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HomeMy WebLinkAbout11-12-2021 - HEX Revised Decision Admin Appeal -- Short Plat -- Varma1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Short Plat Appeal - 1 CAO VARIANCE - 1 BEFORE THE HEARING EXAMINER FOR THE CITY OF RENTON RE: Claudia Donnelly Short Plat Appeal File No. LUA-21-000139 ) ) ) ) ) ) ) FINDINGS OF FACT, CONCLUSIONS OF LAW AND FINAL DECISION Overview Ms. Donnelly’s appeal is denied except for a condition requiring that the final arborist report address impacts of loss of windbreak to the trees on adjoining property previously owned by the Frandsens. According to Ms. Donnelly, the Frandsens believed that the removal of trees on the project site could make the trees on their property unstable due to loss of windbreak. There was no evidence presented to refute this plausible impact. It’s acknowledged that the current owners of the Frandsen property may not have raised loss of windbreak as a concern, but an abundance of caution is merited for matters of public safety. The remaining issues raised by Ms. Donnelly are all heavily regulated by City devel opment standards. Those standards set what the Renton City Council has determined are acceptable levels of impact for development projects. Ms. Donnelly has not made any compelling case that the project will violate any of those standards. Stormwater flows originating from an off-site retention pond will be by-passed into the City’s stormwater system as required by adopted stormwater standards. Sidewalks and wide street shoulders provide safe walking conditions for children walking to school bus stops and no cross walk is merited under adopted street design standards. Finally, fifteen-year old sightings of Golden Eagles are not sufficient to overcom e the absence of any such sightings in priority habitat and species maps prepared by the Washington State Department of Fish and Wildlife. Testimony 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Short Plat Appeal - 2 CAO VARIANCE - 2 Exhibits 1. Donnelly September 1, 2021 Appeal. 2. Donnelly September 3, 2021 Appeal. 3. Donnelly October 6, 2021 Exhibits. 4. October 13, 2021 Email from Ms. Donnelly 5. October 18, 2021 Email from Ms. Donnelly 6. October 14, 2021 letter from Ms. Donnelly with attachments. 7. October 19, 2021 City of Renton Response and Motion to Dismiss 8. October 19, 2021 Applicant response to appeal. 9. October 22, 2021 email from Ms. Donnelly 10. August 26,2021 Varma Short Plat decision along with its 14 exhibits 11. October 25, 2021 Applicant Reply on City Motion to Dismiss 12. WDFW Priority Habitat and Species Map, https://geodataservices.wdfw.wa.gov/hp/phs/ 13. Google Street View Photograph of SE 132nd Ave. Findings of Fact Procedural: 1. Appellant. Claudia Donnelly, 10415 – 145th Ave SE, Renton, WA 98059. 2. Hearing. A virtual hearing on the appeal was held via the Zoom application on October 25, 2021. 3. Appeal Description. Ms. Donnelly appeals the administrative approval of the Varma Short Plat, LUA21-000139. A summary of the Varma Short Plat and of Ms. Donnelly’s appeal is outlined in the findings of the Ruling on City Motion to Dismiss of this case. Those findings are adopted by reference. 4. Appeal Issues. The aforementioned Ruling on City Motion to Dismiss limited Ms. Donnelly’s appeal to four issues. Each of those four issues is addressed separately in the Findings of Fact below. 5. Tree Retention. As conditioned, the proposal will not cause any damage to neighboring trees due to loss of “windbreak” by removal of on-site trees. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Short Plat Appeal - 3 CAO VARIANCE - 3 Ms. Donnelly alleged that tree removal would eliminate a wind break necessary to keep trees safe on neighboring property. She asserted that adjoining property owners named Frandsen had told her that they relied upon trees on the Varma property to serve as a windbreak. Ms. Donnelly did not expressly state that the windbreak was necessary to keep the trees from falling, but that is presumably her intent. Ms. Donnelly’s allegations of potential tree damage are based upon vague hearsay comments about loss of windbreak protection. Ms. Donnelly provides no evidence of specific trees that could be damaged or rendered dangerous by loss of windbreak. It is also recognized that the Frandsens likely no longer even own the adjoining property as asserted by the Applicant. Nonetheless, danger trees can cause serious injury and property damage if not properly addressed. The City indicated during the hearing that the short plat approval required revision of the arborist report and that impacts to adjoining trees would have to be addressed. A condition will be added to the short plat requiring assessment of windbreak removal danger. This is not intended to trigger an in-depth analysis by the arborist unless site conditions suggest that removal of windbreak will create dangerous conditions on the Frandsen property. The condition is also not intended to suggest that the Applicant bears any responsibility from preventing windbreak beyond warning the owner of the Frandsen property. The legal obligations, if any, of the Applicant on this issue are left to the City and Applicant to work out during permit review. 6. Stormwater. Stormwater runoff across the Applicant’s property that originates from property owned by James Craig in unincorporated King County will be adequately addressed by the City’s stormwater regulations. Mr. Craig submitted a written comment noting that he has a retention pond that sometimes generates stormwater flows that cross onto the project property. Ms. Donnelly asserts that the City has no jurisdiction over those stormwater flows because they originate in unincorporated King County. That is incorrect. However, her concern does raise the question of how the City addresses stormwater flows that potentially qualify as trespassing and whether the impacts of those flows will be adequately mitigated. Michael Sippo , civil engineer from the City’s Public Works department, identified that the City’s stormwater code requires that flows across the Applicant’s property originating from upstream flows are required to be bypassed into their natural discharge point. In this case the natural discharge point is the City’s stormwater system. Water quality would also be addressed in coordination with King County, if any contamination occurred in King County. Given these factors, it is determined that the City will adequately mitigate any impacts created by the Craig off-site flows, as those flows will be discharged into the City’s stormwater system and thereby not adversely affect any other properties. 