HomeMy WebLinkAboutLiberty Gardens Preliminary Plat SEPA Appeal
April 28, 2009
OFFICE OF THE HEARING EXAMINER
CITY OF RENTON
Minutes
APPLICANT: Wayne Potter
Barghausen Consulting Engineer
18215 72nd Avenue S
Kent, WA 98032
OWNER: David Petrie
811 S 273rd Court
Des Moines, WA 98198
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA 08-093, PP, ECF
LOCATION: Southeast of 162nd Avenue SE and SE 140th Street
SUMMARY OF REQUEST: Requesting Preliminary Plat approval for the subdivision of an
8.95-acre parcel into 36 lots for the eventual development of
single-family residences, with tracts for recreation, stormwater,
joint use driveways and sensitive areas.
Environmental Appeal of Mitigation Measures
SUMMARY OF ACTION: Development Services Recommendation: Approve subject to
conditions.
DEVELOPMENT SERVICES REPORT: The Development Services Report was received by the
Examiner on March 10, 2009.
PUBLIC HEARING: After reviewing the Development Services Report, examining
available information on file with the application, field
checking the property and surrounding area; the Examiner
conducted a public hearing on the subject as follows:
MINUTES
The following minutes are a summary of the March 17, 2009 hearing.
The legal record is recorded on CD.
The hearing opened on Tuesday, March 17, 2009, at 9:02 a.m. in the Council Chambers on the seventh floor of
the Renton City Hall. Parties wishing to testify were affirmed by the Examiner.
The following exhibits were entered into the record:
Exhibit No. 1: Project file (Yellow file) containing
the original application, proof of posting, proof of
publication and other documentation pertinent to the
review of the project.
Exhibit No. 2: Vicinity Map
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 2
Exhibit No. 3: Preliminary Plat Plan Exhibit No. 4: Tree Retention
Exhibit No. 5: Grading Plan/Drainage Plan Exhibit No. 6: Aerial Photo
Exhibit No. 7: Topography Map Exhibit No. 8: King County Zoning Map
Exhibit No. 9: Project Time Line Exhibit No. 10: Revised Preliminary Plat Plan
Exhibit No. 11: Typed Statement along with 3 Photos
presented by Gwendolyn High
Exhibit No. 12: Drainage Report
Exhibit No. 13: Road Classification Map
Ann Nielsen, Assistant City Attorney had some preliminary issues to discuss: Mr. Watts was present and would
testify during the Appeal portion of this hearing. The reason for requesting the Preliminary Plat portion to be
heard first is to have the testimony heard in that hearing incorporated into the relevant part of the Appeal
Hearing. There were no objections by the applicant. Relevant portions of the King County Ordinances and
Comprehensive Plan were offered to the Hearing Examiner. This project is vested to King County Development
Standards, but it is the City’s position that procedural rules of the City of Renton apply.
A new copy of the appeal, which contains the streamlined specific appeal issues was presented. The appeal now
has only three issues.
The hearing opened with a presentation of the staff report by Rocale Timmons, Associate Planner, Community
and Economic Development Department, City of Renton, 1055 S Grady Way, Renton, Washington 98055. The
site is located in northeast Renton, just south of NE 4th Street (SE 128th Street) along the eastern border of the
City. The site is located on the 14100 block, 162nd Ave SE is on the west and 164th Ave SE is on the east. The
site is located in King County and City of Renton R-4 zoning district. Both streets along the frontage of the site
are unimproved. There is a pending plat just north of the site, Cavella.
Ms. Timmons went through the Project Time Line with appropriate dates of events in relation to this plat.
Environmental Review Committee issued a Determination of Non-Significance-Mitigated with 6 measures
relating to erosion control, drainage, mitigation fees and monitoring for wetland and stream impacts. One
appeal was filed by the applicant, which is before the Examiner today.
The site is zoned R-4 and the Comprehensive Plan designation is Residential-Low Density. However, the
project is vested to the 2004 R-4 development standards and the Urban Residential Comprehensive Plan
Designation of King County. It is the City’s position that the annexed properties are not vested to rules and
procedures of the King County Code and that the project, once annexed, would follow the rules and procedures
outlined by the City of Renton code.
The proposed density for the plat would be approximately 4/du per gross acre, the lots range in size from 5,900
square feet to approximately 9,300 square feet. Access to the lots was originally proposed via 162nd Ave SE
with three new internal streets extended from 162nd Ave SE. There are no minimum lot size or depth
requirements in the King County R-4 zone, however the minimum width requirement is 30-feet.
The proposed lots would meet the width requirements.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 3
The proposed lots appear to provide adequate area to meet front, side and rear setback requirements. All
setbacks would be verified at the time of building permit review. There is also adequate area to provide off-
street parking of two spaces per each lot.
The site is heavily wooded and contains 266 trees of which 8 are proposed to remain. The applicant is in
compliance with the County’s tree retention requirements. A final tree retention plan will be required prior to
utility construction.
The landscape plan indicates the installation of 48 trees placed in the front yards of the lots along the interior
roads to the site. In addition to street trees, 91 of the 109 replacement trees are being used to buffer the site
along 164th and the southern border until the sensitive areas tract is reached. The sensitive areas tract includes a
Class III stream as well as a Class II wetland. A detailed landscape plan will be provided and approved prior to
plat recording.
King County requires 390 square feet of recreation space per lot be provided on site, the applicant has proposed
recreation space within Tract B, which is also the drainage tract in the amount of 20,200 square feet. In addition
the applicant has proposed a tot lot, sports field, and a sports court to comply with additional King County Code
requirements.
The site is fronted on the east and west by unimproved rights-of-way. The only access to the site is via 164th
Avenue SE, due to impacts and distances from improved streets, the applicant was required to provide two
points of access suitable for domestic, emergency and pedestrian safety. Originally the access would have been
from 162nd Ave SE, which the applicant proposed to make half street improvements on 162nd from the 13800
block south to SE 144th Street. Staff has since recommended that there be an east/west road connection. The
applicant has submitted a revised preliminary plat plan that shows entering the plat from 162nd and continuing
east to 164th, which road would be designated SE 140th Place. This new road does not affect lot count. As part
of the revised drawing the applicant would make half street improvements to 164th Avenue SE, which is
currently 30-feet wide. As previously mentioned, 162nd Ave SE is encumbered by two separate wetlands plus a
Class III stream. The applicant has requested a variance to modify the street frontage improvements to 162nd
Ave SE. Development Services Division would review and make a recommendation following the preliminary
plat hearing.
A Transportation Mitigation Fee was imposed on this project. School impact fees would also be required.
The proposed project site has an average slope of 15 percent; with an elevation change of 46 feet from the
southwest quarter to the northeast quarter of the site. Drainage currently runs off from the northeast portion of
the site to the Class III stream, water then flows southeasterly to the eastern side of 162nd Ave SE and disburses
into sheet flow to the south within the unimproved 162nd Ave SE right-of-way to SE 144th Ave intersection
where it then flows by culvert/pipe to the Cedar River and then to Lake Washington.
The applicant would collect stormwater runoff and convey it into a proposed stormwater vault located in Tract
B. The outfall would be conveyed back into the stream channel and leave the property. The applicant has
proposed using the 1998 King County Surface Water Design Manual, however the applicant has submitted a
Level III downstream drainage analysis, which identifies several drainage problems. The ERC required the
applicant to use the 2005 drainage manual for both detention and water quality improvements.
The site is served by Water District 90. The property is currently served by public sewer, extension of the
existing sewer line would be required to serve the new plat.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 4
Hans Korve, DMP Engineer, 726 Auburn Way N. Auburn, 98002 stated that he would be doing the majority of
the speaking. Wayne Potter and Dan Balmelli from Barghausen, and Gary Norris a traffic consultant were also
present representing the applicant.
