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HomeMy WebLinkAboutCouncil 09/13/2004AGENDA RENTON CITY COUNCIL REGULAR MEETING September 13, 2004 Monday, 7:30 p.m. CALL TO ORDER AND PLEDGE OF ALLEGIANCE 2. ROLL CALL 3. SPECIAL PRESENTATIONS: a. 2004 Farmers Market Wrap -Up b. King County Records & Elections - Primary Election Ballot Changes 4. PUBLIC HEARINGS: a. 2004 Local Law Enforcement Block Grant b. General Fund allocations for 2005 and 2006; and Community Development Block Grant funds allocations for 2005 c. Proposed amendments to City Code to permit monopole wireless communication facilities within rights -of -way in residential neighborhoods 5. ADMINISTRATIVE REPORT 6. AUDIENCE COMMENT (Speakers must sign up prior to the Council meeting. Each speaker is allowed five minutes. The comment period will be limited to one-half hour. The second audience comment period later on in the agenda is unlimited in duration.) When you are recognized by the Presiding Officer, please walk to the podium and state your name and address for the record, SPELLING YOUR LAST NAME. 7. CONSENT AGENDA The following items are distributed to Councilmembers in advance for study and review, and the recommended actions will be accepted in a single motion. Any item may be removed for further discussion if requested by a Councilmember. a. Approval of Council meeting minutes of August 23, 2004. Council concur. b. City Clerk reports appeal of Hearing Examiner's decision on the Sunset Bluff Preliminary Plat (PP-04-002); appeal filed by SR 900, LLC, 9125 loth Ave. S., Seattle, 98108, on 8/17/2004, accompanied by required fee. The appeal packet includes an additional letter from Herons Forever as allowed by City Code. Refer to Planning and Development Committee. Consideration of the appeal by the City Council shall be based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional submissions by parties (RMC 4-8-110F.6.). c. City Clerk reports bid opening on 9/3/2004 for CAG-04-113, 200 Mill Building Chiller Replacement; three bids; engineer's estimate $180,000; and submits staff recommendation to award the contract to the low bidder, MacDonald -Miller Facility Solutions, Inc., in the amount of $121,594.88. Council concur. d. Court Case filed by Diane L. Vanderbeek, Attorney at Law, on behalf of Kelly A. Wright, alleging assault and battery, violation of civil rights, intentional infliction of emotional distress, and negligence while in the custody of the Renton Police Department on 8/27/2002. Refer to City Attorney and Insurance Services. e. Development Services Division recommends approval, with conditions, of Parkview Homes Final Plat; ten single-family lots on 1.77 acres located at Camas Ave. NE and NE 24th St. (FP- 04-071). Council concur. (See 10. for resolution.) (CONTINUED ON REVERSE SIDE) f. Economic Development, Neighborhoods and Strategic Planning Department recommends a public hearing be set on 9/27/2004 to consider the proposed R-8 zoning for the Johnson Annexation; 18.24 acres located east of 142nd Ave. SE and south of SE 118th. Council concur. g. Hearing Examiner recommends approval, with conditions, of the Jericho Preliminary Plat; 35 single-family lots on 5.31 acres located at 335 Jericho Ave. NE (PP-04-031). Council concur. h. Planning/Building/Public Works Department recommends approval to declare surplus City - owned property located at 901 Harrington Ave. NE (old Fire Station #12), and to set compensation for the property at $475,000. Refer to Community Services Committee. i. Police Department recommends approval of an interlocal agreement for jail administration with various cities to establish the purpose, membership, and governance of oversight groups to administer the jail contracts with Yakima and King County. Expenditure in 2004 is $4,393. Refer to Public Safety Committee. j. Transportation Systems Division recommends approval of Addendum #2 to LAG-99-003, Airport lease with Lane Hangar Condominium Owners Association, for a rent increase from $12,682.82 to $13,597 annually. Council concur. k. Transportation Systems Division recommends approval of an operating permit and agreement with Ace Aviation, Inc. for an aircraft maintenance facility at the Airport. Additionally, approval is sought for the Airport sublease agreement between Bosair, LLC and Ace Aviation, Inc. Refer to Transportation (Aviation) Committee. 1. Transportation Systems Division recommends approval of a memorandum of understanding establishing a cooperative relationship with Washington State Department of Transportation for the I-405 congestion relief and transit projects. Refer to Transportation (Aviation) Committee. in. Utility Systems Division recommends approval of Addendum #2 to CAG-03-034, contract with R.W. Beck, Inc., to complete the update of the Water System Plan in the amount of $65,448; and approval to transfer $46,000 from the Reservoir Re -Coat project budget to the Water System Plan Update project budget. Refer to Utilities Committee. n. Utility Systems Division submits CAG-03-115, East Kennydale Sanitary Sewer Infill and Water Main Replacement Phase II; and requests approval of the project, authorization for final pay estimate in the amount of $7,881.46, commencement of 60-day lien period, and release of retainage bond in the amount of $65,528.19 to Robison Construction, Inc., contractor, if all required releases are obtained. Council concur. 8. CORRESPONDENCE 9. UNFINISHED BUSINESS Topics listed below were discussed in Council committees during the past week. Those topics marked with an asterisk (*) may include legislation. Committee reports on any topics may be held by the Chair if further review is necessary. a. Finance Committee: Vouchers; 2004 Water & Sewer Revenue Bonds Issuance* b. Planning & Development Committee: Street Vacation Process 10. RESOLUTIONS AND ORDINANCES Resolution: Parkview Homes Final Plat (see 7.e.) Ordinance for first reading: 2004 Water & Sewer Revenue Bond Issuance (see 9.a.) Ordinances for second and final reading: a. Approving the Tydico Annexation (1st reading 8/23/2004) b. Establishing R-8 zoning for the Tydico Annexation (1st reading 8/23/2004) c. Establishing R-10 zoning for the Tydico Annexation (1st reading 8/23/2004) d. Owner -Occupied Housing Incentives extension and modification (1st reading 8/23/2004) 11. NEW BUSINESS (Includes Council Committee agenda topics; call 425-430-6512 for recorded information.) 12. AUDIENCE COMMENT 13. ADJOURNMENT (CONTINUED ON NEXT PAGE) COMMITTEE OF THE WHOLE AGENDA (Preceding Council Meeting) Council Conference Room 5:15 p.m. Emerging Issues (including Cedar River Park Clean -Up and Potential Pavilion Building Uses) Council Chambers Approximately 6:00 p.m. Comprehensive Plan Amendments Update • Hearing assistance devices for use in the Council Chambers are available upon request to the City Clerk • CITY COUNCIL MEETINGS ARE TELEVISED LIVE ON GOVERNMENT ACCESS CHANNEL 21 AND ARE RE-CABLECAST TUES. & THURS. AT 11:00 AM & 9:00 PM, WED. & FRI. AT 9:00 AM & 7:00 PM AND SAT. & SUN. AT 1:00 PM & 9:00 PM RENTON CITY COUNCIL Regular Meeting September 13, 2004 Council Chambers Monday, 7:30 p.m. MINUTES Renton City Hall CALL TO ORDER Mayor Kathy Keolker-Wheeler called the meeting of the Renton City Council to order and led the Pledge of Allegiance to the flag. ROLL CALL OF DON PERSSON, Council President; RANDY CORMAN; TONI NELSON; COUNCILMEMBERS DAN CLAWSON; DENIS LAW; TERRI BRIERE; MARCIE PALMER. CITY STAFF IN KATHY KEOLKER-WHEELER, Mayor; JAY COVINGTON, Chief ATTENDANCE Administrative Officer; LAWRENCE J. WARREN, City Attorney; BONNIE WALTON, City Clerk; GREGG ZIMMERMAN, Planning/Building/Public Works Administrator; JENNIFER HENNING, Principal Planner; ALEX PIETSCH, Economic Development Administrator; DENNIS CULP, Community Services Administrator; KAREN BERGSVIK, Human Services Manager; DEREK TODD, Assistant to the CAO; TINA HARRIS, Domestic Violence Court Advocate; COMMANDER KATHLEEN MCCLINCY and SERGEANT MARK DAY, Police Department. SPECIAL Jim Medzegian, President of the Piazza Renton volunteer organization and PRESENTATIONS Farmers Market Committee member, introduced Gene Sens, 2004 Farmers Community Event: Farmers Market Manager, who gave a briefing on the Farmers Market held on Tuesdays, Market Wrap -Up from June 15th to September 14th, at the Piazza (233 Burnett Ave. S.). Mr. Sens expressed his appreciation to the many people and groups that provided assistance and support for the Farmers Market, including local businesses and the market vendors. He stated that the market averaged 50 vendor booths every Tuesday that sold items such as produce, baked goods, flowers, and shellfish. Additionally, activities such as chef demonstrations, live music, and a children's booth were offered. Continuing, Mr. Sens reported that 2,000 to 3,600 patrons visited each Tuesday, vendors sold $9,000 to $13,000 worth of items each market day, and volunteers contributed over 3,000 hours this season. Pointing out that one of the Farmers Market's goals is to bring more people to the downtown area, he stated that the market has had a positive impact on downtown businesses. In conclusion, Mr. Sens presented certificates of appreciation to the boy scout volunteers who assisted with the Farmers Market. Councilwoman Nelson detailed the history of the Renton Farmers Market, and emphasized that the success of the market is due to the dedication of many organizations and volunteers. King County: Primary Election Bill Huennekens, King County Superintendent of Elections, gave a briefing on Ballot Change the change to the primary election ballot. He explained that the State of Washington no longer has a blanket primary, and a party preference selection is now required when voting for candidates running for partisan offices. He displayed an example of the primary election ballot, and explained that voters must choose a party, vote for candidates within that party, and complete the ballot by voting in the nonpartisan contests and ballot measures. Responding to Mayor and Councilmember questions, Mr. Huennekens stated that only the votes cast for the party selected by the voter will be counted if the voter mistakenly selects candidates outside the party preference. He assured September 13, 2004 Renton City Council Minutes Page 298 that the voter's party preference choice is completely private. In regards to the reason for the change to the primary election ballot, Mr. Huennekens explained that it was the result of lawsuits filed by the various political parties that argued that the blanket primary violated their right of affiliation. Federal courts found Washington's blanket primary to be unconstitutional; thus, a new primary law was enacted that requires voters to indicate their party preference on the election ballot. PUBLIC HEARINGS This being the date set and proper notices having been posted and published in Police: 2004 Local Law accordance with local and State laws, Mayor Keolker-Wheeler opened the Enforcement Block Grant public hearing to consider the 2004 Local Law Enforcement Block Grant (LLEBG). Police Sergeant Mark Day reported that Renton has been pre -approved for a grant in the amount of $18,478, and Renton is required to match approximately 10%, or $2,053. He stated that LLEBG funds have been used to fund the City's Domestic Violence Victim Advocacy program since 1996, and the Renton Domestic Violence Task Force again recommends using the funds for this purpose. Sergeant Day introduced Tina Harris, Domestic Violence Court Advocate, who stated that the program has served approximately 560 victims. She explained that the victims need food, shelter, transportation, interpreter services, safety planning, assistance in court, and assistance and referrals to community -based programs. Ms. Harris stressed the importance of the Domestic Violence Victim Advocacy program, and urged its continued support. In response to Councilman Law's inquiry, Sergeant Day stated that the LLEBG funds have decreased over the years, while the calls for assistance have increased. He pointed out that domestic -related calls for service represent approximately one-third of the actual number of calls that require further investigation. Council President Persson noted that the General Fund picks up the rest of the program cost, and he asked what the percentage increase of domestic -related calls were from 2003 to 2004. Sergeant Day reported that there was a seven percent increase in the reporting of domestic -related cases. Public comment was invited. There being none, it was MOVED BY NELSON, SECONDED BY CORMAN, COUNCIL CLOSE THE PUBLIC HEARING. CARRIED. MOVED BY LAW, SECONDED BY CORMAN, COUNCIL APPROVE THE USE OF LLEBG FUNDS FOR THE DOMESTIC VIOLENCE VICTIM ADVOCACY PROGRAM. CARRIED. Human Services: 2005 CDBG This being the date set and proper notices having been posted and published in & 2005/2006 General Fund accordance with local and State laws, Mayor Keolker-Wheeler opened the Allocations public hearing to consider the 2005 funding recommendations for the allocation of the Community Development Block Grant (CDBG) funds and the General Fund allocations for 2005 and 2006. Dennis Culp, Community Services Administrator, reported that while the CDBG funding allocations require a public hearing and the General Fund allocations do not, the human services funding sources were combined for public comment purposes. He said this matter and the related public comments will be reviewed by the Community Services Committee. September 13, 2004 Renton City Council Minutes Page 299 Karen Bergsvik, Human Services Manager, described the overall application and funding recommendation process, with the first step being preparing for the funding cycle. This included writing "The Changing Face of Renton" reports for the Human Services Advisory Committee and applicants use, and hiring a consultant to assist the advisory committee in improving the process. She added that the funding priorities remained the same as past years, and for the first time, the advisory committee agreed to look at other factors in the application. Additionally, Ms. Bergsvik noted that the South King County cities developed a common application, which could be used by agencies applying to any of the participating cities. Continuing with the overall process, Ms. Bergsvik stated that an application workshop was held in March; and City staff then processed the submitted applications, using a checklist and rating review form, before their submittal to the advisory committee. Ms. Bergsvik explained that there was no assumption that if an agency was funded in the past, it would be funded in the future. For 2005/2006, the advisory committee felt that the only way they could fund emerging needs in the community was by shifting funds from currently funded agencies. She emphasized that did not mean an agency was not performing. Ms. Bergsvik stated that an evaluation of the process will be conducted, and agencies will also be given the opportunity to provide feedback. She indicated that the funding process is a work in progress, which will continue to change and improve. She concluded by saying that there is a lack of common understanding of some of the assumptions, and clarification of those assumptions will help agencies better plan for the future, and provide parameters for the advisory committee. Carol Chappelle, Human Services Advisory Committee Chair, stated that the advisory committee is a diverse and committed group of volunteer citizens who are committed to workings towards the betterment of Renton citizens. She reported that 51 General Fund applications were received totaling $1,323,910, versus the $259,000 available for distribution. Available capital funds totaled $391,910, versus $652,013 in funding requests. Ms. Chappelle stated that the advisory committee optimized the funding process by using the following criteria: 1) Engaging all members of the advisory committee; 2) Being fair and objective; and 3) Being accountable to the citizens of Renton. Continuing, Ms. Chappelle described how the advisory committee reviewed the applications and how the funding recommendations were determined. She pointed out the many factors considered when evaluating the applications, such as demographic trends, the number of Renton residents served by the agencies, and duplication of services. The advisory committee recommended funding the top 26 General Fund agencies versus 27 funded last year. She suggested that agencies feeling shortchanged examine how they communicate their commitment and energy in providing the best value to the citizens of Renton, and evaluate their charters to make sure they conform to the needs of the community. Responding to Councilwoman Nelson's question regarding whether the new application form generated even more requests for funding, Ms. Bergsvik indicated that the increase in requests were due more to the cuts in funding for non-profit organizations. She said agencies are looking for every possible source of funding. September 13, 2004 Renton City Council Minutes Page 300 In response to Councilman Clawson's inquiry regarding the source of the CDBG funds, Ms. Bergsvik stated they are federal funds distributed by the U.S. Department of Housing and Urban Development to King County. Public comment was invited. Richard Brooks, 1025 S. 3rd St., Renton, 98055, stated that he was the Executive Director of Renton Area Youth Services (RAYS), which has served the Renton community for over 35 years. He thanked the City for its past support, and expressed his disappointment that many long-term human services providers received funding cuts this time, including RAYS' seventeen percent cut. Mr. Brooks expressed concerns regarding: the differing assumptions, the existence of City policies regarding funding core human services agencies, the need to fund emerging needs, the need to fund more and more organizations at a time when funding is becoming more restrictive, and the lack of clarity of how the funds will be distributed. Continuing, Mr. Brooks encouraged the involvement of the human services providers in the development of policies for the next funding cycle. He also cautioned against using a zero -based budgeting approach, noting that the grounds rules were not clearly laid out. Councilman Corman commented that if the emphasis of the funding process is going to change, it should be done gradually. He stressed that close attention is being paid to all comments. Maggie Moran, 403 E. Meeker St., Kent, 98030, spoke on behalf of Community Health Centers of King County, and echoed the previous speaker's concerns about the funding process. She urged support for her organization's funding request for medical and dental care for Renton residents. Detailing the amount of funds needed to provide medical and dental services, Ms. Moran expressed concern regarding the steady decline in the General Fund allocation to her organization, as well as the irregular pattern of CDBG funding. Stating that a new Renton Community Health Center is slated to open in January, 2005, she emphasized the need for a stable and significant financial commitment from the City. Daemond Arrindell, 1515 Dexter Ave. N., Suite 300, Seattle, 98109, representing the Crisis Clinic's Teen Link program, expressed disappointment that funding for his program will be completely cut. Mr. Arrindell detailed the history of the program and the services it provides, which include the teen help line and the youth suicide prevention presentations at King County schools. He asked that Teen Link's funding request be reconsidered. Tanesha Van Leuven, 5117 Rainier Ave. S., Seattle, 98118, representing HomeSight, expressed her gratitude for the $30,000 funding recommendation. She explained that HomeSight helps low and moderate income families buy their first homes, and the funding will be used for the first time home buyer revolving loan fund. Ms. Van Leuven requested that Council maintain the funding recommendation. Patricia Hart, 200 Mill Ave. S., Renton, 98055, spoke on behalf of the King County Sexual Assault Resource Center, and stated that the resource center has been located in Renton for a long time. She emphasized that the resource center always takes into consideration emerging needs in the community, and works closely with other organizations so there is no duplication of services. September 13, 2004 Renton City Council Minutes Page 301 Ms. Hart expressed her disappointment with the recommended twenty percent funding cut, and noted the effect the cut will have on the resource center. Pointing out that the resource center is on the cutting edge of prevention and information for sexual assault services, she detailed the services and programs the agency provides. Ms. Hart concluded by expressing her appreciation for the community's support of the agency. Larry Johnson, 14308 165th Pl. SE, Renton, 98059, representing Lutheran Community Services Northwest, expressed his appreciation for the funding recommendation. Mr. Johnson said the capital funding will go towards the development of a South King County community service facility, which will provide senior housing, childcare, immigrant and refugee services, elderly and disabled services, counseling, and family support. He emphasized that this new facility is possible because of the partnership of the cities, businesses, and individuals in South King County. Celia Forrest, 1010 S. 2nd St., Renton, 98055, spoke on behalf of the YWCA, and noted how difficult it is becoming for private non-profit organizations, as expenses continue to increase and the income decreases. Stating that the YWCA serves people whose lives are in danger, Ms. Forrest stressed that the organization responds to the community's emerging needs, such as for the victims of domestic violence. She indicated that as the economy gets worse, all human services are being affected. Ms. Forrest stated that the YWCA serves a wide variety of people with a diverse staff, and needs help to figure out how to continue this necessary work. Correspondence was read from Susan Richards, Executive Director for Community in Schools of Renton, 300 SW 7th St., Renton, 98055, expressing disappointment in the decreased funding recommendation, saying that the percentage of the decrease was very high for Communities in Schools when compared to the other agency funding cuts. She asked that the funding be more equitably allocated to all eligible agencies. Ms. Richards also requested that the Contingency Plan prioritize allocating additional funds to restore funding to agencies that have received decreases, rather than being applied proportionately to all. Correspondence was read from Del Mead, Renton Clothes Bank Board President, 1025 S. 3rd St., Renton, 98055, expressing gratitude for Renton's continued funding support of the clothes bank. She stated that the recommended $8,000 in funding covers most of the operating costs and additional funding is received from service clubs, businesses, and citizens. Detailing the needs that are served by the clothes bank, Ms. Mead noted that in August, 457 families were served - seventy-five percent of who were children. MOVED BY NELSON, SECONDED BY PALMER, COUNCIL REFER THESE LETTERS TO THE COMMUNITY SERVICES COMMITTEE. CARRIED. There being no further public comment, it was MOVED BY LAW, SECONDED BY PERSSON, COUNCIL CLOSE THE PUBLIC HEARING. CARRIED. Development Services: This being the date set and proper notices having been posted and published in Wireless Communication accordance with local and State laws, Mayor Keolker-Wheeler opened the Facilities in Residential Zones public hearing to consider the proposed City Code amendments to permit wireless communication facilities in residential neighborhoods. September 13, 2004 Renton City Council Minutes Page 302 Jennifer Henning, Principal Planner, explained that City Code does not allow monopoles or extensions of existing utility poles for wireless antennas in residentially zoned neighborhoods, and wireless providers find it difficult to provide good coverage. The problems are the lack of in -home coverage, dropped calls, and overall capacity issues, such as the wireless network becoming overloaded during peak usage times. Ms. Henning stated that staff recommends changes to the City's existing wireless regulations to allow for new monopoles in residential neighborhoods on a very limited basis, as follows: • Allow wireless communication antennas on existing power poles and/or existing street lights; • Allow replacement of existing power poles and/or replacement of existing city street lights with taller support structures; • Allow antennas greater than ten feet only if applicant demonstrates that no practical alternative is available to provide the same level of service; and • Allow the installation of equipment cabinets within public street rights -of - way or on abutting residentially zoned properties. These structures must -be located underground, or in a suitable location with appropriate screening. Council President Persson stated his concerns regarding being able to contact the wireless providers in the event of any problems, the possibility that the towers will interfere with public safety radio communications, the need to remove graffiti from the equipment cabinets in a timely manner, and the long- term maintenance of landscaping. Councilman Corman expressed his concern about view obstruction, and recommended that the poles be sited so that no one bears a disproportionate impact. Public comment was invited. There being none, it was MOVED BY BRIERE, SECONDED BY PALMER, COUNCIL CONTINUE THE PUBLIC HEARING TO OCTOBER 18, 2004. CARRIED. RECESS MOVED BY PERSSON, SECONDED BY LAW, COUNCIL RECESS FOR FIVE MINUTES. CARRIED. Time: 9:08 p.m. The meeting was reconvened at 9:17 p.m.; roll was called; all Councilmembers present. Development Services: Ken Lyons, Cingular Wireless, 14042 NE 8th St., Suite 210, Bellevue, 98007, Wireless Communication was invited to comment on the topic of wireless communication facilities in Facilities in Residential Zones residential zones. He explained that Puget Sound Energy requires a safety clearance between their power lines and the antennas on their poles, and the Federal Communications Commission does not allow any antennas to be placed lower than ten meters (approximately 33 feet). Therefore, most utility poles in residential areas are not available for antenna placement. In regards to the issue of interference with emergency radio communications that use the 800 megahertz bandwidth, Mr. Lyons pointed out that with the exception of Nextel, most wireless providers use the 1900 megahertz frequency. He indicated that this issue is being addressed at the national level. In conclusion, he noted the difficulty of addressing view obstruction issues, and suggested that the intent be clearly stated in the City Code. September 13, 2004 Renton City Council Minutes Page 303 Councilman Corman suggested that staff consider limits by distance when evaluating the view obstruction issues. ADMINISTRATIVE Chief Administrative Officer Jay Covington reviewed a written administrative REPORT report summarizing the City's recent progress towards goals and work programs adopted as part of its business plan for 2004 and beyond. Items noted included: • The King Conservation District Board of Supervisors recently awarded the Renton Parks Division the 2004 Local Government Conservation Award for the division's initiative and support on habitat enhancement work at the Black River Riparian Forest. • A new ordinance related to motorized foot scooters is now in effect in Renton. The ordinance requires scooter users to be age 13 years or older; obey all rules of the road; wear helmets; and affix a muffler.or modified muffling device to the scooter. They are not allowed in any park, trail, or sidewalk, or on streets with a speed limit above 25 miles per hour. Additionally, scooters may not be operated from one-half hour after sunset to one-half hour before sunrise. • Renton residents will see a change in the day their garbage, recycling, and yard waste are collected beginning October 4th. Customers will soon receive printed information about the change in their collection day. CONSENT AGENDA Items on the consent agenda are adopted by one motion which follows the listing. Council Meeting Minutes of Approval of Council meeting minutes of August 23, 2004. Council concur. August 23, 2004 Appeal: Sunset Bluff City Clerk reported appeal of Hearing Examiner's decision on the Sunset Bluff Preliminary Plat, SR 900 LLC, Preliminary Plat (PP-04-002); appeal filed by SR 900, LLC, 9125 loth Ave. S., PP-04-002 Seattle, 98108, on 8/17/2004, accompanied by required fee. The appeal packet includes an additional letter from Herons Forever as allowed by City Code. Refer to Planning & Development Committee. CAG: 04-113, 200 Mill City Clerk reported bid opening on 9/3/2004 for CAG-04-113, 200 Mill Building Chiller Replacement, Building Chiller Replacement; three bids; engineer's estimate $180,000; and MacDonald -Miller Facility submitted staff recommendation to award the contract to the low bidder, Solutions MacDonald -Miller Facility Solutions, Inc., in the amount of $121,594.88. Council concur. Court Case: Kelly A Wright, Court Case filed by Diane L. Vanderbeek, Attorney at Law, on behalf of Kelly CRT-04-006 A. Wright, alleging assault and battery, violation of civil rights, intentional infliction of emotional distress, and negligence while in the custody of the Renton Police Department on 8/27/2002. Refer to City Attorney and Insurance Services. Plat: Parkview Homes, NE Development Services Division recommended approval, with conditions, of 24th St, FP-04-071 Parkview Homes Final Plat; ten single-family lots on 1.77 acres located at Camas Ave. NE and NE 24th St. (FP-04-071). Council concur. (See page 305 for resolution.) Annexation: Johnson, 142nd Economic Development, Neighborhoods and Strategic Planning Department Ave SE recommended a public hearing be set on 10/18/2004 to consider the proposed R-8 zoning for the Johnson Annexation; 18.24 acres located east of 142nd Ave. SE and south of SE 118th St. Council concur. September 13, 2004 Renton City Council Minutes Page 304 Plat: Jericho, Jericho Ave NE, Hearing Examiner recommended approval, with conditions, of the Jericho PP-04-031 Preliminary Plat; 35 single-family lots on 5.31 acres located at 335 Jericho Ave. NE (PP-04-031). Council concur. Public Works: Surplus of City- Planning/Building/Public Works Department recommended approval to declare Owned Property, 901 surplus City -owned property located at 901 Harrington Ave. NE (old Fire Harrington Ave NE Station #12), and to set compensation for the property at $475,000. Refer to Community Services Committee. Police: Jail Administration Police Department recommended approval of an interlocal agreement for jail Interlocal Agreement, Various administration with various cities to establish the purpose, membership, and Cities governance of oversight groups to administer the jail contracts with Yakima and King County. Renton's expenditure in 2004 is $4,393. Refer to Public Safety Committee. Lease: Lane Hangar Transportation Systems Division recommended approval of Addendum #2 to Condominium Owners LAG-99-003, Airport lease with Lane Hangar Condominium Owners Association Addendum #2, Association, for a rent increase from $12,682.82 to $13,597 annually. Council Airport, LAG-99-003 concur. Airport: Ace Aviation Transportation Systems Division recommended approval of an operating permit Operating Permit & and agreement with Ace Aviation, Inc. for an aircraft maintenance facility at Agreement the Airport. Additionally, approval was sought for the Airport sublease agreement between Bosair, LLC and Ace Aviation, Inc. Refer to Transportation (Aviation) Committee. Transportation: I-405 Transportation Systems Division recommended approval of a memorandum of Congestion Relief & Transit understanding establishing a cooperative relationship with Washington State Projects Memo of Department of Transportation for the I-405 congestion relief and transit Understanding, WSDOT projects. Refer to Transportation (Aviation) Committee. CAG: 03-034, Water System Utility Systems Division recommended approval of Addendum #2 to CAG-03- Plan Update, RW Beck 034, contract with R.W. Beck, Inc. to complete the update of the Water System Plan in the amount of $65,448; and approval to transfer $46,000 from the Reservoir Re -Coat project budget to the Water System Plan Update project budget. Refer to Utilities Committee. CAG: 03-115, East Kennydale Utility Systems Division submitted CAG-03-115, East Kennydale Sanitary Sanitary Sewer Infill & Water Sewer Infill and Water Main Replacement Phase II; and requested approval of Main Replacement Phase II, the project, authorization for final pay estimate in the amount of $7,881.46, Robison Construction commencement of 60-day lien period, and release of retainage bond in the amount of $65,528.19 to Robison Construction, Inc., contractor, if all required releases are obtained. Council concur. MOVED BY PERSSON, SECONDED BY CORMAN, COUNCIL APPROVE THE CONSENT AGENDA AS PRESENTED. CARRIED. Added At the request of Councilman Corman, correspondence was read from Douglas CORRESPONDENCE R. Head, Edward Jones, 4250 NE 4th St., Suite B, Renton, 98059, in which he Citizen Comment: Head - One- references an article in the Renton Reporter regarding Renton's street system. Way Streets He indicated that the outdated and confusing street system needs updating. MOVED BY CORMAN, SECONDED BY BRIERE, COUNCIL REFER THE TOPIC OF ONE-WAY STREETS TO THE TRANSPORTATION COMMITTEE. CARRIED. September 13, 2004 Renton City Council Minutes Page 305 UNFINISHED BUSINESS Finance Committee Chair Corman presented a report recommending approval Finance Committee of Claim Vouchers 229833 - 230367 and four wire transfers totaling Finance: Vouchers $5,106,714.35; and approval of Payroll Vouchers 53094 - 53435, one wire transfer, and 612 direct deposits totaling $2,032,816.49. MOVED BY CORMAN, SECONDED BY NELSON, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. Community Services Community Services Committee Chair Nelson presented a report regarding the Committee Civil Air Patrol's (Renton Composite Squadron) request for meeting and office Community Services: Renton space. The Committee met to discuss this issue on 7/16/2003. While there is Composite Squadron, Meeting nothing available at City Hall or the Renton Municipal Airport, there has been Space an effort made to try to find alternate office space for the Civil Air Patrol. As a result of this, the Civil Air Patrol has been given a contact at the Salvation Army offices. At this time, the Committee recommended that no further action be taken and this matter be closed. MOVED BY NELSON, SECONDED BY PALMER, COUNCIL CONCUR IN THE COMMITTEE REPORT. CARRIED. Planning & Development Planning and Development Committee Chair Briere presented a report Committee regarding the City process for street vacations. The Committee met with staff Vacation: Process to discuss the process for how the staff processes street vacations. As a result of these discussions, the Committee recommended that staff add an additional step to the vacation process. For each street vacation, it was determined that a briefing should be provided to the Committee prior to the public hearing. MOVED BY BRIERS, SECONDED BY LAW, COUNCIL CONCUR IN THE COMMITTEE. REPORT. CARRIED. RESOLUTIONS AND The following resolution was presented for reading and adoption: ORDINANCES Resolution #3714 A resolution was read approving the Parkview Homes Final Plat; approximately Plat: Parkview Homes, NE 1.77 acres located in the vicinity of Camas Ave. NE and NE 24th St. (FP-04- 24th St, FP-04-071 071). MOVED BY BRIERE, SECONDED BY CLAWSON, COUNCIL ADOPT THE RESOLUTION AS READ. CARRIED. The following ordinances were presented for second and final reading and adoption: Ordinance #5092 An ordinance was read annexing 9.61 acres of contiguous unincorporated Annexation: Tydico, 136th territory known as the Tydico Annexation, by the election method, setting the Ave SE taxation rate, and fixing the effective date of 9/22/2004 for the annexation. The site is generally bounded by the centerline of NE 3rd Pl., if extended, on the north; the centerline of SE 132nd St., if extended on the south; 134th Ave., if extended on the west; and Bremerton Ave. NE (136th Ave. SE) on the east. MOVED BY BRIERE, SECONDED BY CLAWSON, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. Ordinance #5093 An ordinance was read establishing the zoning classification of R-8 Annexation: Tydico, R-8 (Residential - eight dwelling units per acre) for the Tydico Annexation; 9.61 Zoning acres generally bounded by the centerline of NE 3rd Pl., if extended, on the north; the centerline of SE 132nd St., if extended on the south; 134th Ave., if extended on the west; and Bremerton Ave. NE (136th Ave. SE) on the east. MOVED BY BRIERE, SECONDED BY PALMER, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. September 13, 2004 Renton City Council Minutes Page 306 Ordinance #5094 An ordinance was read establishing the zoning classification of R-10 Annexation: Tydico, R-10 (Residential - ten dwelling units per acre) for the Tydico Annexation; 9.61 Zoning acres generally bounded by the centerline of NE 3rd Pl., if extended, on the north; the centerline of SE 132nd St., if extended on the south; 134th Ave., if extended on the west; and Bremerton Ave. NE (136th Ave. SE) on the east. MOVED BY BRIERE, SECONDED BY LAW, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. Ordinance #5095 An ordinance was read amending Section 4-1-210, Waived Fees, of Chapter 1, Planning: Owner -Occupied Administration and Enforcement, of Title IV (Development Regulations) of Housing Incentive Extension City Code by extending and modifying the waiver of certain development and and Modification mitigation fees. MOVED BY BRIERE, SECONDED BY CLAWSON, COUNCIL ADOPT THE ORDINANCE AS READ. ROLL CALL: ALL AYES. CARRIED. NEW BUSINESS Councilwoman Nelson reviewed Renton School District announcements and School District: Activities activities. Items noted included: the summer school program's success, and the Link programs that are instrumental in helping new freshman adopt to life at high school. ADJOURNMENT MOVED BY NELSON, SECONDED BY LAW, COUNCIL ADJOURN. CARRIED. Time: 9:45 p.m. Bonnie I. Walton, CMC, City Clerk Recorder: Michele Neumann September 13, 2004 RENTON CITY COUNCIL COMMITTEE MEETING CALENDAR Office of the City Clerk COUNCIL COMMITTEE MEETINGS SCHEDULED AT CITY COUNCIL MEETING September 13, 2004 COMMITTEE/CHAIRMAN DATE/TIME AGENDA COMMITTEE OF THE WHOLE (Persson) COMMUNITY SERVICES (Nelson) FINANCE (Corman) PLANNING & DEVELOPMENT (Briere) PUBLIC SAFETY (Law) MON., 9/20 Emerging Issues 5:30 p.m. *Council Conference Room* 6:30 p.m. Aquatic Center 2004 Performance *Council Chambers* 7:00 p.m. Informal Reception for Suburban Cities Association's New Executive Director, Karen Goroski *Conferencing Center* MON., 9/20 Surplus of Fire Station #12; 4:00 p.m. General Fund and CDBG Funding Recommendations THURS., 9/16 Renton School District Alley Vacation 2:30 p.m. (briefing only); Comprehensive Plan Update MON., 9/20 5:00 p.m. TRANSPORTATION (AVIATION) THURS., 9/16 (Palmer) 4:30 p.m. UTILITIES (Clawson) THURS., 9/16 4:15 p.m. Jail Administration Interlocal Agreement NE 3rd/4th St. Corridor (briefing only); I-405 Congestion Relief and Transit Projects Memo of Understanding with WSDOT; Ace Aviation Operating Permit and Agreement Water System Plan Update Contract Addendum with R.W. Beck NOTE: Committee of the Whole meetings are held in the Council Chambers. All other committee meetings are held in the Council Conference Room unless otherwise noted. UP t- a fk7 a. A, J, �J P a IF V tx� F P 1g, IF A- Y d V A 'P .......... . IF o JV, 41 _3 pndi, -96Z-90ZJlB3J,0, f Zee 310A OJ IOU IF gv '310JIGW'AW k, # SuolpeIG/A013 V 7 JPJ ­4 6 I� P t A aI " 4 a" 11siA'uo.r4eWjo1ui ejow �ioj,, 8) OA'jn N 4 18A9MOH,, "k Ilk 1 7, k, J,-j9qLU"PN ul U011391 1"G14 'JOJ- YA, 3 2JPUG!D, 0. 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Here's what two of the respondents had to say: Th vivo a change i n our primary not the General Election, just the primary." ACV 71'.'Aftr looking at all -the ballot designs,, -1 1 the single ball6t'f6rmat was obvi6 usly F the most cost-effective and siffio)e to A, IF I understand.','al n Sharon1 Hopper '­ 5 Ft A. 0 - 'P #4 4 1 2 41- ��"No Matter how you -feel -about-' IF# 6 0, ""the f) en rim n`K1 CcfinrriF, 1,4nu, -,vote is too import6nt,not to take., part in the election.7,_'_ 10 obert Mairiurn'II 71 q, J 'N J w, tF F26 'Ballots- --,I e, -6 re t6re-6pproachabl 'than expected: Se ti We Times Editorial - July 23, 2004 IF 4i P o SUN MON 7 T s tp, % sJ F-J Af 15 20 21 22 27 28 29 46-& 10 1 7 18 24 25 30 O .... ............ .-For,more information call '2'0'6-29J67V'O­T't o'r'1: i go www.metrokc.gov/electipps� K^ -or 'ng County Election, -Ifyou havequestions,' o the 6rimai� information brochureb- an language- @ A 7 II ICti ng,C format,- Okas�`�onta& i - ounty,Ele on 6-296-8683, TTY 206-296-0109` S at 20 - V 4 e� 4A It 2W-29&8ffi3 A1tf�4k_*20&296-61W* A. p 6�6 i4p FA� "0 4� "-• "t,1[UNS,SEPT Use a dark INSTRUCTIONS TO VOTERS: EMBER 14, 2004 r. w a- If you Vote in in the oval neM fo in error Your Choice, at the VOTE LIKE T Ii polls, return the ballot to HIS: JUSTICE PO 08 a poll worker antl III in the oval completely. + Vote For One _ r IMPORTANT PRIMARY set another one. K I I• Select one AND NEW THIS YEAR * ` r a HIS ELECTIONS V re Harry Potter m, r politic I _ unt do not se%ct a panyPPfe ern preference below. OTING INSTRUCTIONS 2, Vote for ca You select more th nre-In g NO f I a bis ballot has be �a oQor from the y You so, an one party. your votes for sari c so �— w JUSvo a For One other part Partisan andidates wi!/n 5R PadY's or candidates 'dart to assist ected. 3. You in se%ctin ~ These Totes wnbeaounfeo; Offices and ballot rtledSUretests which correspond to your party selection. Votes f ! George Jetson` J you do not mark a S' or ! Fred Flintstone SECRETARYOF Po/tical pa fy Quest v Vote For OnSTATE Johnny e • L INSURANCE ~ i Of new f wrne-In OIV. NO.1, NONE, « Wfrtme 0. Pooh . COMMISSIONER PEALS Pal rtisan Vote For one ' COURT OF AP I40. 1; I oft;• Dr. M. Zeus �+, t Before -_, Ella Fitzgerald $ N0.04 Nip, " Im indicate the proceeding, please %Scarier O'Hara �� JUDGE PO with which Part Y DS Vote For one t Pollticat • ) John WayneJUN a Y Donna Parker Sta2 OF PUBLIC LAN P affiliate. You choose to - am `-) Mickey Mantle rt . wnre-m For One �t r -� If you do LEG. DIST, ( , Chandler Bing not select a party .) wnre " UNITED STATES N0.34 r s,irT i preference or if you select more th SEN -% NO 07 t fe-In awRIO k�. "Ay F ION N0:1 � EDICAL CENTER Lill AND SAFETY MENTS � GATIONS BONGS a' ,130,000 Council has this -County o. f389. , meconcerning on Harborvle hi rroaeon ' i an one STATESENATOR ATOR wn JUDGEPOS. y tbonds. T P s votes for party, Your TR Vote For One Vote For One am County to make seismic, R Vote For One _ partisan confests V°te For One _ �,' ix' afety improvements at r wihcount, NC rrm. including r Wanda W i 1 Hank Aaron Hawke 'erce Women Vo « (Center, averne De � Rachel Green construction PARTY Molly Bloom BarneyY Rubble �- and buildings, upgrading _ s rid renovation and uP9 no wrne-," 193,130,000 of we ue Richards write-in SUPERIOR Coll t a i & Sbond maturing w thin v PREFERENCE wnte_,n Choose Grey REPRESENT NO r411 , , a for $uch REPRESENTATIVE P �'. DEMO STAT JUDGEPOS.x,yearstoP Y taxesno { DEMOCRATIC NO,Ot i Vote For Ong,, r ndlevyPr°Fame tax _ Vote For One it atq - "` '° ' ' of regular prop rtY REPUBLICAN a party " C) Shirley Feeney " � a M, Thunder such bonds, all as Pf 0vl ton 1 i , , CAarlie Brow ESSIONAL DISTRICT N0. uote f o�" Johnny 6 1389e. Should )tits P P I LIBERTARIAN REPRESENTgTIyE f Vote For One 01 wn`e"" -, Fryer Tuck w " wrlre_rn BONDS,No Amelia Earhardt REPRESENTATIVE POS.� es I a Note: This selection is ATTORNEY GENERAL candidates a OpO�,10N N0.2 FOR andro private 'vote For One Vote « `,Yr ", Fr_ ) vrrrte-," JUDGE T-yTpytLEVY r record is maintained ' ; Richie Cunningham or One of your choice. Alex P. Keaton �) W �t h n t h ate Vote v v y Please PaPPe r int Patty carte -In y. tP continue voting. STATE OF j Remember to vote onl `-' WASHINGTO ny Cinderella Cba min9 candidates that corresy for wnre-," ECINCT COM �+ COMMISSIONER GOVE M11 i with your part on OF PUBLIC OFFICER i Susan Snow White Y preference. LANDS r One J r * - Vote For One 02 ware -In I • - ; Don Qulzae For One `-7 Tiny Tim ? TATIVE POS. NO• JUDGE POS. Roger Rabbit Ronald McDonald a- EPRESEN Vote For Vote For One an UNITED • Jackie Brown STATES w"te1n w"1ej" ller Jane Eyre LT. GOVERNOR _ pebbles Flintst0ne y Ross Ge K PepPem^intPatly. SENATOR - Vote For One FFICER < =' Pooh Vote For One I') Madame B. Bovary _ g • -J' ITTEE O wlnnie D. �_� write -In T COMM Pollyanna Smith J.P. PatchesRac_ sa PRECtT1C $ _) Nancy Drew Vote For One _ Robin Masters r PiPPie Longstockings t r ��) Harry Potter wnta_rn _ + Sally Srown ate.,n 15 INSURANCE COMMISSIONER write-,n +�'� JUDGE POS• N0. r _ j George Jerson • r e. Vote For one Vote For One SECRETARY OF STATE No `. ) write'" ;Fred Flintstone Vote For One ~ ,-D B UNITED STATES .r • Drew fi ; _� ally Summers Nancy I� 9 REPRESENTATIVE t Vote For One r Peter Parker umC-) wn,e_m STATE OF WASHINGTI so GOVERNOR am Vote For One rr CD Bruce Wayne r `_) James Bond WAfa-In LT. GOVERNOR Vote For One Sherlock Holmes (:__% George Smiley Peter Pan >RR RR Vote For One Marge Simpson Vote For One Clark Kent REPRESENTATIVE POS. NO.Oy Vote For One Lois Lane OFFICER _) Penny Lane Doogie Houser Marcus Welby Tommy Twotone Vote For One Thomas Edison Vote For One George W. Carver Vote For One Betsy Ross Vote For One C JohnnyAppleseed -} Wnte_In CONGRESSIONAL DISTRI( 9REPRESENTAT ryE Vote For One Oliver Twist -� Write --- STATE OF WASHINGTI GOVERNOR Vote For One Curious George wrlte_In LT.GOVERNOR Vote For One John Hancock •.,e ror one - "" wr PUBLIC Vote For One - LANDS `_ ; Susan Snow White Vote For One r- Pe Clara Barton mY Mason wnre_In -^ no 1`) Benjamin Franklin wrire•In _ races and Ballot Measures on reverse side. `-'' wnre-rn COntinUed On FRONT G,rd I Rptict 242,22 opposite -r ar1FfNG-22^ r Side. ROOF ONLY n7i211 - «. �. ... 0403:Id:4h r 0 wally Cleaver Theodore Cleaver Vote For One Ozzie Smith Joe Hardy Jeff Sullivan Ned Flanders P, Skinner Thomas Magnum -. AI Hrbrosky av Vote For One - , Christopher Robin - Cody Banks wandaVdomen PROPER § AUTOMATED ON SYSTEM _ INT IDENTIFICATI SERVICES Will Metropolitan King County Council has No.13894 conceming this NO ad Ordinance roposilion loran automated fingerprintTis - denlill al. o system ki Fl- Ieue eration proposition would fund continue o Which • agencies In identifying a and enhancement of the AFIS Program' an assists law enfocrr a nais,Ment aand replace County t and . levy ltwouldauthorizeKf expiring levy ter BA 55 RO N regular to exceed Chap an additional Propedy tax limitations and levy 05784 regular property tax valuation of not more than prop30. (5.784 cents) per $1' ear, with collection for five consecutive Y rovided in Ordinance beginning In 2001, all as P No.13894. Should this Proposition be: - No (as -- Y Ram Complete the ballot by noting in tthe nonpartisan contests andon'ballot measures,, -a e� ifd ou�choose 5 Y, :not to selectaaarty Clark Kent Lois Lane ■/:._: Write-n � PRUOF ONLY Qi12U040S;t0:44 ,e,0000000 � 00 1 RFcP on 242-22 ' 8OC- r on, aim °, - r Mo Mo Ono on Seefront of ballot - King County For assistance, please call... Elections 206-296-VOTE or go to www.metrokc.gov/elections City of Renton PUBLIC INFORMATION HANDOUT September 13, 2004 PUBLIC HEARING LOCAL LAW ENFORCEMENT BLOCK GRANT FUNDING DOMESTIC VIOLENCE VICTIM ADVOCACY In 2004, The City of Renton applied for, and received, a Local Law Enforcement Block Grant for Domestic Violence Victim Advocacy. The amount of the Local Law Enforcement Block Grant was for $18,478 and required a City match of approximately 10 percent, or $2,053. Local Law Enforcement Block Grants have funded the City of Renton's Domestic Violence Victim Advocacy program since 1996. The Program has enjoyed tremendous success and has provided much needed services to victims of domestic abuse. The Renton Domestic Violence Task Force has endorsed the continuation of the program and joins in requesting that it receive support of the City Council and the community. CITY OF RENTON NOTICE OF PUBLIC HEARING RENTON CITY COUNCIL NOTICE IS HEREBY GIVEN that the Renton City Council has fixed the 131h day of September, 2004 at 7:30pm as the date and time for a public hearing to be held in the seventh floor Council Chambers of Renton City Hall, 1055 S. Grady Way, Renton, WA 98055 to consider the following General fund allocations for 2005 and 2006, and Community Development Block Grant funds for 2005: The City of Renton is proposing to allocate 2005/2006 general funds in the amount of $259,000 to the following projects: Agency/Program Recommended :.Funding Aniqunt, . Catholic Community Services/Chore $5,000 Catholic Community Services/Counseling $8,000 Catholic Community Services/Emergency Assistance $10,000 Catholic Community Services/Katherine's House $4,000 Catholic Community Services/Legal Action Center $3,000 Child Care Resources $5,000 Children's Therapy Center $4,000 Community Health Centers of King County/Medical $23,000 Communities in Schools of Renton/Mentor $13,000 Consejo $5,000 Crisis Clinic/Phone Services $3,200 Hearing, Speech and Deafness Center $8,000 Institute for Family Development $4,600 King County Sexual Assault Resource Center $28,000 Lutheran Community Services/Mental Health $4,000 Multi -Service Center/Emergency and Transitional Housing $2,100 Renton Area Youth and Family Services $55,000 Refugee Women's Alliance $5,000 Renton Clothes Bank $8,000 Renton Technical College/Even Start $9,000 Senior Services/Meals on Wheels $8,000 Senior Services/Volunteer Transportation $4,100 Ukrainian Community Center of Washington $5,000 Way Back Inn $10,000 YWCA of King County —Domestic Violence $20,000 YWCA of King County—Emergency/Transitional Housing $5,000 Totalgeneral fund allocation $259,000 CADocuments and Settings\mneumannTocal Settings\Temp\publichearing05ver2.doc The 2006 allocations are contingent upon funding availability and agency performance The City of Renton is proposing to allocate 2005 Community Development Block Grai Public Service Funds in the amount of $68,000 to the following projects: Agency(Program Rec6mmerided °Furidn Amount Community Health Centers of King County/Dental $14,000 403 E Meeker Street, Kent WA. Funds will be used to provide approximately 108 dental visits to 55 low and moderate -income Renton residents. Communities In Schools of Renton/Family Liaison Program will $10,000 provide family liaison services to approximately 300 low and moderate income students in the Renton School District. Domestic Abuse Women's Network/Confidential shelter. Funds $11,000 will be used to provide confidential shelter and services to women or children victims of domestic violence, including bednights or referrals to approximately 13 Renton residents. E1derHealth/Day Health Program, 3921 Talbot Road S, Renton, $10,000 WA. Funds will be used to provide adult day health care to approximately 39 elderly persons or severely disabled adults residing in Renton. Emergency Feeding Program/Food Program. Funds will be used $13,000 to provide meals to approximately 1650 low and moderate income Renton residents at several Renton distribution sites. Visiting Nurse Services of NW/Senior Health promotion 211 $10,000 Burnett Avenue North, Renton. Funds will be used to provide health assessments to approximately 110 senior citizens. Total CDBG fund allocation $68,000 2®o a The City of Renton is proposing to allocate 2W4 Community Development Block Grant Capital Funds in the amount of $391,910 to the following projects: L7�Vl�V,!:/ 1 1 V'b1G1111 _ Fundin Amount King County Housing Repair Program/Deferred loans, grants $50,000 Funds will be used to repair or rehabilitate homes of low and moderate income Renton residents. Downtown Action to Save Housing/Low moderate housing 435 $50,000 Williams Avenue So. For property acquisition/construction to build 92 units of affordable rental housing for those with incomes at 50-60% of AMI. HomeSight/First time home buyer program. Funds will be used $30,000 for first-time buyer purchase assistance loans for low or moderate income households purchasing within Renton city limits. City of Renton Housing Repair Program will use funds to provide 1 $200,910 CADocuments and Settings\mneumann\Local Settings\Temp\publichearing05ver2.doc 2 repairs to approximately 160 housing units for low and moderate income homeowners throughout the city. Lutheran Community Services Northwest, 4040 S. 188` St, Sea- $6,000 Tac, for fees associated with the development of a Community Services Building providing services to low and moderate income clients. Multi Service Center will provide employment and related $30,000 services to approximately 20 low and moderate income Renton residents. Pediatric Interim Care Center/construction of new facility, 425 W. $25,000 Saar St, Kent, WA to be used to construct a care facility for drug exposed/chemically fragile newborns. Approximately 11 Renton clients will be served yearly. Total CDBG Capital fund allocation $391,910 The City of Renton is proposing to allocate the 2005 Community Development Block Grant Program Administration allocation of $45,127 to the staff costs in administering the Community Development Block Grant program at 1055 South Grady Way, Renton. The City is proposing that should there be a change in the amount of Community Development Block grant funds available in 2005, the amount of funds allocated by modified to the proposed contingency plan. For further information about the City of Renton's allocations, contact Dianne Utecht at 425-530-6655. All interested parties are invited to attend the hearing and present written or oral comments regarding the proposal. Renton City Hall is in compliance with the American Disabilities Act, and interpretive services for the hearing impaired will be provided upon prior notice. For information, call 425-430-6510. CADocuments and Settings\mneumann\Local Settings\Temp\publichearing05ver2.doc City of Renton 200512006 Funding Recommendations for the General Fund and 2005 CDBG Funding Recommendations 2004 2005 2005 2005 General Fund Program Description funded amount requested amount recom. Gen Fund recom. CDBG Rationale Community Services Chore Services $5,000 $7,000 $5,000 Catholic Catholic Community Services Counseling Services $0 $15,000 $8,000 Catholic Community Services Emergency Assistance $10,000 $12,000 $10,000 Services Katherine's House $4,000 $6,000 $4,000 Catholic Community Catholic Community Services Legal Action Center $10,000 $3,000 Child Care Resources Children's Therapy Center Information and Referral Early Intervention for Developmentally Disabled. $7,500 $2,500 $7,725 $9,435 $5,000 $4,000 Comm Health Centers of King County Primary Medical Mentor Program Domestic Violence Community $24,000 $14,200 $40,000 $14,200 23,000 $13,000 Communities in Schools of Renton Consejo Advocacy $10,000 $5,000 Phone Services/Crisis & Crisis Clinic Hearing, Speech and Deafness Center Institute for Family Development King County Sexual Assault Resource Center Community Services y services ounseling !,,tyommunInformation ssault Services ealth Services $3,300 $35,000 $9,054 $15,000 $6,900 $35,006 $10,000 $3,200 $8,000 $4,600 $28,000 $4,000 Lutheran Multi -Service Center Refugee Women's Alliance Emergency & Transitional Housing Family Support Program $2,000 $0 $5,000 $15,000 $2,100 $5,000 Renton Area Youth and Family Services Clothes Bank Child, Youth & Family Services Clothes Bank $66,000 $8,000 $70,656 $10,000 $55,000 $8,000 Renton Technical College Even Start $10,000 $15,000 $9,000 Renton Senior Services Senior Services Meals on Wheels Volunteer Transportation $6,000 $6,000 $9,000 $7,250 $8,000 $4,100 Indicates cuts in funding from 2004 Indicates increases in funding from 2004 Indicates funding for the first time H:\Huma n_se\2005\2005fu nd ing&rationale_2.xls Page 1 9/13/2004 City of Renton 2005/2006 Funding Recommendations for the General Fund and 2005 CDBG Funding Recommendations 2004 2005 2005 2005 General Fund Program Description funded amount requested amount recom: Gen Fund recom. CDBG Rationale Ukrainian Community Center of Washington immigrant/Refugee Services $5,000 $10,500 $5,000 Way Back Inn Transitional Housing $10,000 $15,000 $10,000 YWCA of King County Domestic Violence $23,0001 $25,0001 $20,000 YWCA of King County Emergency/Transitional Housing $5,000 $5,0001 $5,000 ..,<,,, ;.9' ,._ ,:� r' r,,. �.,:i ::_ _�. .:ax•-. 