7. Walking Conditions to Bus Stop. The proposal provides for safe walking conditions to and from school bus stops. Ms. Donnelly asserts that the plat should be denied because SE 128th and SE 156h street are unsafe. The Ruling on City Motion to Dismiss limited the road safety issue to walking conditions for children walking to school or school bus stops. The evidence in the record establishes safe walking conditions for children. As noted by the Applicant, they will be installing sidewalks on their street frontage to 156th. Students for elementary, middle and high school will cross 156th to a wide shoulder on the west side of 156th that includes a paved portion 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Short Plat Appeal - 4 CAO VARIANCE - 4 outside the fog line that is four feet wide in addition to a gravel shoulder that adds several feet more. Students will then turn west to 132nd St., which has a 10-foot wide gravel shoulder that extends to one of two bus stops that would be used by the students. The speed limit on 132nd is 20 mph. Public works staff have reviewed the walking conditions for safety and found no safety problems. According to Mr. Sippo’s testimony, the walking route does not merit a cross-walk under City street design standards. Ms. Donnelly identified that there is a speeding problem in the area. That is an enforcement issue that needs to be taken up with City police. 8. Golden Eagle. There is no compelling evidence of a Golden Eagle presence at the project site. Ms. Donnelly asserts in her appeal documents that on several occasions she observed a Golden Eagle at the project site when her mother resided there in 2004-2006. There is no evidence of any current Golden Eagle presence or habitat on the project site. Determinative on this issue is the Washington State Department of Fish and Wildlife Priority Habitat and Species map, which identifies the location of protected habitat. No protected species habitat are identified in the map for the project area. In the absence of any more current sightings of the Golden Eagle than those of Ms. Donnelly and her mother fifteen years ago, the WDFW map is found to be the more compelling evidence of any current habitat or presence at the project site. Conclusions of Law 1. Authority. RMC 4-8-080G classifies short plat decisions as Type II decisions subject to appeal to the hearing examiner, which in turn is subject to closed record appeal to the City Council. 2. Review Standard. As noted in the Ruling on the City Motion to Dismiss, the review criteria for short plats are governed by RCW 58.17.110(1) and RMC 4-7-070(H)(3)1, which generally require that a short plat make appropriate provisions for public health, safety and welfare and infrastructure. As further provided in the Ruling, RMC 4-3-050(F)(6)(b) requires the protection of Golden Eagle habitat. Collectively, these standards govern all the issues Ms. Donnelly was authorized to present at the appeal hearing. For the reasons identified in Findings of Fact No. 5-8, Ms. Donnelly has not established any violation of the development standards that govern her appeal. As detailed in Finding of Fact No. 5, the project is conditioned to assess any impacts of loss of windbreak occasioned by tree removal, thus complying with the public health, safety and welfare component of RCW 58.17.110(1) and RMC 4-7-070(H)(3). As detailed in Findings of Fact No. 6 and 7 the proposal is adequately conditioned and regulated to provide for adequate roads, school walking conditions and drainage control under the appropriate infrastructure provisions of RCW 58.17.110(1) and RMC 4-7-070(H)(3). Finally, there is no evidence 1 The City’s critical area regulations, which includes protection of priority species such as the Golden Eagle, apply to any “regulated activity” which includes short plat development. See RMC4-3-050B2. Protection of the City’s critical area regulations would also be required under the public health, safety and welfare component of RCW 58.17.110(1) and RMC 4-7-070(H)(3). 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Short Plat Appeal - 5 CAO VARIANCE - 5 of current project site occupation of Golden Eagles in violation of RMC 4-3-050(F)(6)(b) as determined in Finding of Fact No. 8. DECISION Ms. Donnelly’s appeal is denied, except for the following added condition: 1. The revised arborist report required by the conditions of approval shall identify if there is any danger to the trees of the adjoining property formerly and/or currently owned by the Frandsens due to loss of windbreak on the project site caused by tree removal. DATED this 9th day of November 20212. City of Renton Hearing Examiner Appeal Right and Valuation Notices RMC 4-8-080(G) subject this open-record appeal decision to closed record appeal to the City of Renton City Council. Appeals of the hearing examiner’s decision must be filed with the Renton City Clerk within fourteen (14) calendar days from the issuance of the decision as outlined in RMC 4-8- 110C2. All appeals must be received by the City Clerk’s Office by this deadline and be accompanied by the applicable appeal fee. Affected property owners may request a change in valuation for property tax purposes notwithstanding any program of revaluation. 2 On November 11, 2021 the former spelling of “Franson” was corrected to “Frandsen” and the term “and/or currently” was added to Condition No. 1. Post-hearing evidence presented by the parties suggests that the Frandsens did not sell their property as presented by the Applicant during the hearing. Although likely not necessary, the added language clarifies that the condition applies whether or not the Frandsens own the property. Current ownership of the Frandsen property is immaterial to the Conclusions of Law and outcome of this decision.