The new design addresses many of the issues; the primary access comes south along 162nd entering the site at SE
140th with a second access as required to164th. This was done to meet the needs of the community and to
provide a better product for future buyers. They are working with a new plat to the north, Cavella to provide
improvements and secondary access to the entire area. Cavella has agreed to extend 164th to the north.
The Examiner stated that if this project were to be developed first, there must be a public access that serves Fire
and Emergency Services as well as the residents. If Cavella fails to develop, then this project would be
responsible for developing that road in its entirety.
Mr. Korve stated that they understood that completely. This is a private agreement between the three
developments, Liberty Gardens, Cavella and Threadgill. This agreement came about because all three projects
needed secondary access in order to do improvements in this area. All three agreed to share the costs of doing
the needed improvements on a per lot basis. They believed that the improvements made would eliminate most
of the CARE concerns.
Drainage issues will be addressed during the SEPA appeal.
The Examiner stated that drainage would be needed for this project and while SEPA is out there, he needs to
know what the proposed drainage is, and what improvements have been made.
Mr. Korve stated that this project is perfectly self sustainable with the 1998 Manual Level III as proposed. King
County agreed that the 1998 manual is more than adequate to address the issues. The report was provided as a
group review for all three projects. The other two projects are not vested to the 1998 manual, so when Mr.
McCarthy did his review it would have been useless to review to a standard for all three that only applied to one.
When Mr. McCarthy did the overall review, he used the 2005 manual, did the analysis and made his
representations. Mr. McCarthy was out of town and unavailable to be present at the hearing. His findings were
in no way intended to be taken in the context that somehow the 2005 manual must apply to this project. That
was never his intent and not what his conclusions meant to say and if that is what was understood, he
apologizes. That was not his intention.
10:04 am: 10 minute break was taken.
Dan Balmelli, Barghausen Engineers, 18215 72nd Avenue S, Kent 98032 stated that he is the project engineer for
both the Liberty Gardens and Cavella projects. They also coordinated with the Threadgill project, which is
further to the north, the three projects in conjunction hired Mr. McCarthy to complete a detailed Level III
drainage analysis. All three projects had the same downstream drainage issues. A portion of the Threadgill
project drains to the same basin. It was beneficial to all three projects to have one study done to analyze the
downstream system. Mr. McCarthy modeled the project in existing conditions and developed conditions; came
to conclusions as to what the extent of the problems are and recommend options for either correcting the
downstream problems or to provide on-site mitigation so the downstream conditions are not exacerbated.
On page 3.1 of the study, the mitigation options are outlined; provide on-site detention to King County Level III
flow control standard, some other options included downstream improvements, some conveyance system
upgrades, and some improvements to the water quality system.
The three parties all agreed to provide Level III on-site detention, King County reviewed this option and agreed
to the mitigation. At that time it was proposed to extend 162nd from the project site to 144th, there is an existing
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 5
conveyance ditch and stormwater pond within the right-of-way. With the construction of the roadway, the pond
would have been eliminated. It was agreed that that portion of the roadway would be tightlined to provide more
room for the road. Now that 162nd is not going to be extended to 144th the roadway would not require
modifications and so the tightlining of the drainage channel is no longer required. This project should be
approved under the 1998 standard.
Gwendolyn High, CARE, PO Box 2936, Renton 98056 (home: 155 Yakima Ave NE, Renton 98059) [a copy of
these minutes and decision will be sent to both addresses]
The following concerns are focused on KCC 21a 24, they are details that were not previously elaborated on:
-Vegetation Management Plan, there is a requirement for protection of sensitive areas, the site is heavily wooded
with 266 significant identified trees of which 8 trees are proposed to be retained. There is no indication
regarding the logging practices.
The Examiner questioned the trees to be retained.
A temporary erosion and sedimentary plan would be required, the code does allow the logging practices to be
incorporated. They asked that that be required.
-Building setback requirement of 15 feet from all edges of all sensitive area buffers with the exception of
impervious ground areas such as driveways and patios may be allowed, subject to special drainage provisions.
The west terminus of SE 141st Place cul-de-sac and the driveway of Lot 28 are immediately adjacent, they are
the boundary of the wetland buffer for Tract A. There is zero building setback and as such would require
adherence to the King County 2005 drainage manual.
-As far as they can tell, the access route for the sewer has not been determined, it may have been slated to come
up 162nd. If it were still proposed to be run through the unimproved right-of-way of 162nd Ave SE code would
prevent that, the sewer would have to go through the wetland buffers.
-Mr. Foley stated in an earlier email that if the County were to consider a capital project on SE 144th the size,
cost and complexity suggest that it would take years for it to be built. Some more limited downstream
improvements by the developer might make more sense than an uncertain King County project. A downstream
fix seems to be more feasible. This appears to support staff’s requirements to using the 2005 Manual.
-They were pleased to see that the applicant has proposed access to the site from the south via 164th, it does
address quite a lot of the outstanding issues. There are general issues that still exist, there has been no
consideration of the traffic flow patterns from the Alpine Nursery. The Transportation Impact Analysis did not
consider any of the impacts along 144th, there was no intersection analysis presented. It appears that the TIA
should be redone particularly with such significant impact that can be expected on 144th and the traffic issues
there. In light that 136th would be the other main access, the intersection of 136th at 156th was the road that was
required as a condition of the earlier plats in order to mitigate the impacts of SE 128th Ave and 160th Ave SE.
To help that situation, King County required this new road from 160th to 156th, there was a failing level of
service at the intersection of 136th and 156th. With the occupation of some of the new developments, traffic
signals were needed and have been added and their classification is now that of an arterial.
-Further concerns were with a sidewalk on 162nd there are sections that have sidewalk and sections that do not.
There are some issues with people attending events and sporting events that are parking in that area with new
drivers, insufficient lighting and no walkways and they would like to have curb, gutter and sidewalk along the
entire length of 162nd.
-It appears that the improvements along 164th would be only half street improvements. It can be expected that
there would be more parking along that street as well. In the dark, inexperienced drivers with an inadequate
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 6
parking situation, they would like the staff to review this area and make sure that they have public
improvements to meet the actual public needs.
-Two further things that the TIA did not consider are the two projects in the King County Transportation Needs
Report for pedestrian improvements on 144th. There also is no walkway indicated on the map seen today from
the eastern terminus of SE 144th cul-de-sac to the middle school. Previously there was a walkway proposed and
it does not seem to be on the map now.
Mr. Korve stated that that walkway was omitted when the new internal roads were designed.
Ms. High continued with regard to the possibility of increased parking and access to the high school ball fields
and the park near 164th Ave SE. King County agreed that the increased parking and access to the high school
would make the TIA’s so far submitted obsolete.
Patricia Payne-Gammell, 16043 SE 142nd Place, Renton 98059 stated that she resides just southwest of the
subject site. A group of neighbors filed an appeal on the extension of 162nd to the south because of the large
ditch that travels down the right-of-way and joins the ravine of the plat and comes back into the drainage ditch
on 162nd. Most of the concerns in the appeal have been taken care of if the extension of the road is not
permitted. They are concerned about the impact of the drainage ditch and any of the site water that might enter
this drainage ditch. The subject site is north of Mr. Moore’s property (the western large lot at the southwest
corner of the subject site), the Class III creek flows across the subject site, enters Mr. Moore’s site and swings
back to the west toward 162nd street, and if any water is added to this small ditch, it would overflow and flood
the corner Mr. Moore’s basement.
Gary Norris, PO Box 547, Preston 98050 stated that he is the traffic engineer representing the applicant. He
prepared the Traffic Impact Analysis for Threadgill, Cavella and Liberty Gardens. The date on the report was
October 2006, conditions and times have changed and development proposals in the area are increasing and
would have impacts on any analysis that would have been done at that time. This Traffic Analysis was not
required as part of the typical requirements of King County. The relevant section of the King County Code
would be the Intersection Standards, which requires a development that is impacting an intersection by 30 or
more pm peak hour trips to conduct an analysis and determine appropriate mitigation. None of the three plats
involved in this analysis met that requirement individually. The County did ask the development to provide this
analysis to facilitate an evaluation of the impacts of the projects on the high accident locations and the
evaluation of the potential extension of SE 136th street from 162nd over and across to 168th Avenue. That was
the basis of the analysis done.
