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HomeMy WebLinkAboutWSDOT- 405 - 167 Direct Connect Noise Variance, Noise and Haul Variance1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 1 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: WSDOT I-405/SR 167 Direct Connect Project Noise and Haul Variance LUA16-000770, V-H ) ) ) ) ) ) ) ) ) FINAL DECISION Summary The Washington State Department of Transportation (“WSDOT”) has applied for a variance from RMC 8-7-2 (noise regulations) and RMC 4-4-030©(2) and (3) (construction and hauling hours) in order to conduct construction work outside of restricted hours for 845 nonconsecutive nights from November 22, 2016 through November 21, 2019 in order to build a new flyover ramp connecting the High Occupancy Toll (HOT) lanes on SR 167 to the High Occupancy Vehicle (HOV) lanes on I- 405. The variance is approved subject to conditions. Testimony Rohini Nair, City of Renton Civil Engineer III, summarized the proposal. Ross Stanton, WSDOT representative, testified that numerous open houses and meetings have been held on the project starting in 2004. The project is part of a design build process. Gil McNabb, project engineer, summarized the project delivery method. The contact was executed in July, 2016. WSDOT has designed approximately 30% of the project. WSDOT specifies the concept and then the contractor completes the design and construction. A big advantage of design build is the speed of delivery is greatly increased since construction work can be done at the same time as design. One of the primary goals of the project has been mitigation to the local community, which includes 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 2 2 noise, vibration and dust. One of the primary results from that goal was the relocation of the noise wall located along the Talbot community. The noise panels of the noise wall will be relocated to the edge of the widening project as one of the first steps of the project. Work has to be done at night to minimize disruption to the travelling public. Night work will also create safe work zones for daytime work. WSDOT is optimistic that it won’t need to use all of the requested variance days. Some of the work may not be done near any sensitive noise receptors. The work is always moving so the impacts won’t be focused on any one area. In response to examiner questions, Mr. McNabb noted that the Talbot community will likely be the most affected. Work there also involves utility work. The closest residents will be 300 feet. In addition to the noise walls, there are also trees buffering the Talbot residents. WSDOT will be adding trees to the Talbot buffer area. The proposed door hangers will provide notice of specific phases of the project as opposed to providing notice of the entire three year project up front. In response to examiner questions, Greg Smiley, WSDOT public information officer, noted that the WSDOT project website is updated weekly and identifies road closures and provides push notifications. Communities affected by high impact days will be directly notified. The WSDOT noise mitigation program involves first notifying affected persons of impacts, then white noise machines and ear plugs are provided if necessary. If nothing else works hotel accommodations are provided. Stuart Moore, project contractor, stated work would begin in December 2016 and January 2017 and the initial night-time work would be primarily composed of installing barriers and creating work zones with a little bit of field investigation work. In February 2017 the first work activity will be doing landscaping north of Talbot in Benson Hill. In March and April 2017 there will be minor traffic shifts and destruction/construction of barriers. After the Talbot noise barrier is relocated a retaining wall will have to be removed over two nights, which is a high noise event. Local door hangers will be distributed advising of that work. In response to examiner questions, Mr. Moore noted that the two-night retaining wall work will probably be the most impactful work to the Talbot residents. Continuing from 2017-2019 there will be night time work involving traffic switches, barrier replacement, paving and restriping, and hauling earth material. Work will be 24 hours a day, seven days a week. A lot of it won’t be very impactful. Work won’t occur on the holidays. If noise complaints are received, mitigation protocols will be implemented. Linda Cooley, WSDOT representative, noted that since the application was submitted six weeks ago the noise monitoring plan and equipment list has been refined. The revised noise monitoring plan is more specific. In response to examiner questions, Mr. Cooley noted that equipment added to the equipment list has raised the maximum noise levels of the project to 90 dBA. There has been a slight change to the monitoring plan. In the new plan, noise monitoring will only be required every time project work is moved to a new location, new equipment is used or there are complaints. The original noise monitoring plan requires monitoring every night. In response to examiner questions, Ms. Nair noted that the revisions were acceptable. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 3 3 In rebuttal, Ms. Nahir noted that the WSDOT proposal reviewed by staff was for work between 8 pm and 5 am. WSDOT is now talking about 24-hour work. Ms.Nair proposed to provide a revised staff report addressing the changes in the proposal. A city engineer clarified that regulated night time hours under the Renton code is 10 pm to 7 am and that the original WSDOT request was only to have a variance to 5 am. Staff needs to revise its recommendation to address the expansion of the variance requests to 7 am. Construction night hours are also limited to from 7 am to 8 pm on week days, 9 am to 8 pm on Saturdays and prohibited on Sundays. Exhibits The November 1, 2016 Staff Report Exhibits 1-7 identified at page 3 of the Staff Report were admitted into the record during the hearing. In addition, the following exhibits were admitted during the hearing. Exhibit 8: Staff power point presentation Exhibit 9: Revised equipment list. Exhibit 10: Revised noise monitoring plan. Exhibit 11: Omar Hernandez letter dated November 1, 2016. Liz Irvine letter dated November 2, 2016 City responses to Hernandez and Irvine letters. Exhibit 12; Amended staff report dated November 9, 2016. Exhibit 13: WSDOT response to amended staff report dated November 10, 2016. FINDINGS OF FACT Procedural: 1. Applicant. WSDOT 2. Hearing. A hearing was held on the subject application on November 8, 2016 at 12:00 pm in the City of Renton Council Chambers. The record was left open through November 9, 2016 for the City to provide a supplement to the staff report and WSDOT was given until November 11, 2016 to respond. Substantive: 3. Project Description. The Washington State Department of Transportation (“WSDOT”) has applied for a variance from RMC 8-7-2 (noise regulations) and RMC 4-4-030©(2) and (3) (hauling hours) in order to conduct construction work outside of restricted hours for 845 nonconsecutive nights from November 22, 2016 through November 21, 2019 in order to build a new flyover ramp 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 4 4 connecting the High Occupancy Toll (HOT) lanes on SR 167 to the High Occupancy Vehicle (HOV) lanes on I-405. The work includes construction & hauling over a 36-month period at different locations along the project limits. Construction work will be conducted 24 hours a day, seven days a week during the 36 month period. The construction area includes SR 167 from milepost (MP) 24.5 at S 180th St to MP 27.3, and on I-405 from MP 1.3 to MP 4.3 at N 4th St. The project also includes work on S 14th St., and on small portions of Smithers, Morris, Whitworth and Shattuck near S 14th Street. The proposed work includes geotechnical drilling, demolition, building a fly-over ramp, rebuilding existing on and off-ramps, reconstructing portions of nearby local streets, relocating a noise wall, adding a raised earthen berm, ditches, culverts, catch basins, storm water facilities, water facilities, pavement markings, traffic signals, signs, ramp meters, and rebuilding electrical cabinetry and wiring. Noise levels resulting from the project's construction activities will generate peak noise levels of 64 to 90 dBA as perceived at 50 feet from the WSDOT property line. The variance to RMC 8-7-2 is necessary because that regulation adopts WAC 197-60-040, a state regulation that imposes a series of maximum noise levels for construction work between the hours of 10 pm and 7 am. The noise maximum is dependent upon the affected land use (e.g. residential, commercial and industrial), but the maximum levels overall range from 50 to 60 dBA from a freeway construction site. Since the applicant will be using equipment with noise levels reaching levels of 90 dBA, a variance is necessary to do construction work during night time hours. The variance to RMC 4-4-030(C)(2) and (3) is necessary because that regulation limits construction hauling hours between eight-thirty (8:30) a.m. and three-thirty (3:30) p.m., Monday through Friday and nonresidential construction work to the hours between seven o’clock (7:00) a.m. and eight o’clock (8:00) p.m., Monday through Friday. Work on Saturdays is restricted to the hours between nine o’clock (9:00) a.m. and eight o’clock (8:00) p.m. and no work permitted on Sundays. Since the applicant proposes construction and hauling work to be done 24 hours a day, seven days a week, a variance is necessary to construct the proposed hauling and construction work outside of authorized hours. In order to mitigate noise levels, WSDOT has proposed that all vehicles shall be equipped with ambient sensitive backup warning devices. To the extent possible, stationary equipment will be located away or shielded from sensitive receptors such as residences. The construction of new noise wall shafts will be scheduled prior to removing the existing noise wall along the Talbot neighborhood. In addition, the proponent proposes to implement other measures to mitigate noise impacts. Truck tailgate banging will be prohibited. A WSDOT complaint number as well as a list of designated contact persons for forwarding complaints will be provided to the residents affected by the project. The project also requires Street Use and detour permits. The applicant has proposed a change in construction hours that differs from that advertised for the proposal. Since the change is modest and within the scope of impacts assessed in the advertised proposal, the modification is approved as part of this decision. The newspaper publication for notice 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 5 5 of the application identified the proposed work schedule as 24 hours per day and seven days per week. After the publication was sent to the newspaper, the applicant informed the City that the 24 hour 7 days a week work schedule was incorrect, and revised the project work schedule to Monday through Sunday from 8:00pm to 5:00 am and stated that work would not be done on the following seven holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving, and on December 25th. The project postings, mailings to the residents, and staff report to the Hearing Examiner were prepared with the revised project schedule as requested by the applicant. Subsequent to the postings, mailings, and