3uxa• s � �� 1 4� .3' _ KS259,0001, Fell under priority of domestic violence# (DV)/family violence. Evaluated all the DV ACAP Child and Family Services Asian-Amerian Chemical Dependency APPLE Parenting (A Positive Parent Learning Experience) Substance use Treatment $10,000 $20,000 $0 $0 $0 $0 requests together and compared to the limited resources. Limited resources; unprecedented demand. Big Brothers/Big Sisters of King and Pierce County Center for Career Alternatives Mentoring Low Tech, High Wage Initiative SE Asian Domestic Violence $10,000 $10,000 $0 $0 $0 $0 Fund CISR - same type of program Limited resources; unprecedented demand. Evaluated all the DV requests together and CHAYA Children's Home Society Community Health Centers of King County Community Health Centers of King Co. Crisis Clinic Services Strengthening Families Healthcare for the Homeless Natural Medicine TEEN Link $1,000 $15,000 $15,000 $2,000 $6,250 $3,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 $0 compared to the limited resources. Limited resources; unprecedented demand. Limited resources; unprecedented demand. Limited resources; unprecedented demand. Evaluated all the domestic violence requests Domestic Abuse Women's Network DV Support Groups $3,660 $0 $0 together and compared to limited resources. Domestic Abuse Women's Network Highline Community Hospital DV Crisis Line Midwifery services $4,375 $7,500 $0 $0 $0 $0 Didn't specify how Renton would benefit $ for both Burien and Renton. Application did not Highline Community Hospital Hospitality House Youth Health Center Shelter/Single Women $10,000 $3,000 $0 $0 $0 $0 include Renton Clinic. Limited resources; unprecedented demand. IndicaA�cutsunding from 2004 Indicates increase in funding from 2004 Indicates funding for the first time. 2005\2005fundingUationale_2.xls Page 2 9/13/2004 City of Renton 2005/2006 Funding Recommendations for the General Fund and 2005 CDBG Funding Recommendations General Fund Program Description 2004 funded amount 2005 requested amount 200S recom. Gen Fund 2005 recom. CDBG Rationale Pregnancy Aid of Kent Salvation Army Food Bank & Service Center Senior Services Valley Cities Counseling WA Women Employment & Education Transitional Housing Food Bank Congregate Meals Homeless Family Services Job readiness/computer training $1,000 $1,500 $15,000 $6,000 $10,000 $10,000 $0 $0 $0 $0 $0 $0 $0 $0 $0 Program not viable without City of Kent funding. it is not recommended to be funded by Kent in 05. 1 st to fund in contingency plan. Limited resources; unprecedented demand. City gives in -kind donation of space to the program at the Senior Center. 2005 CDBG Public Services Community Health Centers of King County Communities in Schools of Renton Dental 1 Family Liaison Program $14,400 $14,400 $20,0001 $15,0001 $0 $14,000 $10,000 Domestic Abuse Women's Network ElderHealth Emergency Feeding Program Visiting Nurse Services of Washington Note: $10,000 required minimum funding for CDBG Public Service Programs. Confidential Shelter Day Health Program Food Program Senior Health Promotion $9,600 $9,335 $13,440 $7,200 $11,0001 $12,000 $14,400 $10,520 $0 $11,000 $10,000 $13,000 $10,000 $68,000 Indicates cuts in funding from 2004 Indicates increase in funding from 2004 Indicates funding for the first time. H:\Human se\2005\2005funding&rationale_2.xis Page 3 9/13/2004 City of Renton 2005/2006 Funding Recommendations for the General Fund and 2005 CDBG Funding Recommendations General Fund Program Description 2004 funded amount 2005 requested amount 2005 recom. Gen Fund 2005 recom. CDBG Rationale King County Housing Repair Program Deferred loans/grants $50,000 $75,000 $50,000 Wants King County to complete an applic. In future Downtown Action to Save Housing Low Moderate Housing Downtown $160,000 $50,000 Likes idea of more affordable housing. Wants residents of Renton on RHA waiting list to have 1 st priority for housing HomeSight First Time Home Buyer Program $70,000 30,000 Likes idea of revolving fund & helping families connect to community City of Renton Housing Repair Program Housing Repair $205,250 $205,250 $200,910 Felt that prgm could be cut w/o affecting quality Lutheran Community Services Northwest Permitting for Community Services Building $6,100 $6,000 Wanted to help fund Renton's share of a regional facility Multi Service Center CBDO Employee Development $60,000 $60,000 $30,000 This will fund last 1/2 of 2005. 2004 funding is for 6/04 - 6/05. Pediatric Interim Care Center Construction of new facility $75,000 $25,000 Wanted to help fund Renton's share of a regional facility Indicates cuts in funding from 2004 Indicates increases in funding from 2004 Indicates funding for the first time H:\Human_se\2005\rev20o5funding&rationale_2.xls Page 1 9/13/2004 Daemond Arrindell -ba-evno-nd Aril n htl From: Leber Delores LHS Staff [LeberD@issaquah.wednet.eduj Sent: Monday, September 13, 2004 12:49 PM To: Daemond Arrindell Cc: Davis, Kevin LHS-STAFF; Corr, Linda AD Staff; Butler, Rich AD -Staff Subject: Funding for Teen Linnk To the Renton City Council, Please accept my deep appreciation for funding Teen Link through the Crisis Clinic. I've been teaching Health at Liberty High School for the past 4 years. Every semester a group of Teen Link counselors has visited each of Liberty High School's Health classes (11 classes per year) to teach about one of the fastest growing diseases and its consequences: DEPRESSION and SUICIDE PREVENTION. Students learn how to identify the signs of depression, what their options are if they are depressed, and most importantly, what to do if they think someone else is considering suicide. You may be surprised at the numbers of students who are depressed, have considered and/or tried to commit suicide, or who have had a close family member or friend whom they have lost due to suicide. Feel free to join my classroom for the next Teen Link presentation to see for yourself. Many of our students are "on the brink." Just look at the growing number of students dressing in black (the color of grief), those who are involved in self harm or the harm of others (including animals), the drugs and alcohol used by depressed individuals, and the crimes and domestic violence committed by those individuals. Can you imagine the cost of all that to the Renton community if not checked? With the many stresses and the breakdown of family support systems, depression and suicide are a growing societal problem. This one-on-one intervention by students trained by Teen Link saves more lives than we will ever know. It's the best program I've seen in my 30 year teaching career. Teen Link experts are highly trained, paid minimal wage, and provide the most wonderful information for our adolescents about a topic that involves all of our community. As you know, many of our Renton area students live in depressing conditions, suffer from depression themselves, or have a friend or family member who does. Teen Link offers our students the opportunity to bring this dark subject out of the closet and it arms them with the tools necessary to deal with depression and help to prevent suicide in their friends and relatives. Therefore, the services provided by Teen Link actually helps reduce the cost for further services related to mental health, police protection, safety, and the continued results of increased grieving on the Renton community. As you know, grieving individuals cost the community a lot. I don't know what price you put on a life, but the Teen Link program DEFINITELY WORKS!!! Here are some facts: * NONE of our Liberty students has committed suicide in this period. Compare that to . . . * One student from Issaquah High committed suicide. * Two students from Skyline High committed suicide. * Teen Link presents to Liberty students and not Issaquah or Skyline students. * My average class size is 30, and EVERY SINGLE LHS student receives this education in this required class. That means more than 1300 students have benefitted thus far in 4 years, many whom have graduated and are now living and raising their own families in the Renton area. Now multiply this by the many high schools serviced by Teen Link. * Within 10 years, depression is slated to be the #1 disease affecting our society. Now imagine the future: * Continued depression and suicide prevention education = a healthier community costing less, or * No education = increased problems for the community of Renton. The Teen Link program is ESSENTIAL to give our students, who are the future of the Renton community, the tools necessary for basic survival. Can the City of Renton really afford NOT to fund Teen Link?! Are you willing to live with the very real potential consequences of untreated depression and increased suicide in the Renton community? I URGE you to consider the many negative implications of eliminating funding to such an essential program, and to fully fund Teen Link through the Crisis Clinic. Delores Leber Family & Consumer Science Department Chair Health Educator Liberty High School 16655 SE 136th Street Renton, WA 98059 425-837-4823 M 0 3-of7 �eQ 9-/rirl�g Communities InSchools of Renton"' /.b' HELPING KIDS PREPARE FOR LIFE CITY OF RENTON September 13, 2004 SEP 1 3 2004 Mayor Kathy Keolker-Wheeler and City Council Members City of Renton 1055 South Grady Way Renton, WA 98055 Dear Mayor Keolker-Wheeler and City Council Members: CorresPo�ir�. RECEIVED CITY CLERK'S OFFICE Communities In Schools of Renton is very appreciative of the City's support for our work with children at risk of school failure through our Family Liaison and Mentor Programs. We also appreciate the complexity of allocating limited funds in a changing community. The Human Services Advisory Committee is to be commended for their time and effort in working through the many agency applications and making tough decisions. Based upon the 2005 agency allocations for Community Development Block Grants (CDBG), our agency has two requests that we would like you to consider for future allocations. Unless there is specific rationale such as contract compliance issues, when cuts in funding are required, we ask that they be more equitably allocated to all eligible agencies. Six agencies were funded through CDBG in 2005. All six had been previously funded. Of the six, three were increased from the previous year; two to meet a new minimum funding base of $10,000 and the third was increased to $11,000. To offset these increases, three agencies will receive decreases. Two received cuts of 2.78% and 3.28%. Communities in Schools of Renton, the third agency, received a cut of 30.56%. We realize that funding decisions are difficult, but feel that our decrease was very high when compared to the others. Our agency also requests that the Contingency Plan be developed to prioritize allocating additional funds to restore funding to agencies which had received decreases, rather than being applied proportionately to all. We would also appreciate this same consideration if decreases are necessary, to help avoid further cuts for agencies. Thank you for your time, consideration, and ongoing support. Sind rely, Susan Richards Executive Director C: City of Renton -Human Services Advisory Committee Dr. Keith Renfrew/Communities In Schools of Renton Chairperson 300 SW 71h Street, Renton, Washington 98055 - 425.430.6656 - Fax 425.430.6603 - e-mail srichards@ci.renton.wa.us " Renton Clothes 15ank 000a 1025 South 3rd Street • Renton, WA 98055 September 13, 2004 Hon. Mayor Koelker-Wheeler and Council Renton City Hall C17 Y OF RENTCN 1055 South Grady Way SEP 13 2004 Renton, WA 98055 REr'IFIVFr) Dear Mayor and Council Members: 0131+ CL rw�K'y OFFICE The Renton Clothes Bank Board, its employees and those served are so very grateful for your continued funding support without which the Clothes Bank could not exist. Your Grant of $8,000.00 covers most of the operating costs and additional funding is received from various service clubs, businesses and citizens. The Renton Housing Authority provides us with a storage facility in the Renton Highlands for sorting donations. A school district program provides for mentally handicapped students from 16 to 21 years of age to sort clothes as though going to work. This has been a great help to us. Our latest endeavor has been our "Children's Needs" program, .(shoes, socks and underwear and whatever else may not be available at the Clothes Bank.) We work with the stores and receive special discounts and the school liaisons and nurses accompany the children to select needed items. Last year 90 pairs of shoes were purchased. Last month we purchased shoes for three children in a homeless family so they could start school. In August the clothes bank served 457 family members, 75% of which are children, so the shelves of children's clothes are nearly bare. We will soon be holding our fall clothes drives at the schools to alleviate this problem. but we are seeing lots of new young men and families in the cothes bank who are laid off and with exhausted benefits, as well as more and more homeless. . We are a small but mighty operation! We dispense the clothes from a 700 sq. ft. area with 2 employees and are open Monday. through Thursday from 2:00 to 9.00 p.m. Like the food bank we provide. a vital community service and we thank you for being an "enabler" making life a bit easier for those less fortunate children and their families who reside in the Renton School District and are referred to the Renton Clothes Bank. Sincerely, RENTON CLOTHES BANK BOARD OF DIRECTORS City of Renton PUBLIC INFORMATION HANDOUT September 13, 2004 Wireless Communication Facilities Code Revisions For additional information, .p.lease contact: Jennifer :Henning; Project Manager; City of Renton Development Services Division; (425) 430-7286 ISSUE: Current City Code does not permit monopoles or extension of existing utility poles for cellular/wireless antennas in residentially zoned neighborhoods. Wireless/cellular companies are having difficulty providing good phone coverage in certain Renton neighborhoods as a result of this restriction. Staff have developed draft amendments to Chapter 4 of Title 4 during review of the existing Wireless Regulations. These recommended amendments respond to the expressed needs of the wireless purveyors, allowing the replacement of existing power poles or light standards with taller poles on a limited basis in order to accommodate wireless antennas. These limited pole replacements would only be allowed if the need is clearly demonstrated by the service provider, and phone coverage cannot be provided using other permitted antenna locations. RECOMMENDATION: The Development Services Division recommends amending the Wireless Regulations. The amendments would: 1. Allow wireless communication antennas (of up to 16 feet) to be placed on existing power poles (subject to approval of Puget Sound Energy) and/or existing City street light standards. 2. Allow replacement of existing power poles (subject to the approval of Puget Sound Energy) and/or replacement of existing City street lights with taller support structures in order to allow the installation of antennas up to 16 feet in height. 3. Permit new antenna greater than 10 feet in height, or pole replacement for use as a monopole, only when it is demonstrated by the service provider that no practical alternative is available to provide the same level of phone service. 4. Allow the installation of associated equipment cabinets within public street right-of- way or on abutting residentially zoned properties. These structures would be required to be located underground, or in suitable locations with appropriate screening. Wireless Communi*cati*on Facilities in Resi*dentl*al Proposed Code Amendments • Renton Municipal Code does not permit monopoles or extensions of existing utility poles for wireless antennas in residentially zoned neighborhoods — Wireless providers find it difficult to provide good coverage But the Coverage • Inadequate coverage in residential neighborhoods: — Some residents don't have "in home coverage", or if there is coverage residents experience frequent dropped calls • Overall capacity issues: During peak times of use, the wireless network may become overloaded causing many users to experience "dropped calls" or "system busy" error messages -% f I staff recommends approval of changes to the City's existing wireless regulations to allow for new monopoles in residential neighborhoods on a very limited basis uopullvisul posodoij SUOiTipu0D ouilSixg i� i t � k t • Change the code to allow wireless communication antennas on existing power poles and/or existing street lights • Allow replacement of existing power poles and/or replacement of existing city street lights with taller support structures 7 1 • Antennas greater than 10 feet, or any pole replacement, would only be allowed if demonstrated that no practical alternative is available to provide the same level of service What about Equipment • Allow the installation of equipment cabinets within public street right-of-way or on abutting residentially zoned properties. These structures would be required to be located underground, or to be in a suitable location with appropriate screening CITY OF RENTON MEMORANDUM DATE: September 13, 2004 TO: Don Persson, Council President Members of the Renton City Council FROM: Kathy Keolker-Wheeler, Mayor Jay Covington, Chief Administrative Officer SUBJECT: Administrative Report In addition to our day-to-day activities, the following items are worthy of note for this week: ADMINISTRATIVE/JUDICIAL/LEGAL SERVICES DEPARTMENT • Remember to vote. The State Primary is tomorrow, Tuesday, September 14"'. To learn about the new primary process, polling locations, or the election process, visit the city's website at www.ci.renton.wa.us or call the City Clerk's Office at 425-430-6510. COMMUNITY SERVICES DEPARTMENT • The groundbreaking for the new Renton Salvation Army Food Bank and Social Service Center, located at 206 South Tobin, will be this Thursday, September 16'h, at 11:00 a.m. The public is welcome to attend. This project was funded in part by Renton Community Development Block Grant funds and King County, with Rotary of Renton making a very generous donation. • The King Conservation District Board of Supervisors recently awarded the Renton Parks Division the 2004 Local Government Conservation Award for the Division's initiative and support on habitat enhancement work at the Black River Riparian Forest. The King Conservation District has partnered with the Parks Division and the Friends of Black River on several conservation projects to preserve and protect the Great Blue Heron rookery located at Black River. • The swimming season at the Henry Moses Aquatic Center ended on Monday, September 6". As anticipated, user fees covered all operating expenses. Revenue was generated from paid admissions, swim lessons, classes, rentals, and concessions. Staff has already started to evaluate the overall season. To help with that effort, a Henry Moses Aquatic Center Evaluation survey has been posted to the City's website, www.ci.renton.wa.us, to allow facility users to evaluate the Henry Moses Aquatic Center. Surveys are also available at the Renton Community Center, located at 1715 Maple Valley Highway, and will be mailed to individuals who purchased a season pass. ECONOMIC DEVELOPMENT, NEIGHBORHOODS, AND STRATEGIC PLANNING DEPARTMENT • The City has launched its second round of Neighborhood Matching Grants for 2004, with $40,000 available for projects. Grants are available to residents who have organized to plan and implement projects for the purpose of improving the viability and livability of their neighborhoods. Grant applications are due by 5:00 p.m. on Friday, September 24"'. POLICE DEPARTMENT • As a reminder, a new ordinance related to motorized foot scooters is now in effect in Renton. The ordinance requires scooter users to be age 13 years or older; obey all the rules of the road; wear helmets; and affix a muffler or modified muffling device to the scooter. Motorized foot scooters are not allowed in any park, trail, or sidewalk, or on streets with a speed limit above 25 miles per hour. Additionally, scooters may not be operated from one-half hour after sunset to one-half hour before sunrise. Administrative Report September 13, 2004 Page 2 PLANNINGBUILDING/PUBLIC WORKS DEPARTMENT • Renton residents will see a change in the day their garbage, recycling, and yard waste are collected beginning October &h. In an effort to increase efficiency of residential curbside solid waste collection in Renton, all residential curbside pick-ups will occur on Monday and Tuesday. Customers will soon receive printed information about the change in their collection day. • The 2004 Fall Recycling Day will be held on Saturday, September 181', from 9:00 a.m. to 3:00 p.m. at Renton Technical College's north parking lot. This one -day event gives residents an opportunity to recycle large items and hard -to -recycle materials at one convenient place. For more information, call the Information Line at 425- 430-7398. CITY OF RENTON COUNCIL AGENDA BILL Submitting Data: Dept/Div/Board.. Staff Contact...... AJLS/City Clerk Bonnie I. Walton Subject: Appeal of Hearing Examiner's decision dated 8/3/2004 regarding the Sunset Bluff Preliminary Plat. (File No. LUA-04-002, PP, ECF) Exhibits: A. Appeal Response - Herons Forever (9/1/04) B. City Clerk's letter (8/23/2004) C. Appeal - SR90OLLC (8/17/04) D. Hearing Examiner's Report & Decision (8/3/2004 For Agenda of: 9/13/2004 Agenda Status Consent .............. Public Hearing.. Correspondence - Ordinance ............. Resolution........... . Old Business........ New Business....... Study Sessions...... Information........ . Recommended Action: Approvals: Refer to Planning and Development Committee. Legal Dept......... Finance Dept...... Other ............... Fiscal Impact: N/A Expenditure Required... Transfer%Amendment....... Amount Budgeted....... Revenue Generated......... Total Project Budget City Share Total Project.. SUMMARY OF ACTION: X Appeal filed by David Halinen, Attorney, representing SR 900 LLC, accompanied by required $75 fee on 8/17/2004. Rentonnet/agnbill/ bh Michael W. Gendler* David S. Mann *Also admitted in Oregon City Council City -of Renton 1055 South Grady Way Renton, WA 98055 GENDLER & MANN, LLP ATTORNEYS -AT -LAW 1424 FOURTH AVENUE, SUITE 1015 SEATTLE WA 98101 September 1, 2004 T (206)621-8868 Fax (206) 621-0512 mannAgendlermann.com Re: Appeal of Hearing Examiner's August 3, 2004, Appeal Decision regarding a SEPA determination for SR 900 LLC's application for approval of the Sunset Bluff Preliminary Plat (File No LUA-04-002, PP, ECF) Honorable City Council: Pursuant to RMC 4.8.110(3), the following letter is submitted on behalf of Herons Forever in opposition to the appeal filed by SR 900 LLC challenging the Renton Hearing Examiner's August 3, 2004 decision reversing the ERC's issuance of a Determination of Non -Significance -Mitigated for the proposed Sunset Bluff Preliminary Plat. Herons Forever was the appellant before the Hearing Examiner and is a proper party of record. Herons Forever brought this appeal on behalf of its more than 400 members that have been involved with the protection of the Black River Riparian Forest since 1989. These members live and work throughout the Puget Sound region, including the City of Renton. Contrary to the Applicant's repeated assertion before the Hearing Examiner that Herons Forever seeks to block all development of the Applicant's property, Herons Forever recognizes and values individual property rights. It recognizes that the Applicant has a legal right to make reasonable use of its property. However, a subdivision of this property into 2, 5, 10, or even 65 lots is not a "right." A subdivision is appropriate only where the City finds that the subdivision makes appropriate provisions for the public health, safety and general welfare, and that the public use and interest will be served. In this case, the landowner's right to make reasonable use of its property, must be balanced against the importance to the public interest and the community in protecting the $8 million dollar public investment in the Black River Riparian Forest and both the tangible and intangible public benefits of this valuable and rare natural resource. The proposal before the City does not meet this critical balance and is not in the public interest. Indeed, Herons Forever agrees with the assertions by the Applicant that it is strongly opposed to the development currently proposed. Rather than balance or even consider the public interest and welfare, the proposal before you takes a steep and difficult site and maximizes its use by extensive Renton City Council September 1, 2004 Page 2 of 11 clearing and grading. The Black River great blue heron colony is a rare gem and the City has a trust responsibility to protect it. Recent experiments in development around the heronry have met with mixed success. We know now that nearby logging operations for only a few days in 1987 resulted in a significant disturbance to the herons. Fortunately, because logging was almost immediately halted, the herons did not abandon the site and indeed continued to expand their population. Unfortunately, it appears also that the 1999 experiment allowing development of the nearby Black River corporate park met with mixed success. While a prohibition on construction during the nesting season likely prevented significant disturbance, it appears that the year round occupation of the corporate park has resulted in the herons leaving the "Main Colony" and moving west into the "Protected Forest." The Main Colony had been occupied since inception of the colony. It is now abandoned. Fortunately, this negative impact may have coincided with cessation of blasting at the Black River quarry — thereby allowing the colony to migrate westward - closer to the old quarry. The question before Renton is how much further experimentation will the herons tolerate before they abandon the Black River Riparian Forest? . Herons Forever urges a cautious approach to this development. The significant environmental impacts must be truly known and identified before not after the development occurs. This cautious approach is more than justified in this situation. Unfortunately, the ERC's decision to issue an DNS-M for the Sunset Bluff preliminary plat allows a continuation of the experimental approach. The DNS-M was clearly erroneous. The following discusses briefly this Council's standard of review and each of the Hearing Examiner's Findings of Fact and Conclusions challenged by SR 900 LLC. Because the Hearing Examiner's factual findings are supported by substantial evidence and the legal conclusions are not clearly erroneous, this Council should deny SR 900 LLC's appeal and uphold the Renton Hearing Examiner's decision. A. Standard of Review As a threshold matter, it is important to keep in mind the role of this Council as it sits in its quasi- judicial appellate capacity. The City of Renton has vested its Hearing Examiner with authority to act on appeals of SEPA threshold determinations. The Hearing Examiner, therefore, is charged with holding open record hearings, listening to testimony of expert and fact witnesses, judging the credibility of the witnesses and then making a decision based on that evidence. The City Council has maintained appellate capacity over the Hearing Examiner's decision. In its appellate role, the Council does not take new evidence, but is limited to reviewing the record that was developed before the Hearing Examiner. As a general rule, the Council must sustain the Hearing Examiner's factual findings if they are based on "substantial evidence." Maranatha Mining, Inc., v. Pierce County, 59 Wn. App. 795, 801 (1990); East Fork Hills Rural Assn v. Clark County 92 Wn. App. 838, 843 (1998). Evidence is "substantial" when it is of a sufficient quality to persuade a fair-minded person Renton City Council September 1, 2004 Page 3 of 11 of the truth or correctness of the order. City of Redmond v. Central Puget Sound Growth Management Hearings Board, 136 Wn.2d 38, 46 (1998). As a general rule, credibility determinations are reserved to the fact finder — in this case the Hearing Examiner — and are not properly reviewed on appeal. Isla Verde Int'1 Holdings, Inc. v. City of Camas, 99 Wn. App. 127, 133-34 (1999). B. Responses to Challenged Findings of Fact Finding of Fact 12 While SR 900 LLC is correct that Finding of Fact 12 should have stated that the "southwestern corner of the site (1.08 acres) is zoned RC (Resource Conservation)" the remainder of its objection is without basis. The Hearing Examiner's factual determination that the "majority" of the site is zoned R-10 is supported by substantial evidence. 25.18 acres is clearly a "majority" of the entire 26.68 acre site. Finding of Fact 17 SR 900 LLC quibbles over the Hearing Examiner's use of the phrase "almost all of the vegetation would be removed from the site." Apparently SR 900 LLC prefers that the Examiner use the Staff s exact terminology that "the applicant has proposed to remove the majority of the on -site vegetation." The Hearing Examiner's factual determination that "almost all" of the vegetation will be removed is supported by substantial evidence. There is no dispute that all of the vegetation will be removed from 21.56 out of 26.26 acres. Only the 4.7 acre Native Growth Protection Easement will be left in its current vegetated state. Finding of Fact 19 SR 900 LLC quibbles next with the Hearing Examiner's determination that "immense grading activity will reshape the entire parcel and remove all vegetation on approximately 20 acres" is somehow erroneous. Again, the Hearing Examiner's determination is supported by substantial evidence. As noted by City Staff," the applicant has proposed to remove the majority of the on -site vegetation and perform approximately 160,000 cubic yards of earthwork activities." See Cross Sections A -A' B-B' and C-C' from the January 9, 2004 Preliminary Geotechnical Engineering Study (included in the January 12, 2004 Environmental Checklist (Exhibit 1). Finding of Fact 24 SR 900 LLC challenges the Hearing Examiner's Finding of Fact 24 because it apparently believes that the Hearing Examiner should have stated more about the development agreement. This is not a valid basis for appeal. The Hearing Examiner's factual finding in Finding of Fact 24 is undisputed. The additional facts asserted by SR 900 LLC are largely irrelevant to the Examiner's decision and Renton City Council September 1, 2004 Page 4 of 11 have no bearing on the Examiner's decision that the DNS was erroneous. The Examiner is not required to list every irrelevant fact in his decision. SR 900 LLC makes repeated arguments, however, that Herons Forever's decision to not challenge the City's SEPA determination during the 2003 Comprehensive Plan Amendment and Rezone process somehow affects Herons Forever's right to bring the present appeal. This argument is without merit. Herons Forever obviously did not challenge and had no reason to challenge the City's 2003 SEPA determination that down -zoning this property from multi -family to single-family was proper under a SEPA DNS. As the Council is well aware, a rezone itself is simply a planning change or "paper change" to the designation of the property. The City did not have details available on the proposed actual development of the property. It was Herons Forever's hope that the 2003 downzone would actually result in additional protection to the adjacent Riparian Forest and heronry. It was not until after the applicant filed its actual plat application, however, that the City and Herons Forever was made aware of the extent of clearing, grading and construction activity proposed for the property. Herons Forever's appeal is timely and appropriate now. More importantly, Herons Forever's appeal is expressly allowed by City Code. See RMC 4-8-110.E.' Finding of Fact 27 The Hearing Examiner's Finding of Fact 27 is supported by substantial evidence and should be left unchanged. There is no dispute that the Black River Quarry is no longer conducting quarrying operations. The Hearing Examiner was correct to determine that the quarry was closed. Finding of Fact 28 SR 900 LLC takes issue with the Hearing Examiner's statement in Finding of Fact 28 that the expert testimony of Dyanne Sheldon, a wetland biologist, was not available for review by the ERC. Finding of Fact 28 confirms that Ms. Sheldon testified that the volume of water that will reach the site will remain constant but it will be stored and released differently. SR 900 LLC asserts that Ms. Sheldon's points were considered by the ERC before making its decision. There is no evidence to support SR 900 LLC's assertion. While Exhibits 79 and 80 do include general observations on Water Quality and Water Quantity, the subject of Ms. Sheldon's testimony is not included within either Exhibit 79 or 80. More importantly, there is absolutely no discussion of the points raised by Ms. Sheldon in the February 24, 2004 Staff Report to the ERC nor in the ERC's February 24, 2004 SEPA DNS-M. The Hearing Examiner's finding of fact is supported by substantial evidence. ' For further legal discussion on this issue, please see Herons Forever's Post -Hearing Brief at pages 5-7. A copy of Herons Forever's Post -Hearing Brief is enclosed. Renton City Council September 1, 2004 Page 5 of 11 Finding of Fact 31 (First Two Sentences) SR 900 LLC next takes issue with the Hearing Examiner's statement that the "only experts that have actually worked with or monitored heron recently or that were subj ect to cross-examination indicated that the birds have reacted hostilely to intrusive activities in both this heronry and in others in the Puget Sound Region." SR 900 LLC asserts first that this statement is "a not too transparent attempt" to discredit its wildlife biologist Kenneth Raedeke. There is nothing erroneous about the Examiner's finding. Dr. Raedeke, while certainly an accomplished author and researcher on ungulates (including deer and elk), is not an expert in Herons and has not authored research or publications on Herons. Nor has Dr. Raedeke recently worked with or monitored herons. See Ex. 71 (Raedeke resume). The two experts referred to by the Hearing Examiner are Dr. Kate Stenberg and Patricia Thompson. Dr. Stenberg is an expert in herons and has been involved in monitoring herons in King County and the Puget Sound Region, including the Black River Heronry for over a decade. See Stenberg testimony, Ex. 11 (Stenberg resume); Ex. 12 (Stenberg report). Patricia Thompson is a wildlife biologist with the Washington State Department of Fish and Wildlife whose job description and work history involve surveys at heron colonies throughout King County, including the Black River Heronry. See Thompson testimony. Patricia Thompson is also an expert in local herons. SR 900 LLC's second complaint with Finding of Fact 31 is that the Hearing Examiner states that the two experts indicated that the herons react hostilely to intrusive activities inside the heronry. This indeed was the testimony of Ms. Thompson and Dr. Stenberg (as well as many fact witnesses). Indeed, SR 900 LLC concedes in its argument that the herons react to intrusive activities within the heronry. See Applicant SR 900 LLC's Appeal, p. 7. There is substantial evidence to support the Hearing Examiner's finding. Finding of Fact 31 (Third Sentence) SR 900 LLC next takes issue with the Hearing Examiner's finding that logging operations during February 1987 severely disturbed the herons. The Examiner's finding is fully supported by substantial evidence. In particular, the Examiner relied on the written eye -witness statement by Ms. Shelly Anderson, an employee of the Soil Conservation Service involved in creation of the P-1 pond. Ms Anderson's statement, the only witness providing evidence to the examiner of the 1987 events, supports the Examiner's finding. See Ex. 82. Ms. Anderson confirmed that the birds were severely disturbed immediately and that there was no subsequent nesting or breeding at the site that year. While some herons did return the next year, it was later than normal. Id. The Examiner's Finding in the third sentence of Finding of Fact 31 is supported also by the City of Renton's action issuing an immediate stop work order. Ex. 100. Renton City Council September 1, 2004 Page 6 of 11 Finding of Fact 31 (Balance) SR 900 LLC's final challenge to Finding of Fact 31 is an attempt simply to substitute its preferred testimony for the testimony offered and (obviously) accepted by the Hearing Examiner. As discussed above, it is the Hearing Examiner's role to listen to potentially conflicting testimony, judge the credibility of the offering witnesses and reach findings of fact. Isla Verde Int 7 Holdings, Inc. v. City of Camas, 99 Wn. App. 127, 133-34 (1999). The Examiner's Finding is fully supported by the testimony of Suzanne Krom, Patricia Thompson, and Dr. Kate Stenberg and should be left undisturbed.2 Finding of Fact 32 Finding of Fact 32 confirms simply that the ERC's SEPA DNS-M did not address potential changes to seasonal wetlands within the riparian forest caused by clearing and grading in the proposed plat. The Examiner's finding that this was not evaluated by the ERC is supported by reference to the SEPA Checklist, the Staff report to the ERC and the ERC's decision. While the Examiner did hear conflicting expert and fact testimony at the hearing, the substance of Finding of Fact 32 is fully supported by Substantial evidence. See SEPA Checklist, Staff Report to ERC; ERC DNS-M, testimony of Bill Rozeboom, Testimony of Dyanne Sheldon, Testimony of Dr. Stenberg, Exhibits 2, 3, 8, 9, 11, 12. SR 900 LLC's attempt to substitute its version of the evidence for that accepted by the Examiner should be rejected. Again, it is the Hearing Examiner's job to listen to and weigh conflicting evidence. 2 SR 900 LLC recognizes that the Examiner's Finding of Fact 31 is supported by substantial evidence but seeks to refute this testimony by personal attacks. SR 900 LLC's characterization of testimony from Suzanne Krom and Herons Forever's other witnesses as "lame and specious" is simply outrageous and has no place in any civilized legal proceeding. While SR 900 LLC may disagree with Ms. Krom's testimony, its resort to personal attacks only amplifies the fact that its arguments are simply without merit. SR 900 LLC simply cannot refute Ms. Krom's devotion to and work on this site. As she testified during the hearing, she has devoted 15 years of her life to protecting the Black River Riparian Forest and its Heronry. Ms. Krom was instrumental in ensuring that $8 million in public funds was obtained and dedicated for us as acquisition funds to purchase the riparian forest. Without question, Ms. Krom has spent more time on the site and observing this heron population, including impacts to the heron population from surrounding development, than any other person that testified before the Examiner. The Examiner's decision to base Finding of Fact 31 on observations by Ms. Krom, Ms. Thompson, Dr. Stenberg and other witnesses is sound and fully supports the Finding. Renton City Council September 1, 2004 Page 7 of 11 Finding of Fact 35 The Hearing Examiner's statement in Finding of Fact 35 that "in urban King County studies have found colonies shrink where there is development within 1,000 feet" is supported by substantial evidence, specifically the testimony of Dr. Kate Stenberg and Patricia Thompson. The "Stabin's study" relied on by SR 900 LC is an unpublished masters thesis with questionable conclusions. Finding of Fact 37 In Finding of Fact 37, the Hearing Examiner notes that Dr. Stenberg testified that the Fish and Wildlife recommendations were based on best available science. The Examiner notes also that Dr. Stenberg also testified.that the because the Black River colony arrives at its nests earlier and stayed a bit later, that in her opinion mid -January to end of July was an appropriate window for no construction. Because this was precisely Dr. Stenberg's testimony, there is obviously substantial evidence supporting the finding. SR 900 LLC apparently believes that because its witness Kenneth Raedeke may have testified against the Fish and Wildlife recommendations that somehow the Hearing Examiner's finding should be stricken. To the contrary, the Examiner's finding must be upheld if it is based on substantial evidence. Even if Raedeke disagrees with the Fish and Wildlife recommendations it would not change the outcome. Because Finding of Fact 37 is nothing more than a recitation of testimony actually received by the Hearing Examiner, it is, on its face, supported by substantial evidence. Finding of Fact 38 In Finding of Fact 38, the Hearing Examiner notes that Dr. Stenberg testified that the Black River colony "appears to react more to disturbances from the north where there is currently more forest cover and generally less anticipated intrusions and seems less disturbed by southerly -based disturbances. Again, this Finding of Fact is a direct recitation of Dr. Stenberg's testimony which was based on her years of actual observance of the Black River heronry. Finding of Fact 38 is supported by the substantial evidence from the testimony of Dr. Stenberg. SR 900 LLC does not disagree that Dr. Stenberg testified to the observations adopted by the Examiner. On this basis alone the Examiner's finding must be upheld. SR 900 LLC argues that Finding of Fact 38 should be stricken because it believes that its witness, Kenneth Raedeke, refuted Dr. Stenberg. Even if Raedeke did testify to personal observations to the contrary (this is disputed), it is the job of the Hearing Examiner to listen to the witnesses, judge their credibility and make factual determinations. The Examiner's factual finding should be upheld since it is based on the substantial evidence of Dr. Stenberg's observations and testimony. Renton City Council September 1, 2004 Page 8 of 11 Finding of Fact 39 Finding of Fact 39 is a recitation of Ms. Krom's testimony of her personal observations. SR 900 LLC does not disagree that Ms. Krom testified consistent with the Examiner's finding. Ms. Krom's testimony and observation are undisputed and are certainly relevant to the Examiner's ultimate conclusions. Finding of Fact 39 is supported by substantial evidence. Finding of Fact 40 Finding of Fact 40 is a recitation of Ms. Krom's testimony of her personal observations that after the development of the property at SW 7ch and Naches, the herons in the "Main Colony" abandoned that location and moved to an area identified as the "Protected Forest." There is absolutely no credible evidence to the contrary. While the heron population in the "Protected Forest" has expanded, the "Main Colony" — the area closest to the development at SW 7`h and Natches — has remained abandoned. Finding of Fact 40 is supported by substantial evidence —the uncontested testimony of direct observations. Finding of Fact 41 Finding of Fact 41 recites Ms. Krom's testimony that she has not observed any change in the trees in the "Main Colony" that would have caused the colony to move from the Main Colony to the "Protected Forest." While SR 900 LLC does not disagree with Ms. Krom's observation or testimony, it seeks to have this finding stricken because it has an alternate explanation. SR 900 LLC's alternate explanation does not diminish that Finding of Fact 41 is supported by substantial evidence and should therefore be upheld.3 Finding of Fact 49 Finding of Fact 49 is a summary of the testimony of SR 900 LLC's witness Dr. McCarthy. The finding of fact, including the conclusion that the evidence offered by Dr. McCarthy was not made available to the ERC during its review, is supported by substantial evidence — Dr. McCarthy's testimony, the Staff report to the ERC and the ERC's decision. There is no basis to re -write the Examiner's finding and substitute the language preferred by SR 900 LLC. 3 SR 900 LLC's theory of "eagle predation" is also disputed. First, there was no evidence of direct observations or eagle predation during this time period. Moreover, there was testimony from Ms. Krom stating that `Black River is the only colony where great blue herons have been observed effectively and repeatedly defending their nests from eagles and hawks. The herons at other local colonies typically flee instead of taking the strong defensive response we have seen at this colony." Renton City Council September 1, 2004 Page 9 of 11 Findin! of Fact 54 Finding of Fact 54 is an accurate recitation of the testimony offered by Dr. Raedeke and Dr. Stenberg is supported by substantial evidence. There is no basis for striking the Examiner's finding. Finding of Facts 55-59 SR 900 LLC argues that the testimony of Patricia Thompson should be stricken because it did not have. an opportunity to provide sur-rebuttal testimony to Ms. Thompson's testimony. SR 900 LLC ignore, however, that Herons Forever was the appealing party before the examiner and thus had the burden of proof. Under traditional rules of due process, the party with the burden of proof presents evidence first. The City and SR 900 LLC then had an opportunity to present response testimony. Finally, because of the burden of proof, Herons Forever has a final opportunity to present rebuttal testimony responding to the evidence offered by the City and Applicant. This is precisely what happened here. After Herons Forever presented their opening witnesses, including wildlife expert Kate Stenberg, SR 900 LLC presented the testimony of Kenneth Raedeke. Dr. Raedeke had not previously submitted any information to the City, its Staff or its ERC. Dr. Raedeke's information was simply new information. Because Dr. Raedeke appeared to challenge numerous direct observations from the Department of Fish and Wildlife, Herons Forever provided his testimony to the Patricia Thompson, the Department's King County heron expert. Ms. Thompson then volunteered to provide rebuttal testimony limited exclusively to commenting on the testimony of Kenneth Raedeke. Patricia Thompson's testimony was absolutely appropriate and was subject to cross examination by attorneys for both the City and SR 900 LLC. There is no basis to strike Findings 55-59. Finding of Fact 60 Finding of Fact 60 summarizes the Hearing Examiner's overall opinion of Dr. Raedeke's credibility. While SR 900 LLC does not dispute the summary of Dr. Raedeke's testimony, it obviously disagrees with the Hearing Examiner's overall characterization and dismissal. Once again, however, credibility determinations are reserved to the fact finder — in this case the Hearing Examiner — and are not properly reviewed on appeal. Isla Verde Intl Holdings, Inc. v. City of Camas, 99 Wn. App. 127, 133-34 (1999). Finding of Fact 61 Finding of Fact 60 is supported fully by substantial evidence in the record. The information reviewed by the ERC is contained in the Environmental Checklist, the Staff report to the ERC and the ERC's decision. Renton City Council September 1, 2004 Page 10 of 11 Findings of Fact 62 and 63 Findings of Fact 62 and 63 are citations of other recent decisions by the Examiner. It is of course appropriate that the City's Hearing Examiner to take judicial notice of previous decisions of both the ERC and the City's Hearing Examiner's office. Finding of Fact 64 SR 900 LLC uses Finding of Fact 64 as a springboard for its legal argument that the City's Hearing Examiner does not have the authority to reverse the ERC and substitute his own judgment. This argument is based on a narrow reading of RMC 4-8-110.E.7.b that allows reversal only where the substantial rights of the "applicant" have been prejudiced. Unfortunately, the City's SEPA appeal code does not define the "applicant" as the term is used in this context. But considering rules of due process, it must be assumed that the "applicant" refers simply to the party applying for the appeal and not only to the applicant for the underlying project. Otherwise, the City's code is unfairly biased toward project proponents. Further, it is apparent from previous City Hearing Examiner decisions that the City policy does allow the Examiner to reverse an ERC decision and impose additional conditions.' See Black River Corporate Park, Appeal and Site Plan Hearings, Conclusion 3, (Ocotober 19, 1998). C. Responses to Challenged Conclusions of Law SR 900 LLC's challenge to the Hearing Examiner's Conclusions of Law are essentially a repeat of its legal argument before the Examiner. Herons Forever's Post -Hearing Brief addresses each of SR 900 LLC's legal arguments and demonstrates that the Examiner's legal conclusions are not clearly erroneous. Herons Forever incorporates by reference, and requests the City Council review, it Post - Hearing Brief (a copy is attached). For the foregoing reasons, and the reasons stated in Herons Forever's Post -Hearing Brief, the City Council should deny SR 900 LLC's appeal and uphold the City Hearing Examiner's decision. ' It is also logical as a matter of judicial efficiency that the Examiner has the authority to reverse but add additional conditions based on information that was not presented to the ERC. Otherwise, the Examiner would be limited in