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BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON
RE: Joey's Short Plat
Appeal
LUAII-066, ECF, SHPL-A
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) APPEAL OF SHORT PLAT APPROVAL
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Summary
The Appellant appeals the approval of the Joey's Short Plat by the Planning Director on the
grounds that Kennydale Creek has been misclassified as a Class 4 stream instead of a Class 3
stream. The appeal is denied and the decision of the Planning Director is affirmed.
Testimony
Appellant Testimony:
Susan Rider, Appellant, noted that the City of Renton has repeatedly classified Kennydale
Creek as Class 4, giving it less protection than if it was classified Class 3, perennial. According
to Ms. Rider, the studies cited by the City previously do not properly explain this Class 4
designation, and, furthermore, the City has not provided the evidenced used for the original Class
17 4 designation, despite numerous requests. She noted that the stream is mapped both as Class 3
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and Class 4 in one half mile section (ending when it reaches Lake Washington). Ms. Rider stated
in a previous hearing that the City's attorney said they would need a stream study done in the
summer months in order to determine a new classification; however, their hearing was in
February. Thus, according to Ms. Rider, the previous Hearing Examiner determined that doing a
stream study at that time was pointless, and he ruled (based on the evidence presented) that the
stream should be considered perennial without needing to go through the reclassification process
dictated by the RMC.
She stated that the City Council recommended overturning the Hearing Examiner's decision, and
the decision was overturned. Ms. Rider commented that two council members were asked to sit
24 out the vote because of their living proximity to the creek area in question. A stream study
25 conducted in September, 2008 by Wild Life Conservancy and commissioned by Ms. Rider was
kept out of evidence, according to Ms. Rider. Ms. Rider stated that she believed the judge did
26 not look at the commissioned reports and solely relied on the information provided by the City.
APPEAL -1
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For many years, Ms. Rider said, she was told there was no process for the reclassification of
streams. Ms. Rider stated that the recent decision to allow Joey's Short Plat to move forward
with the stream classified as intermittent demonstrates the City's history of ignoring evidence of
a need for reclassification. She stated that, in 2005, the City allowed a downgrade of stream
classification with much less evidence than Ms. Rider has provided. Ms. Rider stated that the
previous studies have been done in a way to not contradict the City because the City pays the
providers of the studies. She further commented that some of the studies provide evidence that
the stream may be perenniaL
Ms. Rider presented a letter from Jamie Glasgow who conducted the Wild Fish Conservancy
study to Chip Vincent, Renton planning Director (Exhibit 7). The letter stated that his findings
were that Kennydale Creek was a perennial creek and there was ample evidence to support this
conclusion, according to Ms. Rider.
Ms. Rider presented a letter (Exhibit 8) from Lorraine Taylor (2208 Jones Avenue NE, Renton,
W A) which described the yearlong flow of the creek for 48+ years and describes the creek as a
frequent place of recreation in the summer.
Ms. Rider also presented a letter from the Department of Fish and Wildlife by Larry Fisher
describing Kennydale Creek as an ecosystem and recommending the creek be classified as Class
2, perennial; the letter also contained the City's response to his recommendation (Exhibits 9 and
10).
Gerald Wasser, Associate Planner for Renton, stated the City has a standing objection to the
inclusion of information submitted for prior projects which are not directly relevant to this Short
Plat project.
Ms. Rider stated that the Superior Court judge did not rule on the stream classification, but
instead that the City of Renton should not have been overruled by the Hearing Examiner. She
commented that the only study done in the proper time of the year was the Wild Fish
Conservancy study. Upon question by the Hearing Examiner, Ms. Rider testified that the
property in question (Joey's Short Plat) is downstream from the previously contested short plat
by about one lot.
Ms. Rider presented photos from September, 2006 (Exhibit 11) of different areas of backyards
where the Kennydale Creek runs through, as well as photos from July 9, 2006 (Exhibit 12). She
stated that there are addresses on the photos demonstrating where the photos were taken from
along the creek.
APPEAL-2
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Ms. Rider presented further photos of the groundwater level of the pond which drains into the
creek (Exhibit 12). She commented that Kennydale Creek is groundwater driven. She also
provided a photo from September 9, 2011 (Exhibit 14) which showed water in the creek. Ms.
Rider submitted aerial photos from 1936, 1946, and 1960 (Exhibit 15) demonstrating the ditching
which has drained out the wetlands to make the land more usable, according to Ms. Rider.
Ms. Rider presented an elevation map demonstrating that the creek follows the lowest elevation
in this area (Exhibit 16). She stated this shows the creek is groundwater driven. She also
provided the Otak report which was commissioned by the City most recently. She noted that
throughout the report Otak uses the words "may be" Class 4 and is not definitive. She stated she
believes the City has avoided doing studies in peak summer months for fear of having to
reclassify the stream and that is why the Otak report was done in October. The GeoResources
report stated that slow groundwater was observed in July in the creek, according to Ms. Rider.
She stated she believes this contradicts a Class 4 classification.
Ms. Rider stated that when the stream study was done the City asked only if it was Class 4 or
Class 5, and did not entertain the idea of it being Class 3. She submitted a letter from Chip
Vincent, Renton Planning Director, to Bill Collins dated October 7, 2011 (Exhibit 17).
Mr. Wasser noted that the letter from Chip Vincent referred to a different project on a different
part of Kennydale Creek and maintains the Class 4 classification. Furthermore, according to him,
this hearing cannot contest the ordinances that established the RMC years ago which provides for
the stream classifications.