sending the staff report to the Hearing Examiner, the applicant requested that the work schedule be changed back to the 24-hour, 7 days a week schedule. The formal request was presented by the applicant at the Hearing on November 8, 2016. Ultimately, the revision to the project hours does not constitute a substantial change to the advertised proposal. The night time hours noise variance is simply expanded from its end at 5 am to 7 am. Similarly, the construction and hauling variance proposed night time hours is expanded from ending at 5 am to 7:00 am on week days and to 9:00 am on Saturdays. The changes to the construction and hauling hours are also similarly modest. Given that the change in morning hours is during rush hour on the freeway, it isn’t likely that the change would be very noticeable given the high background noise of morning traffic. The greatest impact in the revision to proposed working hours is working on Sundays in violation of RMC 4-4-030(C)(2) and (3). It’s possible but not likely that members of the public may have reacted differently had they been notified of the Sunday construction work. Since the work is already being done every other day of the week for most day and night time hours, the added Sunday work does not represent a significant change in overall impacts. Further, the added public cost and additional traffic congestion and delays that would be caused by a re-advertising of the application outweighs the public inconvenience caused by the modestly inaccurate public notice for the application. For these reasons, the modifications will be accepted and approved without any re-advertising. 4. Neighborhood Characteristics. Surrounding areas that will be potentially affected by the noise and construction/haul variances are zoned Commercial Office (CO), Medium Industrial (IM), Commercial Downtown (CD), Commercial Arterial (CA), Residential du/ac (R-6, R-8, R-10), Residential Multi-Family (RMF). 5. Adverse Impacts. The noise generated by the proposal will be mitigated as much as reasonably practicable. WSDOT has significant experience in mitigating noise impacts and has developed a fairly good mitigation program that notifies potentially affected residents and tenants of upcoming noise impacts. Residents and tenants are provided a complaint phone number. If the residents and tenants are experiencing noise problems, WSDOT will provide white noise machines and ear plugs. If that doesn’t work, WSDOT will provide hotel accommodations. As outlined in Ex. 3 and 9 and Finding of Fact No. 3, WSDOT is also including in its proposal various measures to reduce noise levels at the work site, such as relocating the Talbot noise wall outside the construction zone prior to construction, requiring ambient sensitive back up alarms, prohibiting tailgating bangin g, and installing temporary noise shields where feasible. The applicant will also be required to comply 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 6 6 with its proposed noise monitoring program, Ex. 10. If noise levels exceed proposed levels and/or the applicant fails to comply with the conditions of this decision, the City is authorized to revoke the approval of the variances. The mitigation measures have been reviewed by City staff and staff did not find any other mitigation beyond that required by this decision that could be reasonably imposed. The project will already take three years to complete. Imposing any additional restrictions on hours or equipment would only create further delay and create further t raffic congestion in an area desperately in need of traffic improvements. No additional mitigation can be reasonably required. Affected property owners submitted two letters of concern, Ex. 11. Liz Irvine expressed concern over coal mine hazards, dust and damage to homes. Those issues are beyond the scope of the variances subject to this decision. Omar Hernandez noted in his letter that he lives close to I-405 and that past I-405 work has made living in his residence unbearable. Mr. Hernandez inquired whether a relocation fund could be established to enable adversely affected property owners to move away during the construction work. As noted in the City response to Mr. Hernandez’s letter, Ex. 11, no major work is anticipated near Mr. Hernandez’s residence and the work is mobile such that no specific area is anticipated to suffer from major noise for any extended period of time. Further, WSDOT does have a hotel voucher program to address situations where noise cannot be adequately mitigated. It is expected and anticipated that WSDOT will follow through on its commitment to ensure that City residents can reasonably enjoy the comforts of their home during the construction project. The conditions of approval give the City sufficient flexibility to address the situation if this commitment is not adequately pursued. Conclusions of Law 1. Authority. Variances to RMC 8-7-2 in excess of two days in duration are subject to a public hearing and Hearing Examiner review (RMC 8-7-8(A) and (C)). The variance to RMC RMC 4-4- 030(2) and (3) has been consolidated with the noise variance application. . RMC 4-8-080(C)(2) requires consolidated permits to each be processed under “the highest-number procedure,” which in this case is hearing examiner review. 