this case to remanding this matter to the ERC so it can consider the new information provided to the Examiner and then have the matter once again subject to appeal — creating a potentially endless and time consuming loop. Renton City Council September 1, 2004 Page 11 of 11 Please do not hesitate to contact me if you have any questions. Very truly yours, GE MANN, LLP David S. Mann WSBA No. 21068 Attorneys for Herons Forever cc: Herons Forever David Halinen Zanetta Fontes r-� CITY 0 r= r ENIT 0,s 1 I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 W1 `.E CITY C,"D �S OF FICE BEFORE THE CITY OF RENTON HEARING EXAMINER Regarding Heron Forever's Appeal to the ) FILE NO. LUA04-002, EC,PP Hearing Examiner of the SERA Threshold ) Determination for the Proposed "Sunset Bluff' HERON FOREVER'S POST -HEARING Preliminary Plat. ) BRIEF I. INTRODUCTION Appellant Herons Forever respectfully submits the following Post Hearing Brief in support of its appeal of the City of Renton's SEPA threshold determination for the proposed Sunset Bluff preliminary plat. This brief both highlights some of the information presented at the hearing, and responds to several arguments made by the Applicant, SR 900 LLC, in the June 11, 2004, Closing Brief of Applicant SR 900 LLC ("Applicant's Brief). Herons Forever brought this appeal on behalf of its more than 400 members who have been involved with the protection of the Black River Riparian Forest since 1989. These members live and work throughout the Puget Sound region, including the City of Renton. Contrary to the Applicant's repeated assertion that Herons Forever seeks to block all development of the Applicant's property, Herons Forever recognizes and values individual property rights. It recognizes that the Applicant has a legal right to make reasonable use of its property. However, a subdivision of this property into 65, 10, 5 or even 2 lots is not a "right." HERON FOREVER'S POST -HEARING BRIEF - 1 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 Wl 0*1 24 25 26 27 Pit A subdivision is appropriate only where the City finds that the subdivision makes appropriate provisions for the public health, safety and general welfare, and that the public use and interest will be served. In this case, the landowner's right to make reasonable use of its property must be balanced against the importance to the public interest and the community in protecting the U million public investment in the Black River Riparian Forest, and the tangible and intangible public benefits of this valuable and rare natural resource. The proposal before the Examiner does not meet this critical balance and is not in the public interest. Indeed, Herons Forever agrees with the assertions by the Applicant that it is strongly opposed to the development currently proposed. Rather than balance or even consider the public interest and welfare, the proposal before the Hearing Examiner takes a steep and difficult site and maximizes its use by extensive clearing and grading. The Black River great blue heron colony is a rare treasure and the City has both and obligation and a trust responsibility to protect it. Recent experiments in development around the heronry have met with mixed success. . We know now that nearby logging operations for only a few days in 1987 resulted in a significant disturbance to the herons. Fortunately, because logging was almost immediately halted, the herons did not abandon the site and indeed continued to expand their population. Unfortunately, it appears also that the 1999 experiment allowing development of the nearby office park on the corner of SW 7`h and Oakesdale SW met with mixed success. While a prohibition on construction during the nesting season likely prevented immediate significant disturbance, it appears that the year round occupation of this corporate park has resulted in the herons leaving the "Main Colony" and moving west into the "Protected Forest." The Main Colony had been occupied steadily since the heronry was first established in 1 1986. This year (2004) marks the first time since its inception that the herons never even attempted to nest in their traditional, original location. The Main Colony is now vacant. Fortunately, this negative impact may have coincided with cessation of blasting at the Black HERON FOREVER'S POST -HEARING BRIEF - 2 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 1 2 3 4 5 6 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 River quarry, thereby allowing the colony to migrate westward - closer to the old quarry and into the Protected Forest.. The question before Renton now is how much further experimentation will the herons tolerate before they abandon the Black River Riparian Forest? Herons Forever urges a cautious approach to this development. The significant environmental impacts must be truly known and identified before -- not after -- the development occurs. This cautious approach is more than justified in this situation. Unfortunately, the ERC's decision to issue an NIDNS for the Sunset Bluff preliminary plat allows a continuation of the experimental approach. The NMNS is clearly erroneous and must be reversed. II. RESPONSE TO APPLICANT SR 900 LLC's PROCEDURAL ARGUMENTS Prior to getting into the merits of Herons Forever's appeal, the following discussion first responds briefly to several, essentially procedural, arguments made by the Applicant. See Applicant's Brief at pp. 5-20. A. RCW 43.21C.240 Does Not Preclude SEPA Review of the Proposed Plat and Does Not Preclude SEPA-Based Mitigation After a lengthy recitation of law and legislative intent, the Applicant argues first that because of the City's comprehensive planning process approval of a rezone and development agreement and, adoption of a critical areas ordinance, the City, and thus the Hearing Examiner, have no authority to require further SEPA analysis or SEPA-based mitigation in the City's review of the preliminary plat. Applicant's Brief at pp 9-13. This argument is based on a -profound misunderstanding of RCW 43.21 C.240. Significantly, in its haste to highlight every word in RCW 43.21C.240 that it believes supports it case, the Applicant ignores perhaps the key underlying building block of this statute — that in order for RCW 43.21C.240(1) and(4) to apply, the City must first review the probable significant adverse impacts of a project application and then determine if those impacts are addressed by existing regulation. This is spelled out in RCW 43.21C.240(2): HERON FOREVER'S POST -HEARING BRIEF - 3 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 1 2 3 4 5 6 h H., 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) A county, city or town shall make the determination provided for in subsection 1 of this section if: (a) In the course of project review, including any required environmental analysis, the local government considers the specific probable adverse environmental impacts of the proposed action and determines that these specific impacts are adequately addressed by the development regulations or other applicable requirements of the comprehensive plan, subarea plan element of the comprehensive plan, or other local, state or federal rules or laws; and (b) The local government bases or conditions its approval on compliance with these requirements or mitigation measures. Thus, under this provision, the first step in determining whether the City's existing plans and laws provide the necessary mitigation, is the understanding of the project and its probable significant adverse impacts. This first step is accomplished through the City's review ,of the proposed "project" through "any required environmental analysis." RCW 43.21C.240(2)(a). Once the City has completed its project review and identified probable adverse environmental impacts, the City's second step is to determine whether the identified impacts are mitigated by existing plans or laws. We are currently still in the first step of the process. While the City may have previously approved residential development for this project under its comprehensive plan, and may have downzoned the property from multi -family to single family households, the City is just now reviewing an actual project -level application and associated. environmental checklist. - The City is now conducting its "project review" based on the "required environmental analysis." Based on that review, the City's ERC issued an MDNS. Herons Forever here challenges the ERC's determination that it has identified the "specific probable adverse impacts of the proposed action." It is Herons Forever's position that the ERC's MONS was clearly erroneous and that the City has HERON FOREVER'S POST -HEARING BRIEF - 4 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 11 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 27 28 not yet completed the first step of the analysis required. This is an appeal expressly allowed by the City's SEPA rules. RCC 4-8-110.E.1 The Applicant's argument that Herons Forever's appeal must be denied based on RCW 43.21 C.240 is without merit. B. The Hearing Examiner Has Jurisdiction Over This Appeal The Applicant next argues that the Hearing Examiner does not have jurisdiction to hear Herons Forever's SEPA appeal. Applicant's Brief at 14-19. The basis for this argument is a line of several land use cases collectively holding that challenges to underlying comprehensive plan designations or zoning designations must be brought at the time of the planning or zoning decision. Herons Forever is not challenging the comprehensive plan designation for the Applicant's property. Nor is Herons Forever challenging the City's decision to downzone the property from multi -family to single family. Herons Forever is, however, challenging the City of Renton's issuance of an MDNS for the proposed preliminary plat. The City has expressly granted jurisdiction to the Examiner to hear this appeal at this time. RMC 4-8-110.E. As discussed above, it is certainly true that Herons Forever opposes the preliminary plat currently before the City of Renton. That opposition, however, is based on the Applicant's insistence on 1 Once the City has accurately identified the significant adverse environmental impacts, the second step will be to review those impacts against existing plans, laws and regulations to determine if they adequately mitigate the impacts or whether additional mitigation is necessary. This takes place during the City's preliminary plat approval. The Hearing Examiner reviews the proposal and the environmental review and then recommends conditions to the City Council. For example, it is ' Herons Forever's position that the SEPA determination should have identified the probable significant impacts from construction noise during the heron breeding and nesting period. Because there is no City code or plan that addresses this type of impact, the Hearing Examiner can review the recommendations from the Washington Department of Fish .and Wildlife and recommend a prohibition on construction between January 15 and July 31. HERON FOREVER'S POST -HEARING BRIEF - 5 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 clearing and significantly grading all but a minor portion of the property and refusal to recognize the importance of a construction window sufficient to protect the heronry.2 The cases cited by the Applicant are not applicable. For example, in Snohomish County v. Somers, 105 Wn.App 937 (2001), the opponent brought an action under the Land Use Petition Act challenging a development on the sole basis that it constituted urban growth outside of the County's interim urban growth boundary - even though the development was apparently consistent with the underlying zoning. The Court concluded that Somers should instead have challenged zoning before the GMHB at the time the County adopted its interim urban growth boundary. The Court specifically noted that Somers was not challenging development under SEPA or other governing requirements such as the State subdivision law. Id. at l l67. Herons Forever is challenging the City's SEPA determination for the proposed preliminary plat. Herons Forever is not challenging the comprehensive plan or zoning. Similarly, in Wenatchee Sportsmen Assn v. Chelan County, 141 Wn.2d 169 (2000), the Sportsmen challenged a proposed subdivision based on an argument that the proposed density of the subdivision itself was "urban in nature" and thus improperly located outside of the County's interim urban growth area. The Supreme Court held that because the densitywas consistent with the underlying zoning, the Sportsmen should have challenged the zoning at the time the County adopted its interim urban growth area. The Supreme Court recognized, and remanded back to the trial court, the Sportsmen's challenge to the County's SEPA MDNS decision. Thus, even if the Sportsmen's challenge to the density was brought too late and in the wrong forum, the Court recognized that their challenge to the SEPA determination was proper. Id. at 129. Again, in this case Herons Forever is, not challenging the underlying zoning or comprehensive plan 2 The Applicant places great significance on Herons Forever's decision to not appeal the City of Renton's downzone of the property from multi -family to single family housing. Indeed, it was Herons Forever's hope that the City's downzone would actually provide additional protection to the property. It was not until the Applicant filed its actual application, however, was the extent of the clearing, grading and construction activity known. HERON FOREVER'S POST -HEARING BRIEF - 6 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 101: Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 N:1 designation. Herons Forever is instead challenging the City's SEPA threshold determination. A decision that is properly before the Hearing Examiner.' Herons Forever has brought a timely appeal of the City's SEPA threshold determination for the proposed project -the Sunset Bluff preliminary plat. The appeal is expressly allowed by City code and is identified in the City's MDNS decision. The Hearing Examiner has jurisdiction over this appeal. C. RCW 43.21C.240(3) Does Not Prohibit Additional SEPA-Based Mitigation The Applicant argues next that RCW 43.21C.240(3) prohibits the City from imposing additional SEPA-based mitigation during project review. Applicant's Brief at 19-20. While it maybe true that in some circumstances RCW 43.21C.240(3) might eventually limit a City's authority to impose SEPA-based mitigation, this provision is not yet applicable in this case. RCW 43.21 C.240(3), on its face, is not applicable until after the City has conducted the analysis required by RCW 43.21C.240(2), by: first reviewing the proposed project using the required environmental analysis; second, identifying and "consider[ing] the specific probable adverse environmental impacts of the proposed project," and third, "determin[ing] that the specific impacts are adequately addressed by" applicable development regulations, plans, rules or laws. RCW 43.21 C.240(2). In this case we are still at the first two steps in this process. The City has not yet fully considered the probable adverse environmental impacts of this proposed plat. Until the City has an accurate understanding of the probable significant adverse impacts and can compare those impacts to relevant plans, regulations, laws and rules, RCW 43.31 C.240(3) in not applicable. 3 Caswell v. Pierce County 99 Wn. App. 194 (2000) is yet another decision holding that a challenge to whether a development is properly allowed outside of an interim urban growth area needed to be brought before the Growth Management Hearings Board. Moore v. Whitman County, 143 Wn.2d 169 (2001) stands only for the proposition that the Eastern Washington GMHB has no jurisdiction over Counties that are not required to plan under the GMA. It has no relevance to this case whatsoever. HERON FOREVER'S POST -HEARING BRIEF - 7 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 III. THE SEPA MDNS IS CLEARLY ERRONEOUS A. SEPA Required Full Disclosure If a development proposal, such as the proposed' Sunset Bluff preliminary plat, is "likely to have probable significant adverse environmental impacts," SEPA mandates that the responsible official "shall issue a determination of significance requiring that an EIS be prepared." RCW 43.2 1 C.030(2)(c)(emphasis added); RCW 43.21C.031; WAC 197-11-360. Where there is doubt whether a probable significant adverse effect exists, the SEPA threshold determination must be in favor of preparing an environmental impact statement: The policy of the Act, which is simply to assure via "a detailed statement" a full disclosure of environmental information, so that environmental matters can be given proper consideration during decision making, is thwarted whenever an incorrect "threshold determination" is made. Hill Preservation and Protection Association v. King County Council, 87 Wn.2d 267, 1273, 552 P.2d 674 (1976). A "probable significant adverse effect" exists whenever more than "a moderate effect on the quality of the environment is a reasonable probability." Id. at 278. According to the SEPA irules: "Significance" as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. Significance involves context and intensity.... The context may vary with the physical setting. Intensity depends on the magnitude and duration of the impact. The severity of an 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. WAC 197-11-794(1) and (2). The SEPA rules also define "probable:" HERON FOREVER'S POST -HEARING BRIEF - 8 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 "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. B. Standard of Review While it is true that the Examiner must give the ERC's threshold determination "substantial weight," RCW 43.21 C.075(3)(d), the Examiner is not required to turn a blind eye to the decision or simply act as a rubber stamp. The Examiner instead reviews the decision under the "clearly erroneous" standard of review. Wenatchee Sportsmen Association v. Chelan County, et al., 141 Wn.2d 169, 176 (2000). A decision is "`clearly erroneous' when, even where there is evidence to support the decision, the reviewing body is `left with the definite and firm conviction that a mistake has been committed."' Id.; Hayden v. Port Townsend, 93 Wn.2d 870, 880 (1980); Cougar Mountain Associates v. King County, I I I Wn.2d 742, 747, 755 P.2d 264 1(1988) As this Examiner has previously described: (t]he 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. Black River Corporate Park, Appeal and Site Plan Hearings, Conclusion 3, (October 19, 1998). In reviewing a decision under the clearly erroneous standard, the Examiner is required to "examine the entire record and all the evidence in light of the public policy contained in the legislation authorizing the decision." Cougar Mountain, I I I Wn.2d at 747 (emphasis added). The "public policy" behind SEPA has been recently reaffirmed by the Washington Supreme Court: SEPA recognizes the broad policy "that each person has a fundamental and inalienable right to a healthful environment ..." HERON FOREVER'S POST -HEARING BRIEF - 9 GENDLER & riANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 1 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 U3 RCW 43.21C.020(3). State agencies are required to use "all practicable means" to achieve the following goals: (a) Fulfill the responsibilities of each generation as a trustee of the environment for succeeding generations; (b) Assure for all people of Washington safe, healthful, productive, and aesthetically and culturally pleasing surroundings; (c) Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences. RCW 43.2 1 C.020(2)(a)-(c); Kucera v. Department of Transportation, 140 Wn.2d 200, 213-14 (2000). Keeping this broad and important public policy in mind, in order for the ERC's DNS to survive this Examiner's scrutiny, the record and evidence must: Demonstrate that "environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA," and that the decision to issue an MDNS was based on information sufficient to evaluate the proposal's environmental impact. Moreover, the mitigation measures imposed must be reasonable and capable of being accomplished. nderson v. Pierce County, 86 Wn. App. 290, 302, 936 P.2d 432 (1997). Again, while SEPA requires that the Hearing Examiner give substantial weight to the Idecision of the responsible official, in this case the ERC, as the proceeding quotation confirms, Ithis deference is due only where the record before the ERC demonstrates that the MDNS was based on sufficient information. Where, as here, the examiner receives significant quantities of new information that was not before the ERC, deference to the ERC's decision must either be limited, or the matter must be remanded to the ERC. SR 900 LLC argues that the Examiner does not have the authority to reverse the ERC and substitute his own judgment. Applicant's brief at 21. This argument is based on a narrow (reading of RMC 4-8-110.E.7.b that allows reversal only where the substantial rights of the I"applicant" have been prejudiced. Unfortunately, the City's SEPA appeal code does not define HERON FOREVER'S POST -HEARING BRIEF - 10 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 101: Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 I the "applicant" as the term is used in this context. But considering rules of due process, it must 2 be assumed that the "applicant" refers simply to the party bringing the appeal and not only to the 3 applicant for the underlying project. Otherwise, the City's code is unfairly biased toward project 4 proponents. Further, it is apparent from previous City Hearing Examiner decisions that the City 5 policy does allow the Examiner to reverse an ERC decision and impose additional conditions.4 6 See Black River Corporate Park, Appeal and Site Plan Hearings, Conclusion 3, (October 19, 7 1998). 8 C. Herons Forever Met Its Burden Of Demonstrating that the ERC's MDNS 9 was Clearly Erroneous 10 1. The ERC's MDNS was clearly erroneous in not considering the significant impact of construction activities on the heron colony 11 Despite the Applicant's assertion (based on the unsupported testimony ofMr. Jordon) that 12 the ERC fully considered the impacts of clearing, grading and construction activities on the 13 Heronry, Applicant's Brief at p. 29, the ERC's decision demonstrates otherwise. There is 14 absolutely no discussion by the ERC in its decision, nor any other documentation by the ERC that 15 16 it considered construction impacts. Indeed, the sum total of the ERC's consideration of impacts 17 to the great blue heron colony is contained on page 7 of its decision. After generally describing 18 the priority species status, of the great blue heron, the ERC concludes (based on the Applicant's 19 `Barghausen report" that the number of nesting sites on the applicant's property is limited and 20 that no great blue heron nests were found on the Applicant's property during the survey. The 21 ERC's report then notes that the closest nesting great blue herons are in the "Renton great blue 22 heron rookery, located approximately 1,100 feet south of the subject site." That's it. The ERC 23 24 25 26 27 28 4 It is also logical as a matter of judicial efficiency that the Examiner has the authority to reverse but add additional conditions based on information that was not presented to the ERC. Otherwise, the Examiner would be limited in this case to remanding this matter to the ERC so it can consider the new information provided to the Examiner and then have the matter once again subject to appeal — creating a potentially endless and time consuming loop. HERON FOREVER'S POST -HEARING BRIEF - 11 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 report does not even mention, much less consider, the adequacy of the buffer or whether seasonal construction limits are appropriate. Indeed, it appears that the ERC's conclusion that "no further mitigation is necessary" is based solely on the opinion of the Applicant's biologist, Theresa Dusek, as documented in the Applicant's environmental checklist. Curiously, while Ms. Dusek's January 9, 2004 Habitat/Wildlife Assessment does recognize that construction activities at the nearby Black River Corporate Park were prohibited within 1000 feet of the colony between January 15 and June 15, her report then jumps to the unsupported conclusion that "with the great distance between the site and the heron rookery, the Sunset Bluff project is likewise to have no impact upon the Renton heron rookery." Id. at p. 24. Ms. Dusek provided the ERC with absolutely no science or discussion to support this conclusion. The ERC, however, adopted Ms. Dusek's conclusion without question. The lack of basis for Ms. Dusek's conclusion became obvious at the hearing. On April 29, 2004, after providing lengthy testimony theorizing that logging in 1997 had no impact on the herons, the Examiner asked Ms. Dusek to explain one of her conclusion. Ms. Dusek's response: "I can't answer that, I'm not a wildlife biologist for herons." Herons Forever agrees. In short, there is simply no credible argument that the ERC had sufficient information on heron biology to reach a conclusion that the extensive clearing, grading and construction activities proposed for this plat will not have a profound and significant impact on the heron population — particularly if conducted between the January 1 and July 31 nesting and breeding season. Unlike Ms. Dusek, Dr. Kate Stenberg is a wildlife biologist with over 20 years of experience in urban wildlife, wetlands and natural resource management. More importantly, Dr. Stenberg has been involved in monitoring herons in King County, including the Black River heron colony and its surrounding habitats for over a decade. See Exs. 11 and 12: Based on her extensive experience with herons and specifically the herons at issue in this case, Dr. Stenberg reached significantly different conclusions than either Ms. Dusek or the ERC. Dr. Stenberg's HERON FOREVER'S POST -HEARING BRIEF - 12 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 L 1 2 3 4 5 6 7 NI 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 FM testimony is summarize in her letter report and for the sake of brevity, will not be repeated here. Ex. 12. With respect to construction noise, buffers and timing, Dr. Stenberg agreed with the WDFW recommendations that construction not occur within 1000 meters of a colony during the nesting season of January 15-July 31. Again, Dr. Stenberg's testimony and conclusions were based on her own significant knowledge of herons and her review of extensive literature and discussions with notable heron experts such as Dr. Robert Butler. Perhaps recognizing Ms. Dusek's lack of qualification, the Applicant attempted to refute Dr. Stenberg's testimony by commissioning a new heron "assessment" by Raedeke and Associates. While Herons Forever agrees that Dr. Raedeke has an extensive resume in wildlife biology, the Examiner should note that ofthe five pages ofpublication identified in Dr. Raedeke's resume (Ex. 71), only one of his publications addresses herons — a 1992 publication. The vast majority of Dr. Raedeke's experience and expertise is clearly in the study of elk, deer, goats and other ungulates. Indeed, the majority of Dr. Raedeke's conclusions in this case are based on research done by one of his master's thesis students, Amy Stabins. As Dr. Stenberg and WDFW's Patricia Thompson testified in rebuttal, however, Ms. Stabin's research appears questionable. Further, Ms. Stabins did not testify and was not subject to cross examination. Of particular concern is Dr. Raedeke's conclusion that mechanized disturbances, as opposed to human foot traffic, were not found to be a disturbance on nesting patterns. Exhibit 39 at pp. 5-6. Dr. Raedeke's conclusion is based on a paper by Carlson and McLean. Exhibit 75. The Carlson and McLean paper, however, analyzed mechanized noises that they "subjectively" determined were quieter than foot traffic. Ex. 75, p. 124. In other words, the Carlson and McLean conclusion that foot traffic caused a higher impact on nesting populations than mechanized noise, was based on a study of mechanized noises that the authors knew were less intrusive. This includes, in particular, routine and consistent noises such as farm equipment or vehicle traffic. Carlson and McLean did not study or even apparently consider the impacts of large land clearing and grading operations. Nor does the Carlson and McLean paper indicate that HERON FOREVER'S POST -HEARING BRIEF - 13 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 they studies more episodic noise activities (as opposed to routine events) such as those that will occur during construction at Sunset Bluffs. In short, the Examiner should reject Dr. Raedeke's conclusion that construction buffers are not necessary and that there will be no impacts from this development as simply not credible. The Applicant and City further attempted to support their argument that construction will not impact the heron colony by suggesting that logging in 1987 had no impact on the colony. Applicant's Brief at p. 32. The 1987 logging, however, can best be described as a narrowly missed disaster. As described by Ms. Shelly Anderson (Ex. 83), immediately after logging operations started the herons took flight and were obviously distressed. Ex. 83. I was not able to go to the site until after work at 4:30 pm. The herons were in flight around the main tree on the island. They were not flying as you see herons fly. It was as if they almost stood in one spot, in flight. They stumbled as they slowly circled the main nests. It looked like they were going to fall because they were not using their wings enough. The worst part was the sound they emitted. It was an unusual scream -cry distress call. It was most eerie and unusual. I had never heard anything like that before from the herons and I'll never forget the flight and distress -crying scream. It was similar to the yowling of wild cats, only much worse. Fortunately, logging operations were almost immediately stopped by the City of Renton. Ex. 100. The City thereafter withdrew its previously issued SEPA DNS and determined that there were probable significant adverse environmental impacts. Ex.101. Thereafter, the already felled trees between 200 feet and 700 feet from the nest were allowed to be removed only during a four -day interval from March 2 to 6, 1987. Further logging was prohibited within 700 feet of colony until after August 1. Ex. 102.5 Thus, while logging did occur, and the herons fortunately did recover their numbers, it could easily have been different. As both Dr. Stenberg 5 Ex. 102 is a Forest Practices Permit dated March 2, 1987. HERON FOREVER' S POST -HEARING BRIEF - 14 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 and Patricia Thompson confirmed, herons often will not return to their colonies after they are flushed. Far from proving that logging had no impact on the heron colony, the 1987 event underscores the tenuous existence of this colony and the significant risk posed by the startup of underscores noises. The City and Applicant also suggest that development of the adjacent office park had no impact on the Black River heron population. While Herons Forever agrees that there is no definitive proof of the relationship, it simply cannot be disputed that shortly after the construction of the office park the Herons abandoned their long used Main Colony and relocated en masse to the west into the Protected Forest area. While the Applicant and City suggest that the herons relocated in order to hide from eagle predation, photographs do not show a significant difference in protective cover between the new nest trees and the trees in the old Main Colony. Exs. 92-97.' The Applicant also takes issue with Dr. Stenberg's opinion that the after periodic blasting Iat the nearby quarry ceased in 2000 the number of nests in the Protected Forest (which is closer Ito the quarry) have more than doubled.$ Applicant's Brief at 34.9 Other than speculating that 6 The City and Applicant apparently take issue with Patricia Thompson testimony submitted on behalf of the Washington Department of Fish and Wildlife. The City and Applicant choose to ignore, however, that Ms. Thompson was called as a rebuttal witness in direct response to testimony offered for the first time at the hearing by Dr. Raedeke. Ms. Thompson's testimony took issue with Dr. Raedeke's characterization of the Department's recommended construction buffers and with Dr. Raedeke's assertion that the heron population in the Pacific Northwest was thriving - a conclusion that is not supported by the Department's observations. Rebuttal testimony offered by the party with the burden of proof, including testimony of new witnesses, is clearly appropriate to respond to evidence offered for the first time at the hearing. ' The Applicant also takes issue with Dr. Stenberg's opinion that the after periodic blasting ceased in 2000 at the nearby quarry the number of nests in the Protected Forest (which is closer to the quarry) nearly doubled. Applicant's Brief at 34. Other than speculating that this increase may have been caused by other factors, the Applicant cannot explain the rapid expansion. The testimony and observations of Suzanne Krom indicated the following nest counts in the Protected Forest: HERON FOREVER' S POST -HEARING BRIEF - 15 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 this increase may have been caused by other factors, the Applicant cannot explain the rapid westward expansion. Again, while it maybe difficult to actually prove the cause and effect, the City (and Applicant) can not ignore, the basic facts: (1) The corporate park was developed in 1999 and 2000; (2) the Black River Quarry ceased blasting in 2000; and (3) since 2000 the herons have gradually vacated their old Main Colony and moved westward away from the corporate park and closer to the old quarry operation. In short, Herons Forever, through the factual testimony of Suzanne Krom, expert testimony of Dr. Kate Stenberg, and rebuttal testimony of Dr. Stenberg and Patricia Thompson, more than met its burden of proof. The ERC committed a mistake in determining (if they even did so) that construction activities during the January to July heron nesting season would not have a probable significant impact on the Black River heron colony. 2. The ERC's MDNS was clearly erroneous in not Considering the significant adverse impacts caused by removing virtually all of the forest cover from the project site As a consequence of its decision to massively regrade the vast portion of the development site, the Applicant proposes also to remove virtually all forest. cover from the property. As Dr. Stenberg testified, the trees on the subject property are used extensively by the Black River heron colony for foraging and a source of nest building twigs and branches. Aside from brief ,conclusions that "the number of cavity nesting species therein is likely relatively small" and "no nests of priority birds were found on the site during the field survey," the ERC's MDNS provides 1998: 6 nests; 1999 (construction of office park): 0 nests; 2000 (blasting at quarry ends): — 30 nests; 2001: 42-44 nests 2002: 93-95 nests 2003: 103-106 nests. 9 The Applicant indicates that it could not find reference in its materials to a statement that the herons were not impacted by blasting at the quarry. That reference is within the environmental checklist at page 24 of Ms. Dusek's report. HERON FOREVER'S POST -HEARING BRIEF - 16 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 6' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 no discussion of the importance of the existing forest canopy nor the impacts of its removal. See ERC Report, p. 27. The ERC did not have sufficient material to make its environmental determination. The Applicant responds first by taking issue with the City Staff s description of relatively large -sized trees on the property. Applicant's Brief at pp. 39-40. Notably, however, the Applicant did not question Mr. Jordon (or anyone else from the City) about this conclusion. Aside from this minor bickering, the Applicant's primary response appears to be a steadfast belief that "the Applicant is under no legal duty to preserve forest vegetation on the hillside or to establish screens of coniferous vegetation for the benefit of a City park." Applicant's Brief at 44. This argument ignores completely the purpose of SEPA10. Whether or not the Applicant has a "duty" to preserve vegetation, does not address the question required by SEPA analysis — assuming the applicant does remove the canopy proposed, will there be probable significant environmental impacts? The evidence offered by Herons Forever demonstrates that the answer is yes. 3. The ERC's MDNS was clearly erroneous in not considering the significant adverse impacts caused by increased human and pet interactions A significant portion of the hearing focused on the debate of whether the addition of 65 new families and pets will have a significant impact on the Black River heron colony. As Dr. Stenberg testified, because the applicant has decided not to include any recreation space within the subdivision (and had previously convinced the City to adjust lot lines in order to avoid the (requirement for any sort of sidewalk along Sunset/Martin Luther King Jr. Way), new residents 10 This argument ignores also that the City is likewise under no "duty" or "obligation" to allow for a subdivision ofproperty. A subdivision can be approved only when the applicant demonstrates and the City finds that adequate provisions have been made to protect health, safety and welfare and that the subdivision is in the public interest. RCW 58.17.110. HERON FOREVER'S POST -HEARING BRIEF - 17 GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 2 4 6' 71I 8 9 10 11 12 13 14 15 16 17 18 19 20 21 will undoubtedlybe attracted to and enter the adjacent Black River forest directly from the north." As the Examiner is aware, a single wood fence is not a significant deterrent to even a slightly motivated individual.12 Despite the ease of entry, the ERC was satisfied that no additional entry would occur simply because of the fence. The ERC failed to address what the impacts would be with additional entry from the north. The Applicant and City reject Dr. Stenberg's concerns bypointing to the number ofpeople who currently use the public trail along the P-1 pond for observing the herons. Their argument ignores, however, that the herons appear to accept people approaching from the south and are well protected by the impassible P-1 pond. The testimony of Dr. Stenberg confirms, however, that herons appear to not accept so easily changes in behavior around them. Thus, an increase in visitations from the north, where there is no protective water body buffering the colony, will likely result in an increased number of disturbances leading to potential abandonment. By relying solely on a condition requiring a single fence, the ERC committed an obvious error in determining that a significant increase in full time residents and their pets would have no probable significant impact on the heron colony. 4. The ERC's MDNS was clearly erroneous in not considering the significant adverse impacts associated with drainage from the subject property to the Black River Riparian Forest Through the testimony of William Rozeboom, P.E., Herons Forever demonstrated that the ERC's MDNS failed to fully consider the drainage impacts associated with the forest removal, ing and rerouting of surface and groundwater from the development site into the Black 22 23 " Children will not be able to walk safely along Sunset and will not likely have the 24 ability to simply hop in a car and drive around to, the park. 25 12 Nor is the "threat" imposed by a couple of trains per day along the railroad tracks. Further, contrary to testimony from Ms. Dusek that it was impossible to walk through the deep 26 water and vegetation, at least one witness testified at the hearing that they were able to easily cross through the north side of the Black River forest during a lunch break immediately after 27 Ms. Dusek's statement. 28 GENDLER & MAINN, LLP 1424 Fourth Avenue, Suite 1015 HERON FOREVER'S Seattle, WA 98101 Phone: POST -HEARING BRIEF - 18 Fax: (206) 621-0518 2 7', 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 River riparian forest. Mr. Rozeboom reached two major conclusions. First, that the removal of canopy and conversion of a large portion of the propertyto impervious surfaces (including lawns), would result in a significantly "flashier" system of runoff with a significant increase in surface flows during wet months followed by a significant decline in flows during summer months.13 Because this flow ends up in a large closed basin wetland within the riparian forest, the change in hydrology will significantly impact the wetland and wetland dependent plants. Second, Mr. Rozeboom concluded that the proposal to tite-line all of the stormwater from SR 900 directly to the Black River Riparian Forest would result in the delivery of a significant quantity of pollutants to the offsite wetlands. 14 See Ex. 3. Mr. Rozeboom's testimony that the change in hydrology would significantly impact downstream wetlands and wetland vegetation was confirmed by Ms. Dyanne Sheldon. Ex. 9. The ERC's MDNS and Applicant's checklist failed even to mention the existence of the large depressional wetland on the Black River Riparian Forest property. Nor did they evaluate the impacts that changing the surface and groundwater hydrology will have on the downstream depressional wetland. Finally, the ERC's MDNS and Applicant's checklist fail completely to discuss the impacts of diverting polluted stormwater from SR 900 directly to the riparian forest wetland system. 13 During closing argument, the City's attorney attempted to argue that Mr. Rozeboom's testimony about the change in surface water runoff was in conflict with Ms. Sheldon's conclusion that the same amount of water would leave the site. There is not conflict. Ms. Sheldon is correct that the same amount of rain will fall and essentially the same amount of water will runoff (with the exception of water currently lost through evapotranspiration). Mr. Rozeboom does not disagree, but simply points out that the timing for runoff will change dramatically. Instead of water being stored in the existing soils and slowly migrating through shallow groundwater flow, the water will more immediately run off as surface water over the new impervious surfaces. 14 As Mr. Rozeboom described, the stormwater from SR 900 currently enters the subject property and is largely absorbed as groundwater flow which provides for significant filtering of the road related pollutants. HERON FOREVER'S POST -HEARING BRIEF - 19 CENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 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 27 28 Recognizing these obvious deficiencies, the Applicant produced at the hearing several new witnesses and reports addressing offsite drainage impacts. The last minute analysis, however, Iis far from sufficient to document the environmental impacts. For example, the Applicant's witness Dr. McCarthy testified that he ran the King County KCRTS model to evaluate the impacts downstream. Ex. 33, p. 1. Dr. McCarthy agreed, however, that the KCRTS model is a regional model that needs real data calibration in order to be effective. Dr. McCarthy confirmed that he did not have streamflow or runoff data for calibration. Dr. McCarthy also testified that he presumed a "till" for the surface lay and that "till" soils produce high runoff rates. Dr. McCarthy's "till" assumption, however, does not correspond to the test pits and cores collected for the Applicant's geotechnical analysis. The samples reported in Ex. 20 generally show well saturated soils. Dr. McCarthy agreed that he did not take evapotranspiration into account in his model. In other words, he assumed the same level of evapotranspiration for the cleared site as for the currently forested site. Finally, Dr. McCarthy confirmed that no one had sampled or done testing to analyze the impact of directly routing runoff from SR-900 to the Riparian Forest wetlands directly below. In summary, while Dr. McCarthy's analysis is heading in the right direction, it proved too little too late. An accurate, well calibrated model, taking advantage of true site conditions is necessary in order to accurately model the predicted drainage. " Without this analysis, it should be clear that a mistake was committed by the ERC in determining that there would be no significant impacts due to surface water runoff from the proposed development. 15 The Applicant argues also that any change to drainage will be insignificant downstream because the vegetation within the Black River riparian forest and associated wetlands is used to large changed is water level. This argument is based on one site visit by Mr. Pritchard where he documented evidence of recent flooding. Mr. Pritchard confirmed, however, that the evidence he saw could have been from a single event and was most likely less than a year old. Mr. Pritchard did not disagree that this region received a record rainfall of over 5 inches in October, 2003. Ex. 70. HERON FOREVER'S POST -HEARING BRIEF - 20 GENDLER & IMANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 a 101 III 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION For the foregoing reasons and the reasons presented at the hearing, the Examiner should conclude that the ERC's NIDNS was clearly erroneous. The Examiner should reverse the ERC's decision and require, at a minimum, _the following additional conditions: (1) Construction, including clearing and grading, should be limited to the period outside the heron nesting season of January 15 to July 31; (2) the grading and clearing plan should be re -designed to leave a significant number of trees along the south side of the property; (3) the applicant should install a system of stream gauges at each of the culverts leading into the Riparian Forest and monitor existing runoff conditions for at least one year and then, based on an accurate model, prepare a stormwater plan that recreates pre -development runoff into the Riparian Forest; (4) runoff from SR-900 should b directed to the proposed stormwater detention facility for treatment prior to discharge to the Riparian Forest; (5) the Applicant should be prohibited from importing fill material; (6) a minimum of two fences, one wood and one cyclone, should be required to enclose the western, southern and eastern sides of the development; and (7) all exterior lights should be designed to shield light trespass into the Black River Riparian Forest. Dated this j udy of June, 2004. HERON FOREVER'S POST -HEARING BRIEF - 21 Respectfully submitted,, GENDLER VaANK Attorneys for Herons Forever GENDLER & MANN, LLP 1424 Fourth Avenue, Suite 1015 Seattle, WA 98101 Phone: (206) 621-8868 Fax: (206) 621-0512 R CITY OF RENTON City Clerk Kathy Keolker-Wheeler, Mayor Bonnie I. Walton. August 23, 2004 APPEAL FILED BY: David Halinen,, Attorney, Representative for SR 900 LLC RE: Appeal of Hearing Examiner's decision dated 8/3/2004 regarding the SR 900 LLC's application for construction of a 65-lot detached single-family home subdivision in the 1100 Block of SW Sunset Boulevard on a.26.26=acre site: (File No. LUA-04-002, PP, ECFj To Parties of Record: Pursuant to Title IV, Chapter:$., Renton City Code of Ordinances, written appeal. of the hearing examiner's decision on the Sunset Bluff project. has been filed with the City Clerk. In, accordance with Renton Municipal. Code. Section 4-8-110F, within five days of receipt of the notice of appeal, the City Clerk. shall notify all parties of record of the receipt of the appeal. Other parties of record may submit letters limited to ,support of or opposition to the appealJwithin ten (10) days of the date of mailing of>the notification of the filing of the appeal.. The deadline for submission of additional letters is 5:00 p.m., Thursday, September 2, 2004, at the City Clerk's -office: NOTICE IS HEREBY GIVEN that.the written appeal and other pertinent documents will be reviewed by the. Council's Planning and Development .Committee :at 2:00 p.m. on Thursday, October 21, 2004; iwthe Council Chambers, 7`}.1 floor, of Renton City Hall,' 1055 South Grady Way; Renton, WA 98.055. The recommendation of the. Committee Will be. presented for consideration by the full Council.at a.subsequent Council meeting. Attached is a copy of the Renton.Municipal Code regarding appeals of Hearing Examiner decisions or recommendations. Please note -that the City Council will be considering the merits of the appeal based upon the written record previously established. Unless a showing can be. made that additional evidence could not reasonably have been available, at the prior hearing held, by the Hearing Examiner, no new evidence or testimony on this matter will be accepted by the City Council: For additional information or assistance, please feel free to call. Sincerely, Bonnie I: Walton City Clerk Attachment cc: Council Liaison 1055 South Grady Way - Renton, Washington 98055 - (425) 430-6510 / FAX (425) 430-6516 (. This paper contains 50% recycled material, 30% post consumer r RENTON AHEAD OF THE CURVE City of Renton Municipal Code; Title IV, Chapter 8, Section 110 — Appeals 4-8-110C4 The notice of appeal shall be accompanied by a fee in accordance with RMC 4-1-170, the fee schedule of the City. (Ord. 3658, 9-13-82) 4-8-110F: Appeals to City Council — Procedures 1. Time for Appeal: Unless a specific section or State law providing for review of decision of the Examiner requires review thereof by the Superior Court or any other body, any interested party aggrieved by the Examiner's written decision or recommendation may submit a notice of appeal to the City Council, upon a form furnished by the City Clerk, within fourteen (14) calendar days from the date of the Examiner's written report. 2. Notice to Parties of Record: Within five (5) days of receipt of the notice of appeal, the City Clerk shall notify all parties of record of the receipt of the appeal. 3. Opportunity to Provide Comments: Other parties of record may submit letters in support of their positions within ten (10) days of the dates of mailing of the notification of the filing of the notice of appeal. 4. Transmittal of Record to Council: Thereupon the Clerk shall forward to the members of the City Council all of the pertinent documents, including the written decision or recommendation, findings and conclusions contained in the Examiner's report, the notice of appeal, and additional letters submitted by the parties. (Ord. 3658, 9-13-1982) 5. Council Review Procedures: No public hearing shall be held by the City Council. No new or additional evidence or testimony shall be accepted by the City Council unless a showing is made by the party offering the evidence that the evidence could not reasonably have been available at the time of the hearing before the Examiner. If the Council determines that additional evidence is required, the Council shall remand the matter to the Examiner for reconsideration and receipt of additional evidence. The cost of transcription of the hearing record shall be borne by the applicant. In the absence of an entry upon the record of an order by the City Council authorizing new or additional evidence or testimony, and a remand to the Hearing Examiner for receipt of such evidence or testimony, it shall be presumed that no new or additional evidence or testimony has been accepted by the City Council, and that the record before the City Council is identical to the hearing record before the Hearing Examiner. (Ord. 4389, 1-25-1993) 6. Council Evaluation Criteria: The consideration by the City Council shall be based solely upon the record, the Hearing Examiner's report, the notice of appeal and additional submissions by parties. 7. Findings and Conclusions Required: If, upon appeal of a decision of the Hearing Examiner on an application submitted pursuant to RMC 4-1-050F1, and after examination of the record, the Council determines that a substantial error in fact or law exists in the record, it may remand the proceeding to Examiner for reconsideration, or modify, or reverse the decision of the Examiner accordingly. 8. Council Action: If, upon appeal from a recommendation of the Hearing Examiner upon an application submitted pursuant to RMC 4-1-050F2 and F3, and after examination of the record, the Council determines that a substantial error in fact or law exists in the record, or that a recommendation of the Hearing Examiner should be disregarded or modified, the City Council may remand the proceeding to the Examiner for reconsideration, or enter its own decision upon the application. 