In no case was there any consideration that the mitigation that would be required for impacted intersections or
deficient level service standards, those were all accommodated through the concurrency and the MPS system
elements of the King County Code. The effect of this document was to evaluate and determine that a secondary
access would be beneficial to addressing the impacts to the high accident locations. Subsequently the desire to
extend 162nd and now the connection to 164th was a result of this analysis.
In terms of the King County requirements, there would be no need to redo or update the Traffic Analysis. This
plat does not generate more that 30 p.m. peak hour trips through a specific intersection.
Concurrency is the King County analysis for different zones throughout the King County arterial network which
they maintain on an ongoing basis. The concurrency analysis is constantly being updated with the new
development as it occurs. At the time of this application, they were concurrent and so they were allowed to
proceed. A development is not allowed to proceed through the review process if it does not meet concurrency.
If concurrency standards changed, it would not affect this project because it was already vested into the system.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 7
If the system should become non-concurrent the impacts of this plat have already been considered and is
included in that analysis, it is still vested and concurrent as long as the application continues to move forward.
If the application drops, then it drops out of the system and the applicant must reapply.
The high accident locations have been identified as being along 160th at SE 128th, 162nd Ave SE at SE 128th and
164th Ave SE at SR900.
Neil Watts, Director Development Services stated that he had reviewed the files and all the included reports.
Typical trips made from a single family house peak hour are one per house that would mean 36 peak hour trips
from this site. A real quick estimate of distribution would show approximately 70% of the trips going north and
30% would be heading south, which after doing the math that would be below the threshold.
The street design requirements become somewhat complex due to several projects with similar requirements and
overlapping requirements. Code requirements would be all adjacent right-of-ways, 162nd, 164th, all the interior
streets with curb, gutter and sidewalks. On the adjacent existing streets the code would be half street
improvements. The King County standards allow the reviewing jurisdiction to do some level of off-site
improvements, this project would also require the extension of 162nd to the north to 137th Place with half street
improvements of curb, gutter and sidewalk along one side of the street. The new interior streets would need to
be fully paved with curb, gutter and sidewalks on both sides of the street.
In the City of Renton, there are no variances for street modifications, they do modifications, this would be a
modification and not a variance. This would typically be done as a staff modification prior to the hearing,
however, since they did not have this particular submittal they have not done that. If the Examiner elects to
keep the record open, they would provide a written modification from staff addressing 162nd and would be able
to support that modification for any type of roadway improvements south SE 140th Place. That would be
contingent of no driveways coming off of that street.
They would request a condition that no driveways be provided to any of these lots so that there would be no
driveway access from either 164th or 162nd, all driveways would access from the internal streets. There have
been some concerns about parking on 164th, there will most likely be some parking on that street with people
going to playfield facilities at the high school. There would only be parking on one side of 164th.
In working with the project to the north the intent is to continue the extension of 164th to the north to the end of
the other development site. Beyond that the lots are already developed and there does not appear to be an
opportunity to extend the road beyond that point.
The sewer would be extended up 164th.
Regarding the King County Manual, for a fully wooded site such as this site appears to be no difference in
amount of detention or water quality requirements between the ’98 manual and the 2005 manual. However,
there are some procedural differences between the two manuals, there also is a broader range of options that are
allowed in the 2005 manual. The 2005 manual is also closer to being consistent with the City’s NPDES
requirements. It was strongly recommended that that condition be kept in place. The City’s policy for the east
plateau area has been for everything to go to the highest level of requirements available, which is the 2005
Manual. There are downstream drainage impacts from this site and this community has identified what the
acceptable realm of environmental impacts for drainage is in this area. The 1998 Manual does not suffice for
proper environmental protection for these community standards.
Staff would not oppose the Hearing Examiner making this a plat condition.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 8
Regarding the Issaquah School District Impact Fee, in the body of the report it was listed to be paid at the time
of building permit. The Impact Fees are, however established by City Code and code specifies that those fees
are to be paid at building permit stage. (Condition #7)
They also recommended that the street design include a pedestrian linkage between the most southerly cul-de-
sac over to 164th. Tract E was previously located between proposed Lots 18 and 19 and with the new interior
roads, that access would now be located between Lots 19 and 20.
They do recognize that there are challenges in this neighborhood as it develops and with the existing
intersections, as the volumes increase there will probably be a likelihood for more accidents. The City will
continue to make adjustments as they can. The purposes of the Traffic Mitigation Fees are to do the offsite
improvements. There are some challenges for the intersections and pedestrian walkways.
Regarding the missing gap on the sidewalk on 162nd, this project should be conditioned to bring the sidewalk all
the way up to 137th. The streets in this area have lots of capacity. Most of the time the level of service on these
streets would be A, there may be times in the day that they would come down to B or C. On 164th it will be
Level Service A and it will remain that level of service. The neighbors are used to seeing very few cars on that
street, with the change of the roadway system, the new development and the development to the north, they will
see a significantly higher percentage of cars on these streets. These are acceptable levels of service and
acceptable capacity to accommodate this development. No offsite improvements are being recommended.
Doris Yepez, 16444 SE 135th Street, Renton 98059 stated that she lives north of Liberty High School and she
walks all around that area. She has walked on 164th from Liberty High School where the ball fields are located.
Back of the ball fields there is a dirt path that goes through to 164th, she was wondering what kind of
improvements would be made in that area, there are a lot of students that walk in that area.
There is a development called Starwood there is a lot of erosion and ruts in the path. The path has become so
eroded with large ruts that it is now useable, there is a lot of water coming down that direction now.
The Examiner stated that the dirt path would become a half street with a curb, gutter and sidewalk on the west
side.
Mr. Korve stated that the Liberty Lane sidewalk extension to the north according to King County does not
require offsite improvements of curb, gutter and sidewalks, they usually do the fire access, the appropriate
amount of pavement and then a shoulder. They request that they be held to the vested road standards for offsite
improvements.
There was some discussion as to improvements to the roadways, some would require full City standards, there
may be some agreements between this project and Cavella, but if a secondary access is necessary, then this
project must provide that road. That means that this development would be responsible for not only a pathway
but actually a real sidewalk, curb, street and gutter in that location.
Mr. Korve stated that it is the offsite portions, the areas not fronting this project under the King County road
standards, once you leave your site, the level of improvements drops from the full urban frontage, which is the
project’s responsibility, to a lesser standard of safe walking. You still have to provide extended gravel or an 8-
foot paved shoulder or something like that.
The Examiner stated that 162nd would have to be developed up to SE 137th Place. There needs to be fire access,
domestic access and pedestrian access.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 9
Mr. Watts stated that there were a number of ways to cost share.
Mr. Korve stated that with the clarification, they are in total agreement.
The subject of re-introducing Tract E was proposed, the applicant would oppose such a condition on the basis
that there is no need for this pedestrian connection now that 140th Place has been extended. Any children
walking to or from the park or school would be going north and it is a short distance to go along the interior
sidewalks. There is the security factor as well.
Dan Balmelli stated that regarding the drainage concerns of CARE, first, a portion of the email from Steve Foley
bringing up the potential for the offsite mitigations. Those were discussed with the County’s staff and that was
just some of the comments from Steve and the County staff, as a result of the final proposal and the complexity
of the possible offsite proposals, they chose to propose the Level III, the County staff all reviewed and agreed to
that mitigation and it became a condition. That issue has been addressed adequately.
Second, the concern with 162nd, since 162nd has been eliminated most of CARE’s concerns also have been
removed. Their drainage will discharge into the channel at a very reduced and restricted rate under the Level III
detention, it will re-enter the drainage channel and the existing pond further south of where most of their
concerns with Mr. Moore’s property. They are not required to mitigate for existing conditions.
Rocale Timmons had three items: 1. Pedestrians and potential students might not only travel north to Liberty
High School, they might also travel south of 144th to the high school and elementary school in this area. 2. The
applicant made reference to the building setbacks for the sensitive area tract. King County Code specifies that
the driveway or access be setback 15-feet, but that special drainage considerations must be made for those areas
or driveways that are abutting within that 15-foot setback. 3. Regarding the wetland at the NW portion,
assuming that the southern portion of 162nd Ave SE is foregone, the applicant will need to submit a revised
mitigation plan for impacts to that upper Class II wetland and buffer.
Hearing was adjourned at 12:00 for lunch
Hearing resumed at 1:30 pm
The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and
no further comments from staff. The hearing was adjourned for lunch at 12:00 p.m.
FINDINGS, CONCLUSIONS & RECOMMENDATION
Having reviewed the record in this matter, the Examiner now makes and enters the following:
FINDINGS:
1. The applicant, Wayne Potter, Barghausen Consulting Engineer, filed a request for a Preliminary Plat.
2. The yellow file containing the staff report, the State Environmental Policy Act (SEPA) documentation
and other pertinent materials was entered into the record as Exhibit #1.
3. The Environmental Review Committee (ERC), the City's responsible official issued a Determination of
Non-Significance - Mitigated (DNS-M).
4. The subject proposal was reviewed by all departments with an interest in the matter.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 10
5. The subject site is located along portions of undeveloped rights-of-way. It is generally northeast of the
intersection of 162nd Avenue Southeast and SE 142nd Street if those streets were extended. The
eastern boundary is 164th Avenue SE if that street were extended.
6. The map element of the Comprehensive Plan designates the area in which the subject site is located as
suitable for the development of single family uses, but does not mandate such development without
consideration of other policies of the Plan.
7. The subject site is currently zoned R-4 (Single Family - 4 dwelling units/acre). The subject site is
vested under King County's zoning which is generally equivalent to Renton's designation but the
standards for lot area, yard setbacks or dimensions and development standards would be judged against
King County standards in effect when the application was submitted on December 29, 2004.
8. The subject site was annexed to the City with the adoption of Ordinance 5398 enacted on August 11,
2008.
9. The subject site is approximately 8.95 acres of 389,862 gross square feet. The subject site is
approximately 655 feet wide (east to west) by 594 feet deep.
10. The subject site slopes downward from the northeast to the southwest with an average slope of about 15
to 20 percent. A Class II wetland and Class III creek are located in the southwest corner of the site. A
Class II wetland is located offsite to the northwest.
11. The Class III stream requires a 25 foot buffer since it is non-salmonid bearing. The wetland requires a
50 foot buffer which encompasses the stream and stream buffer. In order to protect these critical areas
the ERC required that they not be available for separate sale and that each abutting owner or the
Homeowners Association have an undivided interest in the property. A 15-foot building setback line
was also established from the edge of the preserved areas.
12. The tree inventory found approximately 266 significant trees on the subject site. The applicant proposes
retaining approximately three percent of those trees and planting an additional 157 trees.
13. The applicant proposes dividing the subject site into 36 lots and 6 tracts. The lots would range in size
from approximately 5,900 square feet to 9,350 square feet.
14. Access would be provided by 162nd Avenue along the west boundary of the site and then by three new
internal roads. Proposed SE 140th Place would run east into the site and terminate in a cul-de-sac.
Prior to the cul-de-sac 163rd Avenue SE would branch off to the south and that in turn would intersect
with Proposed SE 141st Place that would run east and west with both ends terminating in cul-de-sac
turnarounds.
15. Proposed Lots 1 to 8 would run east to west across the north property line generally north of Proposed
SE 140th Place. Proposed Lots 9, 10, 11 and 17 to 21 would be located along the eastern property line
with access via two cul-de-sacs and pipestems or easements. Proposed Lots 28 to 36 would form a two-
tier block of lots in the west central area of the plat. The remaining lots would be clustered around the
cul-de-sacs east and south of 163rd and 141st, respectively.
16. Staff has recommended that SE 140th Place be continued to the east as a through-street that would
connect to 164th Avenue SE. An exhibit was submitted showing that roadway extended across the site.
The lot count would remain at 36 even with the roadway extension.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 11
17. Code requires the planting of one tree for every 40 feet of street frontage. That would be approximately
48 trees but might change if additional roads are developed as proposed by staff. The applicant
proposes additional tree plantings in the drainage/recreation area.
18. The density for the plat would be approximately 4 dwelling units per acre using King County standards.
19. The subject site is located within the Issaquah School District. Developments within that school district
are required to pay an impact fee on a per lot basis. The fee is accessible at the time of building permit
approval and is $6,021.00 per lot.
20. The development will increase traffic approximately 10 trips per unit or approximately 360 trips for the
36 single family homes. Approximately ten percent of the trips, or approximately 36 additional peak
hour trips will be generated in the morning and evening. Traffic analysis indicates that intersections can
handle the additional traffic. King County's applicable concurrency standards do not require changes in
the proposal or more specific traffic analysis since no one intersection will handle more than 30
afternoon/evening peak hour trips. Staff recommended that the applicant pay the City's mitigation fees
for traffic. King County does require the identification of "High Accident Locations" (HAL) and they
were identified. To help moderate impacts the City has recommended that traffic be better dispersed by
opening a connection through the plat to the east, to 164th. This would allow traffic to flow out of the
plat along two roads rather than just the western 162nd. Separately, the applicant has entered into an
agreement with two other proposed plats in the area for joint development of access road 162nd. Staff
has recommended that the roadways meet the King County standards although a modification or
variance may be appropriate.
21. Stormwater control is an issue for the subject site. There are existing flooding problems that were
identified in the SE 144th Street Level 3 Downstream Drainage Analysis (McCarthy, June 15, 2007) and
his subsequent mitigation suggestions (March 3, 2008). Those two documents discussed and
recommended Level 3 Flow Controls and references are to standards in the 2005 Design Manual. See a
fuller discussion in the companion SEPA Appeal Decision issued as part of this concurrent Plat and
Environmental review. Driveways are overtopped by stormwater and third party property floods
serving as a de facto stormwater detention pond during storm events. Stormwater would be contained in
a vault on Tract B and then directed back to its natural channels, the creek and wetland.
22. Sewer service will have to be provided to the proposed plat. A 15-inch line is located at the intersection
of 160th Avenue SE and SE 144th Street and a 12-inch line is located in 160th. An 8-inch line meeting
City standards will be required.
23. Water District 90 serves the site. A domestic water line will have to be extended to serve the site.
24. Neighbors were concerned about traffic and stormwater impacts of this development on the surrounding
community. There was concern about parking and impacts on the school. Flooding, identified above,
was an issue. The natural features and trees were also presented as an issue.
25. The applicant noted that the McCarthy drainage documents were prepared for three projects including
the subject application. They maintain that it does not mean that the recommendations in those
documents for imposition of 2005 Design Manual are applicable to the subject proposal, only that it was
not practical to separately address the needs of each project based on its own vesting timeframe.