William O'Connor, Appellant, interjected that the City had assured the Appellants previously
there was no process for stream reclassification, but has since developed a process. He further
noted that he believes the City should have conducted a more thorough stream study report,
giving the contentious nature of this particular stream classification. He stated that the City
Council overruled the Hearing Examiner's previous decision without any written report and he
asked that the Hearing Examiner carefully read the Superior Judge's decision in the prior case.
Ms. Rider submitted the study by the Watershed Company (Exhibit 18), stating that the report
noted that standing water was observed in July throughout much of the site. She noted the study
was done in July, 2005 and observed the kidney-shaped Wetland area from the Blueberry Farm
upstream. Ms. Rider also submitted a report done by Ellisport Engineering on October 20,2004
(Exhibit 19) which stated a Class 3 stream originates at the Blueberry Farm and flows upstream.
She also submitted a report done by Cedar Rock Consultants (Exhibit 20) stating that water was
flowing in the stream at the time of the study. Ms. Rider noted that the City often uses the study
as evidence ofthe stream being Class 4, but the study does not support those findings.
APPEAL - 3
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Ms. Rider submitted a letter from Karen Walter of the Muckleshoot Indian Fisheries Division
which asked the City for its basis of classification for the Kennydale Creek, according to Ms.
Rider. She stated that the City's response was just to cite Renton Municipal Code (Exhibits 21
and 22).
Ms. Rider presented a request made by herself on November 29, 2007 for a different project in
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5 which she asked for information regarding the evidence used to make the Kennydale Creek
classification; she states that the request went unanswered by the City (Exhibit 23). Ms. Rider
6 provided an acknowledgment by the City that it received her request for information (Exhibit
7 24).
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Mr. O'Connor interjected that this request was relevant because it demonstrates the City has no
scientific evidence to explain the Class 4 stream classification.
Ms. Rider also provided a letter from the office of the Hearing Examiner dated March 27,2008,
noting that it was written when they were going through a similar appeal hearing process for a
different plat application (Exhibit 25).
Ms. Rider submitted the Wild Fish Conservancy report conducted by Jamie Glasgow in
September 18, 2008 and a letter written by Jamie Glasgow to the City on December 5, 2011
(Exhibits 26 and 27). Ms. Rider noted that the City referred to Mr. Glasgow as "her," and this
suggests they never contacted him or they would have known he was a man. According to Ms.
Rider, there is evidence that the City never discussed with Mr. Glasgow his findings. Ms. Rider
also submitted a biography and article of Mr. Glasgow demonstrating his extensive work in the
field of stream classification (Exhibit 28), she noted. According to Ms. Rider, in the article Mr.
Glasgow discusses the common problem of misclassification of streams and creeks.
Mr. Wasser stated that the original Wild Fish Conservancy report did not list the stream as being
Class 3 and only in Mr. Glasgow's letter does he assert a Class 3 stream classification for
Kennydale Creek.
Mr. O'Connor interjected that he believes Mr. Glasgow seems to be highly qualified and
experienced in his field based on the information provided.
Ms. Rider noted that council member Randy Corman was excluded from decisions in previous
appeal hearings in front of the City Council because of his living close to the creek. She
referenced Mr. Corman's blog on June 9, 2008 (Exhibit 29) where he asserts the creek is
perennial and that he has never seen it stop flowing in his 20 years of living there. Ms. Rider
stated that another councilmember was also excluded from previous hearings due to living close
to the creek.
APPEAL -4
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According to Ms. Rider, the City fought a motion (Exhibit 30) by Ms. Rider in a previous
hearing to have supplemental evidence entered in the form of a stream study. She stated that she
was denied having this supplemental evidence entered because of the City's actions. Ms. Rider
stated that she believes all exhibits and information are relevant because they provide historical
information about the creek.
Ms. Rider submitted the Superior Court decision from the previous case and the brief her lawyer
submitted to the Superior Court (Exhibits 31 and 32).
Ms. Rider submitted the transcript of proceedings from the previous appeals in 2008 (Exhibit
33). Also, she presented a memo to the council members from her lawyer dated April 24, 2008
regarding the appeal filed against the original decision made by the previous Hearing Examiner
(Exhibit 34). According to Ms. Rider, the memo outlines the argument as to why the decision
should not be overturned.
Ms. Rider presented more photos concerning the groundwater (Exhibit 35). The photos showed
11 a foundation dig in the same wetland system (off ofN.E. 20th St.), where the Joey's Short Plat is
12 located, which has affected the groundwater runoff negatively, according to Ms. Rider. She
noted that the large homes being built have driven the City to ignore the danger to the creek
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because they want the tax dollars. She commented that she believes the stream is groundwater
driven, thus if groundwater is affected by the building of new homes than the stream is affected.
Ms. Rider submitted communications (Exhibits 36 and 37) between Master Builder, Terry Dutro,
and the City in regard to the downgrading the classification of the stream to Class 5. She stated
that the Master Builder was able to gain this new classification with only anecdotal evidence
from the 1950s. Furthermore, she claimed his anecdotal evidence was hearsay. An Ellisport
Engineering report from June 28, 2005 (Exhibit 38) was referenced in the decision to grant the
down-grade, but, according to Ms. Rider, they stated there was water in the creek at the time of
their study. Moreover, Ms. Rider submitted a memo, dated November 10, 2005, from the Renton
Planning Department recommending the new lower-classification (Exhibit 39), based on no
scientific information, according to Ms. Rider. She commented that the standard of evidence
was not consistent.