9. Decision Documentation: In any event, the decision of the City Council shall be in writing and shall specify any modified or amended findings and conclusions other than those set forth in the report of the Hearing Examiner. Each material finding shall be supported by substantial evidence in the record. The burden of proof shall rest with the appellant. (Ord 3658, 9-13-1982) 10. Council Action Final: The action of the Council approving, modifying or rejecting a decision of the Examiner shall be final and conclusive, unless appealed within the time frames established under subsection G5 of this Section. (Ord. 4660, 3-17-1997) CITY OPRENT04, APPEAL - HEARING EXAMINER AUG RECENEOFD CITY CLEWS FICE , WRITTEN APPEAL OF HEARING EXAMINER'S DECISION/RECOMMENDATION TO RENTON CITY 7 e �) 4 p m COUNCIL. MA FILE NO. LUA 04-002, ECF, PP APPLICATION NAME: Sunset Bluff Residential Subdivision The undersigned interested party hereby files its Notice of Appeal from the decision or recommendation of the Land Use Hearing Examiner, dated August 3, 2004 1. IDENTIFICATION OF PARTY APPELLANT: REPRESENTATIVE (IF ANY) Name: SR 900 L.L.C. Name: David L. Halinen Address: 9125-I& Avenue South Address: 10500 NE 8`s Street, Suite 1900 Seattle, Washington 98108 Bellevue, Washington 98004 - Telephone No. (206) 762-9125 Telephone No. 425) 454-8272454-8272 2. SPECIFICATION OF ERRORS (Attach additional sheets, if necessary-- see Attachment 1) Set forth below are the specific errors or law or fact upon which this appeal is based: FINDING OF FACT (Please designate number as denoted in the Examiner's report) No. Error: Correction: CONCLUSIONS: No. Error: Correction: OTHER No. Error: Correction: 3. SUMMARY OF ACTION REQUESTED: The City Council is requested to grant the following relief. (Attach explanation, if desire) _X_ Reverse the decision or recommendation and grant the following relief: see Attachment 1 Modify the decision or recommendation as follows: Remand to the Examiner for further consideration as follows: Other C � v 4— Appellant/Repres ntative Sign4ue Date NOTE: Please refer to Title IV, Chapter 8, of the Renton Municipal Code, and Section 4-8-11OF, for specific appeal procedures. heappeal.doe/forms 0-pq/a v cm? OF REINTOto 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 ATTACHMENT 1 a< 7 ._.,IJ RECEIVEAD C:i'" a.,--:RK:'S'',C'; F i C BEFORE THE RENTON CITY COUNCIL Regarding Herons Forever's Appeal to the ) Hearing Examiner of the February 24, 2004 ) APPLICANT SR 900 L.L.C.'S SEPA Threshold Determination Decision ) APPEAL OF THE HEARING Issued by the Renton Environmental Review ) EXAMINER'S AUGUST 3, 2004 Committee for the Proposed "Sunset Bluff' ) DECISION Residential Subdivision ) City of Renton File No. LUA 04-002, EC, PP ) SPECIFICATION OF ERRORS FINDING OF FACT 12 Error: This finding of fact fails to properly describe the site's zoning. The second and third sentences thereof state: The majority of the site (25.18 acres), predominantly the northern and western portions of the site, is zoned R-10 (Residential; 10 dwelling units per acre). The southeastern corner of the site (1.08 acres) is zoned RC (Resource Conservation). (Emphasis added.) Correction: Based upon the zoning map .and zoning description in the record, the second and third sentences of Finding of Fact 1 should state: About 96% of the site (25.18 acres) is zoned R-10 (Residential; 10 dwelling units per acre). The remainder (1.08 acres), a strip at the site's southwestern corner, is zoned RC (Resource Conservation). (Emphasis added.) FINDING OF FACT 17 Error: In this finding of fact, the Examiner mischaracterized a portion of the following statement made on page 3 of the Staff Report to the Hearing Examiner: APPLICANT SR 900 L.L.C.'S APPEAL --Page I HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 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 "As a result of the preliminary plat, the applicant has proposed to remove the ingiority of the on -site vegetation and perform approximately 160,000 cubic yards of earthwork activity." (Emphasis added.) Specifically, the Examiner said in regard thereto that "Staff noted that almost all the vegetation would be removed from the subject site". (Emphasis added.) However, the word "majority" obviously does not mean "almost all". The Examiner's characterization exaggerates the Staff Report's statement. Correction: This finding should simply reflect what Section B.4.b of the SEPA checklist (on page 8 thereof) states in regard to the site of vegetation removal —namely, that: As depicted on the Preliminary Clearing Limits Plan (project plan Sheet 11 of 11), the portion of the site lying outside of the proposed 4.7-acre Native Growth Protection Easement (about 21.56 acres) will be cleared and graded for development of the proposed project. FINDING OF FACT 19 Error: In this finding of fact's second sentence, the Examiner again resorts to exaggeration. The sentence reads: "Immense grading activity will reshape the entire parcel and remove all vegetation on approximately 20 acres." (Emphasis added.) In the context of the site being 200 feet high and sloping consistently downward (from Sunset Boulevard to the BNSF railroad right-of-way) from top to bottom, the Examiner's description of the grading as "immense" is an unwarranted emotional charging of the planned cuts (that range from 0 to about 35 vertical feet) and planned fills (that range from 0 to about 35 vertical feet), cuts and fills that are proposed in order to allow a single street through the site with just one row of houses on each side and a stormwater pond near the bottom of the site). Further, because no grading (or clearing) is proposed within the 4.7-acre portion of the site proposed as a native growth protection easement, the proposed grading activity will obviously not reshape the entire parcel. Correction: The subject finding should more accurately (and dispassionately) state: "About 21.56 acres (82 percent of the 26.26-acre site) is proposed to be cleared and graded for development of the proposed project." The remaining 4.7 acres (18 percent of the site) is proposed to be left undisturbed in a native growth protection easement." APPLICANT SR 900 L.L.C.'S APPEAL --Page 2 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 FINDING OF FACT 24 Error: While this finding of fact correctly notes (a) the existence of a development agreement and (b) that the agreement (i) "requires the construction of a 6-foot fence along the south side of the development for the length of the development" and (ii) provides that "the development contain not more than 69 detached single-family housing units", it downplays the agreement's importance and says nothing about the context of the agreement. Specifically, this finding of fact fails to note that: (1) The development agreement was authorized by the Renton City Council in conjunction with a comprehensive plan land use map amendment (from Residential Multi -Family Infill, RM-I, to Residential Options, RO) and a rezone of the portion of the site previously zoned Residential Multi - Family Infill (RM-I) (subject to a prior development agreement that had allowed up to 260 residential units) to R-10 following a public hearing; (2) No appeal(s) were made of any of the Council's actions in regard to the comprehensive plan land use map amendment, rezone or development agreement authorization; (3) The City's Environmental Review Committee issued a declaration of nonsignificance concerning the comprehensive plan amendment and rezone in view of the proposed development agreement's special development restrictions and no appeal(s) thereof were timely filed; (4) The comprehensive plan land use map amendment, the downzone and the development agreement's special development restrictions were all intended to mitigate the potential for development impacts to the Black River heron colony that the appellant had expressed concerns to the City about; (5) The agreement has been duly executed (by former Mayor Jesse Tanner on behalf of the City and by the applicant -property owner); (6) The agreement prohibits construction of residential or recreation buildings on the site within 100 feet of the Burlington Northern and Santa Fe Railroad right-of-way that abuts the site's south boundary; (7) The agreement states that stormwater facilities are anticipated to be constructed along the southerly portion of the site in conjunction with residential development of the site; and (8) But for the development agreement's 69-unit restriction on the number of single-family detached homes allowed on the site, under the site's R-10 APPLICANT SR 900 L.L.C.'S APPEAL --Page 3 HALINEN LAW OFFICES, PS. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 zoning 13 single-family detached units per net acre would have been allowed. These omissions are especially glaring ones in as much as the appellant could have (and should have) appealed the City Council's approval of the development agreement and the Council's companion approvals of the comprehensive plan land use map amendment and rezone (and/or the ERC's declaration of nonsignificance relating thereto) if the appellant believed that the use of the property contemplated thereby was inappropriate or would create probable significant adverse impacts (assertions that the appellant now has made in regard to its subsequent appeal of the Sunset Bluff preliminary plat SEPA threshold determination) but no such appeal(s) were taken. Correction: The eight -item list set forth above should be added to Finding of Fact 24. FINDING OF FACT 27 Error: The third sentence of Finding of Fact 27 states: "West is another RM-I district with multiple family units and industrially zoned property in King County that is developed and undeveloped including a closed quarry site." That sentence is inaccurate. First, the property referred to is in the City of Renton rather than King County. Second, the industrial property referred -to is the site of a facility that has a contractor's office, outdoor equipment and material storage, construction materials recycling activities and concrete batching. Third, while quarrying has ceased on that industrial property, it is misleading to refer to it as a "closed quarry site" because of the active, above -noted industrial uses on that site. Correction: Consistent with the accurate, detailed description of abutting uses set forth in section B.8.a of the SEPA Checklist (on page 12 thereof), the third sentence of Finding of Fact 27 should be replaced with the following sentence: Sunset View Apartment Homes (240 units) lies to the west of the northern portion of the site (on land within the City of Renton zoned Residential Multi -Family Infill (RM-I)); and a contractor's office, outdoor equipment and material storage, construction materials recycling activities and concrete batching lies to the west of the southern portion of the site (on land within the City of Renton zoned Heavy Industrial (I-H) that was previously the site of the Black River Quarry). FINDING OF FACT 28 Error: Finding of Fact 28 summarizes statements made by one of the appellant's witnesses, wetland biologist Dianne Sheldon, concerning changes in drainage releases that she asserted will result from the proposal. In the fifth sentence of this finding of fact, the Examiner APPLICANT SR 900 L.L.C.'S APPEAL --Page 4 HALINEN LAW OFFICES, PS. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 stated that "[t]his had not been assessed by the documentation available to the ERC and public". This finding of fact is misleading in that it fails to indicate that: (1) The main points made by Ms. Sheldon had been included in: (a) A February 7, 2004 letter from another one of the appellant's expert witnesses, Kate Stenberg of Quailcroft Environmental Services, to planner Jason Jordan of the City of Renton Development Services Division;l and (b) A February 9, 2004 letter from Becky Stanley of the Sierra Club's Cascade Chapter to Mr. Jordan;2 and (2) The ERC had considered the points made in those letters before issuing its MDNS concerning the Sunset Bluff application;3 and ' See the section of that letter under the subheading "Water Quality and Quantity" on pages 1 and 2 thereof. (Ms. Stenberg's letter is contained in the City's official "yellow file", Exhibit 1, and a copy of it is also separately marked as Exhibit 80.) 2 See the second and third paragraphs on page 2 of that letter. (Ms. Stanley's letter is also contained in the City's official "yellow file", Exhibit 1.) 3 Note the following examination of Jason Jordan by Assistant City Attorney Zanetta Fontes on May 20, 2004, the last day of the hearing below: ZANETTA FONTES: Did you receive, did you receive comment letters from members of the public? JASON JORDAN: Yes, I did. ZANETTA FONTES: And do you, I know that there are any number already in the Exhibit 1, the official file, but did you pull out a couple of letters for us to consider? JASON JORDAN: Yes, I did. I pulled out two letters specifically. One from Suzanne Krom, the president of Herons Forever, dated February 8`', 2004, and one from Quailcroft Environmental Services dated February 71h, 2004 and that is signed by Dr. Kate Stenberg. - ZANETTA FONTES: I'm going to ask that these two be marked. I think we're at 79 and 80? JASON JORDAN: Yes, for Suzanne Krom, and then February 7"', 2004 for the Quailcroft, which will be number 80. APPLICANT SR 900 L.L.C.'S APPEAL --Page 5 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 (3) Mr. Jordan, the Development Services Division's representative at the appeal hearing, testified at the end of the hearing that nothing that he had heard during the hearing would have caused him to make a different recommendation to the ERC.4 Correction: The three -item list set forth above should be added to Finding of Fact 28. FINDING OF FACT 30 Error: Finding of Fact 30 twice asserts that grading to a depth of 70 feet was proposed. None of the project drawings show grading to a depth of 70 feet. Rather, the project drawings show grading to a maximum depth of about 35 feet. Correction: The conclusion should be corrected to reflect the actual maximum depth noted above. FINDING OF FACT 31 (First Two Sentences) Error: The first two sentences of Finding of Fact 31 assert that: "The only experts that have actually worked with or monitored heron recently or that were subject to cross-examination indicated that the birds have reacted hostilely to intrusive activities in both this heronry and in others in the ZANETTA FONTES: And were those letters available to the ERC for their consideration? JASON JORDAN: Yes, ma'am, they were. ZANETTA FONTES: And was, was that information also taken into consideration by Staff when it wrote its Staff Report to the ERC? JASON JORDAN: Yes, they were. (Emphasis added.) 4 Note the following additional examination of Jason Jordan by Assistant City Attorney Fontes on May 20, 2004: ZANETTA FONTES: Now, Mr. Jordan, you've been sitting through this hearing and you've heard a lot of new information, information that was not available to the ERC. Based on what you've heard here, whether it's from people who had an opportunity to comment and chose not to, or from others, have you heard anything that would have caused you to make a different recommendation to the ERC? JASON JORDAN: No, I have not. (Emphasis added.) 5 The Examiner uses the plural "experts" here without stating who the appellants' heron experts are. APPLICANT SR 900 L.L.C.'S APPEAL --Page 6 HALINEN LAW OFFICES, P S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Puget Sound region." Based on their extensive knowledge of these birds, they suspect that the proposed grading on the property adjacent to the colony will definite have an impact. (Emphasis added.) This sentence starts out as a not too transparent attempt to discredit the applicant's heron expert, Kenneth Raedeke, PhD (Wildlife Ecology), a Research Associate Professor at the College of Forest Resources at the University of Washington, Seattle and a principal in the natural resources consulting firm of Raedeke Associates, Inc. in Seattle. Contrary to that attempt, the record demonstrates Dr. Raedeke's overwhelming expertise --note Dr. Raedeke's April 29, 2004 hearing testimony, his April 19, 2004 Great Blue Heron Assessment report for the Sunset Bluff project (Exhibit 39) and his extensive professional resum6 (Exhibit 71). The record demonstrates that Dr. Raedeke not only has had long personal familiarity with the Black River heron colony, he personally oversaw and helped fund the master's work of an extensive King County -wide research study of the Great Blue Heron (the Stabins study, Exhibit 40), the only study of the Great Blue Heron conducted to date in King County that quantitatively assesses the effects of land development upon heron colonies. The first sentence of Finding of Fact 31 is especially strange in the context of the Sunset Bluff proposal in that it concludes with a focus upon "intrusive activities in both this heronry and in others in the Puget Sound region." (Emphasis added.) The Sunset Bluff proposal involves absolutely no activity of any kind (let alone "intrusive activity") in the Black River heronry. -Dr. Raedeke's testimony certainly supports the idea that the great blue heron react to intrusive activities in heronries —he pointed out that eagle predation of the Black River heron colony has twice nearly gutted their ranks. However, in contrast to the rank speculation by the appellants' experts (opinions made without any statistical basis in the record) that the Sunset Bluff proposal might in some way impact the herons, Dr. Raedeke's assessment of actual statistical data concerning cause and effect relationships concerning activities as distant to a heronry as are those proposed at the Sunset. Bluff site lead him to firmly conclude that the Sunset Bluff proposal would not have a probable adverse impact upon the Black River heron colony. Correction: In the interest of fairness and accuracy, the first two sentences of Finding of Fact 31 should be replaced with the following sentences: Both the appellant's heron experts and the applicant's heron expert indicated that the birds react to directly intrusive activities (such as eagle predation) in both this heronry and in others in the Puget Sound region. However, there was disagreement between the appellant's heron experts and the applicant's heron expert as to whether the Sunset Bluff proposal was likely to cause any adverse impacts to the Black River heron colony. The appellant's experts suspect that the proposed grading on the property adjacent to the colony may have an impact upon the heron colony. However, based upon an assessment of actual statistical data concerning cause and effect relationships concerning activities as distant to a heronry as are those proposed at the Sunset Bluff site, the applicant's expert, Dr. APPLICANT SR 900 L.L.C.'S APPEAL --Page 7 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Raedeke, firmly concluded that the Sunset Bluff proposal would not have a probable adverse impact upon the heron colony. FINDING OF FACT 31 (Third Sentence) Error: The third sentence of Finding of Fact 31 asserts that: "Reports appear to indicate that the birds were flushed and severely disturbed by logging lust south of the railroad tracks at the western edge of the riparian forest area." (Emphasis added.) In the context of the Sunset Bluff proposal, that sentence is misleading in what it fails to state. The logging referred to occurred within the property that is now the City park during mid -February of 19876 (the early part of the heron nesting season) up to a point that was only about 320 feet away from the heron nesting trees (April 29, 2004 testimony of Theresa Dusek) and yet the number of active nests in the colony actually increased consistently each year from 1986 through 1990 (April 29, 2004 testimony of Dr. Raedeke). No drop in active nests occurred as a result of that logging. Because (a) the closest edge of the Sunset Bluff site is three times as far away from the colony as was the closest edge of the logging and grading that occurred on the north side of the colony during the start of the 1987 nesting season and (b) even the relatively close 1987 logging and grading did not reduce the number of active nests in the colony, one can only reasonably conclude that the proposed logging and grading of the Sunset Bluff site will not impact the heron colony either. Correction: The third sentence of Finding of Fact 31 should be replaced with the following sentences: Reports appear to indicate that the birds were flushed and disturbed by logging and grading that occurred during mid -February of 1987 (the early part of the heron nesting season) south of the railroad tracks (within the property that is now the City park) and that extended to within about 320 feet away of the heron nesting trees. However, despite that logging and grading, the number of active nests in the colony actually increased consistently each year from 1986 through 1990. No drop in active nests occurred as a result of that logging. Because (a) the closest edge of the Sunset Bluff site is three times as far away from the colony as was the closest edge of the logging and grading that occurred on the north side of the colony during the start of the 1987 nesting season and (b) even the relatively close 1987 logging and grading did not reduce the number of active nests in the colony, the proposed logging and grading of the Sunset Bluff site would not appear likely to impact the heron colony either. FINDING OF FACT 31 (Balance of the Finding) 6 See Exhibit 100. APPLICANT SR 900 L.L.C.'S APPEAL --Page 8 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Error: The balance of Finding of Fact 31 states: "The anecdotal evidence appears to show that the development of the office park complex at the north end of Naches also caused a reaction in the heron and may be responsible for the colony's move north and west and to their abandoning what has been termed the main nesting tree or colony. While no one can be sure what the impacts will be of the overall development and eventual population change it seems clear that the immensity of the proposed clearing and grading, if not the homes and people will spur some reaction on the part of the heron. The site, at least some of which appears to be their habitat, will be disturbed. Areas where they gather twigs and possibly forage for food will be clear-cut and almost all vegetation will be gone. Forest vegetation will be replaced by open space, detention pond, lawn and maybe smaller shrubs. The work will occur at or above the nesting level and while the maps appear to indicate that this would be out of sight of the nests, the birds will be flying above the nests and the shelter and visual screen and buffer that the upslope forest provided will be gone or will be removed possibly during nesting season." In these sentences, the Examiner succumbed to the speculative assertions made by Suzanne Krom and other appellant witnesses, assertions so lame and specious that they certainly cannot be the basis of a conclusion that the ERC's decision was "clearly erroneous". In doing so, the Examiner ignored the well -reasoned analysis set forth in Dr. Raedeke's report (Exhibit 39)' and Note, for instance, the following excerpt concerning Black River heron colony buffers from Dr. Raedeke's report (Exhibit 39) (an excerpt that wraps to the bottom of the next page): 3.2 Black River Heron Colony Buffers The Buffer That is to Lie Between the Proposal and the Heron Colony The part of the proposed Sunset Bluff site development that will be the closest to the nearest nests (nests located in trees lying approximately 100 feet north of the south edge of the P-1 Detention Basin) will be an area to be graded in conjunction with the development's stormwater detention pond. That area will lie approximately 1,000 feet from those nests. The closest Sunset Bluff residential lot (proposed Lot 39) will be approximately 1,120 feet from those nests. The closest existing disturbance to the nests is the highly visible and non -regulated public pedestrian trail that lies within 200 feet of several of the nests in the riparian forest. Other existing developments and active roads are already within this zone:. • Naches Avenue S.W. to the east of the site is located within 700 feet of the nests on the island and within 450 feet of the closest nest tree in the riparian forest • the three-story office building at the east side of the north end of Naches Ave. S.W. (south of the Sunset Bluff site) is within 900 feet of the closest nest, and the associated parking lot is between the building and the nest trees • Oakesdale Avenue S.W. is located about 800 feet south of the heron nests • Black River Corporate Park includes a building lying within 550 feet of the nearest nest APPLICANT SR 900 L.L.C.'S APPEAL --Page 9 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 71 811 9i 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dr. Raedeke's hearing testimony as well as the report (Exhibit 42) and testimony of biologist Theresa Dusek. The Examiner's statements virtually ignore the existence of the 100-acre park (most of which is forested) as being a suitably -sized reserve for the heron colony, one that the Renton City Council through its previous acquisition actions and its subsequent comprehensive Adequacy of the Buffer Between the Proposal and the Heron Colony Our assessment of the adequacy of the distances between the proposed Sunset Bluff development and the Black River heron colony is based on regional observations of heron nesting colonies response to habitat conditions, and existing site conditions. Local observations provide the best indicator of the range of environmental conditions that are conducive to maintaining viable great blue heron colonies in this area. The most recent large-scale compilation of local observations of the great blue heron are found in Stabins (2001, see Table 10 and see pages 2 through 4 above). The proposed 1,120-foot distance between the closest proposed Sunset Bluff residential lot and the nearest great blue heron nests as well as the proposed 1,000-foot distance between the closest planned construction (detention pond -related grading) on the Sunset Bluff site and those nests should be more than adequate for the following reasons: • the proposed distances are greater than the buffers on other developments around the colony • the proposed distances are greater than the distances between existing and historic disturbance factors around the colony, including the active BNSF railroad line lying between the Sunset Bluff site and the colony (on which two freight trains pass six days a week) • despite those other, closer developments and those closer disturbance factors, the colony continues to grow • two freight trains pass between the proposed development and the colony six days a week • the latest, large-scale study of heron colonies in King County (Stabins, 2001--see Table 10) showed (a) no correlation between buffer width and colony viability and size and (b) that colony success or failure was positively related to amount of human disturbance around the nests and colony size • the entire Sunset Bluff residential development will lie (a) well beyond the "600 feet or larger" "optimal buffer width for protection of the [Black River] heron rookery" that Stenberg (June 12, 1998 letter to Jana Huerter) recommended and (b) so far from the nearest nests that no construction season limitations would be needed in order to comply with the recommendation made by Stenberg to the City of Renton (July 1, 1998 letter to Jana Huerter) that "there should be no construction between January 15`s and June 30'h within 800 to 1000 feet of the [Black River heron] rookery" • the proposed distances are greater than the width of actual buffers around any of the existing heron colonies in King County • the railroad, fences, and dense forest communities between the proposed development and the colony will prevent casual human incursion into the buffer area as well as incursion by pet dogs and most pet cats' • the Black River colony is very habituated to human disturbance including the blasting in the adjacent quarry that ceased only two years ago and including the ongoing construction materials recycling operations on the quarry site and the existing habitat elements surrounding the Black River heron colony (see Section 4.0, below, for details) Under these circumstances, construction season limitations are not warranted for the proposed Sunset Bluff development. (Italics added for emphasis.) APPLICANT SR 900 L.L.C.'S APPEAL --Page 10 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 plan land use mapping and zoning actions has determined as such through the City's official policy choices for this area following repeated environmental review of those actions. Also ignored by the Examiner was the fact that the City's acquisition of the park property for heron protection was pursuant to a "Memorandum of Agreement" among the City, interested environmental groups and property owners (see the summary thereof in Section 4.0 of Dr. Raedeke's report), a document that set forth an agreed approach to protection of the subject heron colony, an approach that the Sunset Bluff proposal in no way conflicts with.8 Correction: The balance of Finding of Fact 31 should be replaced with the following paragraphs: 8 Section 4.0 of Dr. Raedeke's report (Exhibit 39) (which wraps to the bottom of the next page) states: 4.0. HABITAT APPROACH TO WILDLIFE PROTECTION The 1991 Memorandum of Agreement (MOA) among the City of Renton, private property owners to the south, and interested environmental groups concerning the Black River heron colony was based on a habitat approach that provided for consideration of the overall needs of the herons and other wildlife rather than the application of rigid rules applied to a single group of heron nest trees. Habitat approaches have been adopted by the WDFW and federal agencies as the best way to protect wildlife of special public interest (e.g., bald eagle nest sites and spotted owls). The habitat approach previously adopted for Black River heronry protection in the 1991 MCA included the following design elements: • a 500-foot buffer from the most northerly of the then -proposed office buildings to the nearest of the nest trees on the island in the P-1 Detention Basin • retained vegetation within that buffer for screening of the office development to the south • a riparian forest separated from development by the P-1 Detention Basin • elimination of development proposals for 62 acres of land around the riparian forest sold by the property owner to the City of Renton as permanent open space and wildlife habitat • an expanded riparian forest providing alternative nest sites and an area of younger trees for new nests that will continue to be available over time as the trees on the island die or blow down These elements of the MOA augmented the habitat by the City of Renton and the other property owner surrounding the heron colony, including: • dedication of 17.5 acres of land to the City of Renton for construction of the P-1 Detention Basin • planting of vegetative screening along the margins of the P-I Channel and Detention Basin • dedication of 20.0 acres of land to the City of Renton for riparian forest wildlife habitat • sale of 62.2 acres of land to the City of Renton for permanent open space and wildlife habitat The habitat conditions within the entire City of Renton Black River open space complex already greatly exceed the minimum habitat recommendations for heron nest colonies by WDFW (1991). In WDFW's 1991 habitat management guidelines, a minimum 10-acre stand of large trees bufered from disturbance is recommended. The combined 100 acres of riparian forest and retained forest stands, detention basin, open space, and existing buffers greatly exceeds this habitat recommendation. (Emphasis added.) APPLICANT SR 900 L.L.C.'S APPEAL --Page 11 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 M The part of the proposed Sunset Bluff site development that will be the closest to the nearest heron nests (nests located in trees lying approximately 100 feet north of the south edge of the P-1 Detention Basin) will be an area to be graded in conjunction with the development's stormwater detention pond. That area will lie approximately 1,000 feet from those nests. The closest Sunset Bluff residential lot (proposed Lot 39) will be approximately 1,120 feet from those nests. The closest existing disturbance to the nests is the highly visible and non - regulated public pedestrian trail that lies within 200 feet of several of the nests in the riparian forest. The following other existing developments and active roads are already within this zone: (a) Naches Avenue S.W. to the east of the site, which is located within 700 feet of the nests on the island and within 450 feet of the closest nest tree in the riparian forest; (b) The three-story office building at the east side of the north end of Naches Ave. S.W. (south of the Sunset Bluff site) is within 900 feet of the closest nest, and the associated parking lot is between the building and the nest trees; (c) Oakesdale Avenue S.W. is located about 800 feet south of the heron nests; and (d) Black River Corporate Park includes a building lying within 550 feet of the nearest nest. The proposed 1,120-foot distance between the closest proposed Sunset Bluff residential lot and the nearest great blue heron nests as well as the proposed 1,000-foot distance between the closest planned construction (detention pond - related grading) on the Sunset Bluff site and those nests should be more than adequate for the following reasons: (a) The proposed distances are greater than the buffers on other developments around the colony; (b) The proposed distances are greater than the distances between existing and historic disturbance factors around the colony, including the active BNSF railroad line lying between the Sunset Bluff site and the colony; (c) Despite those other, closer developments and those closer disturbance factors, the colony continues to grow; (d) Two freight trains pass between the proposed development and the colony six days a week; APPLICANT SR 900 L.L.C.'S APPEAL --Page 12 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (e) The latest, large-scale study of heron colonies in King County (Stabins, 2001) showed no correlation between buffer width and colony viability and size; (f) The entire Sunset Bluff residential development will lie (a) well beyond the "600 feet or larger" "optimal buffer width for protection of the [Black River] heron rookery" that Dr. Stenberg (in her June 12, 1998 letter to Jennifer Toth Henning —Exhibit 15) recommended and (b) so far from the nearest nests that no construction season limitations would be needed in order to comply with the recommendation made by Stenberg to the City of Renton (July 1, 1998 letter to Jana Huerter—Exhibit 16� that "there should be no construction between January 15th and June 30 within 800 to 1000 feet of the [Black River heron] rookery"; (g) The proposed distances are greater than the width of actual buffers around any of the existing heron colonies in King County; (h) The railroad, fences, and dense forest communities between the proposed development and the colony will prevent casual human incursion into the buffer area as well as incursion by pet dogs and most pet cats; (i) The Black River colony is very habituated to human disturbance including the blasting in the adjacent quarry that ceased a few years ago and including the ongoing construction materials recycling operations on the quarry site and the existing habitat elements surrounding the Black River heron colony; and (j) The prior logging and grading that occurred within what is now the park property (much closer proximity to the heron colony than is the Sunset Bluff site to the colony) did not reduce the number of active nests in the colony. Under these circumstances, construction season limitations are not warranted for the proposed Sunset Bluff development. FINDING OF FACT 32 Error: Finding of Fact 31 asserts: The changes to the seasonal wetland were again raised as an issue since the results of grading and drainage changes could affect food sources for the heron. These impacts were not analyzed leaving a gap in knowledge. Changes in water level would affect amphibians which heron, particularly newly fledged young heron, depend on as food sources. Similarly, changing water levels would affect invertebrate and insect populations affecting animals further up the food chain. None of the results ofpossibly changing the water flows were studied. (Emphasis added.) For several reasons, this finding of fact is not well-founded. First, the extent of water level changes to the referenced wetland was carefully analyzed through computer modeling by civil engineer Ed McCarthy, P.E., PhD and found to be minimal. Dr. McCarthy's APPLICANT SR 900 L.L.C.'S APPEAL --Page 13 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 April 19, 2004 report (Exhibit 33) (supported by his hearing testimony) indicates that he "developed hydrologic models of the system under existing and proposed developed conditions", "delineated boundaries of subbasins contributing to the wetland based on aerial topography ("City of Renton, 1996 photography), available as -built drawings of upstream developments, and field verification of cross culverts and other drainage features", divided the drainage area contributing to the wetland into subbasins, and used a hydrologic computer model that "allowed a detailed assessment of the [downstream] wetland's hydrology and potential impacts to the wetland caused by changes in the watershed resulting from the Sunset Bluff development." Contrary to the unstudied assertions made by appellant's hydrology expert Mr. Rozeboom, Dr. McCarthy found that "[t]he 21.4-acre portion of the Sunset Bluff site that contributes to the depressional wetland represents only about 20 percent of the depression's watershed" (contrary to Mr. Rozeboom's 50 percent unstudied assertion) and that the fluctuations in the depression (with or without the Sunset Bluff) could not exceed approximately 3.2 feet due to the depression's wide overflow to the Black River pump station forebay. (Exhibit 33 at p. 4.) Based on his computer simulations and field observations, Dr. McCarthy found that "the depressional wetland has relatively large fluctuations in stage on both a monthly and annual basis under existing conditions". (Exhibit 33, page 12; emphasis added.) Page 12 of his report explains that "onsite stormwater controls would attenuate developed peak flow rates and match forested flow rates from the site for up to the 10-year storm", that "the increased runoff volumes from the site will likely increase average monthly stage in the wetland by [only] about 1 to 2 inches in the winter months and by less than 1 inch in the summer months", that "[w]etland stages at existing flow duration levels will likely be increased by [only] 1 to 2 inches as will be the peak stages for return periods between the annual and 5-year return periods" and that "[r]elative to existing average monthly fluctuations in the wetland, which are on the order of 24 inches, these predicted increases in stage resulting from the proposed development are small." His report concludes that "[p]redicted changes in fluctuations, average stage, and stage duration curves caused by the proposed development would have only a negligible impact" on [the downstream wetland] system." (Emphasis added.) The appellant provided no studies of its own to rebut Dr. McCarthy's findings and conclusion. Mr. Rozeboom provided no rebuttal letter or oral hearing testimony in response to Dr. McCarthy's report or hearing testimony. In addition to Dr. McCarthy's study of downstream wetland hydrologic impacts, to further respond to the statements in the letter from appellant's attorney (David Mann) concerning downstream wetland hydrology concerns, the Applicant had natural resource ecologist Theresa Dusek (the author of the Habitat/Wildlife Assessment and Stream Study Report for the Sunset Bluff proposal, part of Exhibit 1) visit the downstream wetland with Dr. McCarthy and prepare a letter report to summarize her findings concerning the existing hydrological, soils and vegetation conditions in that wetland. That letter was submitted into the record as Exhibit 42. Based upon Dr. McCarthy's study of existing and post -Sunset Bluff development hydrological conditions in the wetland depression, Mrs. Dusek concluded in her letter (at page 3) that "[v]egetation in the wetland depression ... will not be significantly effected by the addition of water from the project APPLICANT SR 900 L.L.C.'S APPEAL --Page 14 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 site" and that "[b]ecause the hydroperiod of the wetland depression will not significantly alter the vegetation structure and plant species richness in the depression and surrounding wetland system, the wildlife that uses the wetland depression and surrounding areas will not be significantly impacted either." The applicant went an even further step in responding to Mr. Mann's letter's statements concerning downstream wetland hydrology concerns. The applicant hired wetland ecologist Raedeke Associates' Emmett Pritchard, who has a background in wetland forests, to specifically evaluate the Sunset Bluff project's potential for impacting the existing trees in the downstream wetland. His April 26, 2004 letter report (Exhibit 69) explained that he "observed three distinct forested vegetation communities within the off -site wetland area" (Exhibit 69, page 2), his "observations of site hydrology appears (sic) to support [Dr. McCarthy's] predicted fluctuations in depth of [existing] inundation" (Exhibit 69, page 2). With respect to the trees in what he called Forest Communities 1 and 2, Mr. Pritchard concluded: Black cottonwood, Pacific willow, Oregon ash, and to a lesser extent red alder are well adapted to riparian areas with fluctuating winter -time water levels similar to those observed within the off -site wetland (Burns et al. 1990). Field evidence indicates that trees that are currently growing within Forest Community 1 and Forest Community 2 are adapted to periodic inundation ranging from 12 to 36 inches in depth. Therefore, due to the apparent ability of the trees growing in these areas to tolerate periods winter flooding, it is not likely that Dr. McCarthy's predicted small increases in winter water levels or alterations to the hydroperiod would affect trees within these two vegetation communities. (Exhibit 69 at p. 4; emphasis added.) Similarly, with respect to the trees in what he called Forest Community 3, he concluded: Trees growing within Forest Community 3 do not appear to experience periods of inundation under current conditions. Water marks observed on the slopes of the hummocks indicate that inundation levels are more than two to three feet below the majority of the hummocks. Topographic maps used for the hydrologic analysis (McCarthy 2004) indicate that this is likely due to the greater elevation of the hummocks than the elevation of the outlet of the wetland basin to the P-1 Detention Basin. Therefore, predicted changes in the wetland hydroperiod are not likely to have an impact on existing trees currently growing on the hummocks. (Exhibit 69 at p. 4; emphasis added.) APPLICANT SR 900 L.L.C.'S APPEAL --Page 15 f SAL NJEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Herons Forever submitted no studies of its own to controvert the findings and conclusions of Dr. McCarthy, Mrs. Dusek or Mr. Pritchard concerning the alleged impacts to the downstream wetland. Accordingly, those findings and conclusions ought to be considered verities for purposes of this appeal. Every remote and speculative impact need not be the subject of an EIS. The Examiner's Finding of Fact 31 deals only with remote and speculative impact and is improper. Correction: In view of the above, Finding of Fact 32 should be replaced with the following paragraphs: Based upon studies of hydrologic, soils and vegetation conditions in the downstream depressional wetland (Exhibits 33, 42 and 69), it appears that the Sunset Bluff proposal would not have a probable adverse impact upon the downstream depressional wetland. FINDING OF FACT 35 Error: Finding of Fact 35's last sentence asserts "in urban King County studies have found colonies shrink where there is development within 1,000 feet". This assertion was made despite the fact that no such studies were produced or directly referenced in the record and ignores the Stabins study, a complete copy of which is in the record as Exhibit 40. Correction: In view of the above, the last sentence of Finding of Fact 35 should be stricken in its entirety. FINDING OF FACT 37 Error: This finding of fact should be stricken in its entirety because (a) the Hearing Examiner refused to allow surrebuttal testimony by Dr. Raedeke that would have demonstrated that the Department of Fish and Wildlife's recommendations were not scientifically based and (b) in view of the fact that the Black River Heron colony expanded even immediately following the logging and grading that occurred during February 1987. Correction: Finding of Fact 37 should be stricken in its entirety. FINDING OF FACT 38 Error: This finding of fact recites rank speculation by Dr. Stenberg, speculation that was fully refuted as baseless by Dr. Raedeke. Correction: Finding of Fact 38 should be stricken in its entirety. FINDING OF FACT 39 APPLICANT SR 900 L.L.C.'S APPEAL --Page 16 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Error: In view of the distances involved between the site and the heron colony, the screening forest in the park property and the existing and proposed fencing, the summary of Ms. Krom's testimony in this finding of fact is irrelevant and should be stricken in its entirety. Correction: Finding of Fact 39 should be stricken in its entirety. FINDING OF FACT 40 Error: In view of the demonstrated growth of the Black River heron colony and Dr. Raedeke's testimony as to natural fluctuations in wildlife populations over time, the references made in this Finding of Fact to Ms. Krom's assertions relating to events that are quite distant from the heron colony lack a causal connection. Accordingly, this finding of fact is irrelevant and should be stricken in its entirety. Correction: Finding of Fact 40 should be stricken in its entirety. FINDING OF FACT 41 Error: While this Finding of Fact may literally be true (i.e., Ms. Krom may have said that), it (and Finding of Fact 40) ignore the most likely cause of the move: the documented eagle predation that occurred just prior to the construction of the Black River Corporate Park building to the south of the "main colony tree", an event that Dr. Raedeke and Ms. Dusek indicated would cause the heron to seek the current nesting area, where there is more shelter against eagle predation. Finding of Fact 41 is irrelevant as stated and should be stricken in its entirety. Correction: Finding of Fact 41 should be stricken in its entirety. FINDING OF FACT 42 Error: The last sentence in this Finding of Fact is gratuitous and, in view of the lack of demonstration of impacts by the appellant, should be stricken in its entirety. Correction: Finding of Fact 42 should be stricken in its entirety. FINDING OF FACT 43 Error: The seventh sentence of this Finding of Fact states: "This means that there should probably be no earthwork during the normal rainy season." In referring to "no earthwork" and the "normal rainy season", this is an overstatement by the Examiner. Once major site grading has been accomplished, minor earthwork (such as finish APPLICANT SR 900 L.L.C.'S APPEAL --Page 17 HAUNEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 grading of the rough -graded lots in conjunction with home construction) would likely be appropriate even during the rainy season because it would not involve the drying process that the major earthwork would involve. Also, some years are drier during the northwest than others making the reference in the sentence to "normal" uncalled-for. Correction: In view of the above, the seventh sentence of Finding of Fact 43 should be replaced by the following: This means that there should probably be no major earthwork of the site during the rainy season. (Minor earthwork, such as finish grading of the rough -graded lots in conjunction with home construction, would be appropriate year-round.) FINDING OF FACT 49 Error: In view of the explanation of the error concerning Finding of Fact 32, above, the last sentence in this Finding of Fact 49 should be restated to read as follows under the "Correction". Correction: Finding of Fact 49 should be revised to read as follows: Dr. McCarthy was the applicant's hydrologist. He discussed the riparian forest and its prominent feature just south of the subject site and railroad tracks, the depressional wetland. It is about 10.5 acres. It is about 3.2 feet deep at its deepest and has about a million cubic feet of storage. Based on his computer simulations and field observations, Dr. McCarthy found that "the depressional wetland has relatively large fluctuations in stage on both a monthly and annual basis under existing conditions". (Exhibit 33, page 12; emphasis added.) Page 12 of his report explains that "onsite stormwater controls would attenuate developed peak flow rates and match forested flow rates from the site for up to the 10-year storm", that "the increased runoff volumes from the site will likely increase average monthly stage in the wetland by [only] about 1 to 2 inches in the winter months and by less than 1 inch in the summer months", that "[w]etland stages at existing flow duration levels will likely be increased by [only] 1 to 2 inches as will be the peak stages for return periods between the annual and 5-year return periods" and that "[r]elative to existing average monthly fluctuations in the wetland, which are on the order of 24 inches, these predicted increases in stage resulting from the proposed development are small." His report concludes that "[p]redicted changes in fluctuations, average stage, and stage duration curves caused by the proposed development would have only a negligible impact" on [the downstream wetland] system." The appellant provided no studies of its own to rebut Dr. McCarthy's findings and conclusion. Mr. Rozeboom provided no rebuttal letter or oral hearing testimony in response to Dr. McCarthy's report or hearing testimony. APPLICANT SR 900 L.L.C.'S APPEAL --Page 18 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FINDING OF FACT 50 Error: The Examiner should have indicated in this Finding of Fact that Rebecca Lind is the Planning Manager for the City of Renton Department of Economic Development, Neighborhoods and Strategic Planning. Correction: The first sentence of Finding of Fact 50 should be revised to read as follows: The Planning Manager for the City of Renton Department of Economic Development, Neighborhoods and Strategic Planning, Rebecca Lind, testified for the applicant. FINDING OF FACT 54 Error: In view of both (a) the explanation of the error concerning Finding of Fact 31, above, and (b) the proposed substitute Finding of Fact 31, above, Finding of Fact 54 should be stricken in its entirety. Correction: Finding of Fact 54 should be stricken in its entirety. FINDINGS OF FACT 55 THROUGH 59 Error: The Examiner violated the Appearance of Fairness Doctrine in refusing to allow the Applicant to present rebuttal evidence to appellant's witness Patricia Thompson of the State of Washington Department of Fish and Wildlife. (See pages 59 through 61 of Applicant's Closing Brief, copy attached.) Accordingly, Ms. Thompson's testimony should be stricken from the record and Findings of Fact 55 through 59, which are based upon Ms. Stabins' testimony, should be stricken in its entirety. Correction: Findings of Fact 55 through 59 should be stricken in their entirety. FINDING OF FACT 60 Error: This Finding of Fact flatly contradicts the record. Dr. Raedeke's testimony concerning the heron the testimony based on science and statistical analysis while the testimony of appellant's experts was speculative and anecdotally -based. The record shows that Dr. Raedeke relied on a host of studies as well as his personal experience with the Black River heron colony. Finding of Fact 60 should be stricken in its entirety. Correction: Finding of Fact 60 should be stricken in its entirety. FINDING OF FACT 61 APPLICANT SR 900 L.L.C.'S APPEAL --Page 19 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Error: In view of the explanation of the error concerning Finding of Fact 28, above, a sentence should be added to Finding of Fact 61 to make clear that the ERC had considered the points made in the public comment letters concerning the Sunset Bluff application before issuing its MDNS. Also, the phrase "because Staff did not think that one was warranted" should be added to the end of the last existing sentence in Finding of Fact 61 to conform to the testimony of Jason Jordan. Correction: The phrase "because Staff did not think that one was warranted" should be added to the end of the last existing sentence in Finding of Fact 61. Also, the following sentence should be added to the end of Finding of Fact 61. The ERC had considered the points made in the public comment letters concerning the Sunset Bluff application before issuing its MDNS concerning the. application. FINDINGS OF FACT 62 AND 63 Error: Both of these findings of fact are based upon materials that are not in the record and, accordingly, must be stricken. Correction: Strike Findings of Fact 62 and 63 in their entirety. FINDING OF FACT 64 Error: While making a statement concerning Hearing Examiner jurisdiction in general, the portion of the Renton Municipal Code cited in this Finding of Fact omits the portion of the code that specifically addresses the Hearing Examiner's options and decision criteria, RMC 4-8- 110E7.b. That code section states in its entirety: b. Examiner Decision Options and Decision Criteria: The Examiner may affirm the decision or remand the case for further proceedings, or it may reverse the decision if the substantial rights of the applicant may have been prejudiced because the decision is: i. In violation of constitutional provisions; or ii. In excess of the authority or jurisdiction of the agency; or iii. Made upon unlawful procedure; or iv. Affected by other error of law; or v. Clearly erroneous in view of the entire record as submitted; or APPLICANT SR 900 L.L.C.'S APPEAL --Page 20 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 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 vi. Arbitrary or capricious. (Emphasis added.) Because, as a matter of statutory construction, specific provisions control over general ones, RMC 4-8-110E7.b controls over RMC 4-8-110.E and, by its terms, limits the authority of the Examiner in regard to his decisionmaking options and precludes the decision he made. Correction: Strike Findings of Fact 64 and replace it with the text of RMC 4-8-110E7.b. CONCLUSION 2: Error: As a threshold matter, Conclusion 2 should have commenced with the detailed statement of the law concerning SEPA project review limitations as a result of Washington's regulatory reform legislation that was set forth on pages 5 through 8 of the Applicant's Closing Brief. (See copy attached.) That statement of the law was not even mentioned in the Examiner's decision and report. Its omission was legal error. In immediate follow-up to such a Conclusion 2, one or more conclusions should have summarized and accepted the legal analysis set forth in detail in Section III.A on pages 8 through 13 of Applicant's Closing Brief. That analysis was, in sum, that because (1) the Renton City Council has designated as acceptable for the Sunset Bluff Site (a) the site's current Comprehensive Plan designations and zoning, (b) corresponding site -specific restrictions for heron protection in a the development agreement and (c) the City's Habitat Conservation Regulations and (2) the City, through the planning and environmental review process under Chapter 36.70A RCW and Chapter 43.21C RCW, has identified the specific adverse environmental impacts relating to development of the Sunset Bluff site, under RCW 43.21 C.240(4)(b) the impacts must be considered to have been adequately addressed. (This analysis was not addressed by the Examiner.) In further immediate follow-up to such a Conclusion 2, one or more conclusions should have summarized and accepted the legal analysis set forth in detail in Section III.B on pages 14 through 19 of Applicant's Closing Brief. That analysis, based upon recent Washington appellate court case decisions, was, in sum, that, in view of the underlying nature of the appellant's allegations, (1) appellant has failed to bring its appeal to the proper forum at the proper time, (2) the Hearing Examiner did not have jurisdiction over the appeal and, accordingly, (3) the appeal must be dismissed. (While, in Conclusion 8, the Examiner addressed this legal contention in passing —he said there that "[t]he appellant may not have objected to single-family uses on this site" and "[t]he appellant might have relied on the very SEPA review process now occurring to help mitigate impacts of single-family development on this site" —the appellant made it abundantly clear that it didn't believe that "any development can be built on this hillside without causing profound and irreparable harm to the [heron] colony" and that the appellant wants the Sunset Bluff site available for expansion of the colony. (See especially pages 3 and 4 of Applicant's Closing Brief, attached, for a summary of appellant's statements in this regard.)) APPLICANT SR 900 L.L.C.'S APPEAL --Page 21 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 In yet further immediate follow-up to such a Conclusion 2, one or more conclusions should have summarized and accepted the legal analysis set forth in detail in Section III.0 on pages 19 through 20 of Applicant's Closing Brief. That analysis was, in sum, that because (1) the ERC considered the Sunset Bluff proposal's specific probable adverse environmental impacts and determined that those specific impacts are adequately addressed by the City's development regulations with the addition of the 26 SEPA mitigation measures set forth in the MDNS and (2) the project approval will be based upon compliance with those regulations and mitigation measures, the ERC complied with RCW 43.21C.240(1)'s mandate that the City "determine that the requirements for environmental analysis, protection, and mitigation measures in the City's development regulations and comprehensive plans adopted under Chapter 36.70A RCW, and in other applicable local, state, or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply". Going beyond such analyses and the conclusions that should be stated in summary of them, the Hearing Examiner certainly failed to give substantial weight to the Decision of the ERC's decision and actually substituted his own judgment for that of the ERC in this case, violating RCW 43.21 C.090. Had the Examiner actually afforded the ERC's decision substantial weight (as he was obligated to do), in view of the entire record it would have been impossible for the Examiner to have determined that the ERC decision was clearly erroneous. Accordingly, on that ground alone, the Examiner was obligated to deny the appeal. (See Section 3.E on pages 22 through 56 of the Applicant's Closing Brief for an extensive supporting analysis and see pages 1 through 4 of that brief for a summary of factual context.)9 Correction: Conclusion 2 should be replaced with the entirety of the statement of the law concerning SEPA project review limitations as a result of Washington's regulatory reform legislation that was set forth on pages 5 through 8 of the Applicant's Closing Brief followed by conclusions consistent with and contemplated by the discussion above. CONCLUSIONS 3 THROUGH 28. Error: For the reasons set forth in the analysis of Error concerning Conclusion 2, Conclusions 3 through 28 must be deleted in their entirety. APPLICANT SR 900 L.L.C.'S APPEAL --Page 22 REQUEST HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 .