CONCLUSIONS:
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 12
1. If the applicant complies with all the requirements under both King County and City regulations for
sanitary sewer, domestic drinking water, stormwater control systems and access improvements the
proposed plat appears to serve the public use and interest. In this case, things are complicated by the
applicant's reliance on older King County regulations with the overlay in some instances of City
requirements such as impact fees. While the applicant is entitled to protection, as it were, of older
regulations that vest certain standards, that does not mean a plat which might exacerbate flooding
problems can escape appropriate review. Whether one calls them environmental mitigation or making
sure the plat provides for and accommodates the potential negative effects of its development, a plat can
only be approved if the applicant submits a plat with appropriate features. There are different standards
that apply to development. Some such as density, lot size, lot width and depth, building height and
setbacks could be considered aesthetic. These factors determine how spacious lots are, the separation
between homes, how large homes can be, aspects of development that are termed bulk standards. Then
there are other standards that affect public safety or protect from property damage - stormwater control,
erosion control, fireflow and safe drinking water and sanitary sewers. Then there are factors that might
be considered a combination of aesthetics and safety - road width, sidewalks and street lighting. A
paved street provides access for residents but it also needs to provide a safe durable and wide enough
surface to allow emergency vehicles access without getting bogged down in mud or hampered by
parked cars (safety) besides cutting down on dust and runoff (aesthetic).
2. In other words, this plat must provide appropriate stormwater controls. A report commissioned by this
applicant specifically identified controls from the 2005 Design Manual. The applicant apparently chose
a report that dealt with three projects and together the projects' impacts were reviewed and analyzed.
There is no way to pull out or tease from these reports the separate measures that this applicant now
expects to use, older, potentially less stringent measures, from those found in these reports. The reports
specifically identified measures to assure that downstream flooding, flooding that affects roads,
driveways and ponds on third-party property, is not worsened. The critical issue is that this plat cannot
be approved if flooding might be exacerbated. This plat cannot be approved if it does not serve the
public use and interest. This plat is held to the standards enunciated in the two McCarthy reports. The
stormwater record and public use and interest is based on following those recommendations. The City
Council should not approve this plat if those measures are not followed. The newer 2005 Manual
reflects changes that overcome weaknesses, flaws or limitations in the older standards. The newer
standards must be followed.
3. Similarly, as discussed in the companion Appeal portion of this report, sedimentation occurs when
erosion occurs. Flooding problems associated with clearing nearly eight acres will be accompanied by
erosion. Erosion should be controlled by the most modern methods of control. Those are contained in
the Department of Ecology's most recent manuals. The applicant's plat cannot serve the public use and
interest if wetlands are jeopardized by flooding which is accompanied by erosion.
4. The best management practices need to be applied to this project or it will not serve the public use and
interest. Again, things like lot sizes and building heights and bulk change in response to market
demands, density preferences and aesthetics. But current knowledge of flooding and erosion and how to
best handle them are very different issues. Life safety and the functioning of wetlands are critical
issues that need to be properly addressed. This plat can only be approved if those consequences are
appropriately solved.
5. Staff reviewed traffic for the proposal and determined that under King County regulations as well as the
need for two points of entry, that traffic safety would be addressed by connecting a through street from
east to west from 162nd to 164th. That appears appropriate. It provides better access for residents and
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 13
certainly better access for both police and fire services. Separately, the applicant has entered into an
agreement with two other proposed plats in the area for joint development of access road 162nd.
Whether those agreements come to fruition or how they are timed will not eliminate the need for the
access if this plat were to be occupied. Therefore, in order to approve this plat the appropriate roads that
connect this plat with surrounding arterials will be required prior to sale or occupancy.
6. The proposal does appear to otherwise satisfy the bulk standards such as lot size, width and density
required. It meets the tree schedules required. It will be protecting the natural areas if stormwater and
erosion are appropriately handled.
7. The development of the subject site is appropriate given the Comprehensive Plan's objectives and the
appropriate Zoning Code. The development will increase the tax base of the City. The new lots will
provide additional housing choices for new residents and will protect the valuable amenities on the
subject site.
8. The is no doubt that developing an eight acreage site that has been forested and undisturbed in the main
will change the character of the site and the surrounding community. These changes were clearly
anticipated when the Comprehensive Plan and Zoning were adopted for the area and this site in
particular. There will be more traffic and more comings and goings by new residents. Housing for new
residents is a vital part of any planning process and changes result when property is finally developed.
9. In conclusion, the City Council should approve the proposed 36-lot plat subject to the conditions noted
below.
RECOMMENDATION:
The City Council should approve the 36-lot Preliminary Plat subject to the following conditions:
1. The applicant will be required to submit a Temporary Erosion and Sedimentation Control Plan
(TESCP) designed pursuant to State Department of Ecology's Erosion and Sediment Control
Requirements, outlined in Volume II of the 2001 Stormwater Management Manual. The plan
must be submitted to and approved by the Development Services Division Plan Review staff
prior to issuance of the utility construction and during utility and road construction.
2. The detention system for this project shall be required to comply with the requirements found in
the 2005 King County Surface Water Design Manual to meet both detention (Conservation Flow
control - a.k.a. Level 3) and water quality improvements."
3. The applicant shall comply with the conditions imposed by the ERC as modified in the appeal
decision
4. The applicant shall provide an east/west road connection from 162nd Ave SE to 164th Ave SE in
order to create highly connective road network. All construction and upgrading of public and
private roads shall be done in accordance with the King County Road Standards established and
adopted by Ordinance No. 11187 as amended (1993 KCRS).
5. The applicant shall be required to submit a revised plat plan, depicting an east/west road
connection from 162nd Ave SE to 164th Ave SE, which is also consistent with all preliminary
plat review criteria. The revised plat plan shall be submitted for review and approval by the
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 14
Development Services Division and the Current Planning Project Manager, prior to engineering
plan approval.
6. Both frontages, 162nd Ave SE and 164th Ave SE, for the full length of the property shall be
improved to the satisfaction of the City of Renton Development Services Division subject to the
King County Road Standards or as modified by variance. 162nd Ave SE shall be designed and
constructed to meet the urban neighborhood collector standard. No lot shall have a driveway
entering off 162nd Ave SE or 164th Ave SE.
7. The applicant shall create pedestrian paths and links as determined by Staff.
8. The Applicant shall be required to provide a detailed tree retention plan with the engineering
review application. The tree retention plan shall be reviewed and approved by the Current
Planning Project Manager prior to engineering permit approval.
9. The applicant shall pay a Transportation Mitigation Fee based on $75.00 per net new average
daily trip attributed to the project. The fee for the proposed plat is estimated at $25,839.00
($75.00 x 9.57 trips x 36 lots = $25,839.00) and is payable to the City prior to the recording of
the final plat.
10. The applicant shall establish a homeowners’ association for the development, which would be
responsible for any common improvements and/or tracts within the plat prior to final plat
recording.
11. The applicant shall pay school impact fees per RMC 4-1-160, D, tot eh City of Renton, on
behalf of the Issaquah School District. The fee for the proposed plat is estimated at
$216,756.00 ($6,021.00 x 36 lots = $216,756.00).
******************************************************************************************
The hearing reopened on Tuesday, March 17, 2009, at 1:35 p.m..
Liberty Gardens Preliminary Plat Appeal
LUA 08-093
Appellant: Hans Korve
Ann Nielsen: Representing the City of Renton
Ann Nielsen stated the appeal has been modified. The issues before the Examiner today are in Subsection B, 1,
4 and 5, those are the three remaining issues.
The following Exhibits were entered:
Exhibit No. A: Appeal Timeline Exhibit No. B: Vicinity Map
Exhibit No. C: Preliminary Plat Plan Exhibit No. D: Drainage Plan (2008)
Exhibit No. E: Aerial Photo Exhibit No. F: Topography Map
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 15
Exhibit No. G: Plat Plan (March 16, 2008) Exhibit No. H: Revised Appeal Letter
Hans Korve stated that items 1, 4 and 5 are the only items they are dealing with.
No. 1 deals with the use of the DOE manual for stormwater and erosion control. They are vested to the King
County 1998 Manual for erosion control. There was nothing in the environmental study that showed that the
vested document was insufficient. Where there is an acceptable level of service, in the case of the 1998 manual,
temporary erosion control is very well covered. There is nothing unique about this site, there is nothing in the
environmental review document produced by the City indicating that there is anything unique and special about
this site that would require using the 2001 DOE manual to remedy. Part of staff’s original presentation was that
they would need an MPDES Permit which would supersede what is happening at the site. DOE would be
monitoring the site during the development. They would like to have the vested documents apply to the project.