Ms. Rider commented that many neighbors have made positive comments regarding the constant
flow of the creek and can attest to the perennial nature of Kennydale Creek through firsthand
accounts.
William O'Connor, Appellant, stated that the entire issue is the correct classification of the
Kennydale Creek, and he asserted that the City is in extreme state of denial over the
classification. He stated that there is a lot of water flow and storage within the ground around the
APPEAL - 5
1 stream and the ground-water level is very high. He observed that one of the consultants noted
2 that this high level of ground-water would suggest the stream is perennial. He testified that it is
extremely unlikely that the stream dries up at any time based on these observing. The City knew
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about the contentious nature of the stream, according to Mr. O'Connor, thus it should have done
proper studies at the appropriate times of the year. The City chose to ignore the study done by
Jamie Glasgow, he stated. Mr. O'Connor concluded that the City has been negligent and overly-
technical in their handling of the stream classification.
Staff Testimony:
Gerald Wasser, Associate Planner for Renton, submitted several maps showing areas around
the property in question. Using maps within the City's GIS system, Mr. Wasser pointed out the
Class-3 downstream portion of Kennydale Creek. However, east of the 1-405 freeway,
Kennydale Creek is classified as a Class-4 stream (yellow line on the map), according to Mr.
Wasser. The Class 4 classification section of Kennydale Creek is what bisects the property in
question for Joey's Short Plat, he noted. Mr. Wasser observed that the subject property of Joey's
Short Plat application was approved for 2-lots and is an R-4 property. He stated that currently
there are an existing house and two sheds on the property (located on Lot 1). He commented that
the Applicant proposed to stay within a 35-ft buffer area from the stream on either side with split-
rail fencing on the western boundary of the buffer area. Mr. Wasser testified that he slightly
altered a map that is found within the City of Renton code in order to make the classification
areas more clear. The map provided identifies the stream as Class 4 primarily east of the 1-405
freeway, according to Mr. Wasser. He stated that the section of the code where the classification
map is found is RMC4-3-050L.
Mr. Wasser noted that most of the information provided by the Appellant had been submitted
previously for the prior Superior Court appeals. He stated that the Appellant believes the Staff
made a mistake in not requiring a full stream study for the Joey's Short Plat, but it was a
conscious decision made by Staff based on the previous court decision upholding the current
classification (Class 4). Staff recognized that the area is one of contention and was aware of the
Cedar Rock and Wild Fish Conservancy reports, so they chose to contact their on-call biologist,
Otak, to look at this section of the creek, Mr. Wasser stated. A field investigation was conducted
by Stephanie Smith and Kevin O'Brien of Otak and, they determined, based on the Joey's Short
Plat property, that the classification of that section of Kennydale Creek should be Class 4, Mr.
Wasser testified. The City wished to lay the issue to rest and that is why this study was done as a
secondary review of information, he commented. According to Mr. Wasser, within the Otak
report the biologists did review the Cedar Rock and the Wild Fish Conservancy reports and still
found this area of the creek to be Class 4. Mr. Wasser, addressing the issues of anecdotal
26 evidence, stated that there have been arguments on both sides with firsthand accounts by
APPEAL-6
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individuals; however, the City has attempted to use scientific method to substantiate their stream
classifications.
The Staff believes the Joey Short Plat application should not be denied. Upon questioning by the
Hearing Examiner in regards to there being anecdotal evidence about the creek drying-up, Mr.
Wasser stated he had heard anecdotal evidence that the creek has been manually ditched up in the
past.
Kevin O'Brien, Otak Specialist, stated that Otak did field work on the stream during the water-
year when one would expect flow in the system (perennial or not). He noted that on the Joey
Short Plat property, Otak found the stream bed completely covered over with vegetation. This
suggested that there is not enough flow energy to scour out the vegetation and that at some point
in time in the year, flow would go sub-surface in the system, according to Mr. O'Brien. He noted
that in an intermittent system there still may be anecdotal evidence of the stream flowing all year
round, but at some point portions of the flow goes sub-stream (normally in August and
September). Based on his experience which began in 1998, Mr. O'Brien stated that the indirect
evidence gathered on the Joey Short Plat showed that the flow of the stream is likely to be an
intermittent one where portions of the stream are inundated year round, and portions go sub-
stream. Usually ifthere is enough energy associated with the flow, one will see no vegetation in
the channel, but it is possible to have some vegetation if the stream is extremely slow, according
to Mr. O'Brien.
Mr. O'Brien stated that Otak uses longitudinal evidence for sites normally, where mile-long
sections would be studied. The Wild Fish Conservancy did not look at the full system and
specifically did not look at the Joey's Short Plat site, but instead at sites in the vicinity ofNE 20th
near the Blueberry farm and sites upstream of 1-405, he noted. Where the Wild Fish
Conservancy looked there was no vegetation in the channel and at that time the system did
appear to be perennial, given that limited sampling, according to Mr. O'Brien. The Otak report
suggested that it might not be perennial throughout the system, he observed. Mr. O'Brien stated
that he received his Bachelor of Arts and PHD in Biology and from University of Washington
Department of Zoology and Biology, and has a certification from UW in stream restoration.
Stephanie Smith, Otak Biologist, stated that the velocity of the stream will scour out the
vegetation. In areas where the stream channel is higher up in the ground you will see some
23 amounts of vegetation lying low; however, it is difficult for vegetation to survive with water
24 flow, according to Ms. Smith. The vegetation observed by Otak at Joey's Short Plat was upright,
she stated. She noted that she has a Bachelor of Arts from the University of Washington and
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certificates in restoration ecology and wetlands management.