(206)443-4684 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 For all of the above reasons, Applicant hereby requests that the City Council reverse the -' - Hearing Examiner's decision, and approve the Sunset Bluff preliminary plat as presented, subject to the mitigation measures set forth in the ERC's SEPA threshold determination and subject to the Staff -recommended conditions of preliminary plat approval set forth in the Staff Report to the Hearing Examiner. DATED this 17th day of August, 2004. HALINEN LAW OFFICES, P.S. By: David L. Hai en WSBA #15923 Attorney for Applicant SR 900 L.L.C. 9 Note that, in view of RMC 4-8-110E7.b, even if the ERC's decision had been "clearly erroneous", under RMC 4- 8-110E7.b the Hearing Examiner only choice would have been to "remand the case for further proceedings". Nothing in RMC 4-8-110E7.b authorized issuance of a declaration of significance. APPLICANT SR 900 L.L.C.'S APPEAL --Page 23 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4 5' 6'' 7' 81 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CITY OF RENTON RECEIVED CITY CLERK'S OFFICE o U�� , JUN 1 1 2004 ,v-o n.' WARREN BARBER & FONTES, P.S. BEFORE THE CITY OF RENTON HEARING EXAMINER Regarding Herons Forever's Appeal to the ) Hearing Examiner of the February 24, 2004. ) SEPA Threshold Determination Decision ) Issued by the Renton Environmental Review ) -Committee for the Proposed "Sunset Bluff' ) Residential Subdivision ) City of Renton File No. LUA04-002, EC, PP ) APPLICANT SR 900 L.L.C.'S CLOSING BRIEF I. INTRODUCTION CITY OF R A f rl 7 a r 2 f; b) 4 RECEIVED I.1TY CL 'RK'S -,)I I S 9- piA E0:.+ I '`LED ' A�UIIN 1 3 2004 G _!7NDLER & MP,NN, j L Following two recent comprehensive plan land use map amendments, two corresponding downzones and two corresponding development agreements with the City of Renton that have reduced the subject 26.26-acre site's development potential from (a) 842 multi -family units plus 1.5 million square feet of office development to (b) 69 detached single-family residences (downzones and development agreements done in part for protection of the great blue heron colony to the south) (April 29, 2004 testimony of Rebecca Lind), Sunset Bluff subdivision applicant SR 900 L.L.C. now seeks preliminary plat approval for a mere 65 single-family residential lots on the subject site in accordance with the site -specific restrictions of the latest, City Council -approved development agreement. Nearly 5 acres of the site are proposed to be left in a native growth protection easement. The site's vicinity is far from being located in a wilderness. The roughly crescent -shaped site is sandwiched between a state highway to the north (SR 900 aka "SW Sunset Boulevard") CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 1 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4 5 6 7 8 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 and a freight rail line to the south. The Black River Quarry abuts the southerly portion of the site's west boundary and a 240-unit apartment development abuts the northerly portion of the site's west boundary. An existing townhouse development lies to the east-southeast. Primarily single-family developments lie north of SW Sunset Boulevard. South of the freight rail line lies a 100-acre City park that is surrounded by development —the quarry to the northwest, the rail line to the northwest, north and northeast, the townhouses to the northeast, the Metro sewage treatment plant to the southwest, other industrial uses to the south and an extensive complex of offices to the southeast. (See the Exhibit 37 and Exhibit 77 color aerial photos.) During the mid- 1980s, a small number of great blue herons —birds that are not threatened or endangered species --took up residence in roughly the center of what is now the City park, a park that is open to the general public. In that park, people can walk their dogs, ride their bikes, play their boom boxes, bring in their screaming kids or crying babies —basically anything that they may want to do. (See footnote 5.) During the early 1990s, the City acquired the park property pursuant to a settlement agreement with several environmental groups who wished to protect the heron colony ---and have a convenient place for observing it up close and giving educational tours. Despite (1) all of the surrounding, intensive land uses (including the year 2000 construction of the Oakesdale Center Black River Corporate Park with its parking lot within 500 feet of the colony and its closest building within 550 feet) and (2) at least two periods of extensive predation by eagles, according to Herons Forever's president Suzanne Krom the colony has expanded to approximately 135 nests. (April 27, 2004 hearing testimony of Suzanne Krom.) CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 2 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Even though nearly 900 feet of buffering forest in the park lie between the heron colony and the Sunset Bluff site (Exhibits 60 and 77), SEPA threshold determination appellant Herons Forever does not want to see the Sunset Bluff site developed.' Instead, Herons Forever wishes to see the Sunset Bluff site remain as it is (except, presumably, for the homeless camps that were discovered on the site during last fall's wildlife study of the site and except, supposedly, for development of about 3 acres near the site's northwest corner —an area that, however, cannot achieve access to SW Sunset Boulevard as Herons Forever suggests and would be undevelopable because (1) a native growth protection easement encumbers the existing tract of land that lies between that portion of the site and SW Sunset Boulevard and (2) the right-of-way margin in that vicinity is so steep that access to the 3 acres would be impossible). Why do the opponents desire and demand that the Applicant's property remain undeveloped? So that the site can provide space for potential future expansion of the heron 1 During the April 27, 2004 segment of the Sunset Bluff hearings, Herons Forever president Suzanne Krom testified that: The 65-house development proposed for this hillside is too large because of the steep, unstable slopes and its close proximity to the heron colony. We question whether an development can be built on this hillside without causing profound and irreparable harm to the colony. The hillside is critically important to the environmental health of Black River. Any development that occurs here is likely to have significant negative impacts on this heron colony. (Emphasis added.) (Note that at the beginning of Ms. Krom's hearing testimony, explained that she would refer to "the resident coastal great blue heron colony in the Black River riparian forest" simply as `Black River".) 2 See bottom of page 9 and top of page 10 of the Habitat/Wildlife Assessment and Stream Study Report for "Sunset Bluff' Residential Subdivision (part of the Exhibit 1 file). CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 3 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building . 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 H, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 colony (April 18, 2004 letter from Dr. Kate Stenberg3 and April 29, 2004 hearing testimony of Patricia Thompson 4), so that the heron colony does not have to rely upon the nearly all -wooded 100-acre park as a source of "twigs" and "sticks" for construction of future heron nests (April 27, 2004 hearing testimony of Suzanne Krom and April 18, 2004 04 letter from Dr. Kate Stenberg at p. 6, Exhibit 12) and, apparently, so that Suzanne Krom can be proclaimed the victor in her 15- year personal crusade to promote and expand the Black River heron colony.5 3 The bottom of page 6 and the top of page 7 of the letter from Quailcroft Environmental Services' Dr. Kate Stenberg (Heron's Forever's wildlife biologist) to attorney David Mann (part of Exhibit 12) states: The mature trees on the hillside within the proposed development may function as alternate future nest sites for the heron colony. The Black River heron colony has grown in recent years, but many other colonies in the general region have abandoned and disappeared. Much of the observed growth at Black River may be due to birds moving in from other disturbed colonies. If the colony growth is due to an influx of individuals from disturbed colonies then that may be an indication that there are no other suitable locations available to establish new colonies. In the urban area, suitable nesting locations for heron colonies are likely a limiting factor in the viability of the population. Protection of potential alternate nest sites will be critical to the long-term viability of the Black River heron colony and to efforts to prevent a listing of the species under the Endangered Species Act. (Emphasis added.) Apparently, Herons Forever expects private landowners to keep their lands in reserve because of the potential that that herons may want to nest on those lands someday. 4 Washington Department of Fish and Wildlife biologist Patricia Thompson (testifying for Herons Forever) stated on April 29, 2004 that "since [the Black River heron. colony] is an expanding colony, we need additional nest trees into which the colony can a and." (Emphasis added.) 5 Apparently so blinded by self-interest, Ms. Krom seems incapable of understanding the absurdity of her objecting, on the one hand, to a mere 65 future homes more than 1,000 feet away from the heron colony while, on the other hand, simultaneously lauding crowds of visitors at the City park coming into the City park for a close-up view of the heron colony. Note that during her testimony at the April 27, 2004 segment of the Sunset Bluff hearing, she beamed: As of this year, it's clear that Black River has reached it's tip-, it's tipping point. It has been discovered. The parking lot is now frequently full. Often cars are double- parked and overflow cars are parked along the shoulder because the lot is too small to accommodate the sanctuary's growing popularity. It's a place where everyone, CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 4 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington98004 (206) W-4684 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 II. SEPA PROJECT REVIEW LIMITATIONS AS A RESULT OF REGULATORY REFORM LEGISLATION The 1995 Washington legislature enacted the Integration of Growth Management and Environmental Review Act. That Act "seeks to avoid duplicative environmental analysis and substantive mitigation of development projects by assigning SEPA a secondary role to (1) more comprehensive environmental analysis in plans and their programmatic environmental impact -statements and (2) systematic mitigation of adverse environmental impacts through local development regulations and other local, state, and federal environmental laws." Moss v. City of Belllingham, 109 Wn. App. 6 at 15; 31 P. 3d 703 at _, quoting Richard L. Settle, The Washington State Environmental Policy Act: A Legal and Policy Analysis, Appendix E, p. 505 (1995). The Integration Act bears directly on the subject appeal. One of the Act's provisions, an amendment to the State Environmental Policy Act, has been codified in RCW 43.21 C.240 (which was thereafter amended in 2003). It reads: § 43.21 C.240. Project review under the growth management act (1) If the requirements of subsection (2) of this section are satisfied, a county, city, or town reviewing a project action shall determine that the requirements for environmental analysis, protection, and mitigation measures in the including young children, the frail elderly and people in wheelchairs can experience a slice of nature fa-, far more powerfully than most places they will visit in their lifetimes. No National Geographic Special comes close to the wonder of this site. In addition, these nests are easily seen. It's close to the urban center, and the viewing area is the equivalent of only a couple of city blocks from parking and easily traversed by wheelchair. I know of no other place where this is true. This hearing represents the culmination of my 15 years of work. My life's work with this site. (Emphasis added.) CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 5 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4 5 6 7 8 91 10 11' 12 13 14 15 16 17 18 19 20 21 22 23 24 25 county, city, or town's development regulations and comprehensive plans adopted under chapter 36.70A RCW, and in other applicable local, state, or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply. Rules adopted by the department according to RCW 43.21C.I10 regarding project specific impacts that may not have been adequately addressed apply to any determination made under this section. In these situations, in which all adverse environmental impacts will be mitigated below the level of significance as a result of mitigation measures included by changing, clarifying, or conditioning of the proposed action and/or regulatory requirements of development regulations adopted under chapter 36.70A RCW or other local, state, or federal laws, a determination of nonsignificance or a mitigated determination of nonsignificance is the proper threshold determination. (2) A county, city, or town shall make the determination provided for in subsection (1) of this section if: (a) In the course of project review, including any required environmental analysis, the local government considers the specific probable adverse environmental impacts of the proposed action and determines that these specific impacts are adequately addressed by the development regulations or other applicable requirements of the comprehensive plan, subarea plan element of the comprehensive plan, or other local, state, or federal rules or laws; and (b) The local government bases or conditions its approval on compliance with these requirements or mitigation measures. (3) If a county, city, or town's comprehensive plans, subarea plans, and development regulations adequately address a project's probable specific adverse environmental impacts, as determined under subsections (1) and (2) of this section, the county, c_yt , or town shall not impose additional mitigation under this chapter during project review. Project review shall be integrated with environmental analysis under this chapter. (4) A comprehensive plan, subarea plan, or development regulation shall be considered to adequately address an impact if the county, city, or town, through the planning and environmental review process under chapter 36.70A RCW and this chapter, has identified the specific adverse environmental impacts and: (a) The impacts have been avoided or otherwise mitigated; or (b) The legislative body of the county, city, or town has designated as acceptable certain levels of service, land use designations, development CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 6 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 standards, or other land use planning required or allowed by chapter 36.70A RCW. (5) In deciding whether a specific adverse environmental impact has been addressed by an existing rule or law of another agency with jurisdiction with environmental expertise with regard to a specific environmental impact, the county, city, or town shall consult orally or in writing with that agency and may expressly defer to that agency. In making this deferral, the county, city, or town shall base or condition its project approval on compliance with these other existing rules or laws. (6) Nothing in this section limits the authority of an agency in its review or mitigation of a project to adopt or otherwise rely on environmental analyses and requirements under other laws, as provided by this chapter. (7) This section shall apply only to a county, city, or town planning under RCW 36.70A.040. (Emphasis added.) In adopting that provision, the Legislature made the following extensive findings and statement of intent in the law: FINDINGS -- INTENT -- 1995 C 347 § 202: "(1) The legislature finds in adopting RCW 43.21C.240 that: (a) Comprehensive plans and development regulations adopted by counties, cities, and towns under chapter 36.70A RCW and environmental laws and rules adopted by the state and federal government have addressed a wide range of environmental subjects and impacts. These plans, regulations, rules, and laws often provide environmental analysis and mitigation measures for project actions without the need for an environmental impact statement or further project mitigation. (b) Existing plans, regulations, rules, or laws provide environmental analysis and measures that avoid or otherwise mitigate the probable specific adverse environmental impacts of proposed projects should be integrated with, and should not be duplicated by, environmental review under chapter 43.21CRCW. (c) Proposed projects should continue to receive environmental review, which should be conducted in a manner that is intejerated with and does not duplicate other requirements. Project -level environmental review should be used to: (i) Review and document consistency with comprehensive plans and development regulations; (ii) provide prompt and coordinated review by government agencies and the public on compliance with applicable environmental laws and plans, including mitigation for specific project impacts that have not CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 7 HALMN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 1 2 3 4 5i 61 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 been considered and addressed at the plan or development regulation level; and (iii) ensure accountability by local government to applicants and the public for requiring and implementing mitigation measures. (d) When a project permit application is filed, an agency should analyze the proposal's environmental impacts, as required by applicable regulations and the environmental review process required by this chapter, in one project review process. The project review process should include land use, environmental, public, and governmental review, as provided by the applicable regulations and the rules adopted under this chapter, so that documents prepared under different requirements can be reviewed together by the public and other agencies. This project review will provide an agency with the information necessary to make a decision on the proposed project. (E) THROUGH THIS PROJECT REVIEW PROCESS: (i) If the applicable regulations require studies that adequately analyze all of the project's specific probable adverse environmental impacts, additional studies under this chapter will not be necessary on those impacts; (ii) i the applicable regulations require measures that adequately address such environmental impacts, additional measures would likewise not be required under this chapter; and (iii) if the applicable regulations do not adequately analyze or address a proposal's specific probable adverse environmental impacts, this chapter provides the authority and procedures for additional review. (2) The legislature .intends that a primary role of environmental review under chapter 43.21 C RCW is to focus on the gaps and overlaps that may exist in applicable laws and requirements related to a proposed action. The review of project actions conducted by counties, cities, and towns planning under RCW 36.70A.040 should integrate environmental review with project review. Chapter 43.21C RCW should not be used as a substitute for other land use planning and environmental requirements." [1995 c 347 § 201.] (Emphasis added.) Herons Forever's appeal must be considered in view of these above -quoted provisions. III. ARGUMENT A. Because (1) the Renton Citv Council Has Designated as Acceptable for the Sunset Bluff Site (a) the Site's Current Comprehensive Plan Designations and Zoning, (b) Corresponding Site -Specific Restrictions for Heron Protection in a Development Agreement and (c) the City's Habitat Conservation Regulations and (2) the CitY, Through the Planning and Environmental Review Process under Chapter 36.70A CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 8 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 RCW and Chapter 43.21C RCW, Has Identified the Specific Adverse Environmental Impacts Relating to Development of the Site, under RCW 43.21C.240(4)(b) the Impacts Must Be Considered to Have Been Adequately Addressed. Just last fall, the Renton City Council approved the subject site's Residential Options (RO) Comprehensive Plan Land Use Map designation and R-10 zoning and the form of corresponding Development Agreement that the Applicant and the City of Renton subsequently executed. Potential impacts to the great blue heron colony in the City park to the south were identified through the planning and environmental review process for that Comprehensive Plan amendment and rezone. Not only was the Comprehensive Plan amendment and downzone a means of mitigating impacts to the heron colony, three site -specific restrictions were set forth in the Development Agreement to mitigate heron colony impacts.6 No appeals were filed in regard to either (a) the SEPA threshold determination for the Comprehensive Plan amendment and 6 The executed Development Agreement is contained in the "yellow file", Exhibit 1. The three "Site - Specific Restrictions set forth on page 3 thereof are as follows: (1) The maximum number of residential units that may be permitted on the Property shall be 69 units and all of such units shall only be single-family detached units on individual residential lots; (2) In conjunction with residential development of the Property a minimum 6-foot high fence shall be constructed along the south side of the development for the entire length of the development (i.e., from the west edge of the southerly projection of the westerly -most residential lot to the east edge of the southerly projection of the easterly -most residential lot), which fence may lie either north of or south of stormwater facilities anticipated to he constructed along the southerly portion of the site and along the RC -zoned strip of land owned by Owner that is legally -described in the second "EXCEPT that portion ..." paragraph of the Property's legal description set forth on pages 1 and 2, above; and CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 9 HALINEN LAW OFFICES, P.S. AProfessional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 rezone or (b) the City Council's substantive decisions approving the Comprehensive Plan amendment and rezone. (April 29, 2004 hearing testimony of Rebecca Lind.) The Renton City Council has also established performance standards for Habitat Conservation throughout the City as part of the City's GMA critical areas regulations codified in RMC 4-3-050. (It did so during August 2000, long after the Council had been made aware of the heron colony and had purchased the 100-acres for the park to protect it and during the year (2000) that processing of the Comprehensive Plan Amendment and rezone of the Sunset Bluff site took place, a time period when protection of the heron colony in relation to the Sunset Bluff site was an issue especially before the City.) Those standards are set forth in RMC 4-3-050K, which states: K. HABITAT CONSERVATION: 1. Applicability: In addition to the general standards of subsection E of this Section, the following performance standards, subsections K2 to (3) No residential or recreation buildings may be constructed on the Property within 100 feet of the Burlington Northern and Santa Fe Railroad right-of-way that lies to the south of the Property. (Emphasis added.) 7 The Council's actions followed shortly after the 2000 Comprehensive Plan Amendment and rezone of the site, when the Council designated the site Residential Multi -Family Infill (RM-1) and downzoned it to Residential Multi -Family Infill (RM-I) in conjunction with a Development Agreement (Exhibit 59). Potential heron impacts were also identified during that process. Not only was that Comprehensive Plan amendment and downzone a means that the City Council used to mitigate impacts to the heron colony, three site -specific restrictions (a limitation on the number of multi -family residential units to 260, a fencing requirement, and a prohibition on buildings within the site's south 100 feet) were set forth in the Development Agreement to mitigate heron colony impacts. No appeals were filed as to either (a) the SEPA threshold determination for that Comprehensive Plan amendment and rezone or (b) for the City Council's substantive decisions in approving that Comprehensive Plan amendment and downzone. (Testimony of Rebecca Lind.) CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 10 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 K5, apply to all non-exempt activities on sites containing critical habitat areas per subsection B5.8 2. Habitat Assessment Required: Based upon subsection B5 of this Section, Habitat Conservation, the City shall require a habitat/wildlife assessment to determine the extent, function and value of the critical habitat when regulated activities are proposed which have the potential to cause significant impacts. In cases where a proposal is not likely to significantly impact the critical habitat and there is sufficient information to determine the effects of a proposal, an applicant may request that this report be waived by the Department Administrator in accordance with subsection D4b of this Section. The City may require independent review of an applicant's report by qualified specialists selected by the City, at the applicant's expense. s RMC 4-3-050B.5 defines critical habitat in subsection b thereof, which states: b. Critical Habitat: Critical habitats are those habitat areas which meet any of the following criteria: The documented presence of species proposed or listed by the federal government or State of Washington as endangered, threatened, sensitive, monitor, or priority; and/or ii. The presence of heron rookeries or raptor nesting areas; and/or iii. Category 1 wetlands (refer to subsection B7b(i) of this Section for classification criteria); and/or iv. Portions of streams and their shorelines designated in the Renton Shoreline Master Program, RMC 4-3-090, as Conservancy or Natural (refer to the Renton Shoreline Master Program). (Emphasis added.) As part of the Sunset Bluff preliminary plat application materials, the applicant submitted to the City a January 9, 2004 Habitat/Wildlife Assessment and Stream Report prepared by the natural resources department of Barghausen Consulting Engineers, Inc. (A copy of that report is included as part of the Exhibit 1 yellow file.) That report makes clear that (a) the only critical habitat area contained within the site as those areas are defined in RMC 4-3-050B.5 is the Category 1 wetland that straddles a part of the eastern portion of the site's south boundary and (b) that wetland, its 100-foot buffer and an additional, extensive portion of the site to the north and east of the wetland within proposed Tract C are proposed to be set aside in a Native Growth Protection Easement and will not be altered by the Sunset Bluff project. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - I 1 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3. Native Growth Protection Areas: Based on the required habitat assessment, the Reviewing Official may require critical habitat areas and their associated buffers be placed in a native growth protection. area subject to the requirements of subsection G of this Section, or dedicated to a conservation organization or land trust, or similarly preserved through a permanent protective mechanism acceptable to the City. 4. Alterations Require Mitigation: L( alterations to critical habitat/wildlife habitat or buffers are proposed, mitigation shall be required by the City. The applicant shall evaluate alternative methods of developing the property using the following criteria in this order: a. Avoid any disturbances to the habitat. b. Minimize any impacts to the habitat. c. Compensate for any habitat impacts. 5. Mitigation Options: In addition to any performance standards or mitigation required by wetland regulations, additional mitigation may be determined by the Reviewing Official based upon the consultant report submitted by the applicant, and/or peer review of the applicant's consultant report by a qualified professional selected by the City at the applicant's expense, and/or by information from State or Federal agencies. a. On -Site Mitigation: Mitigation shall be provided on -site, unless on -site mitigation is not scientifically feasible due to physical features of the property. The burden of proof shall be on the applicant to demonstrate that mitigation cannot be provided on - site. b. Off -Site Mitigation: When mitigation cannot be provided on -site, mitigation shall be provided in the immediate vicinity of the permitted activity on property owned or controlled by the applicant, and identified as such through a recorded document such as an easement or covenant, provided such mitigation is beneficial to the habitat area and associated resources. C. In -Kind Mitigation: In -kind mitigation shall be provided except when the applicant demonstrates and the City concurs that CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 12 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18'i 19 20 21 22 23 24 25 greater functional and habitat value can be achieved through out - of -kind mitigation. (Emphasis added.) Thus, in view of RMC 4-3-050K.1 (above) and RMC 4-3-050B.5.ii (see footnote 4, above), when the City Council adopted its Critical Areas Regulations in 2000, it made a policy choice of having the habitat conservation performance standards apply to heron rookeries with respect to proposed projects (including the Sunset Bluff project) only when the rookeries are contained within the project site in question. (It is undisputed that no heron rookeries are contained within the Sunset Bluff site.) Because the City Council established habitat conservation performance standards relating to all heron rookeries throughout the City (including the heron rookery within the City park), under RCW 43.21 C.240(4) those standards are, as a matter of law, to be considered adequate to address Sunset Bluff impacts to the heron rookery within the City park. In sum, in view of (a) the City Council's recent Comprehensive Plan amendment and downzone of the site as a partial means of mitigating impacts to the heron colony, (b) the City Council's approval of a companion Development Agreement with site -specific restrictions to further mitigate heron colony impacts from single-family residential development on the Sunset Bluff site, and (c) the City Council's recent adoption of habitat conservation performance standards relating to heron rookeries —all of which actions relate to the identified potential for specific impacts to the heron rookery (colony) within the City park —under RCW 43.21C.240(4) those actions are, as a matter of law, adequate to address Sunset Bluff impacts to the heron rookery within the City park. Further SEPA-based mitigation or analysis cannot therefore be required and the subject appeal must be denied. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 13 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 B. 2 3 4 5 6 7 8 9 10 11 12' 13 14 15 16 17 18 19 20 21 22 23 24 25 In View of the Underlying Nature of the Appellant's Allegations, (1) Appellant Has Failed to Bring Its Appeal to the Proper Forum at the Proper Time, (2) the Hearing Examiner Does Not Have Jurisdiction Over the Appeal and, Accordingly, (3) the Appeal Must Be Dismissed. A number of recent Washington appellate court decisions make clear that land use challenges must be brought at the right time and the right place. Snohomish County v. Somers, 105 Wn. App. 937,21 P.3d 1145 (2001); Moore v. Whitman County, 143 Wn.2d 96,18 P.3d 566 (2001); Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 4 P.3d 123 (2000); Caswell v. Pierce County, 99 Wn. App. 194, 992 P.2d 534 (2000), review denied, 142 Wn:2d 1010, 16 P.3d 1265 (2000). As demonstrated below, Herons Forever failed to bring an appeal of the City's Comprehensive Plan Amendment and corresponding Zoning amendment and Development Agreement that were expressly determined to adequately protect the heron rookery; and, as a result, Herons Forever may not now, in effect, challenge those previous City actions in the current appeal.. Somers, supra, is especially instructive. In Somers, Snohomish County had adopted in 1993 an interim urban growth area ("IUGA") ordinance. When the IUGA was adopted, the existing zoning applicable to certain land outside of the IUGA provided for a minimum lot size of 20,000 square feet. Several years later, the owner of that land applied for a subdivision approval. The proposed lots were in compliance with the requirements of the site's zoning regulations, which remained in effect. The Somers and other neighbors of the site in question brought a Land Use Petition Act ("LUPA") action challenging the County's approval of the proposed plat on the ground that it allowed urban density outside of the IUGA in violation of the Growth Management Act ("GMA"). The County argued that (a) the Somers, in reality, were not CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 14 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 challenging the plat approval but the underlying zoning with which the plat complied and (b) legal challenges that the zoning violates the GMA may only be brought to the Growth Management Hearings Board ("GMHB"). The Washington Court of Appeals agreed with the County, holding that the Somers should have petitioned the GMHB rather than bringing their claim to Superior Court. Because a petition to the GMHB was by then untimely, the County's approval of the plat (which the trial court had overturned) was reinstated. Note the following analysis of the Court of Appeals in Somers, 105 Wn. App. at 944-45: This Court's decision in Caswell v. Pierce County, 99 Wn. App. 194, 992 P.2d 534 (2000), review denied, 142 Wn.2d 1010, 16 P.3d 1265 (2000), provides a useful analytical framework to address the issue now before us. A petitioner cannot use the LUPA process to raise issues that should have been brought before the GMHB. In evaluating the scope of review permitted under LUPA, Casivell recognized the need to examine the underlying nature of the plaintiffs' allegations to determine "the extent to which [the] County's actions could have been reviewed by the ...Growth Management Hearings Board." In Caswell, a developer applied for a conditional use permit to expand its existing mobile home park. A county ordinance designating an IUGA was in effect at the time of the application, as was a local zoning ordinance that allowed the type of development proposed. The IUGA ordinance specifically incorporated and further implemented the local zoning ordinance. The hearing examiner approved the permit on the grounds that the county's local zoning ordinance authorized the development and took precedence over the County's "Interim Growth Management Policies and Comprehensive Plan." Adjacent property owners appealed under LUPA, and the trial court reversed. It determined that the hearing examiner erred by failing to consider the fact that the proposed development was contrary to the County's IUGA ordinance and the GMA. This Court held that the plaintiffs should have brought the issue of whether the County's IUGA ordinance complied with the GMA before the GMHB, and concluded that they could not challenge the IUGA by way of a LUPA petition. Here, as in Caswell, the Somers raise an issue that is beyond the proper scope of a LUPA appeal. Although the Somers do not challenge the Monroe IUGA, they do in fact challenge the underlying R-20,000 zoning ordinance on the ground that its application to the proposed plat allegedly violates the GMA. That zoning CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 15 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington98004 (206)443-4684 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 ordinance allowed Aronson's development to proceed at a density that the Somers argue constitutes impermissible "urban growth" outside of the IUGA. Although the Somers' LUPA petition does not expressly challenge the underlying zoning as contrary to the GMA, it does so implicitly. During questioning at oral argument, counsel for the Somers had to concede that the substance of their position is that, to the extent the County's R-20,000 zoning permits urban growth outside the IUGA, Cromwell Plateau (or any other development) is not permitted under the GMA. No matter how they attempt to otherwise characterize their challenge, the Somers' real argument is that the County failed to comply with the GMA when it applied a pre-existing ordinance that permitted urban densities outside of the IUGA. The question of whether a county is in compliance with the GMA is an issue over which the GMHB has exclusive subject matter jurisdiction. (Citations omitted; emphasis added.) The Caswell framework used by the Somers court is applicable here. Appellant Herons Forever's real "beef' is not with the Sunset Bluff project proposal but with the City Council's 2003 Comprehensive Plan Land Use Map amendment of the site, 2003 rezone of the site, 2003 approval of the companion development agreement and 2000 adoption of the City's Habitat Conservation regulations. Collectively, those Council decisions authorize the land use that the Applicant now seeks to make of the Sunset Bluff site9, a land use that Herons Forever stridently opposes. Those four City Council decisions —all of which were done following public hearings —paved the way for the proposed Sunset Bluff development and Herons Forever failed to appeal any of them. Only the Growth Management Hearings Board or the courts had jurisdiction to hear timely appeals of those City Council decisions. 9 Fundamental land use planning choices made in adopted comprehensive plans and development regulations shall serve as the foundation for project review. RCW 36.70B.030 (emphasis added). CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 16 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Like the implicit attacks against the underlying zoning in the context of opposition to plat applications that the Supreme Court and Court of Appeals rejected in Wenatchee Sportsmen and Somers, Herons Forever's SEPA threshold determination appeal does not expressly challenge the underlying Council decisions but it does so by absolutely clear implication. By (1) questioning "whether gny development can be built on [the Sunset Bluff] hillside without causing profound and irreparable harm to the colony" (see the transcript of Suzanne Krom's statement in footnote 1 on pages 2 and 3, above; emphasis added), (2) arguing that the site should be left undeveloped for expansion of the heron colony, (3) suggesting an alternative, impossible to build "clustered" development encompassing only about 3 acres of the 26-acre Sunset Bluff site10, and (4) recommending draconian "mitigation measuresi11 (measures that, on their face, are obviously designed to make development of the Sunset Bluff site economically unviable), Herons Forever has made abundantly clear that the "underlying nature of its appeal" is stopping the type of development that the four above -noted Council decisions collectively authorize with respect to the Sunset Bluff site. Clearly, those Council decisions are in reality what Herons Forever is 10 Suzanne Krom testified during the April 27, 2004 segment of the Sunset Bluff hearing as to where she thinks the project should go, submitting Exhibit 46, which depicts an approximately 3-acre area in the northwestern portion of the Sunset Bluff site: Ideally, the development is clustered up in the northwestern quarter of the site and so I, I put a line around that. (Emphasis added.) In addition to being impossible for the reasons explained on page 3, above, Herons Forever's "clustered" development concept is inconsistent with the site's zoning and the 2003 Development Agreement that the City Council authorized following a November 17, 2003 public hearing on the agreement. t t They are contained in the April 27, 2004 letter to the Hearing Examiner from Herons Forever (part of Exhibit 47), a letter that Suzanne Krom read into the hearing record on April 27th. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 17 HALMN LAW OFFICES, P.S. A Professional Semite Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 challenging. It could have challenged those Council decisions on GMA, SEPA, or other grounds in timely appeals to the GMHB or court, depending on the appropriate forum for the respective Council actions. See, e.g., Wenatcheeortsmen Ass'n v. Chelan County, 141 Wn.2d at 178-80. Regardless of what the appropriate forum would have been, challenges of the Council's decisions regarding appropriate residential use and density and adequate protections for the heron rookery could only be made in timely appeals of those decisions.Somers, Moore, Wenatchee Sportsmen Ass'n and Caswell, supra, prohibit Herons Forever from acquiescing in those previous Council decisions by failing to file timely GMHB and/or judicial appeals and later challenging a plat that is consistent with those Council decisions. Under these very recent cases, all elements of Herons Forever's appeal that collaterally attack and, in effect, ask the Examiner to revisit the Council's unchallenged policy decisions, expressly allowing the proposed development and determining that it would adequately protect the Heron Rookery, must be disregarded and dismissed. In Wenatchee Sportsmen, the Supreme Court stressed that an appeal of a plat could not resurrect issues regarding the wisdom or validity of previous zoning decisions that were not directly challenged in timely fashion. Relying on the principle it had established in Wenatchee Sportsmen, the Court similarly has barred challengers from resurrecting claims that could have been asserted in earlier appeals in Chelan County v. Nykreim, 146 Wn.2d 904, 52 P.3d 1 (2002) and Samuel's Furniture, Inc. v. Department of Ecology, 147 Wn.2d 440, 54 P.3d 1194 (2002). In rejecting such collateral attacks on previously unchallenged decisions, the Court stressed "a strong public policy supporting administrative finality in land use decisions." Id.; see also, CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 18 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Skamania County v. Columbia River Gorge Commission, 144 Wn.2d 30, 49, 26 P.3d 241 (2001). Under the Supreme Court's "strong public policy supporting administrative finality in land use decisions," Herons Forever must not be allowed to use this appeal to collaterally attack the Council's several decisions explicitly allowing such residential development on the property and determining that such use and development of the site would be compatible with the heron colony in the adjacent park. C. Because (1) the ERC Considered the Sunset Bluff Proposal's Specific Probable Adverse Environmental Impacts and Determined That Those Specific Impacts Are Adequately Addressed By the City's Development Regulations With the Addition of the 26 SEPA Mitigation Measures Set Forth in the MDNS and (2) the Project Approval Will Be Based Upon Compliance With Those Regulations and Mitigation Measures, the ERC Complied With RCW 43.21C.240(1)'s Mandate That the City "Determine That the Requirements for Environmental Analysis, Protection, and Mitigation Measures in the City's Development Regulations and Comprehensive Plans Adopted Under Chapter 36.70A RCW, and In Other Applicable Local, State, or Federal Laws and Rules Provide Adequate Analysis of and Mitilzation for the Specific Adverse Environmental Impacts of the Project Action to Which the Requirements Apply". The May 10, 2004 hearing testimony of Renton Senior Planner Jason Jordan makes clear that Renton's ERC considered not only the extensive Sunset Bluff application materials (including the roughly two-inch thick expanded SEPA Checklist, which included copies of a Habitat/Wildlife Assessment and Stream Study Report, a Preliminary Drainage Study report, a Preliminary Geotechnical Engineering Study report, and a Traffic Impact Analysis report) but also the public comment letters and government agency comment letters 12 that were submitted during an extended 21-day comment period. Among the numerous public comment letters was 12 No government agency comment letters were submitted commenting on any of the issues that Herons Forever has raised in its appeal. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 19 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 the February 8, 2004 letter from Herons Forever setting forth the "official comments for Herons Forever" (Exhibit 79) and the February 7, 2004 letter from Quailcroft Environmental Services "in support of Herons Forever's comments ... and to provide the City of Renton with further technical information with which to make informed decisions". (Exhibit 80.) In doing so, the ERC considered the Sunset Bluff proposal's specific probable adverse environmental impacts (as well as all of the remote and speculative impacts alleged in Exhibits 79 and 80). Having considered the Sunset Bluff Proposal's specific probable adverse environmental impacts in view of the City's Development Regulations (including, among others, the City's Habitat Conservation regulations, which were set forth and discussed in the Habitat/Wildlife Assessment and Stream Study Report), the ERC's issuance of the MDNS with its 26 mitigation measures constitutes compliance with RCW 43.21C.240(1)'s mandate that the City "determine that the requirements for environmental analysis, protection, and mitigation measures in the City's development regulations and comprehensive plans adopted under chapter 36.70A RCW, and in other applicable local, state, or federal laws and rules provide adequate analysis of and mitigation for the specific adverse environmental impacts of the project action to which the requirements apply." That being the case, RCW 43.21 C.240(3) prohibits the City from imposing additional SEPA-based mitigation during project review. D. Contrary to the Hearing Examiner's Statement During the May 10, 2004 Session of the Subiect Hearing to the Effect That the Examiner Is Entitled to Substitute His Judgment for That of the ERC, the Renton Municipal Code Specifically Limits the Examiner's Decision Options and Mandates That the Examiner Give the ERC's SEPA Threshold Determination Substantial Weight. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 20 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 1 2 3 4 5 61 71 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 On the final day of the hearing (May 101h) (near the end of the testimony of Jason Jordan) the Hearing Examiner stated that "I have to either substitute my judgment which I'm entitled to do, or send it back to [the ERC]": That was a misstatement of the law. First, the Examiner's decision options are spelled out in RMC 4-8-110E7.b13 and "substitution of judgment" is not one of them. That section allows the Examiner to only (a) affirm the decision, (b) remand the case for further proceedings, or (c) reverse the decision if the substantial rights of the applicant have been prejudiced in at least one of the six ways listed therein. Second, pursuant to the mandate of RCW 4321C.075(3)(d) and WAC 197-11- 680(3)(a)(7), RMC 4-8-110E7.a states that "[t]he procedural determination by the Environmental Review Committee or City staff shall carry substantial weight in any appeal proceeding." 13 RMC 4-8-110E7.b states in its entirety: b. Examiner Decision Options and Decision Criteria: The Examiner may affirm the decision or remand the case for further proceedings, or it may reverse the decision:: ifthe9 ,7�; substantial rights of the applicant may have been prejudiced because the decision is: i. In violation of constitutional provisions; or ii. In excess of the authority or jurisdiction of the agency; or iii. Made upon unlawful procedure; or iv. Affected by other error of law; or v. Clearly erroneous in view of the entire record as submitted; or vi. Arbitrary or capricious. (Emphasis added.) CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 21 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 In view of (a) RMC 4-8-110E7.b's limitation on the Examiner's decision -making choices and (b) RMC 4-8-110E7.a's mandate that the ERC's MDNS be given substantial weight, in responding to Herons Forever's appeal the Examiner obviously cannot substitute his judgment for that of the ERC. Because, as explained on pages 8 through 13, above, the City Council's recent Comprehensive Plan Land Use Map amendment and downzone of the site, approval of a companion Development Agreement with site -specific restrictions to further mitigate heron colony impacts and recent adoption of habitat conservation performance standards relating to heron rookeries are, as a matter of law under RCW 43.21 C.240(4), adequate to address Sunset Bluff impacts to the heron rookery within the City park. Further, as explained on pages 14 through 19, above, because the nature of Herons Forever's appeal is actually a collateral attack of those four Council decisions —decisions that may be challenged only by timely appeals to the Growth Management Hearings Board or court14—the Hearing Examiner has no jurisdiction over such collateral attacks, and they must be disregarded or dismissed. Thus, in sum, RCW 43.21 C.240(4) and the Snohomish County v. Somers line of cases cited above dictate, as a matter of law, that the ERC's MDNS be affirmed and that Herons Forever's appeal be dismissed. E. Assuming, Areuendo, That RCW 43.21C.240(4) and the Snohomish County v. Somers Line of Cases Did Not Dictate Affirmation of the ERC's MDNS and Dismissal of Herons Forever's Appeal, Herons Forever Fell Short of Demonstrating in View of the Entire Record and in Giving Substantial Weight to the ERC's MDNS, as Required by RCW 43.21C.075 and .090—That the ERC's Decision Was Clearly Erroneous. " Wenatchee Sportsmen Assn v. Chelan County, 141 Wn.2d at 178. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 22 fiALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4' 51' 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Even if Herons Forever's SEPA threshold determination appeal here was not barred by RCW 43.21 C.240(4) and the Snohomish County v. Somers line of cases, Herons Forever nevertheless failed to meet its burden of proving that, in view of the whole record during the subject open record appeal hearing and according the ERC's decision substantial weight, ERC's MDNS for the Sunset Bluff proposal was clearly erroneous. 15 In the April 8, 2004 letter to the Examiner from Appellant's attorney David Mann, the Appellant set forth its description of six issues on pages 4 through 6. All six of these issues are addressed below. 1. Downstream Drainage Issue Appellant's letter asserted: Herons Forever will present testimony and evidence that the Drainage Study prepared by the applicant, and approved by the ERC, failed to perform an adequate downstream analysis and the project is likely to cause significant downstream impacts which have not been disclosed and will not be mitigated by 15 As stated by the Washington Court of Appeals in Moss v. City ofBelllingham, 109 Wn. App. 6 at 13-14; 31 P.3d 703 at _: A governmental agency's SEPA threshold determination is reviewed under the "clearly erroneous" standard. n3 "A decision is clearly erroneous when the court is 'left with the definite and firm conviction that a mistake has been committed."' n4 We do not substitute our judgment for that of the decision -making body, but we examine the record in light of public policy contained in the legislation authorizing the decision. n5 An agency's decision to issue a mitigated DNS and not to require an EIS is accorded substantial weight. n6 n3 RCW 36.70C.130(1)(d); Assoc. of Rural Residents v. Kitsap Co., 141 Wn.2d 185, 195-96, 4 P.3d 115 (2000). n4 Rural Residents, 141 Wn.2d at 196. n5 Rural Residents, 141 Wn.2d at 196. n6 RCW 43.21C090; Indian Trail Property Owner's Assn. v. City of Spokane, 76 Wn. App. 430, 442, 886 P.2d 209 (1994). CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 23 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 the measures proposed. The primary issue of concern — the development's impacts to discharges to a large closed depression wetland in the Black River Riparian Forest — was not addressed in the development application materials or the City of Renton's ERC report. The impacts to the hydrology of the Black River Riparian Forest will be significant for a combination of reasons including: (1) the depressional nature of the wetland; (2) sensitivity of the hydroperiod of depressional wetlands to increased flow volumes; (3) the substantial increase in flow volumes which will result from the development proposal to convert 9 acres of existing forest (on highly pervious soils) to impervious surfaces; (4) the interception of runoff from SR 900 and (5) that the development makes up a very large portion of the wetland's total tributary basin. (Emphasis added.) On the first day of the hearing (April 20, 2004), Appellant's drainage engineer, W.A. Rozeboom, submitted a letter (Exhibit 9) asserting, among other things, a failure "to perform an adequate downstream analysis", "maximum depth of [downstream] ponding ... likely in the range of 5 to 10 feet", "[t]he Sunset Bluff site occupies one ha l of the upland basin area which is tributary to the depressional wetland in the Black River Riparian Forest", "[b]ecause the development are comprises a very significant portion of the wetland's tributary area, any development -caused changes to site runoff will potentially have a significant impact on the wetland hydrology." Mr. Rozeboom made these general assertions although he did not do a drainage analysis of the basin area himself. In response to Mr. Mann's letter's statements concerning downstream wetland hydrology concerns, the Applicant hired hydrologist and civil engineer Ed McCarthy, P.E., PhD (to perform a hydrologic characterization and assessment of the downstream depressional wetland. Dr. McCarthy's April 19, 2004 report (Exhibit 33) (supported by his hearing testimony) indicate that he "developed hydrologic models of the system under existing and proposed developed CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 24 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 31 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 conditions", "delineated boundaries of subbasins contributing to the wetland based on aerial topography (City of Renton, 1996 photography), available as -built drawings of upstream developments, and field verification of cross culverts and other drainage features", divided the drainage area contributing to the wetland into subbasins, and used a hydrologic computer model that "allowed a detailed assessment of the [downstream] wetland's hydrology and potential impacts to the wetland caused by changes in the watershed resulting from the Sunset Bluff development." Contrary to Mr. Rozeboom's assertions, Dr. McCarthy found that "[t]he 21.4-acre portion of the Sunset Bluff site that contributes to the depressional wetland represents about 20 percent of the depression's watershed" and that the fluctuations in the depression (with or without the Sunset Bluff) could not exceed approximately 3.2 feet due to the depression's wide overflow to the Black River pump station forebay. (Exhibit 33 at p. 4; emphasis added.) Based on his computer simulations and field observations, he found that "the depressional wetland has relatively large fluctuations in stage on both a monthly and annual basis under existing conditions". (Exhibit 33, page 12; emphasis added.) Page 12 of his report explains that "onsite stormwater controls would attenuate developed peak flow rates and match forested flow rates from the site for up to the 10-year storm", that "the increased runoff volumes from the site will likely increase average monthly stage in the wetland by [only] about 1 to 2 inches in the winter months and by less than 1 inch in the summer months", that "[w]etland stages at existing flow duration levels will likely be increased by [only] 1 to 2 inches as will be the peak stages for return periods between the annual and 5-year return periods" and that "[r]elative to existing CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 25 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 average monthly fluctuations in the wetland, which are on the order of 24 inches, these predicted increases in stage resulting from the proposed development are small." His report concludes that "[p]redicted changes in fluctuations, average stage, and stage duration curves caused by the proposed development would have only a negligible impact" on [the downstream wetland] system." (Emphasis added.) Herons Forever provided no studies of its own to rebut Dr. McCarthy's findings and conclusion. Mr. Rozeboom provided no rebuttal letter or oral hearing testimony in response to Dr. McCarthy's report or hearing testimony. In addition to Dr. McCarthy's study of downstream wetland hydrologic impacts, to further respond to Mr. Mann's letter's statements concerning downstream wetland hydrology concerns, the Applicant had natural resource ecologist Theresa Dusek (the author of the Habitat/Wildlife Assessment and Stream Study Report for the Sunset Bluff proposal) visit the downstream wetland with Dr. McCarthy and prepare a letter report to summarize her findings concerning the existing hydrological, soils and vegetation conditions in that wetland. That letter was submitted into the record as Exhibit 42. Based upon Dr. McCarthy's study of existing and post -Sunset Bluff development hydrological conditions in the wetland depression, Mrs. Dusek concludes in her letter (at page 3) that "[v]egetation in the wetland depression ... will not be significantly effected by the addition of water from the project site" and that "[b]ecause the hydroperiod of the wetland depression will not significantly alter the vegetation structure and plant species richness in the depression and surrounding wetland system, the wildlife that uses the wetland depression and surrounding areas will not be significantly impacted either." CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 26 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 The applicant went an even further step in responding to Mr. Mann's letter's statements concerning downstream wetland hydrology concerns. The applicant hired wetland ecologist Raedeke Associates' Emmett Pritchard, who has a background in wetland forests, to specifically evaluate the Sunset Bluff project's potential for impacting the existing trees in the downstream wetland. His April 26, 2004 letter report (Exhibit 69) explains that he "observed three distinct forested vegetation communities within the off -site wetland area" (Exhibit 69, page 2), his "observations of site hydrology appears (sic) to support [Dr. McCarthy's] predicted fluctuations in depth of [existing] inundation" (Exhibit 69, page 2). With respect to the trees in what he called Forest Communities 1 and 2, Mr. Pritchard concluded: Black cottonwood, Pacific willow, Oregon ash, and to a lesser extent red alder are well adapted to riparian areas with fluctuating winter -time water levels similar to those observed within the off -site wetland (Burns et al. 1990). Field evidence indicates that trees that are currently growing within Forest Community 1 and Forest Community 2 are adapted to periodic inundation ranging from 12 to 36 inches in depth. Therefore, due to the apparent ability of the trees growing in these, areas to tolerate periods winter flooding, it is not likely that Dr. McCarthy's predicted small increases in winter water levels or alterations to the hydroperiod would affect trees within these two vegetation communities. (Exhibit 69 at p. 4; emphasis added.) Similarly, with respect to the trees in what he called Forest Community 3, he concluded: Trees growing within Forest Community 3 do not appear to experience periods of inundation under current conditions. Water marks observed on the slopes of the hummocks indicate that inundation levels are more than two to three feet below the majority of the hummocks. Topographic maps used for the hydrologic analysis (McCarthy 2004) indicate that this is likely due to the greater elevation of the hummocks than the elevation of the outlet of the wetland basin to the P-1 Detention Basin. Therefore, predicted changes in the wetland CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 27 I j UMN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 hydroperiod are not likely to have an impact on existing trees currently growing on the hummocks. (Exhibit 69 at p. 4; emphasis added.) Herons Forever submitted no studies of its own to controvert the findings and conclusions of Dr. McCarthy, Mrs. Dusek or Mr. Pritchard concerning the alleged impacts to the downstream wetland. Accordingly, those findings and conclusions ought to be considered verities for purposes of this appeal. 2. Site Clearing and Grading Impacts Issue Appellant's letter asserted: Herons Forever will present testimony and evidence demonstrating that the expected construction activities necessary to clear and substantially regrade the proposed preliminary plat will cause significant adverse environmental impacts to the existing heronry. The wildlife report submitted by the applicant and approved by the ERC provides only a cursory statement of these impacts and fails to provide any supporting documentation to support its blanket conclusion that no impacts will occur. The documentation does not provide any analysis of noise, nor timing of construction relating to nesting or breeding times. The DNS also fails to condition development so that it does not interfere with nesting and breeding. Herons Forever set forth a purported "demonstration" concerning this issue in Dr. Kate Stenberg's April 18, 2004 letter to attorney David Mann (part of Exhibit 12). In the letter's subsection entitled "Construction Activity Impacts" (which begins on page 4 of the letter), Dr. Stenberg starts out with the following statement: The City apparently did not consider impacts to the Great blue herons from construction noise and activity. The potential for such impacts was dismissed based solely on a distance to the colony. However, the information relied upon by the City in reaching this conclusion was erroneous. The distance of the proposed development to the colony is listed as 1100 feet throughout the application materials. However, this distance is measured from a point at the center of the CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 28 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4 5 6 7 8 9 10i 11 12' 13 14 15 16 17 18 19 20 21 22 23 24 25 Main Colony and is overlain on an aerial photograph which does not appear to maintain an accurate scale across all portions of the photograph. Heron colonies are best described as polygons, rather than as points. The distance from a proposed activity to a heron colony is properly measured to the nearest nest of that colony. The majority of the nests of the Black River Colony are now found to the west of the "Main Colony" in an area called the "Protected Forest." The distance from the development to the nearest nest in the Protected Forest is about 950 feet (see Figure 1 and Figure 2.) (Emphasis added.) In response, first note that, contrary to Dr. Stenberg's assertion that "[t]he City apparently did not consider impacts to the Great blue herons from construction noise and activity", the testimony of Jason Jordan (summarized on pages 19 through 20, above) makes clear that the ERC did consider those issues. Those alleged impacts were addressed in the Herons Forever project comments letter (Exhibit 79) and the February 7, 2004 letter from Dr. Stenberg. Mr. Jordan's unrebutted testimony was that the ERC considered not only the extensive Sunset Bluff application materials but also the public comment letters, including the letters that became Exhibits 79 and 80. Further, there is no showing in the record that the potential for such impacts was dismissed "based solely on a distance to the colony". While distance was obviously a factor (as well as it should be), proximity to the adjacent Black River Quarry and its historic extensive site mining activities likely provided a basis for comparison (with the Sunset Bluff project site construction to last a far shorter time (and thus have less potential for impacts than does the Quarry) than did the quarrying operations and the current, intensive construction materials recycling business that continues to operate on that site. As to Dr. Stenberg's comments concerning the location between the heron colony and the site, during the applicant's hearing presentation the applicant submitted revised aerial photo exhibits (Exhibits 60 and 77) which make clear that the distance between the nearest portion of CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 29 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 a 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 the more properly drawn edge of the heron colony and the site was about 980 feet (300 meters). The roughly ten percent difference between that figure and the 1,100 foot figure mentioned in the application materials appears to be relatively inconsequential. Page 4 of Dr. Stenberg's letter continues with the following assertions: The Washington State Department of Fish and Wildlife (WDFW) conducted an extensive literature review in developing their management recommendations for Great blue herons (Quinn and Milner 1999.) WDFW notes that disturbances of heron colonies have been reported at distances of over 2600 feet. Even in more urban areas such as King County, studies have shown that colony size decreases when construction activities take place within 1000 feet of heron colonies. WDFW recommends that activities such as logging or construction should not occur within 3281 feet of a colony. Clearly the Black River colony is well within these parameters for a probable adverse impact from the clearing and construction activities proposed on the hillside. The proposed development would also involve substantial re -grading of the hillside, a much more significant change than simple logging. (Emphasis added.) The extensive April 19, 2004 Great Blue Heron Assessment report for the Sunset Bluff project prepared by Dr. Ken Raedeke (Exhibit 39) and the 2001 masters thesis entitled "Great Blue Herons in King County, Washington" prepared by University of Washington student Amy Stabins (under the supervision of Dr. Raedeke, who was the Chairperson of the University of Washington Supervisory Committee involved with Ms. Stabins master's thesis) (Exhibit 40) along with Dr. Raedeke's testimony totally refuted Dr. Stenberg's claim that large buffers are even a factor in heron colony success. The research data -based approach that Dr. Raedeke used (focusing to a significant extent upon Ms. Stabins' recent King County data collection and analysis) was in stark contrast to the anecdotal comments approach that Dr. Stenberg relied upon in her assertions at the hearings and in her letters relating to alleged Sunset Bluff project impacts. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 30 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Dr. Raedeke's written report (Exhibit 39 at page 5) addressed the fact that one of the studies that is cited as a purported basis for large buffers from logging (a study short on data that dealt with timber harvesting in a remote portion of Oregon) is so statistically deficient as to be without any statistical merit. However, the most telling thing concerning logging with respect to the Black River Heron Colony, however, is that extensive logging occurred within the property that is now the City park during mid -February of 1987 (the early part of the heron nesting season) up to a point that was only about 320 feet away from the nesting trees and yet the number of active nests in the colony actually increased consistently each year from 1986 through 1990. No drop in active nests occurred as a result of that logging. 16 Because the Sunset Bluff site is three times as far 16 Note applicant's attorney's examination of Dr. Raedeke concerning the logging: DAVID HALINEN: You were here, were you not, today during the testimony of Mrs. Dusek when she was discussing the area that'd been logged within the wetland depression that lies to the south of the site? KEN RAEDEKE: Was I here? Yes, I was. DAVID HALINEN: And, did you, did you hear her testimony concerning that logging that had occurred down there? KEN RAEDEKE: Yes, I did. DAVID HALINEN: And, I take it, then, you heard her testimony regarding the fact that the number of, of, that there's an increase in heron activity the following, the year following that logging? Could you comment on that as it relates to the idea that we should have to have some type of monitoring? KEN RAEDEKE: The only data we have is, that would answers, that would be this one here. We had '86, '87,'88 . You see that heron numbers increased, and it's almost a linear increase from here to there. There is no, there is no big drop in '87, '88, so my conclusion would be that that logging.... HEARING EXAMINER: We don't know when that logging occurred. KEN RAEDEKE: Well.... HEARING EXAMINER: It's clear from the testimony, it's sort of a vague period from maybe March through the summer. It could have been at the end of the summer, could have been at the beginning of the nesting season. So we really don't know when the disturbance CLOSING BRIEF OF HALINEN LAW OFFICES, P.S. APPLICANT SR 900 L.L.C. - 31 AProfessional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 away from the colony as was the logging and grading that occurred on the north side of the colony during the start of the 1987 nesting season, one can only reasonably conclude that logging and grading of the Sunset Bluff site will not impact the heron colony either. No rational basis exists here for the imposition of construction season limits. As to Dr. Stenberg's assertion that "WDFW recommends that activities such as logging or construction should not occur within 3281 feet of a colony", that assertion is false. WDFW wildlife biologist Patricia Thompson, who testified during the hearing on April 29, 2004, made that clear in the following examination by: HEARING EXAMINER: Ok, but by testimony we've heard and I, you know, that's testimony we've heard, your agency has come up with protection strategies and this development is outside the radii of those buffers. PATRICIA THOMPSON: Yeah, that's, that's confusing. And even, you know, everybody gets confused with this. We have what's called a permanent protection buffer, into which, basically, no intrusion should occur. However, people do walk in there, you know, there are trails in there. And then we have a construction buffer. The protection buffer, where, where no activity is supposed to take place is the 300 meters, the 928 feet. The construction buffer, where timinz restrictions are imposed on logaina and construction is activity besides that fact that the property was cleared and remained cleared until it started re- growing, right? KEN RAEDEKE: That's true. I don't, I don't know when it is either. HEARING EXAMINER: Okay. KEN RAEDEKE: If, the only information we have that that logging, regardless of when it occurred, did not affect population growth in that colony. (Emphasis added.) While, at the time of this April 29, 2004 examination of Dr. Raedeke, he did not know when during 1987 the logging had taken place, that question was definitively answered during the May 10, 2004 when Herons Forever submitted into the record Exhibit 100, which is a copy of a February 19, 1987 letter to the then owner of the property that was being logged (First City Development) advising that the City's Building and Zoning Department had posted a Stop Work Order on the property because "[i]nformation has been obtained that the Blue Heron population on this site is being jeopardized by the work being performed: tree cutting, grading, etc." (Emphasis added.) CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 32 HA.LINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 1,000 meters, which is three thousand, two hundred odd some feet. So people, a lot of times, forget and confuse, a lot of times forget the construction buffer is different from the permanent buffer and, and, you know, it does get confusing. I mean, even I look at it and get confused. So there are actually two different things. DAVID MANN: May I interject. Are those minimum numbers? PATRICIA THOMPSON: Those are — yes -- those are minimum buffers. HEARING EXAMINER: Okay, but, again, these are recommendations? PATRICIA THOMPSON: Yes, absolutely. We do not regulate heron habitat. These are recommendations. (Emphasis added.) Page 5 of Dr. Stenberg's letter asserts: The topographical considerations are also important in evaluating the impact of construction noises. Noises that are generated on the hillside above the colony are likely to attenuate less rapidly than noises that are generated from a level ground. Noise generated at ground level, rather than from a hillside face, may be absorbed by intervening vegetation and ground level changes, barriers which the air does not present. However, the City did not consider the impacts of noise construction on the herons in its evaluation of the impacts. (Emphasis added.) While topographical considerations do have a bearing on noise attenuation, that bearing is not nearly as significant as the attenuation played by distance, which is something that Gregg Zimmerman, P.E. (the engineer who is the Administrator of the Renton Planning/Building/Public Works Department and who is the chairman of the Renton Environmental Review Committee) undoubtedly knows. Jason Jordan's testimony to the effect that the ERC reviewed Dr. Stenberg's and Ms. Krom's February 7, 2004 and February 8, 2004 letters make clear that Mr. Zimmerman and the ERC considered the construction noise impact issue. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 33 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Page 5 of Dr. Stenberg's letter asserts: The materials submitted by the applicant also claim that the heron colony did not experience a_Y impacts from the periodic blasting that used to occur at the quarry to the west. This claim is unsubstantiated and not supported by the heron monitoring results. The quarry is even further away from the heron colony than the proposed development. Yet despite the increased distance, it was not until after the blasting virtually stopped, that the number of nests in the Protected Forest part of the colony more than doubled. The number of nests in the Protected Forest increased from about 43 nests in 2001 to more than 95 in 2002 (see Attachment 1). (Emphasis added.) The Applicant has reviewed the SEPA checklist, the project narrative and the Habitat/Wildlife Assessment and Stream Report that were submitted to the City as part of the Sunset Bluff preliminary plat application and finds nothing that would support Dr. Stenberg's assertion that "[t]he materials submitted by the applicant also claim that the heron colony did not experience any impacts from the periodic blasting that used to occur at the quarry to the west." (The Applicant is willing to stand corrected if the Appellant can find such a statement in any of the application materials.) Regardless, Dr. Ken Raedeke's hearing testimony indicates that the data is inadequate to substantiate a causal connection between the cessation of blasting at the Black River Quarry and the growth in the number of active heron nests. Too many factors play into the ups and downs of the number of active nests for Dr. Stenberg to be so dogmatic as to her assertion of such a causal connection. Page 5 of Dr. Stenberg's letter continues with the following assertions: The WDFW also recommends seasonal construction limits of February 15 to July 31 and that site -specific management plans be developed for each great blue heron colony. In the case of the Black River heron colony, monitoring data document that the herons at Black River arrive earlier than most other colonies in the Puget Sound region. At Black River, the herons are consistently observed at the colony starting nesting activities of staging and courtship by mid - CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 34 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 January. This early portion of the nesting season, during staging and initial nest renovation and courtship has also been documented as one of the most sensitive times of the life cycle. Therefore, construction windows at the Black River heron colony should be from January 15 to July 31. (Emphasis added.) The lack of justification for seasonal construction limits for the subject project is discussed on pages 31 and 32, above. Not only is the need lacking, the burden of the Appellant's proposed construction window (August I through January 14, 2004) would be so great as to make project construction virtually impossible. Note the following examination of Jason Jordan on the amount of time expected to do the site infrastructure work: DAVID HALINEN: And, on a site like this, where there are steep slopes involved, clearing and grading work to be done that's of the extent of the proposal, do you have an opinion as to how much time that would reasonably take out at the site to accomplish that? JASON JORDAN: Well, like I said, for less -complicated sites, they could, you know, do the amount of earthwork, grading, and things like that in two or three months. With a site like this, I would expect this to take the entire building season, with the amount of land -clearing that needs to happen and, then, the amount of grading. (Emphasis added.) Note that a "site -specific management plan" for the Black River Heron Colony was established in what was called the 1991 "Memorandum of Agreement" (or "MOA"). Dr. Raedeke summarizes it on page 15 of his report (Exhibit 39) as follows: 4.0. HABITAT APPROACH TO WILDLIFE PROTECTION The 1991 Memorandum of Agreement (MOA) among the City of Renton, private property owners to the south, and interested environmental groups concerning the Black River heron colony was based on a habitat approach that provided for consideration of the overall needs of the herons and other wildlife rather than the application of rigid rules applied to a single group of heron nest trees. Habitat approaches have been adopted by the WDFW and federal agencies as the CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 35 HALINEN LAW OFFICES, P.S. A Professional Seruiee Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 BelleN'ue, Washington 98004 (206)443-4684 1 2 3 4 5 6 7 8I 91 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 best way to protect wildlife of special public interest (e.g., bald eagle nest sites and spotted owls). The habitat approach previously adopted for Black River heronry protection in the 1991 MOA included the following design elements: • a 500-foot buffer from the most northerly of the -then -proposed office buildings to the nearest of the nest trees on the island in the P-1 Detention Basin • retained vegetation within that buffer for screening of the office development to the south • a riparian forest separated from development by the P-1 Detention Basin • elimination of development proposals for 62 acres of land around the riparian forest sold by the property owner to the City of Renton as permanent open space and wildlife habitat • an expanded riparian forest providing alternative nest sites and an area of younger trees for new nests that will continue to be available over time as the trees on the island die or blow down These elements of the MOA augmented the habitat by the City of Renton and the other property owner surrounding the heron colony, including: • dedication of 17.5 acres of land to the City of Renton for construction of the P-1 Detention Basin • planting of vegetative screening along the margins of the P-1 Channel and Detention Basin • dedication of 20.0 acres of land to the City of Renton for riparian forest wildlife habitat • sale of 62.2 acres of land to the City of Renton for permanent open space and wildlife habitat The habitat conditions within the entire City of Renton Black River open space complex already greatly exceed the minimum habitat recommendations for heron nest colonies by WDFW (1991). In WDFW's 1991 habitat management guidelines, a minimum 10-acre stand of large trees buffered from disturbance is recommended. The combined 100 acres of riparian forest and retained forest stands, detention basin, open space, and existing buffers greatly exceeds this habitat recommendation. (Emphasis added.) Development of the Sunset Bluff site was not limited in the MOA. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 36 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 2 3 _.4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Page 5 of Dr. Stenberg's letter continues with the following assertions: Any analysis of the potential construction activity impacts to the heron colony and other wildlife must consider the timing of the impact in relation -._.to._the__life..._c__y_cle_.of-_the_species._Many_.. wildlife species. such as the -herons -have periods of the year, often related to breeding activities, during which they are much more sensitive to disturbances. There are often site -specific differences in sensitivity that make a simple "bulls -eye" around a colony less useful or unnecessary. The WDFW recommends developing a site -specific management plan that addresses these unique characteristics of a particular colony. The evaluation of impacts conducted by the City did not consider the seasonal or site - specific nature of sensitivity to disturbances. (Emphasis added.) In view of the MOA and the subject heron colony's growth in the face of much nearer logging and grading, no reason exists to consider the timing of development of the Sunset Bluff site in relation to the heron life cycle. On page 6 of the letter, Dr. Stenberg concludes this section of her letter with the following statement: Impacts to the Black River heron colony from the clearing, substantial re -grading of the hillside, and construction activities proposed are likely for several reasons: a) the colony is well within the distances reported in the literature and the WDFW recommendations for limits on construction activities; b) the hillside development is above the colony and is not screened from the colony by a_Y si ni scant topography or vegetation; c) the development is proposed to the north of the colony in an area that has traditionally been relatively free of human activity or noise; and d) the herons have been observed to be more sensitive to disturbances from this direction. The potential adverse impacts to the herons from construction activities on the hillside have not been evaluated by the City. At a minimum seasonal construction limits on outdoor construction and land clearing or grading of January 15 to July 31 should be imposed on any developments within the Black River heron colony area of sensitivity. Retention of existing vegetation on the hillside could also help to mitigate this impact on the heron colony. The proposal to remove all of the vegetation from the top of the slope to the bottom only increases the impact of construction activity on the heron colony. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 37 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 (Emphasis added.) Contrary to Dr. Stenberg's assertion that the proposed development is not screened from the colony by "any significant vegetation", approximately a 320-foot deep stand of site -block trees lies between the site and the colony. The trees are so extensive that only one of the colony's nests can be seen from the site during the year (and vice -versa). (See pages 51 through 54 for an elaboration.) Contrary to Dr. Stenberg's assertion that the development is proposed to the north of the colony in an area that has traditionally been "relatively free of human activity or noise", (a) an active freight rail line lies directly between the site and the colony, (b) the Black River Quarry operations are conducted to the northwest, (c) the 240-unit Sunset View Apartment Homes development lies to the north-northwest and (d) homeless persons camps have arisen on the Sunset Bluff site itself. As to Dr. Stenberg's assertion that "the herons have been observed to be more sensitive to disturbances from this [north] direction", such an assertion is beyond proof. It is rank speculation. Dr. Raedeke's testimony refuted it. 3. Removal of Existing Forest Cover Issue Appellant's letter asserted: Herons Forever will present testimony and evidence demonstrating the importance of the existing forest cover on the subject property to the heron population within the Black River Riparian Forest and that the planned removal of the majority of this forest will result in significant environmental impacts. For example, rather than focus on the amount of canopy removed, the wildlife report submitted by the applicant and approved by the ERC describes only the relatively minor portions of the site that will not be cleared. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 38 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Herons Forever set forth a purported "demonstration" concerning this issue in Dr. Kate Stenberg's April 18, 2004 letter to attorney David Mann (part of Exhibit 12). In the letter's subsection entitled "Impacts from Clearing Hillside Vegetation" (which begins on page 6 of the letter), Dr. Stenberg starts out with the statement that "[t]he City staff reports characterize the vegetation as heavily wooded with trees ranging from 36 inches to 48 inches in diameter." While that is in fact what the staff reports says (why it does so the Applicant does not know), as Dr. Stenberg seemingly must know if she is as familiar with the Sunset Bluff site as she claims to be, either none or virtually none of the trees on the site are anywhere close to that diameter because the forest on the Sunset Bluff site is "less than 50 years old with most trees determined to be 39 to 45 years old." 17 Trees that have diameters of 36 inches to 48 inches simply don't grow that fast. A number of ground photos of the site taken by wildlife ecologist Theresa Dusek (Exhibits 49 through 51) illustrate that the site's trees are far smaller than the "36 inches to 48 inches in diameter" statement made in the Staff Reports. Three pages of colored site photos labeled "Figure 3" and attached to Dr. Sternberg's letter as part of Exhibit 12 show mostly very 17 As Theresa Dusek explains on page 13 of her Habitat/Wildlife Assessment and Stream Study Report (part of Exhibit 1): During our field survey, we found that the upland deciduous forest located on the site and the east 300 feet of the western road route is composed of a moderate canopy (with a cover ranging from 40% to 60%) dominated by big leaf maple and red alder. Minor trees scattered throughout the forest include Douglas fir and black cottonwood. The understory is dominated by blackberry and other non-native species in the western portion of the site and the east 300 feet of the western road route and by more native sword fern, salal, Oregon grape and snowberry in the eastern portion of the site. Several trees were cored to determine the age of the forest. The forest is less than 50 years old with most trees determined to be 39 to 45 years old. Snags on the site were small (less than 12 inches d.b.h.). CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 39 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 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 slender trees. In sum, the reference in Dr. Stenberg's letter to the obviously erroneous statement in the Staff Reports (a) causes her letter to cast a false impression as to existing site conditions and makes totally disingenuous her follow-up statements that "[f]or second growth forest patches in the urban area, those are very significant tree sizes and represent trees with a tremendous value for wildlife" and "[t]here was no tree survey included in the application materials and the City did not evaluate the impacts of removing such significant trees". (Emphasis added.) Page 6 of Dr. Stenberg's letter continues with the following assertion: The herons in the Black River colony also use the hillside area extensively for a variety of activities that are critical to the sustainability of the colony. Adult and juvenile herons loaf in the mature trees on the hillside (see Figure 3.) They are frequently observed foraging in the large category I wetland that is located at the eastern edge of the proposed development. This wetland area serves the same critical function for breeding females and juveniles as the P-1 Pond. In addition, the forest on the hillside provides critical nesting material for the 130 + nests of the heron colony. Small branches and twigs are a commodity that is becoming increasingly scarce in the urban environment. A number of years ago, a pair of Osprey that were attempting to nest in Bellevue were observed stealing twigs from occupied Great blue heron nests in Mercer Slough due to the lack of suitable materials in the developed portions of that city. (Emphasis added.) "Figure 3" to which this statement refers is a three -sheet set of colored photos with typewritten comments on them. Only one of those three sheets (the first sheet, as to the two photos on its right-hand side) show what may be herons perched on tree limbs. Neither of those photos suggest that the trees involved are on the hillside —in fact, the lower right hand photo makes clear that the trees are on flat ground very close to the railroad tracks and, thus, (Emphasis added.) CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 40 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 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 likely to be within the 100-foot wide BNSF railroad right-of-way that lies between the Sunset Bluff site and the City park. The Stenberg letter's assertion that the "large category I wetland" "is located at the eastern edge of the proposed development" is inaccurate and misleading in two ways. First, nearly the entirety of that wetland is located to the south of the eastern portion of the Sunset Bluff site's south boundary. (Only about 6,078 square feet (0.14 acres) or 4.66 percent of the approximately 3-acre wetland lie on the site.) Second, none of that wetland lies along the proposed development's edge. All points along the wetland's edge are at least 100 feet from any proposed site disturbance. Except for the wetland's northwesterlymost tip (at which the proposed buffer's 100-foot width just meets the City code's 100-foot buffer requirement from a Category 1 wetland), the rest of the wetland lies approximately 200 feet away from the nearest portion of the site planned to be disturbed (i.e., the proposed entrance road to the north of the wetland). Further, the nearest proposed lot (Lot 65) is 230 feet from the wetland's northwesterly tip and even further from the rest of the wetland. Along nearly all of the wetland's edge, the applicant's proposed placement of the 4.70-acre native growth protection easement to the north and northeast of the wetland (see page 1 of 11 of the Sunset Bluff preliminary plat drawings, part of Exhibit 1) will provide significantly more buffering of the wetland than the 100-foot wide buffer that the code requires (and more than the 150-foot width that Dr. Stenberg's letter suggests —see page 42, below). Assuming, arguendo, that the forest on the hillside does currently provide some of the nesting material for the heron colony", it is impossible to believe that, after the Sunset Bluff site CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 41 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 is completed, the mostly -forested, 100-acre City park in which the heron colony exists together with the planned 4.70=acre, forested native growth protection easement area will be incapable of adequately supplying the heron colony with enough small branches and twigs for nest building. Further, assuming, arguendo, that "a pair of Osprey that were attempting to nest in Bellevue were observed stealing twigs from occupied Great blue heron nests in Mercer Slough, the assertion that they were doing so "due to the lack of suitable materials in the developed portions of that city" is rank speculation and totally irrelevant to the Sunset Bluff proposal. (Did the Osprey report their reasoning to the purported observer?) These statements in Dr. Stenberg's letter illustrate the type of nonsense upon which Herons Forever has premised its assertions of "significant impact". Page 6 of Dr. Stenberg's letter continues: Critical foraging periods for herons are during nesting, when adults cannot be away from the nest for very long, or they have chicks that need to be fed frequently, and in the late summer for juveniles, when they are first learning to forage on their own. Studies have shown that during these critical periods, herons will forage up to 150 feet from the edge of a wetland. The buffer around the category I wetland on the proposed development should be increased to at least 150 feet to ensure the sustainability of this critical habitat for the heron colony. (Emphasis added.) As explained above, except for the very northwesternmost tip of the wetland (where the nearest proposed disturbance will be 100 feet away), the rest of the wetland's north edge will be approximately 200 feet from the nearest portion of the site proposed to be disturbed (i.e., the proposed entrance road). Page 6 of Dr. Stenberg's letter continues: CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 42 HALINEN LAW OFFICES, P.S. AProfessional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 The mature trees on the hillside within the proposed development may function as alternate future nest sites for the heron colony. The Black River heron colony has grown in recent years, but many other colonies in the general region have abandoned and disappeared. Much of the observed growth at Black River may be due to birds moving in from other disturbed colonies. If the colony growth -is -due -to -an -in-- lul-of individttals--from--disturbed- colonies then that may be an indication that there are no other suitable locations available to establish new colonies. In the urban area, suitable nesting locations for heron colonies are likely a limiting factor in the viability of the population.. Protection of potential alternate nest sites will be critical to the long-term viability of the Black River heron colony and to efforts to prevent a listing of the species under the Endangered Species Act. (Emphasis added.) These statements by Dr. Stenberg make clear that impacts to the existing colony are not really at issue. Instead, what Herons Forever wants is space for expansion of not only the existing colony but space for relocation of herons that she thinks may be being displaced throughout the urban area. These statements further confirm that Herons Forever's appeal is in reality a collateral attack on the four City Council decisions that authorize the type of development approval that the applicant is seeking. (Also, see pages 56 through 59, below.) Page 7 of Dr. Stenberg's letter continues: Herons prefer to nest in large stands of trees that are separated from surrounding activities by a forested buffer. As the trees in the BRRF mature (assuming that impacts to wetlands and wetland vegetation are controlled), there may be room for the heron colony to expand or shift its focus slightly to the north, provided that there is sufficient remaining forest buffer to protect this use. Development proposals that maintain a greater amount of forest vegetation on the hillside and/or establish screens of coniferous vegetation are more likely to avoid or minimize potential impacts to the heron colony. This proposed development with the proposed clearing and re -grading of the entire hillside from the top of slope to the railroad tracks at the bottom does not achieve this goal. The City did not evaluate the potential impacts of removing all of the vegetation from the hillside. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 43 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NB 8th, Suite 1900 Bellevue, Washington98004 (206)443-4684 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Emphasis added.) Assuming, arguendo, that herons actually do prefer to nest in large stands of trees that are separated from surrounding activities by a forested buffer, the subject heron colony is wonderfully situated as it is near the center of the heavily -wooded, 100-acre City park. Nearly 300 meters of forest lie between the existing heron colony and the site. As demonstrated by Dr. Ed McCarthy and Mr. Emmett Pritchard (see pages 24 through 28, above) the Sunset Bluff project is not anticipated to impact the trees in the downstream wetland depression. The Applicant is under no legal duty to preserve forest vegetation on the hillside or to establish screens of coniferous vegetation for the benefit of the City park. The extensive park lands were acquired, presumably, to provide a buffer around the heron colony. The Renton City Council made policy choices that "enough forest buffer is enough" when it (a) declined to also acquire the Sunset Bluff site to include in the park, (b) annexed the Sunset Bluff site into the City in 2000, (c) amended its Comprehensive Plan Land Use Map to designate most of the Residential Options (R-O), (d) downzoned the corresponding portion of the site to R-10, (e) entered authorized a development agreement with the site owner containing the three Site -Specific Restrictions quoted in footnote 6, above) and (f) when it adopted its Habitat Conservation performance standards as part of its Critical Areas Regulations. Especially telling is the Development Agreement's Site -Specific Restriction 2 (the fence condition), which states that the fence "may lie either north of or south of stormwater facilities anticipated to be constructed along the southerly portion of the site and along the RC -zoned strip of land owned by Owner. (Emphasis added.) Given that restriction's language, it is clear that the Council contemplated that the southerly portion of the site would have stormwater CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 44 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 -4 5 6 7 8 9 10 11 12 13 14 15 16 17 facilities constructed within it and would not be left treed. That conclusion is reinforced by the fact that restriction 3 prohibits residential or recreation buildings on the property within 100 feet of the Burlington Northern and Santa Fe Railroad right-of-way that lies to the south of the property but does not prohibit any other use of that strip. Why not? Because Restriction 2 contemplates stonmwater facilities within that 100-foot wide strip. (Note that following the Council's authorization of the Development Agreement, the applicant and the City executed it and it is legally binding on the City.) As to Dr. Stenberg's assertion that "[t]he City did not evaluate the potential impacts of removing all of the vegetation from the hillside", the City did not need to do so because the Sunset Bluff project does not contemplate removing all of the vegetation from the hillside. As Dr. Stenberg chooses to ignore, 4.70 acres of the Sunset Bluff site are planned to be left undisturbed in a native growth protection easement. Further, when the City Council authorized the Development Agreement, the language of Site -Specific Restrictions 2 and 3 made clear that the southerly portion of the site was going to be cleared for stormwater facilities. Page 7 of Dr. Stenberg's letter continues: 18 The hillside is proposed to be hydroseeded with grasses after re -grading but there is no other revegetation proposed. This will not result in any mitigation for 19 impacts from removal of the "heavily wooded" habitat composed of trees 36 20 to 48 inches in diameter. The "landscaping" condition imposed in the DNS-M is not specific enough to provide mitigation for any of the habitat impacts. 