and subsequent reporting shall be required if applicable to
document milestones, successes, problems, and contingency actions of the compensatory mitigation.
The Administrator of the Department of Community and Economic Development or designee shall
have the authority to modify or extend the monitoring period and require additional monitoring
reports for up to ten (10) years when any of the following conditions apply:
(1) The project does not meet the performance standards identified in the mitigation plan;
(2) The project does not provide adequate replacement for the functions and values of the impacted
critical area;
(3) The project involves establishment of forested plant communities, which require longer time for
establishment.
23. As determined in Finding of Fact No. 5, the proposal will result in no net loss of wetland
function and values. As previously determined in Conclusion of Law No. 21, the proposal complies
with required mitigation sequencing. It is unclear from the record whether the mitigation complies
with the standards from other agencies as referenced in the criteria above so this will be addressed in
the conditions of approval. The project meets preferred mitigation methodology for alteration of
wetland buffers by providing for wetland rehabilitation. The minimum mitigation ratio proposed by
the Applicant is 4.8:1, which significantly exceeds the 1:1 ratio required for wetland buffer
alterations, although it isn't clear how much of the restoration will occur within the wetland buffer
itself. All compensatory mitigation is on-site and as close to the altered areas as possible. It does not
appear that any deed restrictions or similar measures are included to preserve the mitigation measures
into perpetuity. Although this does not appear to be as necessary for publicly owned property as for
private, the criterion makes no distinction between the two so compliance will be made a condition of
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approval. The mitigation plans in the critical areas report and biological assessment don't appear to
include any timing requirements. Given the detailed and comprehensive nature of these mitigation
plans it is assumed that the experts who prepared the plans did not find any timing requirements
necessary to protect shoreline resources. Compliance with RMC 4-3-050(M)(16) is addressed below.
The monitoring play recommended at p. 36 of the critical areas report complies with the monitoring
requirements of the criterion quoted above except for authorizing the City to extend the five year
monitoring period to ten years, which will be addressed in the conditions of approval.
RMC 4-3-050(M)(16): Mitigation Plans:
a. Required for Restoration, Creation and Enhancement Projects: All wetland
restoration, creation, and enhancement in conjunction with restoration and creation
projects required pursuant to this Section either as a permit condition or as the result of
an enforcement action shall follow a mitigation plan prepared by qualified wetland
specialists approved by the City.
b. Timing for Mitigation Plan Submittal and Commencement of any Work: See
subsection F8 of this Section.
c. Content of Mitigation Plan: Unless the City, in consultation with qualified wetland
specialists, determines, based on the size and scope of the development proposal, the
nature of the impacted wetland and the degree of cumulative impacts on the wetland
from other development proposals, that the scope and specific requirements of the
mitigation plan may be reduced, the mitigation plan shall address all requirements in
RMC 4®8-120D23, Wetland Mitigation Plan, and subsection F8 of this Section.
d. Performance Surety: As a condition of approval of any mitigation plan, the
Reviewing Official shall require a performance surety per RMC 4-1-230 and subsection
G of this Section. (Amd. Ord. 4851, 8-7-2000; Ord. 5137, 4-25-2005)
24. The mitigation for the project recommended in the critical areas report and the biological
assessment was prepared by Scott Swarts, a senior Fish and Wildlife Biologist employed by David
Evans and Associates, Inc.. Mr. Swarts is a wetland specialist. The mitigation plan prepared in the
critical areas report complies with the requirements of RMC 4-8-120(D)(23) and RMC 4-3-050(F)(8)
except for the apparent omission of a mitigation schedule (some of the site plan notes are too small to
read for the examiner). If not already proposed, a mitigation schedule is required as a condition of
approval. A performance surety will also be made a condition of approval as required by the criterion
quoted above.
RMC 4-3-090(D)(2)(c): Public Access Development Standards: Public access facilities shall
incorporate the following design and other features:
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i. Relation to Other Facilities:
(a) Preferred Location: Public access shall be located adjacent to other public areas, accesses, and
connecting trails, connected to the nearest public street, and include provisions for handicapped and
physically impaired persons, where feasible.