Mr. Wasser noted that these experts were hired by the City of Renton at the City's expense.
APPEAL -7
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On cross-examination by Susan Rider, Mr. O'Brien stated that Otak examined the creek on
October 6, 2011, and there was water in the creek at this time. He noted that there were plants in
the creek at this time as well, but having plants in the channel is indicative that the system may
go subsurface for long enough for vegetation to be established. Low-grade systems tend to have
the least energy associated with them, and the area examined had about 1-percent grade, which
is a relatively flat system, according to Mr. O'Brien. He stated he has looked at many flat
systems in the Puget Sound area and the ones that have perennial flow tend to provide enough .
scour to eliminate vegetation. There is no strong correlation between ditching and the
establishment of vegetation, according to Mr. 0 'Brien. He stated that creeks oflow-grade can
be fed by groundwater and he noted that stream systems have both gaining and losing systems.
Mr. O'Brien observed that it is possible to have both types of systems where water is coming
from the surface through infiltration and that can be non-perennial. He cited the Yakima River as
an example of soil conditions and groundwater resulting in a non-perennial system. Mr. O'Brien
stated that, just because a stream is associated with a groundwater source does not mean it is a
perennial system. It is subject to localized soil conditions and localized groundwater conditions,
depending on the different depths within the soil, he noted. Mr. O'Brien testified that a
longitudinal survey would be required (over the course of several seasons) to know the
groundwater conditions for this area positively. The Otak report used the best evidence available
to them in order to establish their Class-4 decision, he said. Mr. O'Brien stated that the Glasgow
study had many limitations, including that it was only looking at flow to the system at one point
in time at 4 different locations. He stated that he questioned the Glasgow study because he felt
there was potential misinterpretation of the levels of invertebrates and drew conclusions from
these levels that may have been misleading.
Mr. O'Brien stated that one would need to look at the depth of the stream and the pond adjacent
to the subject property because the pond would not necessarily dry-out even if the stream did.
According to Mr. O'Brien, it is likely that the system goes subsurface at some point in the year
based on the conditions he observed. Mr. O'Brien stated that he is unaware of how the State's
interpretation of subsurface flow relating to stream classification and stream flow would pertain
to the City's code classification. He stated that his understanding of WDFW indicates that if
surface-flow is lacking in some portion of the stream at any point in the year, you are looking at
intermittent flow. According to Mr. O'Brien, in order to prove this one would need to do
longitudinal studies or instead use what evidence you could to establish strong correlations. He
further noted that Otak's findings were for the specific location dictated by the City. He stated
that he did not go out at the hottest part of the year for this particular system.
On cross-examination by Mr. 0 'Connor, Mr. O'Brien stated that the gradient of the stream on
the channel measured was about 1 percent according to his kilometer reading. He noted that he
APPEAL - 8
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recorded it and made a notation in his field notebook. He stated that there is a margin of error of
about to 0.5 percent, and a handheld kilometer was used to take the recording.
Mr. Wasser interjected that the City asked Otak for their best professional judgment. He noted
that the City contacted Otak for the study because they suspected there could be contention in the
stream classification.
Mr. O'Brien stated that Otak expected to find a Class 3 stream, but they found the evidence of a
Class 4 stream.
On cross-examination by Ms. Rider, Mr. O'Brien noted that Otak reviewed the Altmann Oliver
Associates report which attested to pit-testing in July resulting in evidence of surface water.
However, Mr. O'Brien stated that intermittent system can have areas where surface water is
present all year round, but the region of the system studied and involved in the Joey's Short Plat
area had evidence of subsurface flow.
Mr. Wasser noted that the Altmann Oliver Associates Report was submitted with the Joey's
Short Plat application and stated that the stream in the area was Class 4. The report was
submitted by the project Applicant in lieu of a full geo-technical report, he stated.
Mr. O'Brien stated that infiltration of groundwater (which was found in Altman Oliver
Associates Report) would not be inconsistent with subsurface flow, but he noted that he finds the
evidence provided by this report inconclusive. He commented that doing these studies in July is
not a bad time of the year, but that the end of August and the beginning of September would be
the best time ofthe year.
Applicant Testimony:
Bill Hughes, Applicant, stated that the Appellants have presented no new information in their
appeal. The arguments and studies the Appellants are using have already gone through Superior
Court in appeals, and lost, according to Mr. Hughes. He stated that the new expert (Otak) has
verified the Class 4 classification.
Public testimony:
Lauralee Gordley stated that she was taken to court previously over her Short Plat application
by the Appellant. She noted that much of the information the Appellants have brought forward
was information she financed, and they are interpreting it in their own way. She commented that
she was surprised this same issue was brought forward again. She testified that she does not feel
it is right to have this stream classification issue pressed on citizens and neighbors who are
looking to Short Plat their property. It is very difficult to sell a large parcel property in a large
APPEAL - 9
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urban area because people do not want huge property, according to Ms. Gordley. She observed
that this stream classification battle has already been fought in Superior Court and shouldn't have
to be done again. Ms. Gordley stated that all the evidence brought up in the original argument is
not here because it was previously unclear whether this hearing was due to the stream re-
classification process or a land use issue. In regards to the original issue of the non-perennial v.
perennial stream classification, Ms. Gordley presented a map of her property (1712 NE 20th St)
where a Short Plat and Lot-line Adjustment was completed, noting the creek intersection. She
said that all of the storm-drainage water from the streets flows into the blueberry field and then
flows into her property off of 20th St.
On her title report, it is listed as a utility ditch used by the City of Renton for stormwater drainage
which expired in 1988, she testified. According to Ms. Gordley, the sewage was pumped from
this area to Jones A venue and a sewer line was installed, resulting in a french drain. This
underground french drain changed the groundwater in the area, she noted. As a result, in 2003,
three lots came through the Heritage Glen Project which directed the stormwater drainage to a
huge vault which now drains into Ms. Gordley's lot, she stated. Any water studies (done during
any time of the year) will be influenced by the vault holding a large amount of water (which is
engineered to drain through the creek), according to Ms. Gordley. She concluded that the whole
argument of constant water in the creek is only a result of the creek being a stormwater drainage
system.
There has been a lot of development that has changed the water table in the area that cannot be
fixed, she noted. The presence of the retention vault makes it clear that it is not groundwater in
the creek, but storm drainage, according to Ms. Gordley. There is a drain-pipe on the south-end
of the parcel next to the blueberry farm for storm drainage, she noted. Ms. Gordley stated there
are many photos of the storm drain which can be traced to the blueberry farm.
She noted that her own Short Plat process took 3-years and $30,000 in legal fees. Ms. Gordley
testified that the interpretation of her evidence from the previous suit has been misguided. The
report completed by Ellisport Engineering, paid for by Ms. Gordley, was done during a period
where King County had a different classification system where 1,2,3 changed to 1,2,3,4,5,
according to Ms. Gordley.
Ms. Gordley further stated that many neighbors do not believe this stream classification to be an
issue, and there has been no authentication of all anecdotal evidence submitted by the Appellant.
She noted that some of the accounts are from people who do not even live in the area. Ms.
Gordley testified that she does not know if the Appellants have ever pursued the stream
classification issue with the City council. She noted that she believes some Short Plat
applications have not been appealed, and she questions the Appellants' discriminatory behavior.
APPEAL -10
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The Appellants' arguments have not been consistent, Ms. Gordley concluded. She cited the case
of LUA03044, which was a neighborhood project that affected the drainage into the stream
dramatically, as an example of a case which was not appealed. Ms. Gordley maintained that this
application was about a Short Plat, not a stream classification.
In regards to Exhibit 29, Ms. Gordley testified that Randy Corman's blog is his personal
statement, and the other councilmember who was recused should not be included in his
comments.
Jean Stearns (2216 Jones Avenue NE St), stated that she lives at the property directly north of
the property in question for Joey's Short Plat application. She testified that she believes the
Applicant should be allowed to move forward with the Short Plat. Ms. Stearns said the subject
property has been downgraded from R-4 to R-8 zone and the current buffer planned is more than
is required. She noted that she believes the creek is properly protected on this piece of property.
Ms. Steams, referring to Page 2 of the Otak report, noted that the re-classification of the creek is
in line with current RMC. Although the code may need to be tightened up from its current state
because it does not properly define "velocity" or flow", she noted, a Short Plat application is not
the place for this change to happen.
City Rebuttal:
Gerald Wasser stated that the timing of the Otak study was based on when the application was
filed. The City had 120 days to process the project according to state law and that is why the
16 study was done in October, according to Mr. Wasser. The City wanted to get the creek
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classification correct because of the previous contention, he noted. Mr. Wasser testified that in
the 2015 critical areas ordinance, longitudinal studies of the area will be pursued.
Mr. Wasser commented that it is unclear if the Appellants have met RMC 4-8-110e3, which
addresses standing for appeals of administrative decisions. He said that the Appellant must
demonstrate how he/she will be aggrieved or affected by the decision and harmed, but the
Appellant has not clearly done this.
Mr. Wasser stated that the stream classifications for Kennydale Creek are established in the code
and the City has gone through the process specified by the code for reclassification and the Class
4 status holds. He concluded that the Planning Director's decision should be upheld.
Appellant Rebuttal:
William O'Connor, in regards to RMC 4-8-110e3, Mr. O'Connor noted that every citizen is
affected by the City's treatment of the environment. Kennydale Creek flows 3-ft from Ms.
APPEAL -11
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Rider's west boundary, according to Mr. O'Connor, thus its classification affects her greatly. Mr.
O'Connor testified that the City has still not provided the evidence it used to originally classifY
the creek as Class-4. He suggested the City review the definitions of the State regarding
perennial classification and intermittent systems and then conduct a new, thorough study of the
area.
Mr. O'Connor stated that the Otak report only suggested what "might" be and is not definitive.
The City in 1988 Short Platted the whole area and set aside a stream easement for the whole area
because there was no evidence the creek had ever dried up, he observed.
Susan Rider commented that the City has dewatered the wetland in order to create the current
drainage vaults. These drainage vaults have created more water in the creek, making it perennial,
she noted. She testified that the current classification system does not protect the wetlands and is
resulting in a dangerous cycle that should be stopped.
In regard to Ms. Gordley's collateral estoppel, Mr. Wasser stated that the parties are different in
this case, and the City does not wish to pursue collateral estoppel. He noted that secondary
review is generally done when an Applicant provides a different report which contradicts the City
code. Mr. Wasser stated that the City did use the review process outlined in RMC 4-3-050-Llcii.
Mr. O'Connor stated that the Wild Fish Conservancy report is the key to their appeal case. He
noted that the Appellants feel the Otak report is not definitive and thus flawed. He testified that
the City has never come up with scientific basis for the current Class-4 classification.
Exhibits
The October 24, 2011 Staff report, along with its attachments, was admitted into the record
during the hearing. Exhibits admitted during the hearing are listed below. The record was held
open for written objections/comments to the Appellant's Exhibit 40, "Testimony Affidavits."
The Hearing Examiner received objections from the City (herein admitted as Exhibit 41) and
from Lauralee Gordley (herein admitted as Exhibit 42).
Exhibit 1 -
Exhibit 2-
Exhibit 3 -
Exhibit 4-
Exhibit 5 -
Exhibit 6-
Exhibit 7-
Exhibit 8-
APPEAL -12
Appeal Statement dated October 12, 2011 with attached letters
Report from Environmental Review Committee dated September 26,2011 with
attachments
Amended Environmental Review Committee report with 11 attachments
Planning Division Environmental Checklist dated August 8, 2011
Mitigation Determination of Non-significance dated August 26,2011
Letter from Susan Rider (Appellant) outlining appeal
Letter sent to Chip Vincent from Jamie Glasgow dated December 5,2011
Affidavit from Janice Shearer dated 2/7/08.
1 Exhibit 9-
Exhibit 10 -
2
3 Exhibit 11 -
4 Exhibit 12 -
Exhibit 13 -
5 Exhibit 14 -
6 Exhibit 15 -
Exhibit 16 -
7 Exhibit 17-
8 Exhibit 18 -
9 Exhibit 19 -
Exhibit 20-
10 Exhibit 21 -
Exhibit 22-
11 Exhibit 23 -
12 Exhibit 24-
13 Exhibit 25 -
Exhibit 26-
14
Exhibit 27-
15 Exhibit 28 -
16 Exhibit 29-
Exhibit 30-
17 Exhibit 31 -
Exhibit 32-
18 Exhibit 33 -
19 Exhibit 34-
20 Exhibit 35-
21 Exhibit 36-
22 Exhibit 37-
Exhibit 38-
23 Exhibit 39-
24 Exhibit 40-
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APPEAL -13
Letter from Erika Conkling to Larry Fisher dated October 18, 2006
Letter from Larry Fisher of Fish and Wild Fish Conservatory to Erika Conkling
dated October 19,2006
3 Photos of Kennydale Creek from September 17,2006 in different areas along
backyards
3 Photos of Kennydale Creek from July 9,2006 at NE 20th St
Photos August 20,2007 and June, 2010 showing the groundwater level of pond
Photo from September 9, 2011
Aerial Photos
Elevation Map of creek area
Letter to Bill Collins from City of Renton Director of Planning, Chip Vincent
dated October 7, 2011
Watershed Company Report dated July, 2005
Ellisport Engineering Report dated October, 2004
Cedar Rock Consultants Report dated Feb 17,2006
Karen Walter letter dated September 7,2011
Response letter from Karen Walters dated Sept 22,2011
Public records request from Susan Rider from 2007 that was unanswered by City
of Renton
Public records request from Susan Rider dated 2007
Letter from Office of Hearing Examiner dated March 27,2008
Wild Fish Conservancy Report by Jamie Glasgow with letter to Mr. Collins dated
September 18,2008
Letter from Jamie Glasgow to City dated December 5, 2011
Biography of Jamie Glasgow
June 9, 2008 entry from Randy Corman's Blog
Motion for Supplemental Evidence
Superior Court Decision
Brieffrom Susan Rider's attorney, Gendler and Mann
Transcript of Proceedings in Superior Court
Lawyer's memo to Council Members after appeal was filed against previous
Hearing Examiner's decision dated April 24, 2008
Photos concerning the groundwater which show foundation digs near creek in the
same wetland area as subject, just upstream, dated 7/30/2006 and 4/2008
May 17, 2005 letter to City of Renton from Masterbuilder Construction.
June 30, 2005 letter to City of Renton from Masterbuilder Construction.
Ellisport Engineering Report dated June 28, 2005
November 10,2005 Memo from Planning department recommending
classification downgrade to class 5 for Kennydale Creek
Testimony Affidavits from various parties from 1990 to 2008 in response to prior
land use permits and some corresponding City of Renton responses.
1
2 Findings of Fact
3 Procedural:
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1. Appellant. The Appellants are Susan Rider and William O'Conner.
2. Hearing. The Examiner held a hearing on the appeal at 10:00 am on December 6,2011, in the
City of Renton City Council Chambers.
Substantive:
3. Description of Appeal. The appeal is of the Planning Director's approval of the Joey Short
Plat (LUS11-066, ECF, SHPL-A). Kennydale Creek runs through the short plat. The sole grounds
of the appeal are that Kennydale Creek should have been classified as a Class 3 stream instead of a
Class 4 stream. The stream is currently classified as a Class 4 stream on the City's water class
map.
4. Property Description. The property is located at 2208 Jones Avenue NE in Renton, W A, and
is currently owned by Wilford (Bill) Hughes (Applicant). The Applicant applied for the subject
short plat in August 2011. The short plat is composed of only two lots. There is a single family
home and two existing sheds on the lot. The property has a small (Category 2 or 3) wetland on the
northeastern portion of the site. The subject is bisected by Kennydale Creek, a Class 4 stream that
runs north-south across the property.
5. Factual Basis for Appeal. On October 24, 2011, the Planning Director issued an
Administrative Approval for the Joey's Short Plat. The approval included conditions requiring
protection of Kennydale Creek based on its classification as a Class 4, non-fish bearing,
intermittent stream. Prior to the Director's decision, the Appellants on October 13, 2011 filed an
appeal of the decision. The Appellants provided several studies, comment letters from state
agencies and anecdotal evidence in support of a Class 3, perennial classification of the stream
(Exhibits 7,18-22,26,38 and 40).
6. Perennial Nature of Kennydale Creek. As discussed in the Conclusions of Law below, the
key factual issue of this application is whether Kennydale Creek is a perennial creek. It is
determined that Kennydale Creek is not perennial on the parcels composing Joey's short plat.
The evidence on the stream consists of a classic "battle of the experts" between consultants hired
by the City (Stephanie Smith, Kevin O'Brien and Suzanne Anderson, all of Otak Engineering) and
the expert hired by the Appellants (Jamie Glasgow of the Wild Fish Conservancy). The City's
experts decisively prevailed in this exchange, for a number of compelling reasons:
(1) Project Specific Analysis. The City experts based their conclusions
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upon a site specific analysis of the project site. The Appellant expert did not base his
conclusions upon the project site portion of the stream, but rather observed flows
upstream (near 20th St.) and downstream (near NE 24 St.) of the project site. That
distinction is of critical importance, because the City experts concluded that at the
project site the vegetation and other stream characteristics established that the stream
ran underground during certain times of the year. When the Examiner inquired how Mr.
Glasgow could come to a different conclusion, the City experts were able to respond
that Mr. Glasgow only observed those portions of the stream that do flow perennially
and he did investigate the stream characteristics at the project site where the stream did
not flow perennially.
(2) Objectivity. The City experts were hired by the City at the expense of
the Applicant. The Applicant had no authority to fire the experts if he disagreed with
their findings. Notably, the City experts testified that when they initiated their
investigation they expected to find that the stream should be classified as a Class 3,
since this is fairly common with this type of situation. However, upon viewing the
stream characteristics they determined that the currently mapped classification is
correct. The City and the City's experts had no reason to be biased in their assessment
of the stream. The Appellants are clearly operating selflessly for what they believe to be
the best interests of their community. However, they're objective is to reclassifY the
stream and they would be reasonably expected to hire and retain experts that only
support that position. Given that the experts for both the City and the Appellants are all
well qualified, the added objectivity of the City experts is compelling.
(3) Presence at Hearing. The City experts were present at the hearing and
Mr. Glasgow was not. The City experts were able to credibly defend themselves against
rigorous questioning by both the Hearing Examiner and the Appellants. Their
conclusions remained intact. Mr. Glasgow's conclusions were not similarly put to the
test.
(4) Uncontested Opinion. The City experts provided an opinion that was
consistent with the information provided by the Mr. Glasgow as well as the observations
made by neighboring property owners on perennial flow. For the reasons detailed in
their testimony and their report, Ex. 9 to Ex. 3 staff report, the experts determined that
the prevalence of vegetation in the stream bed at the project site established that the
stream went underground at this location. They noted that the vegetation in the stream
bed could not survive if subjected to the flows of a perennial stream. The City experts
also noted that other portions of the stream did not have vegetation present in the stream
bed, establishing that those portions were subject to perennial flows as determined by
Mr. Glasgow and persons who lived in the vicinity and have seen perennial flows for
decades. The observations and conclusions of the City experts were consistent with the
evidence presented by the Appellants and residents of the area who witnessed perennial
flows. In fact, the observations and conclusions of the City experts are uncontested in
APPEAL -15
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the administrative record. No one wrote or testified specifically that flows at the project
site were perennial, including Mr. Glasgow. In a letter dated December 5, 2011, Ex. 7,
which was after the City experts issued their report, Mr. Glasgow re-affirmed his
opinion that Kennydale Creek is a Class 3 stream without addressing the City expert
conclusions that the stream ran underground at the project site. The Appellants also
submitted an extensive amount of affidavits and other evidence from residents of the
vicinity affirming that Kennydale Creek is perennial. None of these observations
concerned the project site and most observations were done for another project
application.
In sum, the City experts provided a plausible opinion based upon site specific observations and
unbiased expertise that were left uncontested by the Appellants or any other hearing participant.
The only reasonable inference to be drawn from their testimony is that, more likely than not, their
conclusions are correct. The conclusion of the City experts is further bolstered by RMC 4-8-
110E7a, which requires that in administrative appeals the Examiner give substantial weight to any
discretionary administrative decision rendered pursuant to City development standards.
Conclusions of Law
Procedural:
1. Authority of Hearing Examiner. Appeals of administrative decision are governed by
RMC 4-8-110B, RMC4-8-110E and RMC 4-8-080G. Short Plat and Environmental Review are
Type II Administrative Decisions under RMC 4-8-080G appealable to the Hearing Examiner in an
open record hearing. Appeals of the Hearing Examiner decision are heard in a closed record
hearing by the City Council. City Council decisions are appealable to Superior Court.
2. Appeal of Legislatively Adopted Map Designation. It is a little unclear as to whether
the Appellants could administratively appeal the mapped classification of Kennydale Creek, since
this was adopted by ordinance by the Renton City Council. RMC 4-8-110L1aiv provides that a
stream may qualify as a Class 4 stream if it is mapped as a Class4 stream on Figure Q4, Renton
Water Class Map. Kennydale Creek is mapped in this fashion. As testified by staff, the mapping
was adopted by ordinance by the Renton City Council. Ordinances typically cannot be
administratively appealed during the permit review process. This is particularly true for Growth
Management Act ("GMA") development standards such as stream classifications, which must be
appealed within 60 days of ordinance adoption to the Growth Management Hearing Boards as
required by Chapter 36.70A RCW.