Using SEPA to undo vested rights seems to be wrong.
No. 4 regards the maintenance and surety devices which is the driving force behind the appeal. King County
code clearly allows bonding. He did not know if this was a policy statement as opposed to a development
regulation by staff, they feel that the King County Code allows for bonding and they would like to be allowed to
bond as per King County Code. There are no probable adverse environmental impacts that would justify the
removal bonding as a viable means of taking care of maintenance, surety and performance issues with the plat.
There was no discussion of this adverse environmental impact in the environmental study produced by the City.
SEPA requires identification of the environmental impact and then show the mitigation. This issue was not
covered.
No. 5 covers the use of the King County manual. The appellant’s engineer pointed out that the 1998 vs. 2005
manual are virtually the same in a forested condition. He agrees to that, the point remains that the use of SEPA
to undo the vested rights is not appropriate. There would be no adverse harm is using the 1998 manual, they are
virtually the same. The drainage facilities would be designed to the 1998 manual, King County acknowledges
the 1998 manual more than sufficient to address the environmental impacts and it is also covered in the King
County staff report, page 4 states that the drainage issues will be addressed through Level III flow control of the
1998 manual.
Ann Nielsen stated that as previously stated prior to the Preliminary Plat hearing, she would like to have
incorporated the relevant portions of the facts and testimony that were given. She would be relying on the
information that was given during the Preliminary Plat stage and that they be incorporated into the Appeal
hearing for purposes of factual testimony and evidence for the appeal. She would present a summary to wrap up
the Appeal hearing.
Regarding the surety issue, the City does concede that the appellant is clearly vested to the King County
Development Standards, however, they have always maintained the position that it is the procedural roles of the
City of Renton that apply here. With respect to the surety devices, the King County code speaks to financial
guarantee. Mr. Korve is relying on these particular provisions to request that they be considered a bond as
proposed to the satisfied surety, which is more in line with what the City of Renton requires.
This is a procedural issue, there is nothing in the King County Code provisions that would lend itself to being a
development code and as such the City would submit that as a procedural aspect of this should be compelled to
submit to the City of Renton procedures. It was her understanding that there is a City of Renton ordinance that
specifically requires a set aside or surety in lieu of a bond.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 16
The difference between the two is that cash is set aside in a bond and not available to the developer as opposed
to getting a bond from a bonding company where you pay 3% of a million dollars, so they are only out the 3%,
it’s like buying an insurance policy.
Regardless of what the times are, it has been the City’s policy to require a surety device, which has been through
years of experience where a bond has been found to be insufficient. The nature of this particular plat is such that
there is going to be a higher level of environmental concerns and the issue of a five year monitoring of the
wetland versus three years. There is a higher level of environmental concern here, as a result this was tied into a
SEPA condition, and this is purely a procedural issue and they would ask the Examiner to render a decision with
that information in mind.
There was discussion between Ms. Nielsen and The Examiner as to whether this matter was truly a SEPA
condition or purely a procedural issue and how it should be handled.
In the environmental checklist that was submitted, the 10/13/2005 report, it talks about proposed measures to
reduce or control surface, ground and runoff water impact, if any. A further section reads; A Level I drainage
analysis prepared by DMP engineering and a Level III drainage report prepared by Ed McCarthy are available
for review. These reports analyzed the required onsite detention requirements as well as analyzing the
downstream drainage basin. The stormwater detention manual requires that the project engineer analyze
impacts to downstream drainage systems and make recommendations with respect to any proposed measures to
improve offsite drainage. The last sentence reads: please review the drainage reports for any potential required
measures to help reduce or control surface water impacts.
Ms. Nielsen continued to read from the McCarthy report regarding roadway flooding along SE 144th which was
considered to be a severe flooding problem according to King County Standards. Between the intersection of
162nd Ave SE and 160th Ave SE the driveway culverts along the ditch to the north side of SE 144th Street, would
cause the north side of SE 144th street to become overtopped posing a threat of unpaved access due to driveway
edges. This would cause an unsafe condition. There are several drainage issues emanating from this
development.
There are broader options in the 2005 manual and they are more consistent with the NPDES regulations. It
further indicates that the City generally in the east plateau area has consistently used the 2005 manual. Given
the particular nature of this project, the lower manual that they are vested to does not adequately address the
specific environmental issues that are unique to this particular site.
She asked that the Hearing Examiner to focus on the testimony and evidence that was presented by Mr. Watts to
show that this particular site has specific unique environmental impacts that necessitate the mitigated conditions
that were proposed, namely the elevation of the 1998 stormwater manual to 2005 standard along with the
erosion control manual up to DOE standards.
Mr. Korve stated that staff has brought up the King County Staff Report and King County Findings and yet
ignored or discounted the actual report as it was presented to the Examiner that they believe the 1998 manual
was more than enough to address the issues, it was in their MDNS and in the staff report. The concerns of the
community are valid and important, that is not a justification for imposing a SEPA condition, the City is
required to indicate in their Environmental Review what the issues are, how they are adverse and significant and
then how this proposed condition mitigates that.
The simple statement that this is a site with wetlands is not a compelling argument for circumventing applicable
code, many sites and King County and Renton have wetlands, there is nothing unique and special about this one.
The NPDES that they are required to adhere to as part of the stormwater controls is beyond City regulations it
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 17
goes to State and National regulations that are used in implementing the National Pollution Stormwater controls.
Those items of stormwater control will be addressed through the NPDES process, DOE will have monitoring
crews out, there is a person assigned to the site who will be available at all times.
The Examiner stated that the issue appears to be whether they want to come back and try policing after the
erosion has occurred or make sure that the project complies with current standards that address the problem.
However, this plat must pass muster today, he must make a recommendation to the Council that with the
mitigation measures imposed by the ERC are addressed and covered appropriately. Stormwater and erosion
control are met by this plat and will not exacerbate problems.
Mr. Korve stated that these issues are not actually the main issues of their appeal. The key issue is the surety, a
financial situation. It is in the King County code, it is an adopted ordinance and is part of their development
regulations, there whole section on wetlands and how to mitigate and how to assure that wetlands are mitigated,
maintained and monitored refers to Section 27a, which is the surety section; that is not a policy statement, it is a
Code.
The Examiner stated that he did not know if the Courts had established what vesting covers, it usually is density,
zoning, yards and things like that. He did not know if it deals with monetary issues or not. He may ask the City
Attorney for clarification in this matter. He is not sure it is an issue he can decide
The Examiner called for further testimony regarding this project. There was no one else wishing to speak, and
no further comments from staff. The hearing closed at 2:10 p.m.
FINDINGS, CONCLUSIONS & RECOMMENDATION
Having reviewed the record in this matter, the Examiner now makes and enters the following:
FINDINGS:
1. The appellant, Hans A. Korve, filed an appeal of an environmental determination issued by the City on
December 15, 2008.
2. The appeal was filed in a timely manner.
3. The appellant is Planning Manager for a proposed plat known as Liberty Gardens. The plat would
divide approximately 8.95 acres into 36 lots for the eventual development of detached single family
homes.
4. The subject site is located east of 162nd Avenue SE and north of SE 144th Street.
5. The subject site was annexed to the City on August 11, 2008 by Ordinance 5398. Prior to annexation
the property was under the jurisdiction of King County.
6. Just prior to the Public Hearing the appellant amended their appeal and limited the appeal issues to three
primary issues. The ERC imposed six conditions in its Mitigated Determination of Non-Significance.