2. Review Criteria. Variance criteria for variance to RMC 8-7-2 governed by RMC 8-7-8(D). Variance criteria to variances to RMC 4-4-030(2) and (3) are governed by RMC 4-9-250(B)(5). All applicable criteria are quoted below in italics and applied through corresponding conclusions of law. RMC 8-7-8(D)(1): That the applicant suffers practical difficulties and unnecessary hardship and the variance is necessary because of special circumstances applicable to the applicant’s property or project, and that the strict application of this Chapter will deprive the subject property owner or applicant of rights and privileges enjoyed by others. RMC 4-9-250(B)(5)(a): That the applicant suffers practical difficulties and unnecessary hardship and the variance is necessary because of special circumstances applicable to subject property, including size, shape, topography, location or surroundings of the subject property, and the strict 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 7 7 application of the Zoning Code is found to deprive subject property owner of rights and privileges enjoyed by other property owners in the vicinity and under identical zone classification; 3. The criterion is met. The special circumstances are the proximity of SR 167 and I-405 to adjoining homes and other affected properties. The proposed construction work cannot be done anywhere else and is critically important to reducing severe traffic congestion in the I-405 and SR 167 corridors. In addition, work must be done outside of the restricted hours specified by RMC 8-7-2 and 4-4-030 in order to complete the project in a reasonable amount of time. The project will already take three years to complete. Limiting the number of hours at night will extend the project timeframe even longer, will exacerbate daytime congestion by increasing daytime lane closures, will make the project take longer to complete and thereby increase the length of time that area residents suffer from traffic construction and congestion, and will increase the safety risk to workers by forcing them to do more of their work during heavy traffic periods. RMC 8-7-8(D)(2): That the granting of the variance will not be materially detrimental to the public health, welfare or safety, or unduly injurious to the property or improvements in the vicinity of the location for which this variance is sought. RMC 4-9-250(B)(5)(b): That the granting of the variance will not be materially detrimental to the public welfare or injurious to the property or improvements in the vicinity and zone in which subject property is situated; 4. As determined in Finding of Fact No. 5, as conditioned and mitigated, the noise impacts are mitigated to the extent reasonably practicable under the circumstances. Ultimately, the mitigation measures require the applicant to provide hotel accommodations if the noise proves too much for adjoining property owners. In this regard, beyond the temporary inconvenience of relocation, the noise impacts are largely mitigated and as a result, the granting of the variance would not be considered materially detrimental to the public welfare or injurious to surrounding properties or improvements. RMC 4-9-250(B)(5)(c): That approval shall not constitute a grant of special privilege inconsistent with the limitation upon uses of other properties in the vicinity and zone in which the subject property is situated; 5. The City routinely approves variances for highway construction projects as there is no reasonable alternative way to enable highway construction without creating massive traffic congestion, increasing the costs of public highway projects and jeopardizing worker safety. No special privilege is involved for this type of project. RMC 8-7-8(D)(3): That the variance sought is the minimum variance which will accomplish the desired purpose. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 8 8 RMC 4-9-250(B)(5)(d): That the approval is a minimum variance that will accomplish the desired purpose. 6. The applicant has taken all measures it reasonably can to reduce noise impacts as determined in Finding of Fact No. 5. RMC 8-7-8(D)(4): That the variance contains such conditions deemed to be necessary to limit the impact of the variance on the residence or property owners impacted by the variance. The variance approval may be subject to conditions including, but not limited to, the following: a. Implementation of a noise monitoring program; b. Maximum noise levels; c. Limitation on types of equipment and use of particular equipment; d. Limitation on back-up beepers for equipment; e. Required use of noise shields or barriers; f. Restrictions to specific times and days; g. Specific requirements for documentation of compliance with the noise variance conditions; h. Specific requirements for notification to nearby residents; i. Required cash security to pay for inspection services to verify compliance; j. Required access to the project by the City to verify compliance with the noise variance conditions; k. Specific program to allow for temporary hotel vouchers to effected residents; l. Requirements for written verification that all workers understand the noise variance conditions for the project; and m. Provision allowing the City to immediately revoke the variance approval if the variance conditions are violated. 7. Many of the mitigation measures identified above are proposed and/or incorporated into the conditions of approval. The applicant will provide an after-hours noise complaint phone number and a summary of any complaints and the response provided, within 5 days of receiving the complaint. In addition, the conditions require that the applicant provide notice to the City’s project manager of the dates of expected night work, a minimum of 24 hours in advance of the work. Noise levels and equipment are limited to that identified in Ex. 9 and the construction schedule is limited to 36 months and 845 days. Hotel vouchers are required if other mitigations fail to reasonably mitigate. The conditions of approval include City authority to revoke the variances approved by this decision for noncompliance. The mitigation measures have been reviewed by City staff. Staff did not find any other effective mitigation beyond that required by this decision that could be reasonably imposed. The project will already take three years to complete. Imposing any additional restrictions on hours or equipment would only create further delay and create further traffic congestion and an area desperately in need of improvement. No additional mitigation can be reasonably required. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 9 9 RMC 8-7-8(D)(5): The importance of the services provided by the facility creating the noise and the other impacts caused to the public safety, health and welfare balanced against the harm to be suffered by residents or property owners receiving the increased noise permitted under this variance. 8. As outlined in Conclusion of Law No. 3, the proposed night time and weekend work is necessary and unavoidable for both safety and traffic circulation reasons. As determined in Finding of Fact No. 5, the mitigation required of and proposed by WSDOT is as much as can reasonably be required under the circumstances. On balance, the variance must be approved to facilitate significant and necessary improvements to I-405 and SR 167. RMC 8-7-8(D)(6): The availability of practicable alternative locations or methods for the proposed use which will generate the noise. 9. As noted in the staff report, there are no alternative locations available. RMC 8-7-8(D)(7): The extent by which the prescribed noise limitations will be exceeded by the variance and the extent and duration of the variance. 10. As determined in Finding of Fact No. 5, noise levels will reach levels of up to 90 dBA and the work will occur over a 36 month period on 845 nonconsecutive nights. DECISION As conditioned below, the noise and construction variances are approved: 1. The applicant shall provide the City of Renton project manager with the phone number for after-hours noise complaints prior to commencement of construction. Any complaints within the Renton city limits will be summarized and reported to the City’s project manager within 5 days of the complaint. 2. The applicant shall implement proposed noise mitigation measures to diminish or eliminate noise during construction. Additional mitigation measures to diminish or eliminate noise during construction are to be provided by the applicant as necessary. 3. The applicant shall notify the City of Renton project manager with the date and areas of expected night work prior to commencement of night work, a minimum of 24 hours in advance of the work. 4. If noise complaints are received by the City and/or WSDOT for nighttime work operations, the applicant shall implement the project’s noise monitoring plan for nighttime construction. Noise monitoring shall include measuring of existing preconstruction ambient noise levels and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 10 10 measurement of noise levels at the onset of a new nighttime construction activity with a potential to create high noise levels. The noise measurements for the construction activities should be taken at the time that represents the highest noise level s for that activity and the measurements shall be provided to the City project manager. 5. The applicant shall provide temporary motel vouchers to affected residents for the nights of the proposed noise variance work when noise impacts cannot be reasonably mitigated (by ear plugs or white noise generators) to levels that enable the residents to reasonably sleep at their homes. 6. The portion of the project work located within the City limits that requires an approved city construction or building permit, shall not be allowed on the following seven holidays: New Year’s Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, the day after Thanksgiving, and on December 25th, to prevent hardship to the residents. 7. If complaints are received by WSDOT and/or the City regarding the permitted construction or building work within city limits, on Saturdays and Sundays in a residential zone within 300 feet of the project, and if the applicant does not satisfactorily address the concerns mentioned in the complaint, then the City may consider a reduction in work hours. 8. Advance notification of the construction work should be provided to the residents two weeks ahead of the work by door hangers and/or mailings. 9. For the work on City streets, traffic control plans are to be submitted by the contractor and approved by the City Transportation section prior to start of construction work. If any complaints are received from residents, the contractor along with WSDOT will propose measures to the City to minimize the disruption. 10. The City may immediately revoke the approvals granted by this decision if WSDOT fails to comply with these conditions of approval, exceeds proposed noise levels or engages in violations of RMC 8-7-2 and RMC 4-4-030©(2) and (3) for the WSDOT I-405/SR 167 Direct Connect Project beyond those authorized by this decision. DATED this 20th day of November, 2016. City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 8-7-8(F) and RMC 4-8-080 provide that the final decision of the Hearing Examiner is subject to appeal to the Renton City Council. RMC 8-7-8(F) and RMC 4-8-110(E)(14) requires appeals of the Hearing Examiner’s decision to be filed within fourteen (14) calendar days from the date of the Hearing Examiner’s decision. Additional information regarding the appeal process may be obtained from the City Clerk’s Office, Renton City Hall – 7th floor, (425) 430-6510. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Noise and Haul Variance CAO VARIANCE - 11 11 Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation.