HomeMy WebLinkAboutVarma Short Plat Appeal_COR Response_10.19.2021
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
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City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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BEFORE THE HEARING EXAMINER OF THE CITY OF RENTON
RE: Varma Short Plat (LUA21-000139)
Administrative Appeal
City of Renton’s RESPONSE and
MOTIONS to:
DISMISS MOST ISSUES; and
EXCLUDE EXHIBITS
The City of Renton (“City”) hereby responds to the Appeal of August 30, 2021, as
Amended September 3, 2021, and to the Exhibits provided October 6, 2021. The City also
certifies it concurrently produces a copy of this response to the Appellant Claudia Donnelly
(“Appellant” or “Ms. Donnelly”) and the Applicant.
A. Background
On August 26, 2021, the City issued an administrative decision of approval, with
conditions, for the Varma Short Plat, LUA21-000139, SHPL-A, MOD, in anticipation of single-
family residential development on the property. On August 30, 2021 and September 3, 2021 the
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 2
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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Appellant submitted two (2) emails and letters noting appeals to the decision based on alleged
deficiencies. Since there was not a formal dismissal, the City interprets the second together with
the first to reach an amended appeal.
In her Exhibits and other communications with the Examiner and the City, Ms. Donnelly
has continued to point to past actions or developments that she alleges were improperly
completed. The City respectfully declines to address allegations not part of the Varma Short Plat
as not proper before the Examiner in this appeal.
With respect to the Varma Short Plat, she also continues to imply a variety of unknown
and unsubstantiated improper actions on the part of the City and other parties. The City
categorically denies any such improper actions and is unable to respond with more specificity
since Ms. Donnelly did not provide sufficient particularity to do so.
The City regularly accepts complaints from members of the public and conducts
investigations related to those complaints. After an investigation, the City takes appropriate
action to resolve violations it finds.
B. Appeal Requirements
Renton Municipal Code (RMC) 4-8-110.C.3 (Required Form and Content of Appeals)
require an Appellant to “fully, clearly and thoroughly specify the substantial error(s) in fact or
law … in the record.” The City provided that description via email on August 30, 2021 and again
on September 3, 2021 (See Exhibit COR 4).
C. Appeal Submitted and Deficiencies Alleged
Appellant identified the following alleged deficiencies:
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 3
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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1. Initial “appeal” noted without detail the following areas of interest:
a. Process for developer’s revision of location for homes;
b. Stormwater; and,
c. Arborist’s report.
2. “Amendment” submitted on September 3, 2021 noted the following:
a. School district in which proposed development is located is misidentified in
one portion of the report; and
b. Tree retention schedule must be followed; and
c. Surface water flow does not meet Washington legal requirements; and
d. Providing information regarding City compliance with environmental
protection during development and construction projects.
To the City, it appears that the initial stormwater concern may be related to allegations
that the Varma Short Plat does not meet state surface water legal requirements, and that the
request for the Arborist’s report may be related to the assertion that the tree retention schedule
must be met. The City’s response is arranged according to these assumptions.
D. Appellant Exhibits Provided
On October 6, 2021, the City received “Documents from Claudia Donnelly”, which the City
treats as the Appellant’s Exhibits required by the Pre-Hearing Order. As noted above Appellant,
identified five (5) broad areas to which she took exception. In addition to those items, Donnelly
appears to bring in additional issues:
1. Traffic on 156th Avenue SE which she ties to the school district; and,
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
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City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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2. Neighbors’ trees which she ties to the tree retention schedule; and,
3. Detention ponds; and
4. Renton Environmental Policy, this may be related to her desire to share more
information with the Examiner; and
5. Working on the weekends; and
6. Eagle
The City also notes that at least two Exhibits are email threads that were initiated after the
amended appeal was submitted (pp 29, 43 of the unnumbered pdf), indicating that Appellant did
not have sufficient information to submit an appeal at the time it was noted.
E. Motion to Dismiss Alleged Deficiencies: Revision of Home Location; Arborist
Report/Tree Retention; Environmental Policy/Practices; and Compliance with
State Law Related to Surface Water
On its face, the appeal as amended does not appear to meet the requirement for
specificity to allow the City to adequately respond to at least four of five alleged areas of
deficiency: revision of home locations on the plat; those related to the arborist report and tree
retention; allegations of noncompliance with state law related to surface water with a single
(incomplete) citation to a ruling from 1999, without a full, complete or thorough description of
the alleged noncompliance; and, reference to vague “environmental protection” by the City.
In its response, the City is forced to speculate what legal or factual incidences may have
arisen in this Short Plat process with which the Appellant has concerns.
The single allegation of deficiency which is clearly described is with respect to the
designation of the school district in which the development is located.
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 5
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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Therefore, the City moves the Hearing Examiner dismiss the appeal with respect to:
revision of home locations; and, arborist report and tree retention; and, allegations of
noncompliance with state law related to surface water and stormwater management; and,
“environmental protection” by the City.
F. Motion to Exclude Portions of Appellant Exhibits
Not all items to which Appellant refers in her Exhibits were “fully, clearly and thoroughly
specif[ied]” in the amended appeal, and she appears to use the Exhibits to bring in additional
topics or allegations. Specifically, Appellant raises factual considerations related to: traffic on
156th Ave SE; and, potential impacts of the development to neighbors’ trees; and, neighbors
“detention ponds”; and, allegations that the developer may or will work on weekends; and, the
presence of one golden eagle on the surrounding property approximately 15 years ago. The City
notes for the record that the neighbors have not independently raised these issues, except for
the neighbor with a retention pond that drains from his property onto neighboring property, that
may or may not belong to the Applicant, during storm events.
Therefore, the City moves the Hearing Examiner to exclude from the record issues
related to traffic on 156th Ave SE, and potential impacts of the development to neighbors’ trees,
and neighbors’ retention ponds, and allegations related to weekend work, and the presence of
the golden eagle approximately 15 years ago.
In the alternative, if the Hearing Examiner will consider these topics raised in the Exhibits
the City respectfully requests additional time to brief the issues more fully than is presented in
the Response section below.
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 6
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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G. City’s Response
In the event the Hearing Examiner chooses to consider all items in the appeal, and all
items in the Exhibit, the City herein responds.
1. Revision of Location of Homes
The location of lots identified in the Preliminary Short Plat are considered
placeholders only, and detailed construction plans will be required as part of the
required Civil Construction Permit application. The Appellant will be able to
request future plans in accordance with the City’s usual process, and the City
requests this issue be dismissed as moot to the Preliminary Short Plat
consideration and not ripe for appeal.
Appellant did not provide an Exhibit related to this issue.
2. Stormwater/Surface Water:
The Appellant alleges the City did not follow state law related to
stormwater and surface water design and analysis. The City strongly disagrees.
As stated in the staff analysis provided in the administrative decision for
Varma Short Plat, a final Technical Information Report and Full Drainage Review
complying with the current 2017 Renton Surface Water Design Manual (RSWDM)
will be required at the time of Civil Construction Permit application.
The administrative decision for Varma Short Plat included analysis
regarding stormwater and surface water, provided in Finding of Fact (“FOF”) 18,
“Availability and Impact on Public Services: Stormwater”.
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 7
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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Per the City's National Pollutant Discharge Elimination System (“NPDES”)
permit, it was required to adopt updated surface water design standards that are
equivalent to portions of Volume 1 of the 2012 Stormwater Management Manual
for Western Washington, as amended in 2014, by December 31, 2016. The 2016
King County Surface Water Design Manual was approved by the Department of
Ecology as an equivalent manual. The City adopted the 2016 King County Surface
Water Design Manual with Amendments to create the 2017 RSWDM (See Exhibit
COR 5). The RSWDM was reviewed and approved by the Washington State
Department of Ecology under the City’s NPDES stormwater general permit.
The Appellant provided a copy of a public comment to the City’s Planning
Division related to a stormwater retention pond that seems to state that the
resident’s pond flows onto adjacent property. The Appellant’s summary states
that the stormwater retention pond flows onto different property owned by the
Applicant, Mr. Varma. Public comments (See Exhibit COR 2; Exhibit 11 of the
Administrative Decision) received in preparation of the Varma Short Plat, including
that provided by Appellant, have been referenced and addressed in the staff
report (See Exhibit COR 1).
The Appellant references a 1999 Washington State Supreme Court opinion
(Currens v. Sleek, 138 Wn. 2d. 858, 983 P.2d 626 (1999)). Under common enemy
doctrine as it applies to changes in surface water, Currens requires exercise of due
care to prevent unnecessary damage in the development of property (see, e.g,
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 8
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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Nelson v. Shorewood Hills Homeowners Ass’n, 2005 Wash.App. LEXIS 1573, *15).
The Varma Short Plat requires compliance with modern stormwater and surface
water design, which considers offsite migration of surface waters including during
storm events. It is the City’s opinion that, to the extent Currens may be applicable,
the Varma Short Plat is compliant with case law.
The City respectfully declines to address the Appellant’s additional
allegations related to “yellow water” from 2004 and 2009 (p 38 of the
unnumbered pdf); the use of silt fences or other erosion control on past projects;
and, use of bicycle lanes (pp 15-27 of the unnumbered pdf).
3. Arborist Report/Tree Retention Schedule
The City agrees with the Appellant that the City’s Tree Retention Schedule
must be met, and that the project as proposed does not comply with the City’s
tree preservation, protection, and density requirements. That is why staff
recommended the following condition of approval (p 21, Condition number 5) in
the Administrative decision:
• The applicant shall submit a revised short plat design for review and
approval by the Current Planning Project Manager, at the time of the Civil
Construction Permit application.
• The revised short plat design shall demonstrate compliance with minimum
tree density requirements for each lot and minimum tree protection
measures for both onsite and offsite trees.
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 9
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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o The City believes this also addresses newly raised issue of
“neighbors trees” from Appellant’s Exhibit.
o If the Hearing Examiner chooses to consider the issue further, the
City respectfully requests additional time to more fully brief the
issue.
• Furthermore, the revised short plat design shall include all trees
proposed to be retained, in excess of tree density requirements, within a
tree protection tract.
At her request, the City provided the Appellant with a copy of the Arborist
report on September 2, 2021. The administrative decision for Varma Short Plat
included analysis regarding tree preservation, provided in FOF 14, “Zoning
Development Standard Compliance: Tree Retention.” In that section, the City
found that the project, as proposed, did not include the required tree protection
tract or comply with minimum tree protection measures or minimum tree density
requirements as required by the tree retention regulations per RMC 4-4-130.
Therefore, staff recommended the condition of approval as noted above. The
condition of short plat approval serves to ensure that the final short plat project
design promotes the preservation trees, consistent with RMC 4-4-130, Tree
Retention and Land Clearing Regulations.
The City respectfully declines to address the Appellant’s allegations related
to Forest Terrace Preliminary Plat, Allure development (which does not appear in
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 10
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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the City’s development database), and clear-cutting (pp 15, 19, 22, 27 on the
unnumbered pdf) as newly raised in the Exhibits and outside the scope of the
Varma Short Plat appeal.
4. School District Designation/Traffic of 156th Ave. SE
The City agrees with the Appellant that there is a clerical error in the record,
and that the property is located within the Issaquah School District and not the
Renton School District.
With respect to the traffic on 156th Ave SE, the size of the Varma Short Plat
does not trigger the City’s traffic analysis requirement. The Varma Short Plat is
anticipated to contribute fewer than two (2) trips per peak hour per each of the
nine single family residential dwellings proposed. As there are no Issaquah
schools within one mile of the short plat, the “safe routes to school” review was
based on the development’s proximity to bus stops and the availability of
adequate street shoulders. The administrative decision for Varma Short Plat
included analysis regarding safe routes to school, provided in FOF 18, Availability
and Impact on Public Services: Schools.
If the Examiner chooses to further consider the “traffic on 156th Ave SE” issue,
the City respectfully requests additional time to brief the issue more fully.
5. City of Renton Compliance with Environmental Protection
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 11
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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It is not clear from either the amended appeal or the provided Exhibits what
deficiency in fact or law is being raised. The City of Renton complies with all
applicable local, state, and federal environmental laws, regulations, and policies.
If Donnelly intended to argue that the Varma Short Plat is not in compliance
with the Washington State Environmental Policy Act (“SEPA”), then her argument
is moot. A short plat generally is categorically exempt from threshold compliance
and EIS (WAC 197-11-800(6)(d)) so long as it is not in an area or project that
otherwise creates an exception to the exemption. The Varma Short Plat is not in
an area or project that otherwise creates an exception to the exemption.
The City respectfully declines to address specific examples of other projects
in or around Renton during this response to Ms. Donnelly’s appeal of the Varma
Short Plat.
6. Working on the Weekends
The City views this issue as not ripe for consideration, since there is no
construction work associated with the designation of Varma Short Plat itself. The
City respectfully declines to address the Appellants allegations related to the
Mountain Vue, Windstone, and Stonegate developments (pp 52, 54 of the
unnumbered pdf) as unrelated to the current decision.
If the Examiner chooses to further consider the “working on the weekends”
issue, the City respectfully requests additional time to brief the issue more fully.
7. Eagle
Varma Short Plat (LUA21-000139)
Administrative Appeal
City’s Response and Motions to Dismiss/Exclude
Page 12
City of Renton
Community and Economic Dev.
1055 South Grady Way
Renton, WA 98057
Phone: 425.430.7200
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Appellant notes that at some point between 2004 and 2006 on “several”
occasions she saw a golden eagle land on a redwood tree on her mother’s
property. As noted previously in this response, the City complies with all
applicable environmental laws and regulations which includes the Bald and
Golden Eagle Protection Act (16 USC 668-668c). The individual holding the permit
is responsible for adhering to the US Fish & Wildlife Service National Bald Eagle
Management Guidelines (2007) and/or any US Fish & Wildlife Service permit they
may hold.
If the Hearing Examiner chooses to further consider the “eagle” issue, the City
respectfully requests additional time to brief the issue more fully.
H. CONCLUSION
For the reasons described above, the City of Renton recommends maintaining the
original administrative decision of August 26, 2021 related to the Varma Short Plat.
RESPECTFULLY SUBMITTED this 19th day of October, 2021.
Angelea Weihs
Associate Planner
City of Renton