(b) Parking Requirements: Where public access is within four hundred feet (400) of a public street,
on -street public parking shall be provided, where feasible. For private developments required to
provide more than twenty (20) parking spaces, public parking may be required in addition to the
required parking for the development at a ratio of one space per one thousand (1, 000) square feet of
public access area up to three (3) spaces and at one space per five thousand (5, 000) square feet of
public access area for more than three (3) spaces. Parking for public access shall include the parking
spaces nearest to the public access area and may include handicapped parking if the public access
area is handicapped accessible.
(c) Planned Trails to Be Provided: Where public trails are indicated on the City's transportation,
park, or other plans, construction of trails shall be provided within shoreline and non -shoreline
areas of a site.
ii. Design:
(a) General: Design of public access shall provide the general public with opportunity to reach,
touch, and enjoy the water's edge and to view the water and the shoreline from adjacent locations
and shall be as close horizontally and vertically to the shoreline's edge as feasible; provided, that
public access does not adversely affect sensitive ecological features or lead to an unmitigated
reduction in ecological functions.
(b) Privacy: Design shall minimize intrusions on privacy of adjacent use by avoiding locations
adjacent to residential windows and/or outdoor private residential open spaces or by screening or
other separation techniques.
25. The proposal is adjacent to other public areas since it will connect to what will eventually be a
six mile trail. The parking requirements of the criterion above are imposed as conditions of approval.
It is recognized that the six mile trail should be considered as a whole in assessing whether adequate
on -street parking is required. As previously discussed, the trail implements some of the objectives of
the City's Trails and Bicycles Master Program. As noted previously the trail both accesses the
water's edge and provides for shoreline views. From the aerial photograph provided in the critical
areas report it does not appear that the proposed trail will be in proximity to any residential windows
or private open spaces to the extent that trail users would disturb privacy.
RMC 4-3-090(D)(4)(d): Design Criteria for Public Access Sites: Public access shall incorporate the
Following location and design criteria:
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i. Walkways or Trails Required in Vegetated Open Space: Public access on sites where vegetated
open space is provided along the shoreline shall consist of a public pedestrian walkway parallel to
the OHWM of the property. The walkway shall be buffered from sensitive ecological features, may be
set back from the water's edge, and may provide limited and controlled access to sensitive features
and the water's edge where appropriate. Fencing may be provided to control damage to plants and
other sensitive ecological features and where appropriate. Trails shall be constructed of permeable
materials and limited to four feet (4) to six feet (6) in width to reduce impacts to ecologically
sensitive resources.
26. The proposed trail generally runs parallel to the shoreline as required above and also connects
to the water's edge as authorized. Trail width is limited to six feet and fencing is proposed as
authorized. As determined previously, the walkway has been designed to avoid adversely affecting
sensitive ecological features.
RMC 4-3-090(D)(4)(d)(May Creek Reach): At the time of redevelopment, public access should be
provided consistent with standards of this Section from a trail parallel to the water along the entire
property with controlled public access to the water consistent with standards of this Section, and
goals of preservation and enhancement of ecological functions.
27. As determined in other parts of the decision, the proposal meets all RMC 4-3-090(D)
requirements as well as all SMP policies and use regulations pertaining to preservation and
enhancement of ecological functions.
RMC 4-3-090(D)(5): Building and Development Location — Shoreline Orientation:
a. General: Shoreline developments shall locate the water -dependent, water -related, and water -
enjoyment portions of their developments along the shoreline. Development and use shall be designed
in a manner that directs land alteration to the least sensitive portions of the site to maximize
vegetation conservation; minimize impervious surfaces and runoff; protect riparian, nearshore and
wetland habitats; protect wildlife and habitats; protect archaeological, historic and cultural
resources; and preserve aesthetic values.
b. Design and Performance Standards:
i. Location of Development: Development and use shall be designed in a manner that directs land
alteration to the least sensitive portions of the site.
ii. Stream/Lake Study Required.• An assessment of the existing ecological functions provided by
topographic, physical, and vegetation characteristics of the site shall accompany development
proposals; provided, that an individual single family residence on a parcel less than twenty thousand
(20, 000) square feet shall not be subject to this requirement. Such assessments shall include the
following general information:
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(a) Impacts of the proposed use/development on ecological functions with clear designation of
2 existing and proposed routes for water flow, wildlife movement, and other features.