However, stream classifications are not typical GMA ordinances, in that the code contemplates and
provides for a process to amend the map classification if it is not consistent with classification
designation standards. RMC 4-8-110L1cii specifically provides that if the mapped classification is
inconsistent with classification designation criteria that the criteria will govern. Reclassification
to a higher class requires "administrator acceptance of a supplemental stream or lake study"
followed by legislative amendment of the mapped classification.
APPEAL -16
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The reclassification system outlined in the preceding paragraph is probably a legislative
acknowledgment that mapped stream classifications are based upon sometimes over-generalized
assumptions and that the classifications should be subject to case by case review, as needed, to
ensure that the assumptions are correct for a specific development project. With this background
in mind it is reasonable to conclude that a staff decision to accept or not accept a supplemental
report is an administrative decision that should be subject to the administrative appeals process.
The staff decision to initiate or not initiate reclassification in this regard is every bit as significant
as other administrative staff decisions that are subject to the benefits of the administrative appeals
process.
Given the factors outlined above, the appeal filed by the Appellants, Ex. 1, will be construed as an
appeal of the City staff decision to not initiate a reclassification of Kennydale Creek to a Class 3
stream. The Appellants could have more clearly linked their appeal to the reclassification process
authorized by RMC 4-8-110Llcii, but it is clear that was their objective. The Appellants even
supplied a supplemental stream study with their appeal that supported a reclassification. The
appeal was also filed prior to the issuance of the short plat decision, giving staff an opportunity to
assess whether the stream should be reclassified. The subsequently issued short plat decision,
expressly maintaining a Class 4 designation, constitutes an administrative decision to decline to
initiate a reclassification of Kennydale Creek as authorized by RMC 4-8-11OLlcii. It is concluded
that the Ex. 1 appeal, despite some timing and descriptive irregularities, was sufficient to challenge
the administrative determination to not reclassify Kennydale Creek to a Class 3 stream.
3. Standing. During the hearing the City challenged the standing of the Appellants. The
Examiner took the challenge under advisement. The Examiner concludes that Susan Rider has
standing to bring forth the appeal. Renton has some unusually detailed standing requirements for
administrative appeals. RMC 4-8-11 OE3 requires as follows:
In the order to appeal the person or entity shall be aggrieved or affected by the
administrative or environmental decision.
In order to be aggrieved, the person or entity must demonstrate the following:
a. An injury in fact, in that the person or entity will be specifically and
perceptively harmed; and
b. That the interest the person or entity seeks to protect is arguably within
the zone of interests to be protected or regulated.
Kennydale Creek abuts the property of Ms. Rider. The classification of Kennydale Creek, even if
downstream, affects the overall "health" of the stream, which in turns affects the use and
enjoyment of Ms. Rider's property. As someone directly affected by degradation of Kennydale
Creek, Ms. Rider is within the zone of interests protected by the City's stream regulations and she
would suffer an injury in fact if the stream is not properly classified.
APPEAL -17
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4. Collateral Estoppel. Lauralee Gordley expressed frustration that the classification of
Kennydale Creek is being considered again, since it has been subject to extensive litigation and
analysis in a prior pennit application. In some circumstances the courts will prohibit the
relitigation of identical issues under the judicial doctrine of collateral estoppel. The specified
circumstances for collateral estoppel to bar re-litigation are: (1) identical issues, (2) a final
judgment on the merits, (3) the party against whom the plea was asserted must have been a party to
or in privity with a party to the prior adjudication, and (4) applying the doctrine must no work an
injustice on the party against whom the doctrine is to be applied. Willapa Grays Harbor Oyster
Growers Ass'n v. Moby Dick Corp., 115 Wash. App. 417, 423 (2003). In this case collateral
estoppel does not apply because a different applicant and different parcel of property are involved.
As demonstrated in Finding of Fact No.6, the different parcel is a significant difference, since the
perennial nature of the stream is parcel specific. Collateral estoppel does not bar relitigation of the
Kennydale stream classification.
5. Stream Classification. As previously discussed, RMC 4-8-110L1cii specifically
provides that if the mapped classification is inconsistent with classification designation criteria that
the designation criteria ofRMC 4-8-110L1a will govern. RMC 4-8-110L1aiii sets the designation
criteria for Class III streams and provides that they are non-salmonid bearing perennial waters
during years of nonnal rainfall. As detennined in Finding of Fact No.6, the streams are not
perennial. Consequently, they are mapped correctly as Class 4 streams, which RMC 4-8-11 OL1aiv
provides are non-salmon bearing 1 intennittent waters during years of normal rainfall.
DECISION
The appeal is denied. The City administrative decision to not initiate reclassification of
Kennydale Creek to a Class III stream is affirmed.
DATED this 5th day of January, 2012.
Phil A. Olbrechts
City of Renton Hearing Examiner
Appeal Right
26 1 It is uncontested that the streams are non-salmonid bearing.
APPEAL -18
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Appeals of the Hearing Examiner decision are heard in a closed record hearing by the City
Council. Any such appeal shall be made in writing and filed with the City Clerk's office, together
with the applicable appeal fee, within fourteen (14) days ofthe Examiner's final decision
Change in Valuation
Notice is given pursuant to RCW 36.70B.130 that property owners who are affected by this
decision may request a change in valuation for property tax purposes notwithstanding any program
of revaluation.
APPEAL -19