The appellant ultimately challenged three of those conditions. The challenged conditions, numbered per
the original determination, are:
"1. The applicant will be required to submit a Temporary Erosion
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 18
and Sedimentation Control Plan (TESCP) designed pursuant to
State Department of Ecology's Erosion and Sediment Control
Requirements, outlined in Volume II of the 2001 Stormwater
Management Manual. The plan must be submitted to and
approved by the Development Services Division Plan Review
staff prior to issuance of the utility construction and during
utility and road construction.
4. The applicant shall provide a maintenance surety device (a
letter of credit or irrevocable set aside letter) (italics in
original), prior to plat recording, set at an amount totaling
125% of the cost, to guarantee satisfactory performance of the
mitigation plan for a minimum of five years.
5. The detention system for this project shall be required to
comply with the requirements found in the 2005 King County
Surface Water Design Manual to meet both detention
(Conservation Flow control - a.k.a. Level 3) and water quality
improvements."
7. A major contention of the appellant is that this project was initiated when the property was located in
King County and that the appellant is entitled to develop the subject site under land use rules and
regulations that were in effect when the application was submitted. The application was submitted on
December 29, 2004.
8. The appellant also maintains that SEPA, specifically, RCW 43.21C.240 prohibits the imposition of
SEPA mitigation conditions if the impacts generated by the project are already addressed by existing
regulations.
"Furthermore, Subsection (4) A states that a development regulation
shall be considered to adequately address an impact if the municipality,
through the planning and environmental review process under Chapter
36.70A RCW and this chapter, has identified the specific adverse
environmental impacts and :
'(b) The legislative body of the municipality has designated as
acceptable certain levels of service or development standards required
or allowed by chapter 36.70A RCW'"
9. The appellant argued that the King County 1998 Storm Water Design Manual provided applicable
standards for both stormwater mitigation as well as erosion control measures. Those were the standards
applicable to stormwater and erosion when the proposal was submitted on December 29, 2004 under
which the appellant argues they are vested.
10. Finally, the appellants argue that the manner in which the ERC imposed financial guarantees to assure
the proposed wetland and buffer mitigation improvements were accomplished did not include methods
permitted by the King County Code, namely bonding. The claim is the appellant is vested in this
method or, at least, can avail themselves of this method.
11. A downstream drainage analysis was prepared for the appellant's project as well as two nearby parcels.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 19
The three projects are Threadgill, Cavella and Liberty Gardens, the appellant's project. The analysis is
titled "SE 144th Street Level 3 Downstream Drainage Analysis" (Ed McCarthy, June 15, 2007).
12. The Cover Page of the SE 144th Street Level 3 Downstream Drainage Analysis, hereinafter Analysis
includes the following text:
"Prepared for: Mr. Dave Petrie
811 So. 273rd Ct.
Des Moines, WA 98198."
13. Page 1-1 states:
"The conveyance route is downstream from three proposed single-family
residential developments that are current under drainage review at King County
DDES. These developments include Threadgill Plat, Liberty Gardens, and
Cavella." (emphasis supplied)
Page 2-8 SE 144th Street Level 3 Downstream Drainage Analysis (Ed McCarthy, June 15, 2007):
"Roadway flooding along SE 144th Street would be considered as 'severe
roadway flooding problem' (enclosed in quotes in original) according to King
County standards (King County Department of Natural Resources, January
2005) due to the following conditions:
Between the intersections of 162nd Avenue SE and 160th Avenue SE
driveway culverts along the ditch on the north side of SE 144th Street
would become overtopped, posing a threat of unsafe access due to
indiscernible driveway edges.
Floodwater over the driveways on the north side of SE 144th Street
between 160th Avenue SE and CB-11A would be deeper than 0.5 foot
posing a severe impediment to emergency vehicle access."
14. Driveways, according to the report, would be overtopped by 0.7 feet. The report also indicates that
overflow from catch basins is conveyed to the west in the north side of the roadway until it reaches low
lying private property where it settles. Neighbors reported this property does get flooded.
15. Ed McCarthy submitted a letter or report to King County DDES on March 3, 2008. It was intended as a
follow up to his initial report with suggested mitigation measures. It states in its opening paragraph:
"The results of the hydraulic assessment I prepared for the downstream
conveyance system (June 15, 2007) predicted flooding along the north side of
SE 144th Street and at the intersection of 160th Avenue SE. There has also
been residential flooding at SE 142nd Place, which is adjacent and tributary to
the downstream system of the proposed developments. After consideration of
the basin and downstream conditions, I offer the stormwater mitigations
described below for the proposed plat to address existing flooding problems
along SE 144th Street and at the end of SE 142nd Place."
16. He then describes conditions that could aggravate "an existing severe flooding problem." (Page 2, Para
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 20
1) Continuing at Paragraph 2:
"On the other hand, adopting Level 3 flow control would mitigate impacts of
the projects on this downstream flooding area. The predicted 100-year stage in
the downstream flood flow path would not be increased. In light of the
downstream conditions, providing Level 3 detention standards is an appropriate
stormwater mitigation for each of the proposed developments." Paragraph 3
contains the following statement: "These estimated volumes do not include a
factor of safety which would increase the required volumes..."
17. His letter concludes with this text "Please note that the applicants for the proposed plats willingly offer
the mitigations that would benefit the property owners along SE 142nd Place provided that the
mitigations can be designed and implemented without incurring unreasonable delays that may be
confronted in acquiring construction easements, permits, or other construction-related authorizations."
18. There had been an earlier determination by the ERC and an appeal was filed by neighbors of that
determination. The City rescinded that decision and the appeals were voided at that time. Therefore, no
part of this decision is directed at the earlier determination or appeal.
CONCLUSIONS:
1. The decision of the governmental agency acting as the responsible official is entitled to substantial
weight. Therefore, the determination of the Environmental Review Committee (ERC), the city's
responsible official, is entitled to be maintained unless the appellant clearly demonstrates that the
determination was in error.
2. The Determination of Non-Significance in this case is entitled to substantial weight and will not be
reversed or modified unless it can be found that the decision is "clearly erroneous." (Hayden v. Port
Townsend, 93 Wn 2nd 870, 880; 1980). The court in citing Norway Hill Preservation and Protection
Association v. King County Council, 87 Wn 2d 267, 274; 1976, stated: "A finding is 'clearly erroneous'
when although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."
Therefore, the determination of the ERC including conditions it found necessary to mitigate the impacts
of the development on City services and facilities will not be modified or reversed if it can meet the
above test. For reasons enumerated below, the decision of the ERC is affirmed in part and reversed in
part.
3. The clearly erroneous test has generally been applied when an action results in a DNS since the test is
less demanding on the appellant. The reason is that SEPA requires a thorough examination of the
environmental consequences of an action. The courts have, therefore, made it easier to reverse a DNS.
A second test, the "arbitrary and capricious" test is generally applied when a determination of
significance (DS) is issued. In this second test an appellant would have to show that the decision clearly
flies in the face of reason since a DS is more protective of the environment since it results in the
preparation of a full disclosure document, an Environmental Impact Statement.
4. An action is determined to have a significant adverse impact on the quality of the environment if more
than a moderate impact on the quality of the environment is a reasonable probability. (Norway, at 278).
Since the Court spoke in Norway, WAC 197-11-794 has been adopted, it defines "significant" as
follows:
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 21
Significant. (1) "Significant" as used in SEPA means a reasonable likelihood of more
than a moderate adverse impact on environmental quality.
(2) Significance involves context and intensity ...Intensity depends on the magnitude
and duration of an impact.... The severity of the impact should be weighed along with
the likelihood of its occurrence. An impact may be significant if its chance of occurrence
is not great, but the resulting environmental impact would be severe if it occurred.
5. Also redefined since the Norway decision was the term "probable."
Probable. "Probable" means likely or reasonably likely to occur, ... Probable is used
to distinguish likely impacts from those that merely have a possibility of occurring,
but are remote or speculative. (WAC 197-11-782).
6. Impacts also include reasonably related and foreseeable direct and indirect impacts including short-term
and long-term effects. (WAC 197-11-060(4)(c)). Impacts include those effects resulting from growth
caused by a proposal, as well as the likelihood that the present proposal will serve as precedent for
future actions. (WAC 197-11-060(4)(d)). In the current case, the Drainage Report and Mitigation
letter specifically refers to the 2005 Design Manual. Page references are to the manual. Real flooding
occurs under existing conditions and would increase with this development.
7. The appellant maintains that the King County standards that were applicable to this project when it was
submitted on December 29, 2004 are controlling under the vested rights doctrine. This office has to
disagree. The appellant is correct when it comes to certain aspects of review. At the same time, the
ERC is entitled to review the record including evidence of flooding and potential mitigation measures.
The ERC is especially permitted to rely on documents and reports submitted by the appellant or
appellant's representatives. The report and mitigation documents submitted by the appellant or on
behalf of the appellant recommend Level 3 of the 2005 King County Manual. While those documents
may not have acknowledged or distinguished the appellant's vested rights, they appear to recommend
the most appropriate method of dealing with stormwater where critical, life-safety issues were identified
or where property rights were affected. The appellant and other property owners apparently chose the
combined report for three projects, Threadgill, Cavella, and the appellant's own Liberty Gardens. Each
developer submitted applications at a different time and potentially vested in different requirements.
The appellant's consultant did not distinguish the different projects or their different submission dates.
Rather the review suggested appropriate measures that would not exacerbate stormwater issues that
resulted in overtopped culverts, flooded driveways and ponding on private property.
8. So whether one looks at whether or not vested rights guarantees the application of old standards or
whether or not King County Code takes precedence over SEPA review, there is no escaping that the
recommendations submitted on behalf of the appellant recommend the imposition of Level 3 conditions
-2005 Manual. The ERC properly considered this evidence and the appellant failed to demonstrate that
the reliance on the reports was clearly erroneous.
9. Again, the appellant invited the ERC to make the decision they did by presenting the City with the two
documents by McCarthy. One was the Level 3 drainage analysis and then his proposed mitigation
measures. Those documents indicated that flooding and/or ponding of water occurs and could be
exacerbated by the new development. Yes, the report is based on three (3) separate projects and those
projects may be subject to separate code standards under certain "vesting doctrines" but this applicant
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 22
chose the route of a consolidated report and it is that report that suggested the newer standards were
appropriate to avoid creating additional stormwater problems in this area. So, back to a basic
environmental question - would the development of this project cause more than a probable impact on
the quality of the environment? If so, are there appropriate mitigations measures that can avoid those
impacts? The first question is answered by reports that suggest that flooding is already an issue and it
would likely be exacerbated by this project. Can those impacts be mitigated? Apparently, the reports
suggest that following the newest standards would avoid further harm to the area.
10. Now, does the fact that flooding was identified as a problem that imposing of newer standards would
mitigate those problems mean that the newer erosion control standards of the 2001 DOE Manual are
also appropriate? Or would the older standards be sufficient. It would appear that stormwater flooding
would more probably than not sluice materials in any drainage course and also on surfaces. Clearing the
property as generally proposed and removing the heavy vegetative cover that exists was expected to
increase flooding. It seems that such deforestation would also increase erosional impacts. The newer
standards are designed to protect stream and wetland areas from sediment. Unlike certain bulk
standards that are mainly directed as aesthetic qualities where vesting does not generally invite
additional harm, stormwater and by extension erosion standards address harmful conditions that more
current knowledge was intended to address. This office believes that the ERC properly applied the
newer 2001 DOE Manual's standards to address real problems with erosion.
11. This leaves the final issue, the appropriateness of the method imposed to guarantee the proposed
wetland and buffer mitigation improvements. This office understands that there are financial
consequences to how wetland mitigation is financed but there does not seem to be a tenable link
between the method of financing the guarantees and the environmental outcome. Additionally, this
condition seems one that is already regulated by Code and one that the ERC, itself, might not need to
address. This office finds little relationship between the method of guaranteeing, bonding, letter of
credit or what have you, a mitigation measure and the impact to be mitigated. Clearly, the mitigation
required needs to be accomplished or the project would fail to pass environmental review creating
untoward unmitigated environmental impacts. But that does not mean the ERC has a right to impose a
specific manner of accomplishing the guarantee. The fact that this office has agreed that Condition #4 is
an inappropriate SEPA mitigation measure does not mean that the City does not have the ability to
require the same manner of guarantee to accomplish the same environmental result under its other
ordinances. This office does not rule on the vesting principle in resolving this issue in the appellant's
favor as a matter of SEPA review. Condition Number 4 was erroneously imposed by the ERC and is
reversed.
12. The reviewing body should not substitute its judgment for that of the original body with expertise in the
matter, unless the reviewing body has the firm conviction that a mistake has been made. This office was
not left with a firm conviction that the ERC made a mistake. This office finds the ERC appropriately
reviewed the stormwater documents and appropriately applied the mitigation measures suggested by
those documents. No reasons were advanced to suggest this office reverse that decision or substitute
another judgment. On the other hand, Condition Number 4 seems an inappropriate decision to backup
up the appropriate decision requiring wetland mitigation itself.
13. The appealing party has a burden of demonstrating error and that was only partially met in the instant
case.
DECISION:
The decision of the ERC is affirmed in part and reversed in part.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 23
Conditions 1 and 5 are affirmed.
Condition 4 is reversed and removed from the determination.
ORDERED THIS 28th day of April 2009.
FRED J. KAUFMAN
HEARING EXAMINER
TRANSMITTED THIS 28th day of April, 2009 to the following:
Mayor Denis Law Dave Pargas, Fire
Jay Covington, Chief Administrative Officer Larry Meckling, Building Official
Julia Medzegian, Council Liaison Planning Commission
Gregg Zimmerman, PBPW Administrator Transportation Division
Alex Pietsch, Economic Development Utilities Division
Jennifer Henning, Development Services Neil Watts, Development Services
Stacy Tucker, Development Services Janet Conklin, Development Services
Marty Wine, Assistant CAO Renton Reporter
Pursuant to Title IV, Chapter 8, Section 100Gof the City's Code, request for reconsideration must be filed in
writing on or before 5:00 p.m., May 12, 2009. Any aggrieved person feeling that the decision of the Examiner
is ambiguous or based on erroneous procedure, errors of law or fact, error in judgment, or the discovery of new
evidence which could not be reasonably available at the prior hearing may make a written request for a review
by the Examiner within fourteen (14) days from the date of the Examiner's decision. This request shall set forth
the specific ambiguities or errors discovered by such appellant, and the Examiner may, after review of the
record, take further action as he deems proper.
An appeal to the City Council is governed by Title IV, Chapter 8, Section 110, which requires that such appeal
be filed with the City Clerk, accompanying a filing fee of $75.00 and meeting other specified requirements.
Copies of this ordinance are available for inspection or purchase in the Finance Department, first floor of City
Hall. An appeal must be filed in writing on or before 5:00 p.m., May 12, 2009.
If the Examiner's Recommendation or Decision contains the requirement for Restrictive Covenants, the
executed Covenants will be required prior to approval by City Council or final processing of the file. You
may contact this office for information on formatting covenants.
The Appearance of Fairness Doctrine provides that no ex parte (private one-on-one) communications may occur
concerning pending land use decisions. This means that parties to a land use decision may not communicate in
private with any decision-maker concerning the proposal. Decision-makers in the land use process include both
the Hearing Examiner and members of the City Council.
All communications concerning the proposal must be made in public. This public communication permits all
interested parties to know the contents of the communication and would allow them to openly rebut the
evidence. Any violation of this doctrine would result in the invalidation of the request by the Court.
Liberty Gardens Preliminary Plat/Appeal
File No.: LUA-08-093, PP, ECF
April 28, 2009
Page 24
The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as
Appeals to the City Council.