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(b) Infrastructure requirements such as parking, services, lighting and other features, together with
4 the effects of those infrastructure improvements on shoreline ecological functions.
5 iii. Minimization of Site Alteration: Development shall minimize site alteration in sites with
6 substantial unaltered natural features by applying the following criteria:
7 (a) Vehicle and pedestrian circulation systems shall be designed to limit clearing, grading, and
alteration of topography and natural features.
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9 (b) Impervious surfacing for parking lot/space areas shall be limited through the use of under -
building parking or permeable surfaces where feasible.
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(c) Utilities shall share roadway and driveway corridors and rights-of-way wherever feasible.
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12 (d) Development shall be located and designed to avoid the need for structural shoreline stabilization
over the life of the development. Exceptions may be made for the limited instances where stabilization
13 is necessary to protect allowed uses, particularly water -dependent uses, where no alternative
locations are available and no net loss of ecological functions will result.
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28. The trail, which qualifies as a water -enjoyment use, is located close to the shoreline while
15 avoiding the most sensitive portions of the site by avoiding all significant trees and staying out of the
16 wetland (although encroaching into its buffer). Impervious surfaces are minimized by the use of
porous trail materials. As determined in Finding of Fact No. 5 the proposal is designed and mitigated
17 to prevent any adverse impacts to riparian, near shore and wetland habitat. An archaeological
assessment has been prepared for the project and the SEPA conditions of approval require
18 conformance with it recommendations. As determined in Finding of Fact No. 5, no adverse aesthetic
19 or view impacts are anticipated from the project. The critical areas report, technical information
report and biological assessment provide an assessment of the existing ecological functions provided
20 by topographic, physical, and vegetation characteristics of the site and contain all the information
required above. As previously discussed the trail avoids sensitive portions of the site, avoids the
21 removal of trees and avoids impermeable surfaces. No shoreline stabilization is necessitated by the
22 proposal.
23 RMC 4-3-090(D)(6): Archaeological, Historical, and Cultural Resources:
24 a. Detailed Cultural Assessments May Be Required.' The City will work with tribal, State, Federal,
25 and other local governments as appropriate to identify significant local historical, cultural, and
archaeological sites in observance of applicable State and Federal laws protecting such information
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from general public disclosure. Detailed cultural assessments may be required in areas with
undocumented resources based on the probability of the presence of cultural resources.
b. Coordination Encouraged: Owners of property containing identified or probable historical,
cultural, or archaeological sites are encouraged to coordinate well in advance of application for
development to assure that appropriate agencies such as the Washington State Department of
Archaeology and Historic Preservation, affected tribes, and historic preservation groups have ample
time to assess the site and identify the potential for cultural resources.
c. Detailed Cultural Assessments Required: Upon receipt of application for a development in an area
of known or probable cultural resources, the City shall require a site assessment by a qualified
professional archaeologist or historic preservation professional and ensure review by qualified
parties including the Washington State Department of Archaeology and Historic Preservation,
affected tribes, and historic preservation groups.
d. Work to Stop Upon Discovery: If historical, cultural, or archaeological sites or artifacts are
discovered in the process of development, work on that portion of the site shall be stopped
immediately, the site secured, and the find reported as soon as possible to the Administrator of the
Department of Community and Economic Development or designee. Upon notification of such find,
the property owner shall notes the Washington State Department of Archaeology and Historic
Preservation and affected tribes. The Administrator of the Department of Community and Economic
Development or designee shall provide for a site investigation by a qualified professional and may
provide for avoidance, or conservation of the resources, in coordination with appropriate agencies.
29. A detailed archaeological assessment has been prepared by a qualified archaeologist for the
subject site, but there is no information in the record on whether any consultation has been conducted
with any other tribes or agencies as required above. Given that the project site is assigned a high
probability for archaeological resources, consultation with any potentially affected tribes will be
required as a condition of approval consultation hasn't already been done. The recommendations of
the archaeological assessment, adopted as SEPA mitigation measures, require that construction cease
and persons be contacted if any artifacts are discovered during construction as required by the
criterion above.
Table 4-3-090(E)(1) Shoreline Use Table: Public Hiking and Bicycle Trails are permitted,
provided that the use does not degrade the ecological functions or natural character of the shoreline
area.
30. The proposed use is authorized by the SMP. As determined in Finding of Fact No. 5 the
proposed trail will not degrade ecological functions. The minor construction and absence of view
impacts will also not degrade the natural character of the shoreline area.
RMC 4-3-090(D)(8): Recreation:
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a. When Allowed: Recreation activities are allowed when:
i. There is no net loss of ecological functions, including on- and off-site mitigation.
ii. Water -related and water -enjoyment uses do not displace water -dependent uses and are consistent
with existing water -related and water -enjoyment uses.
iii. The level of human activity involved in passive or active recreation shall be appropriate to the
ecological features and shoreline environment...
b. Location Relative to the Shoreline: Activities provided by recreational facilities must bear a
substantial relationship to the shoreline, or provide physical or visual access to the shoreline.
i. Water -dependent recreation such as fishing, swimming, boating, and wading should be located on
the shoreline.
ii. Water -related recreation such as picnicking, hiking, and walking should be located near the
shoreline....
d. Public Recreation: Public recreation uses shall be permitted within the shoreline only when the
following criteria are considered.
i. The natural character of the shoreline is preserved and the resources and ecology of the shoreline
are protected.
ii. Accessibility to the water's edge is provided consistent with public safety needs and in
consideration of natural features.
iii. Recreational development shall be of such variety as to satisfy the diversity of demands of the
local community.
iv. Water -related and water -enjoyment uses do not displace water -dependent uses and uses are
consistent with existing water -related and water -enjoyment uses.
v. Recreational development is located and designed to minimize detrimental impact on the adjoining
property.
vi. The development provides parking and other necessary facilities to handle the designed public
use...
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viii. Public parks and other public lands shall be managed in a manner that provides a balance
between providing opportunities for recreation and restoration and enhancement of the shoreline.
Major park development shall be approved only after a master planning process that provides for a
balance of these elements.
30. As previously discussed there is no net loss in ecological function associated with the
proposal. The level of human activity is limited to walking and possibly bicycling and should have
little impact on the shoreline habitat. A split rail fence will keep trail users on the trail. As a water
related recreation facility, the trail is located near the shoreline. As previously determined natural
character is preserved. Accessibility to the water's edge is provided. No water dependent uses are
displaced. As determined in Finding of Fact No. 5, no adverse impacts will be generated by the
project, which includes impacts to adjoining uses. Parking demand is addressed in the conditions of
approval. As previously discussed, the extensive restoration and mitigation associated with the
proposal is well balanced with public recreational needs.
RMC 4-3-0090(D)(10): Transportation:
a. General Standards: New and expanded transportation facilities shall be designed to achieve no net
loss of ecological functions within the shoreline. To the maximum extent feasible the following
standards shall be applied to all transportation projects and facilities:
i. Facilities shall be located outside of the shoreline jurisdiction and as far from the land/water
interface as possible. Expansion of existing transportation facilities shall include analysis of system
options that assess the potential for alternative routes outside shoreline jurisdiction or set back
further from the land/water interface.
ii. Facilities shall be located and designed to avoid significant natural, historical, archaeological, or
cultural sites, and mitigate unavoidable impacts.
iii. Facilities shall be designed and maintained to prevent soil erosion, to permit natural movement of
groundwater, and not adversely affect water quality or aquatic plants and animals over the life of the
facility.
iv. All debris and other waste materials from construction shall be disposed of in such a way as to
prevent their entry by erosion into any water body and shall be specified in submittal materials.
v. Facilities shall avoid the need for shoreline protection.
vi. Facilities shall allow passage of flood waters, fish passage, and wildlife movement by using
bridges with the longest span feasible or when bridges are not feasible, culverts and other features
that provide for these functions.
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vii. Facilities shall be designed to accommodate as many compatible uses as feasible, including, but
not limited to: utilities, viewpoint, public access, or trails.
31. As determined in Finding of Fact No. 5, the proposal will result in no net loss of ecological
function. The transportation regulations above that require facilities to be located as far away from
shorelines as possible conflict with the policies that require recreational facilities and public access
facilities to be located close to the shoreline. Given that the public access/recreational policies are
more specifically targeted at the project and that shoreline policies strongly encourage public access
to the shoreline, the public access/recreational regulations supersede the conflicting transportation
facility regulations. As determined in Finding of Fact No. 5, there are no adverse impacts to
archaeological, natural, historical, or cultural resources. As determined in Finding of Fact No. 5 the
project will no adversely affect water quality or aquatic plants or animals. Excavation will be very
modest and there is nothing to suggest that groundwater movement will be affected. The Technical
Information Report provides that stormwater moves across the site via sheet flow and that the project
will not affect this water movement. Erosion during construction and construction debris is addressed
in detail in the mitigation measures that apply to the project and there is nothing to suggest that
erosion will be a problem once construction is completed. The trail does not trigger any significant
need for shoreline protection. The trail provides both viewpoint and physical access features.
RMC 4-3-0090(D)(10)(d): Trails:
L Trails that provide public access on or near the water shall be located, designed, and maintained in
a manner that protects the existing environment and shoreline ecological functions. Preservation or
improvement of the natural amenities shall be a basic consideration in the design of shoreline trails.
ii. The location and design of trails shall create the minimum impact on adjacent property owners
including privacy and noise...
iv. Trail width and surface materials shall be appropriate for the context with narrow soft surface
trails in areas of high ecological sensitivity where the physical impacts of the trail and the number of
users should be minimized with wider hard -surfaced trails with higher use located in less
ecologically sensitive areas.
32. As determined in Finding of Fact No. 5 the trail is designed to avoid environmental impacts and
there are no impacts anticipated on adjoining property owners. The trail surface is relatively narrow
and considered a soft surface to assure compatibility with shoreline resources.
RMC 4-3-090(D)(2)(c): Applicable Critical Area Regulations: The following critical areas shall be
regulated in accordance with the provisions of RMC 4-3-050, Critical Area Regulations, adopted by
reference except for the provisions excluded in subsection D2cii of this Section.. Said provisions shall
apply to any use, alteration, or development within shoreline jurisdiction whether or not a shoreline
permit or written statement of exemption is required. Unless otherwise stated, no development shall
be constructed, located, extended, modified, converted, or altered, or land divided without full
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compliance with the provision adopted by reference and the Shoreline Master Program. Within
shoreline jurisdiction, the regulations of RMC 4-3-050 shall be liberally construed together with the
Shoreline Master Program to give full effect to the objectives and purposes of the provisions of the
Shoreline Master Program and the Shoreline Management Act. If there is a conflict or inconsistency
between any of the adopted provisions below and the Shoreline Master Program, the most restrictive
provisions shall prevail....
(b) Areas of special flood hazard...
RMC 4-3-050(I)(2)(c)(i): All new construction and substantial improvements shall be constructed
with materials and utility equipment resistant to flood damage.
33. The use of bark as a trail material raises questions about its viability within a floodplain. The
conditions of approval will require this issue to be addressed.
RMC 4-3-050(I)(6)(a): Compensatory Storage Required: Development proposals and other
alterations shall not reduce the effective base flood storage volume of the floodplain.
34. As determined in Finding of Fact No. 5, the proposal will not reduce the effective base flood
storage volume of the floodplain.
Variance Criteria
RMC 4-3-190(I)(4)(b)(i): Exceptional or extraordinary circumstances or conditions applying to
the subject property, or to the intended use thereof, that do not apply generally to other properties on
shorelines in the same vicinity.
35. The property is characterized by exceptional and extraordinary circumstances because it is
uniquely situated to provide public access to the shoreline and water's edge while also serving as an
essential link of a six mile trail network. The wetland buffer interferes with this function because it is
located in the only portion of the property that can provide direct access to the shoreline as
encouraged by shoreline regulations by a looped system that prevents disruption of the continuity of
the trail while still avoiding the removal of trees.
RMC 4-3-190(I)(4)(b)(ii): The variance permit is necessary for the preservation and enjoyment of a
substantial property right of the Applicant possessed by the owners of other properties on shorelines
in the same vicinity.
36. As shown in regulations previously reviewed, trails of six foot width are authorized in the
shoreline buffer to May Creek but not to its wetland. Consequently, because of the wetland buffer the
Applicant cannot build the same type of trail that other property owners with shoreline access could
build. As noted in the staff report, a six foot width is important for a public trail along the shoreline
SSDP and Shoreline Variance - 24
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because volumes for those areas tend to be higher and six feet is necessary to accommodate the
additional traffic and to provide for enhanced ADA accessibility.
RMC 4-3-190(I)(4)(b)(iii): The variance permit will not be materially detrimental to the public
welfare or injurious to property on the shorelines in the same vicinity.
37. As determined in Finding of Fact No. 5, the proposal will not create any adverse impacts and
will substantially improve upon ecological functions and provide a valuable recreational asset to the
community. Under these circumstances there is no material detriment and no injury to other
properties.
RMC 4-3-190(I)(4)(b)(iv): The variance granted will be in harmony with the general purpose and
intent of the Shoreline Master Program.
38. The proposal is consistent with all applicable shoreline policies and regulations as outlined in
the bulk of this decision. The overall objective of the goals of the shoreline management act and the
SMP is to protect shoreline resources while providing for public enjoyment of the shorelines. The
proposal accomplishes both objectives by providing for public access and a significant restoration
program.
RMC 4-3-190(I)(4)(b)(v): The public welfare and interest will be preserved; if more harm will be
done to the area by granting the variance than would be done to the Applicant by denying it, the
variance shall be denied, but each property owner shall be entitled to the reasonable use and
development of his lands as long as such use and development is in harmony with the general
purpose and intent of the Shoreline Management Act of 1971, and the provisions of the Shoreline
Master Program.
39. More harm will be done by denying the variance than approving it since the variance will
facilitate public access to a shoreline for a project that, if approved, will substantially benefit the
shoreline environment. The variance is also necessary for the reasonable use of the property given (1)
the relative modest deviation involved; (2) the substantial public benefit served by the proposal; (3)
the substantial portion of the project area that is impacted by the wetland buffer; (4) the substantial
need for the deviation in order to make the project serve as both an important trail link and a water's
edge access point; and (5) the lack of any adverse impacts associated with the request. Reasonable
use and necessity is also discussed in more detail in Finding of Fact No. 6. As determined in the
previous conclusion of law, the variance request is consistent with the purpose and intent of the
Shoreline Management Act and the SMP.
RMC 4-3-190(I)(4)(b)(vi): The proposal meets the variance criteria in WAC 173-27-170.
40. The four foot trail width requirement precludes and significantly interferes with a reasonable
use of property as contemplated in WAC 197-27-170(a) for the reasons identified in Conclusion of
Law No. 39. The hardship addressed by the variance request is caused by a natural feature of the
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property as required by WAC 197-27-170(b), specifically the subject property's narrow width in
conjunction with the on-site wetland. The trail is compatible with surrounding uses as well as uses
planned under the SMP and comprehensive plan as required by WAC 197-27-170(c) because it is part
of a priority trail project in the City's Trails and Bicycle Master Plan, does not create any structures
visible to adjoining properties or waterward of the shoreline and does not adversely affect
surrounding uses. As determined in Finding of Fact No. 5 the proposal will not adversely affect the
shoreline environment as required by WAC 197-27-170(c). The variance would not be a grant of
special privilege not enjoyed by other properties in the area as contemplated by WAC 197-27-170(d)
because as determined in Conclusion of Law No. 36, other properties along the May Creek shoreline
without wetlands would be allowed to build a six foot wide trail. The variance request is the
minimum necessary to afford relief as required by WAC 197-27-170(e) because without it there
probably would not be room on the trail to provide for a looped segment that provides access to the
water's edge without necessitating the removal of any trees. As required by WAC 197-27-170(f) and
for the reasons stated in Conclusion of Law No. 37, the public will suffer no substantial detrimental
effect by the approval of the variance.
DECISION
The shoreline substantial development permit and variance applications are approved as they meet
all the applicable regulations and policies addressed in this decision, provided they comply with the
following conditions:
1. As identified in Conclusions of Law 12 and 27, the Applicant shall demonstrate to the
satisfaction of the planning staff that the parking demand created by the proposal is fully
mitigated. At a minimum, parking shall satisfy the requirements of RMC 4-3-
090(D)(2)(e)(i)(b).
2. As discussed in Conclusion of Law No. 22, the Applicant shall demonstrate to the
satisfaction of staff that those portions of the trail within the inner 50% of the buffer to the
on-site wetland must be located in that area for interpretive purposes as required by RMC 4-
3-090(D)(2)(d)(ix)(f). If the Applicant is unable to meet that standard, the trail shall be re-
designed to avoid the inner 50% of the buffer, even if that entails removing one or more
significant trees.
3. The Applicant shall demonstrate to the satisfaction of staff that as required by RMC 4-3-
090(D)(2)(d)(x)(b) the proposed wetland mitigation complies with the applicable standards
for studies and assessment in Chapter 6 of: Washington State Department of Ecology, U.S.
Army Corps of Engineers Seattle District, and U.S. Environmental Protection Agency
Region 10, March 2006; Wetland Mitigation in Washington State — Part 1: Agency Policies
and Guidance (Version 1); and Washington State Department of Ecology Publication No.
06-06-011 a, Olympia, WA, except in cases when this Code provides differing standards.
4. As discussed in Conclusion of Law No. 23, all mitigation areas shall be permanently
protected and managed to prevent degradation and ensure protection of critical area
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functions and values into perpetuity. Permanent protection shall be achieved through deed
restriction or other protective covenant in accordance with RMC 4-3-050E4.
5. The Administrator of the Department of Community and Economic Development or designee
shall have the authority to modify or extend the monitoring period identified at p. 36 of the
critical areas report and require additional monitoring reports for up to ten (10) years when
any of the following conditions apply:
(1) The project does not meet the performance standards identified in the mitigation
plan;
(2) The project does not provide adequate replacement for the functions and values of
the impacted critical area;
(3) The project involves establishment of forested plant communities, which require
longer time for establishment.
6. The Applicant will post a performance surety as required by RMC 4-3-050(M)(16).
7. Prior to any construction, the Applicant shall acquire approval from staff of a mitigation
schedule as required by RMC 4-8-120(D)(23)(b)(i) ("dates of beginning and completion") in
the definition of a wetland mitigation plan. The approved mitigation schedule shall be
construed as and enforced as a condition of approval.
8. If not done so already, as discussed in Conclusion of Law No. 29 the archaeological
assessment shall be submitted to any potentially affected tribes for comment in regards to
development of the project site. Staff shall have authority to require further mitigation as
necessary in response to the comments in order to assure compliance with SMP policies
regarding protection of archaeological resources. Any additional mitigation required by staff
shall be construed as an enforced as a condition of approval.
9. The Applicant shall establish to the satisfaction of staff that the use of bark as a trail material
is resistant to flood damage as required by RMC 4-3-050(I)(2)(c)(i) or in the alternative that
the replacement of bark in case of a flood is (1) the most feasible approach to construction of
a permeable trail surface; and (2) the displacement of bark in case of flooding will not harm
shoreline resources.
10. The conditions and limitations recommended at Page 5 of the staff report are adopted and
imposed as conditions of approval.
DATED this 24th day of July, 2012.
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Phil A. Olbrechts
City of Renton Hearing Examiner
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Appeal Right and Valuation Notices
RMC 4-8-080(G) provides that the final decision of the hearing examiner is subject to appeal to the
Renton City Council. RMC 4-8-110(E)(9) 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. A
request for reconsideration to the hearing e examiner may also be filed within this 14 day appeal
period as identified in RMC 4-8-110(E)(8) and RMC 4-8-100(G)(4). A new fourteen (14) day
appeal period shall commence upon the issuance of the reconsideration. Additional information
regarding the appeal process may be obtained from the City Clerk's Office, Renton City Hall — 7th
floor, (425) 430-6510.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.
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