21 (Emphasis added.) In this paragraph, Dr. Stenberg once again tries to take advantage of the 22 2311 obvious error in the Staff Reports about the diameters of the trees on the site. (See pages 39 24 CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 45 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 through 40, above.) No mitigation for removal of 36-inch to 48-inch diameter trees on the site is necessary because such trees don't exist on the site. On page 7 of the letter, Dr. Stenberg concludes this section of her letter with the following statement: In addition to impacts to the herons, clearing the hillside of all vegetation would impact several other listed species including the threatened Bald eagle and the state candidate Pileated woodpecker. Bald eagles have been observed resting and foraging on both the hillside and in the BRRF. The presence of the state candidate Pileated woodpecker are documented in the application materials. These species would be impacted directly by a permanent loss of habitat (see Figure 3.) The habitat assessment submitted with the application materials does not evaluate the impacts of the loss of over 20 acres of mature, heavily forested habitats to these species as the Renton Municipal Code appears to require. (Emphasis added.) Whether or not the assertions in this statement are true, the statement goes beyond the scope of the issues, identified in David Mann's April 8, 2004 letter identifying appeal issues and is thus irrelevant to the determination of the appeal. As noted above, the proposal does not involve "clearing the site of all vegetation" since 4.70 acres are proposed to be left undisturbed in a native growth protection easement. Further, the habitat assessment submitted with the application materials does evaluate the impacts of the loss of over 20 acres of forest, although perhaps not in the fashion that Dr. Stenberg would like. Of course, as noted above, the forest is not nearly as "mature" as Dr. Stenberg's repeated allusions to the misstatement in the City Staff reports about the site's trees ranging in diameter from 36 inches to 48 inches suggests. 4. "Increased Nighttime Activity from 65 New Residents" Issue Appellant's letter asserted: Herons Forever will present evidence and testimony demonstrating that the increased nighttime activity from the proposed 65 new residents will result in CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 46 HALINEN LAW OFFICES, P.S. AProfessional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 significant impacts to the adjacent heronry. For example, the wildlife report submitted by the applicant and approved by the ERC concludes that there will be no impacts because it claims there were no impacts from periodic rock blasting from a nearby quarry. The report ignores that since blasting ceased several years ago, the size of the heronry has significantly expanded. The wildlife report evening hours. Herons Forever set forth a "demonstration" concerning this issue in Dr. Kate Stenberg's April 18, 2004 letter to attorney David Mann (part of Exhibit 12). In the letter's subsection entitled "Noise and Light Impacts from an Occupied Development:" (which begins on page 7 of the letter), Dr. Stenberg starts out with the following statement: A residential development as proposed would be occupied 24 hours a day. The heron colony is accustomed to some levels of human activity during daylight hours. The commercial developments to the south and east are primarily occupied during working hours. Despite this limited occupancy, the commercial developments close to the colony have had an impact, as we have shown above, with the majority of the nests slowly moving away from the occupied office park. The current recreational activities that occur at the BRRF also occur during daylight hours. The evaluation of impacts did not consider the impact from lengthening the period of activity in the vicinity of the heron colony. (Emphasis added.) While it is true that the proposed Sunset Bluff development will likely to some extent be occupied "24 hours a day". However, during most of the night, people will be in bed sleeping. Thus, the 24-hour a day "occupancy" doesn't equate to 24-hour per day site activity. Further, while it may be true that the commercial developments to the south and east are primarily occupied during working hours, it is more likely that activity during the wee hours of the night will occur there than within the Sunset Bluff development. Commercial developments often have cleaning services do cleaning work during the night, which involves during on development lighting. Parking lot sweeping services often do there work in CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 47 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 commercial developments during the wee hours of the night, which is when the number of parked cars in the way is at a minimum. Light and noise impacts from such activities can be much more extensive than those that would occur in a single-family residential development. Thus, Dr. Stenberg's assertion that the Sunset Bluff development would result in "lengthening the period of activity in the vicinity of the heron colony" is nothing more than speculation. As to Dr. Stenberg's assertion that "the commercial developments close to the colony have had an impact ... ," the applicant denies that the Sunset Bluff homes will be "close" to the colony. As Exhibit 38 illustrates, the proposed lot nearest to the colony will be 1,120 feet away. With a 25-foot wide rear building setback on the lot (from the top edge of slope), the house on that lot will be around 1,145 feet away. That is over twice the 550-foot distance that exists between the "main nesting tree" on the island in the Black River Riparian Forest and the Black River Corporate Park building to the south of the colony. (By scaling Exhibit 38, that Black River Corporate Park building and the colony's south edge is found to be only 465 feet.) Almost all of the other homes within Sunset Bluff will be over 1,250 feet away from the colony. Thus, the conclusion that Dr. Stenberg seeks to draw between the Sunset Bluff project and the commercial developments to the south is not rational. 18 18 As anyone who took high school physics knows, the intensity of noise and light radiation diminishes in proportion to the inverse square of the distance from the noise or light source. Thus, for a source that is twice as far away as a closer source, the same level of noise or light emitted will have only one-fourth the intensity at the receiving location. That being the case, particular levels of light and noise from the much closer buildings to the south would tend to have relatively much more light and noise impact upon the heron colony than would the same levels generated by the Sunset Bluff residences. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 48 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 --- 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Further, as to Dr. Stenberg's assertion that "the majority of the nests [have been] slowly moving away from the occupied office park", the applicant's heron expert, Kenneth Raedeke, PhD, refuted that assertion during his April 29th hearing testimony. He explained: I don't see any relationship to the Black River Corporate Park that was built there because they were in there before that and they've been in there after that. They've been in the main colony before and main colony after, and I don't, I don't see that that's one connection you can make. There are a, a number of changes, a number of other possible, plausible explanations. One is those trees in the main colony are starting to deteriorate. As we provided testimony and photographs in the 1999 hearings, those main trees have, already have some substantial dead branches, etcetera. They're more open so that, between predation, changes in trees, a number of conditions, you could come up with plausible explanations for why they might move out of there, if they did. In addition, unlike the commercial buildings to the south (where parking lots exist on the building side facing the colony, parking lots which, as noted above, may be used by cleaning crews during the wee hours of the night and which may themselves be cleaned during the night from time -to -time by noisy street sweepers), the street that will serve the proposed Sunset Bluff lots will be entirely on the north side of the south row of the narrow lots. As a result, the homes themselves on these lots will substantially shield the colony from vehicle noise and headlight glare. With the backyards of the south row of Sunset Bluff homes facing the City Park, very little night-time light or noise would be anticipated. In sum, Dr. Stenberg's statement certainly was not any demonstration of any significant nighttime activity impacts upon the heron colony. Page 7 of Dr. Stenberg's letter continues: The materials considered by the City also erroneously conclude that since the herons did not appear to respond to the blasting at the quarry that there would be CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 49 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 5 6 7 8 9', 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 no impact. As we have shown above, the herons did have a response to the blasting that has only become apparent as that activity has ceased. Two problems are apparent with Dr. Stenberg's reasoning here. First, she alludes to having K: awli apparent as that activity has ceased". That allusion is apparently to the fourth full paragraph on page 5 of her letter, which in turn refers to an Attachment 1 to her letter, an attachment that sets forth purported active nest counts in the colony from 1986 to 2003. The number of nests have varied widely from year to year, with the number of active nests plunging to zero during 1999 due to eagle predation. With the data gyrations that have occurred during the period of listed data, it would seem impossible to draw a causal connection between apparently recent cessation in blasting and the number of active nests. The second problem with Dr. Stenberg's reasoning in that statement is that the City was simply making the perfectly rational point that the heron colony generally grew during the many years that the quarry conducted blasting, a point she apparently did not like. Contrasting the Sunset Bluff proposal (with its obviously much quieter land use) to the quarry with its historic blasting was a fair contrast to make, whether Dr. Stenberg liked it or not. If the heron colony could make it with the quarry's blasting (and continues to make it with the relatively noisy ongoing construction materials recycling operations at the quarry site), it is likely to make it with something as quiet as single-family homes. Page 8 of Dr. Stenberg's letter continues: Trained observers who monitor the Black River heron colony closely have also noticed that, despite the tremendous growth in the Protected Forest, the nests do not extend the full length of the available habitat. The trees that characterize the CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 50 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Protected Forest extend along the edge of the P-1 Pond further west than they are currently utilized. There is no apparent difference in tree height, maturity, or species composition. Observers have noticed, however, that the Sunset View apartments on the hillside above BRRF become visible at about the point where nesting activity ceases (Figure 4.) Dr. Butler, Canadian Wildlife Service, as well as-n+Ys; fee-1 that it " p0s&i7le-that-the-astivit "eise aan&4ight g- norate(4-b)-the- hillside apartments overlooking the colony may act as a deterrent to nesting. Unfortunately, it may not be possible to conclusively test this hypothesis. However, the City did not consider this evidence in concluding that a residential development directly above the heron colony would have no effect. (Emphasis added.) This statement, which Dr. Raedeke refuted in his testimony, is rank speculation and appears highly implausible.19 It is certainly no proof that the Sunset Bluff project would have any probable adverse impact to the heron colony. This speculative nonsense is not "evidence" of a probable adverse impact that the City needs to consider. Page 8 of Dr. Stenberg's letter continues: Researchers agree that noise can affect an animal's physiology and behavior, and if it becomes a chronic stress, noise can be injurious to an animal's energy budget, reproductive success and long-term survival. k reproductive success and long- term survival are affected, even if individuals are still present in an area, the suitability of the habitat to support the species has been reduced. As with the heron's responses to the adjacent commercial development, it may take several years for this impact to be fully recognized. However, it is important to remember that the coastal Great blue heron is only found in the greater Puget Sound region, is apparently declining throughout the region, and that the Black River colony represents about six percent of the current population in Washington. To dismiss an impact because it may be hard to measure and may take several years to be fully observed is contrary to state SEPA policy and the City of Renton's comprehensive plan policies. (Emphasis added.) Dismiss an impact? What impact? This is further speculative nonsense. Dr. Stenberg's discussion does not demonstrate any noise impact from the proposed development. 19 Maybe there is a hornets nest in the next tree to the west edge of the colony. (Do herons dislike hornets? Should the City have considered that speculation, too?) CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 51 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE Sth, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Does she think that all of the future homeowners are going to be operating air raid sirens in their backyards 24 hours a day? Two freight trains pass between the Sunset Bluff site at least twice a day at least six days per week (Exhibit 67) and a construction materials recycling business continues to operate in the Black River Quarry (SEPA checklist, part of Exhibit 1). (If the herons have acclimated to those noises, won't they acclimate to people occasionally snoring at night in their bedrooms on the hillside nearly a quarter mile away?) Page 8 of Dr. Stenberg's letter continues: The proposed development will place homes at about the I I5-foot elevation point. Lighting on houses and along the public street will be higher than that point. The ground elevation under the heron nests is approximately 30 feet and the nests are approximately 50 to 70 feet above the ground. Therefore, the activity in the residential development and any lighting will be above the heron nests. Lighting may be shielded to prevent light from impacting adjacent areas, although the City did not require this measure as mitigation. Given that the lighting will be above the BRRF, simple commercially available shielding may not prevent light and glare from impacting the protected area. Additional attention to lighting would be necessary to mitigate for impacts from light and glare on the colony. (Emphasis added.) Cross -sectional Exhibits 61A and 61B show a first floor home elevation of approximately 110 feet on the Sunset Bluff site (at the left portion of the sheet). Assuming a 30- foot tall home (the maximum permitted in the Renton zoning code for the R-10 zone), the peak of the roof will be at an elevation of about 140 feet. The second floor elevation will be at about 120 feet and the second floor windows will be at an elevation range around 123 to 127 feet. Those two exhibits also show a nest at an elevation of 130 feet in one of the heron colony's nesting trees. Theresa Dusek's April 29, 2004 testimony indicates that at the tree in question the nest was the highest in the tree. (As depicted on the drawing, that nest is slightly more than 100 CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 52 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 feet from the ground.) By counting off the grids on the cross-section drawing, it is evident that the trunk of that tree is 1,245 feet from the future house's south edge. Assuming, arguendo, that Dr. Stenberg's assertion about nests being "approximately 50 to 70 feet above the ground" is true (she says nothing about how she arrived at that range), the nests would be roughly 30 to 50 feet lower than the nest depicted on Exhibits 61A and 61B (and thus would be within an elevation range of 80 to 100 feet). Assuming that future homeowners might have a backyard light on their home at roughly the 120-foot elevation (which would be roughly the top of their first floor), the vertical difference between the light elevation and the range in nest elevation would be 20 to 40 feet. At the worst case (i.e., 40 feet), the vertical angle over the 1,245-foot distance between the tree trunk and the edge of the house would be 40/1,245 or 3.2 percent. At 20 feet of vertical difference, the percentage would be half of that (1.6 percent). Either of those slopes are so slight that it is misleading to say that the lighting is "above" the nests. What is more important than the question of whether the nests are at a slightly lower elevation than the elevation of future lights at the south side of Sunset Bluff is the fact that only one of the active nests in the heron colony is visible from the site. Note the following excerpts from Theresa Dusek's April 29, 2004 testimony: THERESA DUSEK: There's been an awful lot of discussion regarding the visibility of the herons to the new neighborhood, the visibility of the herons to the surrounding neighborhoods, and visibility from the site to the herons .... During the time that this report was put together in November 2003, it's been well - documented and well-known through my studies and my research on this particular site that during the winter months when there are no leaves on the trees that we have one nest that basically looks like a speck from the site because of the distance away that is visible to the site. The remainder of what has been determined or called the protected forest or the rookery, the colony, is not visible duringa the winter months when there are no leaves on the trees. In CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 53 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 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 addition, when leaf -out occurs, that nest is not visible, unless you are standing up on Sunset Boulevard, and then that nest is visible over the tops of the trees that are located in the open space to that particular nest. We do not know if that is an active nest or a past nex, nest. During the fall months, when we are looking at it, we did not see any activity, and have not seen any activity in that nest to this 1 . THERESA DUSEK: And, as already noted by my testimony prior, we have one nest tree that is able to be seen through the trees when they are not leafed - out. When they are leafed-out- DAVID HALINEN: And, from which location? THERESA DUSEK: From the Sunset Bluff site, from the center area where the proposal of the residence is/are, or from the railroad grade. That one single nest is visible when it is not leafed -out with the trees in the winter months, January, February. Leaf -out this year occurred about mid -March to the end of March. HEARING EXAMINER: From this cross-section location or just from somewhere ... ? THERESA DUSEK: From anywhere on the site, and that information was looked at and evaluated, that we had no visible sight distance for the habitat study, therefore, there's no, no perceived or presumed impact, significant impact to the herons. (Emphasis added.) With all but one of the nests not being visible from the site, the site is not visible from all but one of the nests. Therefore, light impacts from the site will be nil and, accordingly, there is no basis for special light fixture restrictions at the Sunset Bluff development. On page 8 of her letter, Dr. Stenberg concludes this section of the letter with the following statement: CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 54 HALMN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 __ 5 6 7 8 9' 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 The Renton Environmental Review Committee did not consider the site -specific characteristics of the topography, existing vegetation, impacts of surrounding developments, or the nature of the activities associated with a residential subdivision in reaching its conclusions on impacts of noise, light and glare on the herons. Retention of existing natural vegetation on the hillside could also proposed development. The proposal to remove all of the vegetation from the top of the slope to the bottom only exacerbates this impact. (Emphasis added.) First, contrary to Dr. Stenberg's assertion, the ERC did consider the listed issues. All of those issues were addressed in her February 7, 2004 letter to Jason Jordan (Exhibit 80) and Herons Forever's February 8, 2004 letter to Jason Jordan and, as Mr. Jordan testified during the May 10, 2004 segment of the hearing, City Staff and the ERC considered those letters (and the other project comment letters) that were timely submitted to the City. Second, Dr. Stenberg's assertion that "[r]etention of existing natural vegetation on the hillside could also help mitigate impacts to the heron colony from noise and light from the proposed development assumes that there will be noise and light impacts that need mitigation. In view of the fact that (a) the proposed development is merely a residential subdivision (generating relatively little noise or light) and (b) the site is not visible from the nests (except for one nest during the winter), no mitigation for noise and light impacts is needed or appropriate. 5. "Additional Human and Pets Interactions From the 65 New Residences" Issue Appellant's letter asserted: Herons Forever will present evidence and testimony demonstrating that additional human and pets [sic] interactions from the 65 new residences will result in significant impacts to the adjacent heronry. The wildlife report submitted by the applicant and approved by the City ignores that there is little or no open recreation space on the subject property for residents' use and that the proximity of the Black River Riparian Forest will act as a magnet for recreational use. While the CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 55 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206),143-4684 1 2 3 4- 51, 6 7. 8' 9 10' 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 report downplays the impact of dogs by relying on the Renton Leash law, the report ignores routine violations and lack of enforcement of the leash law and ignores completely the impact of domestic cats. Pages 8 through 10 of Dr. Stenberg's letter sets forth ad nausem arguments about purported impacts to the heron colony from "increased human and pet interactions". Those arguments do not merit a detailed response. They are fully refuted by the project's fencing requirements (both the Site -Specific Restriction for fencing set forth in the Development Agreement and the Staff -recommended preliminary plat condition of approval to which the applicant does not object). 6. Slope Stability and Source of Fill Issues Appellant's letter asserted: Herons Forever will present evidence and testimony demonstrating that after grading and clearing the slopes within the subject property will remain unstable with potential significant impacts to the new roadway, proposed retention pond and lots themselves. Evidence will demonstrate also that a significant amount of fill material will likely be necessary because the on -site materials will not sufficiently compact. The source of these fill materials and impacts of bringing these fill materials to the site are not analyzed. Soil stability is a non -issue. As City of Renton Development Engineering Supervisor Kayren Kittrick made clear during her April 29, 2004, the applicant will have to prove project stability to the City before any building permits are issued. As applicant's geotechnical expert Scott Dinkelman testified during the hearing, he believes that the site's soils will adequately compact and that, accordingly, large quantities of fill dirt will not need to be imported to the site. F. Even if the Imposition of the Additional Draconian Conditions Demanded bV Herons Forever Were Not Barred by RCW 43.21C.240 and the Wenatchee CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 56 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 Sportsmen/Somers Principle, Such Regulatory Burdens Would Be Unlawful or Unconstitutional. The imposition of the Draconian conditions demanded by Herons Forever would violate of -being accomplisheds as-rezltrired--by- _ -.I WAC 197-11-660(1)(c) and would violate WAC 197-11-660(1)(d)'s limitation that "responsibility for implementing mitigation measures may be imposed upon an applicant only to the extent attributable to the identified adverse impacts of its proposal." The imposition of such conditions would force applicant to bear the burden of providing and replacing heron habitat lost through innumerable actions of society at large. Such a disproportionate burden is unfair and it would be incapable of being accomplished because such conditions would render the residential development financially infeasible. In addition to violating the SEPA Rules, the imposition of such conditions would violate RCW 82.02.020, as recently interpreted by the Washington Supreme Court in Isla Verde Intl Holdings, Inc. v. Ciog of Camas, 146 Wn.2d 740; 49 P.3d 867. In Isla Verde, the Court held that an open space set aside condition is an in kind indirect "tax, fee, or charge" on new land development and, thus, was subject to the limitation that they it be reasonably necessary as a direct result of the development. At 146 Wn.2d 753-755, the Isla Verde Court explains: RCW 82.02.020 generally provides, with some exceptions, that the state preempts the field of imposing certain taxes. The statute then states, in relevant part: "Except as provided in RCW 82.02.050 through 82.02.090, no county, city, town, or other municipal corporation shall impose any tax, fee, or charge, either direct or indirect, on . . . the development, subdivision, classification, or reclassification of land." RCW 82.02.020. There are, besides the involuntary impact fees permitted under RCW 82.02.050 through RCW 82.02.090, n9 three exceptions to the prohibition against direct or indirect taxes, fees or charges on the CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 57 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16' 17 I'I 18 19 20 21 22 23 24 25 development or subdivision of land (or classification or reclassification). RCW 82.02.020 "does not preclude dedications of land or easements within the proposed development or plat which the county, citv, town, or other municipal corporation can demonstrate are reasonably necessary as a direct result of the proposed development or plat to which the dedication of land or RCW 82.02.020 requires strict compliance with its terms. Trimen Dev. Co. v. King County, 124 Wn.2d 261, 270, 877 P.2d 187 (1994); RIL Assocs., Inc. v. City of Seattle, 113 Wn.2d 40Z 409, 780 P.2d 838 (1989). A tax, fee, or charge, either direct or indirect, imposed on development is invalid unless it falls within one of the exceptions specified in the statute. Henderson Homes, 'Inc. v. City of Bothell, 124 Wn.2d 240, 247, 877 P.2d 176 (1994) (citing RIL Assocs., 113 Wn.2d at 409). (Footnotes omitted; emphasis added.) 758: As to the "in kind" fee or tax concept, the Isla Verde court elaborates at 146 Wn.2d 757- For a number of reasons we disagree with the City's assertion that the set aside condition is not a tax, fee, or charge within the meaning of RCW 82.02.020. The exclusionary language of the statute demonstrates that the prohibited charges are not limited to monetary charges. Specifically, the statute provides that a dedication of land or easement is excluded from the statute's prohibitions if reasonably necessary as a direct result of the proposed development. The statute thus contemplates that a required dedication of land or easement is a tax, fee or charge. Further, this court has recognized that for purposes of RCW 82.02.020 a tax, fee, or charge can be in kind as well as in dollars. San Telmo Assocs. v. City of Seattle, 108 Wn.2d 20, 24, 735 P.2d 673 (1987) (requirements that owners of low income rental units provide relocation notice and assistance, and replacement of a specified percentage of the low income housing with other suitable housing or contributing to the low income housing replacement fund in lieu thereof, when residential units are demolished or redeveloped to other use violated RCW 82.02.020 as indirect charge on development). The Isla Verde Court's holding, that the statutory language of RCW 82.02.020 imposes the burden on the City to prove that regulatory conditions are reasonably necessary as a direct CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 58 HAUNEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 result of the development, has so far been ignored by Herons Forever. Herons Forever has not even attempted to prove such a connection between the conditions it demands and the proposed Sunset Bluff development. Herons Forever is demanding that the applicant shoulder an immense regulatory burden because of the alleged consequences on heron habitat of historic land development practices throughout the urban area. The imposition of such burdensome conditions would violate RCW 82.02.020 and, as unlawful conditions on the development of land, would make the City liable for damages and attorney fees under RCW Ch. 64.04. The imposition of such burdensome conditions also would be unconstitutional, in violation of the substantive due process limitation. Such regulatory burdens would not be reasonably necessary to serve the public interest and would be unduly oppressive because there are less burdensome means of serving the public interest, such as governmental purchase of Applicant's property to expand the park. See Guimont v. Clarke, 121 Wn.2d 586; 854 P.2d 1; Sintra, Inc. v. City of Seattle 131 Wn.2d 640; 935 P.2d 555. Such regulatory conditions also would violate the taking clause because they specifically are designed to enhance the value of public land (i.e., the adjacent park). Orion Corp. v. State of Washington, 109 Wn.2d 621, 747 P.2d 1062 (1987). G. Applicant Was Denied the Opportunitv To Be Fully Heard Durine the Mav 10, 2004 Hearing in Response To The New Evidence Presented In Herons Forever's Rebuttal Case Through the Testimony of Patricia Thompson and Kate Stenberg, Contrary To the Requirements Due Process, as Expressed in Washington's Appearance of Fairness Doctrine. Applicant's Motion to Reopen the Hearing to Allow Surrebuttal Testimony was based on the fundamental unfairness of allowing one party to introduce new evidence in the rebuttal phase CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 59 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seal irst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 of a quasi-judicial proceeding without allowing the other party the opportunity to challenge such evidence in surrebuttal. Such elemental unfairness was explained in the commentaries of Professor Wigmore and Washington case law cited and explained in Applicant's Motion and Reply. Regardless of whether the quasi-judicial hearings conducted by the Examiner are subject to formal rules of evidence, they are, under well -established Washington law, subject to the due process requirement of apparent, as well as actual fairness, as expressed by Washington's appearance of fairness doctrine. The due process principle of fairness and impartiality in adjudication was a common law doctrine that predated our state and federal constitutions. See Vache, Appearance of Fairness: Doctrine or Delusion?, 13 Willlamette L.J. 479 (1977). As adjudicatooy functions were assigned to administrative agencies and officers, the traditional judicial fairness requirements were applied to quasi-judicial proceedings. State ex rel. Barnard v. Board of Education, 19 Wash. 8, 17-18, 52 Pac.317 (1898); Emerson v. Hughes, 117 Vt. 270, 90 A.2d 910, 34 A.L.R. 2d 539 (1952). See generally, K. Davis, ADMINISTRATIVE LAW TREATISE sections 1.06-1.09 (Suppl. 1976). Washington courts began applying common law due process requirements to quasi- judicial land use regulatory hearings in Smith v. Skagit County, 75 Wn. 2d 715, 453 P.2d 832 (1969). In Smith v. Skagit County and numerous subsequent cases quasi-judicial land use regulatory actions have been invalidated for violation of the appearance of fairness doctrine. See, e.g., Fleming v. Tacoma, 81 Wn.2d 292, 502 P.2d 327 (1972); Chrobuck v. Snohomish Coun , 78 Wn. 2d 858, 480 P.2d 489 (1971). In Smith v. Skagit County, the court announced the fairness standard for quasi-judicial hearings: CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 60 HALMN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 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 The test of fairness, we think, in public hearings conducted by law on matters of public interest, vague though it may be, is whether a fair-minded person in attendance at all of the meetings on a given issue, could, at the conclusion thereof, in good conscience say that everyone had been heard who, in all fairness, should have been heard and that the legislative body required by law to according to the weight and force they were in reason entitled to receive. In Smith v. Skagit County, the court held that the hearing appeared to be unfair, in violation of the doctrine, because of the refusal by the Board of County Commissioners to hear additional testimony of some opponents who were given the impression that they would be allowed to present additional evidence but were denied the opportunity to be fully heard. Similarly, in the instant case, the Applicant was given impression that it would be allowed to rebut new evidence and then was not allowed to do so. Under Washington law governing the fairness of quasi-judicial hearings, the Applicant is entitled to be given a full and fair opportunity for surrebuttal. REQUEST For all of the above reasons, Applicant requests that the Hearing Examiner deny and dismiss Herons Forever's appeal and affirm the ERC's MDNS. DATED this 1 lth day of June, 2004. CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 61 HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206)443-4684 1 2 3 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CLOSING BRIEF OF APPLICANT SR 900 L.L.C. - 62 HALINEN LAW OFFICES, P.S. By: David L. Halinen Attorneys for Applicant SR 900 L.L.C. HALINEN LAW OFFICES, P.S. A Professional Service Corporation Bellevue Place / Seafirst Building 10500 NE 8th, Suite 1900 Bellevue, Washington 98004 (206) 443-4684 August 3,2004 OFFICE OF THE HEARING EXAMINER CITY OF RENTON REPORT AND DECISION APPELLANTS: SR 900 LLC Quarry Industrial Park LLC 9125 10" Avenue South Seattle, WA 98108 Herons Fot'ever Suzanne Krom 4715-1/2 36" Avenue SW Seattle, WA 98126 CONTACTS: David Halinen Halinen Law Offices 10500 NE 8'h Street, Suite 1900 Bellevue, WA 98004 David Mann Attorney at Law 1424 fourth Avenue, Suite 1015 Seattle, WA 98101 File No.: LUA 04-002, PP, ECF LOCATION: 1100 Block of S W Sunset Boulevard SUMMARY OF REQUEST: Approval for a 65-lot subdivision of a 26.26-acre site intended for detached single-family homes. SUMMARY OF ACTION: Development Services Recommendation: Approve subject to conditions SUMMARY OF APPEAL: Appeal of SEPA determination PUBLIC HEARING: After reviewing the Appellants' written requests for a hearing and examining available information on file, the Examiner conducted a public hearing on the subject as follows: MINUTES Thejollowing minutes are a summary ojtheApril20, 2004 hearing. The legal record is recorded on CD. The hearing opened on Tuesday, April 20, 2004, at 8:35 a.m. in the Council Chambers on the seventh floor of the Renton City Hall. Parties wishing to testify were affirmed by the Examiner. Parties present: Zanetta Fortes, Assistant City Attorney David Halinen, representing SR 900 LLC, the Applicant Halinen Law Offices 10500 NE 8" Street, Suite 1900 Bellevue, WA 98004 David Mann, representing Herons Forever Attorney at Law 1424 Fourth Avenue, Ste. 1015 Seattle, WA 98101 The following exhibits were entered into the record: Exhibit No. 1: Yellow file containing the original Exhibit No. 2: Bill Rozeboom Resume application, various reports, correspondence file, SEPA documents, and Staff analysis for the ERC, and the Staff report on the Plat. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 2 Exhibit No. 3: Letter dated March 24, 2004 with review of environmental checklist and accompanying reports by Mr. Rozeboom. Exhibit No. 4: Copy of the City of Renton, Rivers and Wetlands map Exhibit No. 5: Storm Water PBPW Technical Services, topographic map Exhibit No. 6: Enlarged version of Exhibit 5, showing railroad, Ri avian Forest and pond Exhibit No. 7: Letter dated March 15, 2004 with geoteclinical findings of Mr. Anil Butail Exhibit No. 8: Dyanne Sheldon Resume Exhibit No. 9: Letter dated April 10, 2004 with findings and conclusions of Ms. D anne Sheldon Exhibit No. 10: Color version of Plat Map Exhibit No. 11: Kate Stenberg, Ph.D. Resume Exhibit No. 12: A letter dated April 18, 2004 covering Dr. Stenber 's review and findings and conclusions. Exhibit No. 13: Aerial photograph foldout from the Environmental Checklist with the bulls eye around the main nest on the island in the P-I channel Exhibit No. 14: Newspaper article from the King County Journal dated February 28, 2004 Exhibit No. 15: Letter dated June 12, 1998 born Dr. Stenberg, addressed to Jennifer Toth Henning, Sr. Planner, City of Renton Development Services, referring to Black River Tract B development proposal. Exhibit No. 16: Letter dated July 1, 1998 fiom Dr. Stenberg, addressed to Jana Huerter, the then Land Use Supervisor, City of Renton Development Services Division, in reference to Black River Corporate Park Tract B. Exhibit No. 17: April 20, 2004 letter from Suzanne Krom. Exhibit No. 18: Additional aerial view of subject site Exhibit No. 19: Scott Dinkelman Resume Exhibit No. 20: Geotechnical Engineering Study Addendum dated A ril 19, 2004. Exhibit No. 21: Hal Grubb Resume Exhibit No. 22: Copy of Plat map used by Mr. Grubb during his testimony Exhibit No. 23: Sunset Bluff Preliminary Plat Offsite Basins Exhibit No. 24: Existing Basin Areas and Storm Water Flow Exhibit No. 52: Resume of Dr. Ed McCarthyExhibit No. 53: Figure 1 from Dr. McCarth 's report Exhibit No. 54: Evapotranspiration Modeling by Dr. McCarthyPlanning Exhibit No. 55: 1994 King County Comprehensive Ma Exhibit No. 56: 2000 City of Renton map, created at time of annexation showing King County zoning. Exhibit No. 57: 1996 Study Area Martin Luther King Exhibit No. 58: Heron Rookery Radius Exhibit No. 59, August 2000 Development Aemt. Exhibit No. 60: Marked aerial photo showing the polygon of the herons showing a cross section of Exhibit 61. Exhibit No. 61a: Existing proposed cross section for Sunset Bluff (small size) Exhibit No. 61 b: Full size photo of Exhibit 61a Exhibit No. 62: Aerial topography map showing some of the basins in the cross section Exhibit No. 63: King County GIS system map showing the Black River open space and park areas. WRIA 99 Habitat Projects Exhibit No. 64a: Photograph showing view south from railroad tracks towards the heronry and open space. Exhibit No.64b: Photograph showing view 6om the south trail south of the P-1 forebay. Exhibit No. 64c: Photograph showing the herons and their locations in the trees in the colony. Exhibit No. 65: Letter dated June 21, 1991 from Jones and Stokes, Status of the Black River Great Blue Heron Colony as of June 18, 1991. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 3 Exhibit No. 66: The Sunset Bluff Plat Hearing by reference. Exhibit No. 67: Burlington Northern Railroad e-mail to Mr. Halinen re: trips per day Exhibit No. 68: Resume ofEmmett Pritchard Exhibit No. 69: Report dated April 26,2004 by Emmett Pritchard Exhibit No. 70: Rainfall report from the Seattle Times printed from a web page Exhibit No. 71: Resume of Dr. Ken Raedeke Exhibit No. 72: Graph showing Great Blue Heron numbers fiom the Christmas Bird Counts conducted by the Audubon Society Exhibit No. 73: Graph showing US - Washington Great Blue Heron count conducted by the Audubon Society. Exhibit No. 74: Correction to page 29, figure 3 for the yeai2003 Exhibit No. 75: Carlson and McLean Article dated 1996 Exhibit No. 76: Memo by Dr. Raedeke from Dr. Butler's book. Exhibit No. 77a: May 7, 2004 aerial photo Exhibit No. 77b: Large size aerial photo of Exhibit 77a, dated May 7, 2004 Exhibit No. 78: Environmental Hearing Examiner and Council Review Process Exhibit No. 79: Letter from Suzanne Krom dated February 8, 2004 Exhibit No. 80: Letter from Quailcroft signed by Dr. Kate Stenberg dated February 7 2004 Exhibit No. 81: City Parks Map dated 2002 Exhibit No. 82: Kinko fax from Shelly Anderson Exhibit No. 83: Faxed letter fiom Shelly Anderson Exhibit No. 84: Koontz/Rickoski Report Exhibit No. 85: Bowman/Siderius Report Exhibit No.86: Memo to the Hearing Examiner from Emmett Pritchard dated May 10 2004 Exhibit No. 87: Heron Survey Report for the Redmond Towne Center dated 10/1/98 Exhibit No. 88: Packet of information re: seasonal timing of activities for herons and 3 Publications Exhibit No. 89: Washington Department of Game publication, the Great Blue Heron of King County, Washington dated July 1981 Exhibit No. 90: Washington Department Fish and Wildlife PHS Management Recommendations, the Great Blue Heron dated 1999 Exhibit No. 91: Review of Geotech addendum by Mr. Anil Butail Exhibit No. 92: Photo 1 shows the look of a new fresh heron nest; Photo 2 heron incubating eggs on nest Exhibit No. 93: Photo of nests from the main colony, older, gray nests Exhibit No. 94: Photo of main colony nests with no herons 3-31-04 Exhibit No. 95: Photo of main colony nests taken 2- 28-03 showing lots ofactivity Exhibit No. 96: Photo of the main colony 3.31.04 Exhibit No. 97; Photo taken of the protected forest 3- 17-04, the nests are occupied Exhibit No. 98: Photo of protected forest showing chick and adult in nest 5-05-04 Exhibit No. 99: photo showing south path to pond with vegetation Exhibit No. 100: February 19, 1987 a letter by Ronald G. Nelson of the City of Renton, Building and Zoning Director to First City Development, Ms. Barbara Moss Exhibit No. 101: Letter from Ronald G. Nelson to Bogle & Gates Exhibit No. 102: DNR good for 1 year dated March 2, 1987- March 2, 1988 The Examiner inquired if the appeal by Mr. Halinen was still pending. Mr. Halinen stated that from his discussions with Mr. Jordan that the City staff has agreed to the revisions/corrections that were proffered in the appeal statement. Mr. Jordan confirmed that that ...qs correct. It still requires an appeal, but staff has no objections to the stated Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 4 revisions. The conditions need to be reworded, part of the appeal and decision would have to be reworded per the suggestions. That process is pending. Mr. Halinen stated that these are minor corrections. there was some vagueness as to Mitigation Measure #24 which dealt with the original statement in reference to a pedestrian pass -through refuge area in Sunset Boulevard NE. There was some concern that a crosswalk might be implied or inferred by that statement. After consultation with Mr. Zimmerman, it was confirmed that that was not the intention, lie did. however want a raised median area; and so a modified condition was developed which is set forth in the corrected portion. There is nothing to add, given the stipulation that Mr. Jordan has indicated. It is asked that the Examiner approve the correction as set forth. As to Mitigation Measure 425, there was simply an oversight referring to "prior to the recording of the preliminary plat" versus what was intended, "prior to the recording of the final plat". It is urged that you approve both of these corrections as stipulated by Mr. Jordan on behalf of the City. The Examiner agreed, and noted that this would simplify this morning's process somewhat. The Examiner asked if there were any other preliminary matters, there being none, it was confirmed that there was only one appellant and they would have the burden and go first. Jason Jordan, Senior Planner, Development Services Division stated that before the Examiner today was the Sunset Bluff Preliminary Plat SEPA application. The project is generally located in the northwest corner of the City of Renton directly south of SW Sunset Boulevard also known as Martin Luther King, SR 900 and immediately north of the Burlington Northern Santa Fe Railroad and then north of the Black River Riparian Forest. The applicant is requesting Hearing Examiner, Preliminary Plat Approval and SEPA Review of a 26.26-acre site and developing that into 65 single-family lots. 'Tile proposed lots range in size from approximately 4,000 square feet up to 5,000 square feet. Access to the site is proposed off of SW Sunset Blvd, one entryhvay located in the southeastern corner of the site. The applicant is proposing three tracts; Tract A located north of the lots, between the lots and SW Sunset Blvd.. Tract B located south of the lots between that and the southern boundary that will contain the drainage facility, and finally Tract C a combination of some steep slopes and wetland area. David Mann stated that he was not going to give an extensive opening argument, a letter was submitted to the Examiner on April 19, 2004. It is their belief that at the end of the day, there will be a definite and confirmed conviction that a mistake was made by the City of Renton in approving the Detennination of Non -Significance for this proposal. Evidence will be presented on all six of the issues identified in the letter. The one change today is that Robert Butler; Ph.D, is not able to be here and so will not be testifying, instead, Dr. Butler has submitted a letter to Kate Stenberg that she will present. Bill Rozeboom, Sr. Engineer, NW Hydraulic Consultants, 16300 Christianson Road, Ste. 350, Tukwila, WA 98188 stated his qualifications. Mr. Rozeboom's resume was entered at Exhibit 2. Upon questioning by Mr. Mann, Mr. Rozeboom stated that he was asked by Herons Forever to review the environmental checklist and tine accompanying reports and did prepare a letter dated March 24, 2004 addressed to Mr. Mann with his comments. There are concerns over the projects effects on the closed depression wetland located in the Black River Riparian Forest, and the receiving water for the proposed development. The downstream analysis prepared for the development says that the water will go through two culverts, underneath the railway grade and then find Sunset b­-.,EPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 5 it's way into the P-1 Pond, which is a pump station pond from the Black River Springbrook Creek system into the Green/Duwamish system. The missing link is how the water physically gets from the railway tracks to the P-1 Pond, that is where potential concerns arise, and those are the issues raised here. From the best available information, that area is a closed depression wetland with a very limited drainage basin area under existing conditions. The first point to be made about the area of the Black River Riparian Forest is that it is a wetland. The City of Renton's wetland mapping identifies almost the entire forest area as a wetland. The Environmental Checklist talks about the culverts tinder the railway track and discusses that the culvert discharges to wetlands or wetland areas. The second point of interest is what the nature of that wetland is and what supports its hydrology and how does it drain. A Topographic Mapping from the City's stone drain book and an AutoCAD drawing that enlarges the area of the development site including the Riparian Forest were presented. The purpose of the second map is to provide the topographic information at a more legible scale. What is seen on these maps is a very closed depression. It is not clear from the drawing how big the closed depression is or how deep it would get, there has been no outlet identified to that closed depression. What that means is that the water inflow to the area would tend to pond and seep out very slowly, at some point it would overflow and overtop. The hydrology of that system is not well understood and that is one of the concerns, it is not possible to say how well it functions. The water supply into the wetland under present conditions is a very limited tributary basin area, the development site probably counts for one-half of the total tributary basin area to the Riparian Forest depression wetland. The development site also produces very little run off, the soils report of the area shows that it is a sandy soil, highly pervious, even the runoff that is coming from Sunset Boulevard is almost always infiltrating into the ground. The issue is that when the site is developed and you add nine acres of pervious surface, it is going to produce a lot of water and when all that additional water goes into the closed depression, it's going to have a bathtub effect and pond tip. The closed depression nature of the wetland makes it very vulnerable to increased volume changes and the point raised is that the downstream analysis has not been sufficient because it has not characterized the hydrology of this receiving wetland and the wetland is very vulnerable because of the closed depression nature of the system. The project will increase the volumes into the wetland for two reasons. The first being converting these nine acres of forested sandy soil to impervious surface and piping that down to the bottom. The second reason that the project is going to increase the hydrology or the water supply into this closed depression is the treatment of the Sunset Blvd. Presently there is a number of culverts which come under the roadway and the analysis of the property says that the water from that culvert almost always infiltrates into the soil, what the development proposes is to build parallel interceptor trenches, a number of catch basin inlets to capture all the water so the development site stays dry and to tightline all that runoff from Sunset Blvd. down to the bottom of the site through the railway culverts and then into the closed depression wetland. The input of these findings suggests that the combination of circumstances here says that the closed depression that is vublerable to increased volume changes and the development proposal is certain to increase the volumes into that system and the impacts are simply not known. The Examiner stated that he thought they were proposing a fairly large detention pond system on the north side of the railroad tracks on the subject site. Mr. Rozeboom stated that that was correct. The detention pond will be effective in controlling peak flows of the erosive flows, but the detention pond will have no impact at all on the volumes. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 6 Ms. Fontes asked if the impacts, at this time, were known? Mr. Rozeboom stated that it is known that there are impacts; but they cannot quantify hydraulically how deep the water will get. The nature of the development will absolutely increase the runoff volumes very significantly. It will raise the level of water in the wetland of the Riparian Forest. From a hydrology perspective, the impact is that they are changing the depth of water, and the duration of flooding. Upon questioning by Mr. Halinen. Mr. Rozeboom stated that the estimate was that the sensitive site occupies one-half of the upland basin area tributary to the wetland. No quantitative calculations with respect to the levels of water in the downstream wetland were done. There is a risk of significant adverse impacts that warrant further investigation. Upon further questioning by Mr. Mann; Mr. Rozeboom stated that he would not want to characterize it as a mistake on the part of the City of Renton to not have investigated further the quantity of water running off and the size of the hydrology impact; but rather as an oversight. Anil Butail, Geotechnical Engineer, 12525 Willows Road, Suite 80, Kirkland, WA 98034 stated his qualifications and work experience. He further stated that he was asked by Herons Forever to review the Environmental Checklist and accompanying reports. He focused primarily on the geotechnical aspects of this project. A March 15, 2004 letter of Mr. Butail's findings was entered as Exhibit 7. The proposed development calls for removal of all of the vegetation from the western two-thirds of the project prior to any work being done. Once that is done there's going to be a large amount of earthwork which will entail excavations on the uphill side of the project placing large amounts of fill on the downhill side of the project, excavation of large amounts of material for construction of the pond and placing large amounts of fill for the access road into the project. Based on the drawings that have been prepared, the exposed excavation immediately on the downihill side of Sunset could be as high as 70- feet. The fills on the domihill side of the access road, which will be used to support these lots. could be as much as 40-feet high and cuts for the pond are also going to be as much as 40-feet high. This is a very large amount of earthwork for a steeply sloping site and a site that has considerable sensitive areas. The cuts and fills that are proposed on the site will probably be part of a balanced earthwork operations, the material that is cut from the uphill side of the road will be used as fill on the downhill side of the road. Looking at the information that is presented in the Earth Consultant's Report, the materials that are encountered in the test pits are extremely wet. Most of the soils shown in the test pits have moisture contents in excess of 20% and the workable moisture range for these materials is on the order of between 12% and 15%. With this kind of moisture variation these soils will be extremely difficult to compact. Without extensive drying and considering work will probably be done during the summer season and considering that the amount of earthwork is going to be extensive, it seems that these materials cannot be reused as fill unless there are significant chemical additives such as cement or lime kiln dust added to snake the soil workable. There are cuts of as much as 70-feet proposed below Sunset, the test excavations that have been done by Earth Consultants the maximum depth of exploration is seventeen and one-half feet which tells that it is unknown what will be excavated when the actual earthwork is done on the site. The ground water conditions Sunset BluffSEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 7 on the site have not been characterized, it is not known where the groundwater will be encountered; if it is encountered, what provisions can be made to handle the groundwater and also what impact the groundwater conditions will have on the stability. There is discussion in the Earth Consultants report of slope stability, this is a very serious issue. There is discussion in the report that the minimum safety facto' that has been calculated is 1.9. there is some soil parameters that are discussed in the report that are probably reasonable, but with regard to the safety factor of 1.9. that does not seem correct. the actual safety factors will be much lower than that and with the proper ground water characterization he believes that there is a serious instability issue below both Sunset Boulevard and adjacent to the proposed pond locations. The plan also shows several series of rockeries stacked on top of each other, the schematics shown are most certainly not suitable for the conditions existing at the site and are in a configuration that is just asking for instability to occur. The Examiner asked what level of analysis would generally be recommended for a site such as this, it has been pointed out that some of the test pits go down to about seventeen and one-half feet, there is going to be excavations of up to 70 feet, does an applicant on a hillside like this generally bore the full depth, or do they discover some of these things while they would be developing the site? Mr. Butail answered that on a site like this it would be disastrous to wait until construction to discover all of the soil conditions. All explorations have to go down to at least 15 to 20 feet below the maximum anticipated depth of excavation. The standard of care in the industry is to go down at least to the depth of the proposed excavation and when there are uncertainties in projects like this, it is necessary to go even further than that. Upon questioning by Ms. Fortes, Mr. Butail stated that the negative impact was one of serious instability on the property. He also was aware that there was a second opinion sought by the City of Renton regarding the geotechnical aspects of this project and that he has read that second report. Upon questioning by Mr. Halinen, Mr. Butail stated that he sometimes phases his investigations concerning geotechnical site investigations and that sometimes he starts with test pits and then moves onto project borings. He further stated that he had no knowledge that any geotechnical borings have subsequently been done at the site. The Examiner asked if the ERC would also be surprised to learn that borings have been done? Ms. Fontes stated that the new boring information was not available to the ERC. Upon further questioning by Mr. Halinen, Mr. Butail stated that he had been out to the site but that he had not done any explorations on the site or any lab testing relating to this project. Dyanne Sheldon, 5031 University Way NE, Seattle, WA 98105 stated her qualifications and work experience. Her resume was entered as Exhibit 8. She further stated that she was asked by Herons Forever to review the Environmental Checklist and associated reports submitted to the City of Renton for this proposal. A letter dated April 10, 2004 covering- tier review and findings and conclusions was marked Exhibit 9. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 8 The materials reviewed were supplied to her by Herons Forever and included the SEPA checklist with the associated technical reports, a wetland repot conducted in the year 2000 and a wildlife report also done in the year 2000. She also reviewed Mr. Rozeboom's report that was prepared for this hearing and various plan sheets that were made available to her. She was not provided with a complete plan set. She has visited the area surrounding thesite, walked the railroad grade. looked at the wetland within the Riparian Forest and what can be determined by looking at the technical documents that were submitted and being out on site are a series of items. First it seems that additional fieldwork should be done on the site to detennine if there is additional wetlands on the site. Based on the geotechnical report that was submitted by Earth Consultants in January of this year, that report shows that in the area of proposed Lot 60 in the southeast comer of project area, test pit ##9 identifies that there was saturation within one foot of the surface at the time of their work and there was additional saturation slightly deeper in the hole. From a wetlands perspective. saturation within a foot of the surface may be reason to go back out and do a secondary look. The work that was done on this site makes passing reference that the soils on the hillside are so pervious that there would not likely be wetlands on the hill slope and from looking at the soils reports on a peripheral level that may be true, however, there is an on -site report in January that shows the saturated soils conditions within a foot. The other soil test pits that were in that report do not show that same level of soil saturation which is why this information Novas pulled out for that particular pit. The Examiner asked about the Category 3 wetland that was not protected by the City. Ms. Sheldon stated that that was in the southwest corner of the proposed project. The implications of the project itself on the off -site wetlands, the project has attempted to set aside the significant wetland on the site, which is in the southeast corner. It has to most extent avoided direct impact to the small unregulated wetland in the southwest comer, but the area of greatest concern is the off -site wetland itself. When looking at this site, and understand, based on Mr. Butail's and Mr. Rozeboom's testimony that not only will this site be cleared; but it will be massively regraded and that the soils by and large on the surface layers are in existing conditions quite pervious. By regarding this site and placing infiltration trenches at the top of the grade and at various locations down the site, those infiltration trenches and galleries are designed to catch sub -surface flows and bring them don to the detention pond. What happens in this detention pond is that the volume of water that falls out of the sky doesn't change because of this project but what happens to that volume of water that hits this site in the future changes it dramatically because of what is proposed. The volume of water remains constant. it is rapidly transmitted through the pipe system down to the pond and from that pond that same volume of water is transmitted at an increased rate into the down stream receiving wetlands. it isn't the volume of water that changes, it is the rate of the water getting into that wetland that changes. There is abundant scientific literature about the consequences of that change in the hydroperiod on wetlands. One of tine most significant effects is the change in the contributing area, the change by grading, logging and clearing, on the subsequent hydroperiod of the receiving wetlands. This effect has not been assessed for this project. It simply has been dismissed that by discharging the water to these existing culverts under the railroad grade that there will be no adverse effect downstream, that has not been adequately addressed. Sunset Bm,. oEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 9 The 1998 King County Manual is designed to look at water as an inert substance and as a scientist she is testifying that that is fallacy, that looking at water as an inert substance that it does not have a causative effect on biological and ecological function is a failure to be assessed through the SEPA process. The detention pond oontrols the rate of the flow it doesn't control the duration of the now. There is a large bowl of water represented by the precipitation and that volume of water is either poured out all at once. which the project does not do because the manual precludes that from happening, or that same volume of water flows out of a small orifice for a longer duration. The soils that are present on the site now slow the movement of the water. If one could follow a water drop, it could take days or perhaps longer for it to move through this site, under the railroad grade and into the wetland below. By putting the whole system in the pipe, once the areas are converted to lawn grass they will function in essence like impervious surface. They will no longer function like forested upland soils that allow infiltration at a moderate rate. The research shows that the results of appropriately applied storm water management provisions result in an increase in water level fluctuations in the receiving wetlands. It isn't that the engineering is poorly done; it is that what the science tells us is that because of those engineering requirements there's a biological consequence and it is documented in the literature. There is literature that has been collected both here in the Pacific Northwest and she is the primary author of a recent document just published by the Department of Ecology that represents a ten year synthesis of the implications of the science and management of wetlands in Washington State. That document is precedent setting, it is the best available science that's being created by ecology for local jurisdictions to update their critical area ordinances and that finding about the consequences of the storm water on natural systems is consistent throughout the area. These detention ponds are designed from an engineering standpoint to what's called "cut off the peak" which means they are simply designed to take the top of the big surge of the flows and hold that volume back, but some of these systems are designed to literally empty out at the bottom so that at the next storm event they can fill back up again. One of the primary concerns of the DNS on this project is that there was no evaluation of that downstream system and of the wetland below. There is a location where water appears to be flowing from the north side of the railroad grade and when going to an appropriate location on the south side of the railroad grade there didn't appear to be any flows that came through that particular culvert. There was no analysis from the ecologists about the consequences of taking the flows from this site and directing thern. through two 12-inch culverts into the receiving wetland on the other side. The research shows that when we change the hydroperiod in wetlands there are only certain plant communities that are adaptable to those kind of fluctuating water levels, basically a wetland fills up after a storm event and then it drains back out. There's no evaluation on this site whether or not a potential change in hydroperiod would affect the forested condition on this site, it may very well might. In addition, there is the entire insect or invertebrate community and amphibian community that would be present in that down stream wetland that research shows have changes in the hydroperiod with measurable significant adverse effect on those gilled animals, on the insects and amphibians. The research is very clear, changes in hydroperiod cause adverse effect in these down stream systems, those changes from this project have not been evaluated and were not asked to be evaluated. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 10 In referring to the change in hydroperiod or storm driven events, when it rains the wetland down below may be changed in future conditions from existing conditions. We may have larger volumes of water getting to the wetland more quickly. On an annual cycle, because we have removed the sponge of the soils from this proposed site. we will have less water coming into the wetland earlier in the spring, so when our natural drought cycle begins here in the Northwest. and we start to get fewer storm events, those soils are no longer functioning as a sponge. There is no reserve present on the site and so we have less water coming into the wetland down stream on an annual cycle and in the fall the water will get to the wetland much more quickly. The only thing anyone has to go by are the soil test pits, the top layers are quite pervious, except for test pit #9, we are seeing moisture, but not a great deal of saturation. However, if you look at the analysis in the geotech report, the lower reaches of those test pits are saturated, so the soils are not sand all the way down, they are not pervious all the way down. Upon questioning by Mr. Mann, Ms. Sheldon stated that the proposed lawn grass would in essence function as if it is an impervious area. When you grade soils and move them around, you absolutely destroy that interior structure of the soil and in fact; often times in construction practices there is a call for a 95% compaction in replaced soils. Ms. Sheldon stated that the applicant themselves have not proposed infiltration. Again looking at the illustration. all the light green areas as Mr. Butail has testified are massively regraded and it isn't appropriate to re -infiltrate into regraded soils especially on the downside, you Would logically infiltrate at the top of the slope, you would not infiltrate at the top of the building lots, but rather at the back of the building lots. Mr. Butail has testified that that is 40 feet of fill and you would not want to re -infiltrate water into fill soils. If they are going to re -infiltrate anyplace logically, they would bring the infiltration trenches to the toe of the proposed fill or beyond the toe of the proposed fill so that they don't end up saturating the toe of their structural fill. Upon questioning by Ms. Fortes, Ms. Sheldon cited the source of information as the applicant's own habitat wildlife assessment and stream study report fi-om this .January. The 80 feet of stream that will be lost is .where the access road crosses the stream. it is immediately to the west of Oakesdale Avenue SW and the east of the first lots of the plat. According to information received this morning, this stream is not regulated by the City. If it is not regulated by the City of Renton, it does not have to be compensated for per the City of Renton's regulations. it may have to be assessed and permitted by other state agencies and perhaps even federal agencies. Upon questioning by Mr. Halinen, Ms. Sheldon replied that they were required to look for saturated soil conditions all year round, but what was done when looking at these log pits was compare the data in the logs and found that test pit 49 was the only one that the geotech report talks about saturation within a foot of the surface. Kate Stenberg. Ph.D.. 23022 SE 48'" Street, Sammamish, WA 98075 stated her qualifications and experience. Her resume was entered as Exhibit 11. She has been involved in monitoring Herons in King County and Puget Sound including the Black River Heron colony and its surrounding habitats for over a decade. She was asked by Herons Forever to review the environmental checklist and other information provided by the City of Renton. A letter dated April 18, 2004 covering her review and findings and conclusions was marked Exhibit 12. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 11 There are very likely to be significant environmental impacts that have not been evaluated. These include impacts to the wetland and wetland species down stream of the site, construction activity impacts, impacts from clearing the entire hillside of vegetation, noise and light impacts from the development once it is occupied and impacts from human and pet activity that is generated froth the hillside. The Black River Great Blue Heron Colony is the largest in King, Pierce and Snohomish Counties, it is among the top ten in Puget Sound, it currently supports about 130 nests. It is a little difficult to get an exact number this time of year because the birds are building new nests and this time of year when the leaves are out, it is difficult to spot them. Nest counts are typically done at the end of the season with the leaves fall. The Black River Heron Colony has grown in recent years even though other colonies in King County have disappeared. It's important to note that the Great Blue Heron in this region is a unique sub -specie. What we have in this area is the Coastal Great Blue Heron, it is only found in Western Washington, Western British Columbia, and a little bit of Southern Alaska. Overall, the population of the Coastal Great Blue Heron is declining. The current numbers that were reported at the last International Heron Working Group were about a 6% decline per year. According to Dr. Robert Butler, whose letter is attached to her report, the population in Western Washington is about 4.000 individuals at this time. That makes the Black River Heron Colony about 6% of the population in Washington. The Canadians have been very alarmed by the decline in the populations that they are seeing and they have taken steps to list the Coastal Great Blue Heron as a "species of concern" which is similar to a "sensitive" classification under our endangered species act. They are also working towards putting together the information necessary to upgrade that listing to one of "threatened". What we have seen so far today is a very simple story, it's one that we see all around time region, water that used to infiltrate into a forested hillside will now be piped and tightlined directly to the bottom of that hillside. The vegetation is removed from the hillside, the impervious surfaces are increased and all of this results in more water leaving the site and in this case going directly into the Black River Riparian Forest. Some common situations that we see may be beavers moving into an area, they dam something up then start getting more water held in a wetland area for a longer period of time, the vegetation changes, it changes not only from this change in duration and volume but it changes from the water level fluctuations as well. The water goes up higher, drops down lower at different times of the year than it does currently. That also changes the vegetation. It's possible that what that would mean in the Riparian Forest is that some of that forested vegetation would start to die. There will be a change ill the vegetation that is buffering the heron colony from surrounding developments and activities. There has not been a wetland delineation on the City's properties, so it is not clear whether or not the nest trees themselves would be effected by these changes, but that is another risk that needs to be looked at carefully. The Examiner asked if all the studies help if the site is still developed? In other words, it was just indicated the vegetation could die, even if we studied it to the nth degree and decided the project should go ahead, but we still don't know what the outcome is, we still don't know if the vegetation would die. Additional study won't really answer that question, Dr. Stenberg stated that some additional study would definitely give some indicators to that question, because if you knew more about the depressional wetland, what sort of outlet it had, what kind of water level elevations might be expected to be retained there, Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF. PP .August 3, 2004 Page 12 those would start to answer some of those questions. There may be different design changes that could be made on the hillside that would address some of those impacts. Changes in hydrology aid vegetation also impact other wildlife in the area. The studies that have been done in this region show that amphibians are very vulnerable to changes in water level fluctuations. The simple example is that amphibians lay their egg masses in seasonal wetlands at a particular place in the water column, then when you have up stream development that changes the hydroperiod and the water lever fluctuations. Perhaps there is more water in the wetland that comes in in a spring storm, the eggs don't move because they are attached to vegetation, but if the water level rises then suddenly they are deeper in the water colunm than mama frog wanted them to be, or if the water level drops, then suddenly maybe they are exposed. Either case they don't survive and reproduce nearly as well. Herons depend on amphibians quite a bit for a food source doling some fairly critical times in their life cycle. When the adults are brooding on the nests they rely on food sources that are close at hand for a quick snack. They don't have the opportunity to leave the nest for very long. The other critical period of time when amphibians seems to be a very important food source is when the juveniles are first learning to forage for themselves. This is after they leave the nest in the late summer, early fall, fish are kind of tricky to catch, and it takes them a while to figure it out, so in the meantime, they do seem to eat a lot of frogs and small mammals. The other group of animals that we see quite a bit of change to when the water level fluctuations change, when the hydroperiod changes in wetlands is the invertebrate community. The invertebrates are the ones that the amphibians are relying on, and so on up the chain. We also do see around this region when we get development on hillsides above wetlands that the water isn't held in those forest soils on the hillside, it is not held in slope wetlands, it is released very quickly, when it rains the water goes to the bottom of the hill very quickly; it goes to the wetland very quickly after the storm events. It is not in the hillside to be released during the summer. Then what we see is more water in the wet periods, less water in the dry periods. A concern may be that if that change occurs, and we see less water in the wetland surrounding the heron colony and in the P-1 pond, that could effect the food resources again for those late summer, critical feeding periods. There are several water quality concerns; the runoff from the urban neighborhoods to the north and from SR 900 that is described in the application as coming onto the site at the top of the hill duough a set of eight culverts, currently runs down across the hillside. through these forested soils, through the forest, for the entire length of the hillside. That provides quite a bit of water quality improvement to that urban runoff that is coming off SR 900. There were some indications that in the past there have been concerns about failing septic systems in the neighborhoods tothe north as well. The quality of the water that is coming onto the site at the top of the hill is maybe not the best and under this proposal the way she reads the drainage diagrams, that water would be captured at the top of the hill, to address concerns about slope stability, and piped to the bottom of the hill and then discharged directly into the Black River Riparian Forest. So all of that filtering will no longer occur. The extensive regrading is likely to require some fill material to be brought in or some sort of soil amendments. There is a concern that additives, even something like concrete on a steep hillside, can impact the water quality at the bottom of the hillside. Single family homes, people are fairly notorious for their poor lawn management practices, there is often an increase in pesticides and fertilizers and again all.of the runoff from Sunset Blu... OA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 13 these lots because of the site conditions, there is no where for it to infiltrate and get that kind of water quality treatment, so it again is just going to the bottom of the hill and then out into the Black River Riparian Forest. Both the water quality and quantity concerns would effect all of the wildlife in Black River, including the threatened Chinook. Cola the Bald Eagles and all of the other non -listed species such as the water fowl, the diversity of birds; amphibians and mammals that occur down there. It is the design of the site that creates more impacts than it needs to for that level of development. The distance to the colony is more like 950 feet rather than the 1100 feet that was listed in the environmental checklist and reviewed by the City. The number that was in the application seems to have been measured from the main colony, which is a portion of the Great Blue Heron Colony and is not where the bulk of the nests are now. It also was measured from the center of that area and when dealing with a Great Blue Heron colony; which is really a polygon, you need to measure from the edge of the nearest nest to whatever the activity is you are measuring to, not the center of the colony. The Department of Fish and Wildlife has prepared management recommendations for Great Blue Herons and they did an extensive literature review in putting those management recommendations together. In studies they found that construction within 2600 feet was a problem for herons and they recommend that no construction or logging occur within 3200 feet. Obviously in an urban situation maybe that's not the most reasonable recommendation. but that is what is coming out of the State. In urban King County studies, the researchers have found that the colony size decreases when there is development within a thousand feet. Now this proposal is well within all of those parameters so an impact to the heron colony needs to be thought about. In 1998 the City of Renton approved an office park to the south and east of the heron colony. At that time; the closest part of the office park was less than 500 feet to the main colony. The main colony was the center of concentration of the heron nests of the colony. What we have seen in the following years is that the herons have been moving away from that office park, they have been more preferentially nesting in what is now called the protected forest, the polygon labeled "PF", and in fact this year, that main colony is unoccupied. The reproductive success in the main colony in the years following the office park construction and occupation was lower than the success of nests in the protected forest. It's taken some time, but we are seeing an impact of development 500 feet to this colony. The proposal, of course, is further away, but it is also above the colony. Nesting herons are more sensitive to disturbances above their nests as they are also very sensitive to disturbances directly beneath the nests, but activities that are on the same elevation but off to the side at some distance, those they seem to adapt to maybe a little better. It also seems that the construction noises from the hillside will carry further because of the elevation, because of the removal of all of the vegetation, noise carries further when it is going through open air and isn't bouncing off the ground or running into intervening vegetation. None of this was considered in the City's analysis. There also was discussion in the application that the herons tolerated the blasting from the rock quarry some distance away for years. So clearly, they are not concerned about noises. A number of things to consider on that point, again the blasting noise was further away from the colony than either this development or other developments that we've discussed and that blasting stopped a few years ago, we haven't been able to pinpoint the date exactly, but it seems that it may have been early 2002 and there has Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 14 been a tremendous growth in that protected forest area since that has happened. The size of the protected forest doubled in 2002. The colony is broken into two pieces, the main colony which is located on the island in the P-I pond. and then there is.the larger polygon area that just by common usage is being called the protected forest.. It isjust a portion of the heron colony itself. The Examiner inquired if these changes could be due to the change in water lever and weather of the last couple years that might have lead to the expansion, there may be more food sources; the wetland is not drying out or is wetter or dryer: again, we don't necessarily know because no one has been studying the direct implications of any of the natural systems on this heron colony either? In 2002 there may have been some other shift that also encouraged their growth and expansion. Dr. Stenbere stated that there are a number of things to keep in mind; the trees in the portion of the colony that we call the protected forest did not change over this time period. Prior to the commercial development being approved to the south and east of the main colony; the area that is called the main colony was the preferred nesting location. That is the area that when the birds arrived back in the early spring and January that they would go to first to select nests. The dominant birds in the colony would get there first and they would go to the main colony. It wasn't until the main colony was full, that birds would be forced to move over and try to nest in the area called the protected forest. What we see after the commercial development is approved and then even more dramatically after the blasting stopped, is that the protected forest area becomes the preferred nesting location. So now when the dominant birds arrive in the spring. the first place they go to is the protected forest. The best nests are there. the best birds are there. The number of nests in the main colony declined slowly over the years, it was 40 nests a couple of years ago, it was 22 nests last year, this year there is nobody there at all. In terns of larger global changes, I don't think that is what we are seeing here, we are seeing a response to what's been going on just around this colony. For construction activities. seasonal construction limits are a pretty simple way to mitigate for impacts. They need to be site specific, however, the Black River Herons arrive at this site in mid -January, which is very early compared to other colonies in the region. They occupy those nests until late August and that's because they don't all start nesting on the I" of February. The Department of Fish and Wildlife recommends a seasonal construction limit of between mid -February to the end of July within a thousand feet of heron colonies. Because this particular colony starts so early, we recommend mid -January until the end of July. Those late August nesters, if they are still nesting into late August, they tend to be a little less sensitive to disturbances. They also tend to be a little less successful. It is important to know in ternis of the site conditions of this particular colony that the north side of the colony has effectively a much larger buffer than there is on the south side. The distance from the colony to existing activity, such as SR 900, the Sunset View Apartments, the neighborhoods further up the hill, that distance is much further on the north side than on the south side. We have observed that this colony is much more sensitive to activity on the north side. On the north side they react much more like a colony you would expect to find in a rural area than they do fi-om activities coming at them from the other side. Larger buffers that would be imposed on a more sensitive colony makes sense for the north side of this colony. The Department of Wildlife recommends 1,000-foot buffers. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 15 With regard to impacts from clearing vegetation off the hillside, clearing the forested cover which is described in the City's staff report as heavily wooded with trees ranging from 36 inches in diameter to 48 inches in diameter, which are very large trees. Removing that kind of forest will impact the water quality and quantity downstream and that has been discussed already. The loss of the vegetation on the hillside is a big loss of habitat and it is also a loss of key habitat features for the herons. The herons use that hillside for resting, they forage in the large Category 1 wetland and they use that forest as a source of twigs for their nesting material. In the urban area we are finding that twigs are becoming an increasingly scarce resource. The Category I wetland on the hillside is critical foraging area for the juveniles, it is close to the colony so it is an important place for them to go to when they are first leaming to fly, it's an important place for them to find those easy food sources. Studies in King County have shown that herons will forage up to 150 feet from the edge of wetlands when they are looking for those easy food sources, the small mammals, the amphibians, things like that. We would recommend that that Category 1 wetland retain a 150-foot buffer to protect that wildlife value. The hillside forest may also at some point serve as an alternate nest sites in the future, as urbanization occurs, suitable nesting locations become more and more limiting. We are seeing that with the loss of colonies throughout urbanized Puget Sound, like the Black River Riparian Forest where we have a fairly large protected area, whether it is attracting the birds from different colonies that have disappeared or if this is all internal growth is tough to tell, but this colony is doing well because it does have a good forest around it. The hillside vegetation is part of that success. It is important to assess the potential impacts and we don't believe that that has been done. These are some of the things that are potential impacts. Hydro -seeding with grasses is not really mitigation for the removal of that heavily wooded hillside. With the staff report describing the trees on that hillside as being 36- 48 inches in diameter, replanting some trees at a minimum would seem more reasonable. The landscaping condition found in the staff report and recommendations also seems rather vague and does not appear to directly address mitigation of the loss of vegetation. The noise and light impacts once the development is occupied were not addressed in any of the materials reviewed. Current activities that occur around the heron colony are primarily during the daylight hours. Commercial parks, the office parks are occupied during general working hours. The recreational activities that occur in the Black River Riparian Forest again are primarily daylight hours, because there are no lighted paths in that region. Another observation that is very relevant to this situation, observers have noted that there is a tremendous amount of new nests being built in the protected forest in recent years, the nests are not built any further west than a point where you start to see the Sunset View Apartments. In Figure 4 from her report, on the right side of time line you can see the nests that have been built in the protected forest, and there is a light spot showing up in the hillside on the left side of the line, that is where the Sunset View Apartments become visible. It is possible that the activity and light from those apartment, which is above the heron nests, that that activity from that existing development is acting as a deterrent for further expansion of the heron colony in a westerly direction. It is also important to keep in mind that even if noise and light and activity doesn't cause the herons to leave directly, it may stress them which can ultimatt-l- effect reproductive success and that may take a while to detect. The proposed Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 16 development is going to be at an elevation of about 115 feet. that would be the level of the lots. The lighting on homes and street poles would be somewhat higher than that. The heron nests are in trees at a ground elevation of about 30 feet, the nests are about 50-75 feet above that, that puts them at an elevation of about 80-100 feet. There is lighting on the hillside at something greater than 115 feet. with the nests at about 85-90 feet, the light will be above the nests. it will be shining dowt into the Black River Riparian Forest and a simple requirement for commercially available shielded lighting may not be enough to prevent the glare from getting into the Black River Riparian Forest. The ERC did not appear to consider the site -specific characteristics of topography. the existing vegetation, the impacts of the past surrounding developments or the nature of the activity that's proposed in developing its conclusions and its mitigation measures. Some fencing has been required, it's a little unclear as to where that fence is supposed to be and there seems to be some contradictory conditions. On the north side there is not the same kind of natural bander, there is a small amount of activity, people come off of Naches Avenue, there is a dry roadway. There is a vegetation restoration site on the north side by the railroad tracks and a person who monitors that site reports that there very rarely are other people in that area. Whereas, on the south side there could be more people visiting the site. The other difference on the north side is that the wetland areas are there, there are a lot of dry spaces, a lot of hummocks, it is not a water pond like the south side. There is opportunity for access very close to the nests. It is fairly likely that there will be human activity and pets coming down off the hillside into the north part of the Black River Riparian Forest. There's no open space provided for within the development, the green areas that are shown on the various plat maps are 50% slopes with some grass on them. There also is no provision for any sort of a sidewalk connection along SR 900 to off -site facilities that may be present. The obvious place to go is down the hill. There are some fence conditions mentioned, a fence material should be durable, wood fences may not last as long as the development lasts. There are conflicting conditions for a split rail fence in one portion of the reports and a solid wood fence in other portions of the report. It is not clear what design the City had in mind. The emergency access road that is proposed to extend off the site to the west should also be gated with a solid gate that is difficult to climb over and that would provide a safety measure to prevent children from getting into the rock quarry or down onto the railroad tracks, as well as help mitigate these impacts to the heron colony. In conclusion, it seems that the City's review was based on some erroneous information and definitely incomplete information and it is recommended that their evaluation of impacts be revised. There are a number of probable adverse impacts to water quality, water quantity, to the sensitive fish and wildlife including the significant heron colony and the threatened Chinook, that those impacts are likely to occur from construction noise and activity, the loss of the hillside vegetation, changes in noise, light and glare and human and pet activity that occurs after occupancy. Her report also includes a number of suggested conditions that might help to mitigate for some of the impacts after there's been a more thorough analysis of those impacts. Upon further questioning by Ms. Fontes, Dr. StenberQ responded that the 950 feet designated on Exhibit 12 is an approximate number. That distance is from the protected Sunset Blu, oEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 17 forest to the property line of the proposed development. The P-1 channel extends to the south and turns into Springbrook Creek and also goes westerly to the pump station Dr. Stenberg stated that the Sunset View Apartments are located northwest of the subject property. The arrow in Fig 4 is pointed at the Apartments, but it is almost impossible to tell which particular building in that complex is showing. Any point to the west of this line, the herons might not build because of the human structure of Sunset View. Upon further questioning by Ms. Fontes. Dr. Stenberg stated that there were nests. just no active nests in the old main colony. The heron came in and tried to nest, they laid eggs, the eagles came in repeatedly and predated on those eggs and eventually somewhere around mid -April the heron gave up. The bald eagle predation has more to do with the nesting success at the end of the season rather than the formation of the nests. The monitoring of Great Blue Heron colonies in Puget Sound has become a lot more systematic in recent years. The number of nests is a result in the increase of the number of birds using that particular location. It does not mean that there has been an increase in the population generally because we have seen a corresponding decline in the number of colonies in other locations. As far as in increase in the number of Great Blue Herons in the Northwest, the indications are that the number of herons in Western Washington is declining. The International Heron Working Group is a coordinated effort between Canada and Washington scientists to track the Great Blue Herons to try and get some better systematic numbers on exactly what is happening with the population and the indications are, the best available data at this point in time is that the population is declining. The population of Bald Eagles seems to be increasing. We don't know if there is a correlation between these facts, there are a lot of other factors impacting the Great Blue Herons including increased levels of development close to nests, we see a lot more human activity, a lot more development, both impact food sources, one of the big concerns in this area is the loss of the wetland habitat as you go down the Green River valley. Lack of suitable nesting sites is another big factor, there is a lot of things that seem to be impacting the herons. We are finding that the bald eagles, because they are more of a scavenger species, they are a little more opportunistic in searching for food resources and when there is suitable habitat, meaning a suitable nest structure, they are nesting more and more frequently in the urban areas. The herons have not acclimated to the Corporate Park, what we have seen is that they are moving away from it and giving themselves that distance back again. They have moved to the west away from that office park. The blasting in the quarry area went on for quite a number of years, but it did stop a few years ago. It is unclear exactly how long or how much blasting went on, but since it has ceased, the herons have moved closer and built more nests in that direction. This particular colony does show a greater sensitivity from some directions. Each colony is different and we certainly can find examples, as stated earlier some colonies have chosen to live closer to urban development. We also see our biggest colotues in more rural areas where they are not subject to disturbances. Mr. Halinen presented Dr. Stenberg with a Newspaper article from the King County Journal dated February 28, 2004 and stated that in trying to reconcile her testimony with the article regarding a rookery being established in Medina Park directly over a walking trail and the herons seem to be doing well even though they are close to people versus the colony in Renton that wants to stay far away from people. Is there anything that explains this difference? Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 18 Dr. StenberH stated that this is a very small group of herons. 4 nests, and that they moved into the park in its existing condition. There are very large trees that overhang a pond and the herons were successful last year, and have come back this year. It is unclear if all four nests are occupied this year, but this is the sort of thing that is seen quite often in an urban area. What we see from the Dept of Fish and Wildlife and the studies that have been done in this region is that the larger colonies, the ones that are more significant to the population as a whole. do tend to be more sensitive; want a little more room around them. When you have this kind of situation with a very urban park, it's landscaped, the people are moving, people are walking on the paths constantly; there is a very small stand of trees available to them, you get very small groups and they don't persist. The Examiner stated that there was a further paragraph talking about the herons landing on residential docks, but taking off when humans get within 100 feet. however, they will stay with boats and jet skis going by. So obviously the people seem to be more of a threat than these other things, they flush at different signals. Mr. Halinen handed Dr. Stenberg a letter dated .tune 12, 1998 that she signed, addressed to Jennifer Toth Henning, Sr. Planner, City of Renton Development Services that refers to Black River Tract B development proposal. Would you focus on the top of page two, dealing with your recommendation for an optimal buffer width of 600 feet or larger? is this the same basic heron rookery we are dealing with today? Dr. Stenbere stated that this .was in reference to the commercial development that was proposed at that time on the south and east side of the main colony area. It also was in response to the official stance of King County in terms of buffer widths. If you look a littler further down on the same page, under seasonal construction restrictions, we do say that there should be no construction during the nesting season within a buffer zone of 1000 feet. There's a difference between allowing development to occur and allowing that construction activity to occur. Those are two different impacts, we were trying to address different things there. Also; for the development on the south and east. it's in an area where it's closer, it's on that side of the colony where you've got higher levels of activity. We were not looking at issues to the north of the colony at that time. Mr. Halinen stated that in communication from Burlington Northern Santa Fe Railroad, they said two freight trains per day, Monday through Saturday use that section of tracks. Dr. Stenbere stated that there is a road that somebody graded and never really built that goes off the end of Naches towards the railroad tracks. Occasionally you see someone back in there, but that's really not an area that gets any use currently. Upon questioning by Mr. Mann, Dr. Stenberg stated that if she were writing those same letters today (Exhibits 15 and 16) her recommendations, given the increase in knowledge of herons and of this coastal sub -species, in particular.the Black River Heron Colony, would follow the letter she recently wrote. In 1999 all up and down the Puget Sound region we saw a lot of bald eagle predation and we saw a lot of colonies abandon mid -season. at that time there were a few colonies that were being monitored carefully, Black River being one of those. All of a sudden the reports started to trickle in that this colony abandoned and that colony abandoned, etc., the heron wildlife community in general sat up and took notice and since that time we have been much more systematic Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 19 about monitoring. The International Heron Working Group formed to do more systematic studies and look at different issues of the heron's biology and what might be going on out there for them. So yes, we do have an increase in knowledge. The decline of the population in Washington does raise the level of concern and that decline has been well documented by folks that are studying the herons specifically. Because they are a large visible bird there is a general perception in the general population that the herons are doing just fine, but as the wildlife community and specifically the heron community has really sat down and started to look at this issue. there is still quite a bit of concern about the population. We're not finding that things arejust fine. Mr.Halinen inquired further stating, my question was; isn't it true that in your statement a moment ago, if you were rewriting these letters today there would be different recommendations and that is based, at least in part, upon your premise that these birds are in a population decline, is that correct? Dr. Stenberg replied that it is a part of the consideration but it's not a direct factor in the specific recommendations. Upon questioning by Ms. Fortes, Dr. Stenberg stated that with respect to seasonal limitations on construction we are talking about outdoor construction, clearing and grading. The maintenance of the homes are conditions that would apply to the development of the plat, the City has no authority to extend seasonal limitations to individual lots or homes. Everybody that moves into that development will be educated on the herons and they will all be active heron monitors and they will all understand that they cannot be out banging around and adding new things on their houses in the early part of the nesting season. We would support a seasonal construction limitation for the initial home construction as well as the site clearing and grading, usually there are provisions for exceptions. Mr. Halinen inquired if that's true regardless of distance away, is that what you are saying? Do you know how far the farthest homes are? The Examiner stated that it is approximately 950 feet to the south edge of the site and the width of the site looks about 950 to 1000 feet. Dr. Stenberg stated that it is not that far, with the aerial photos and the topography rising, she was not sure that the scale was going to stay the same across the photo. The site appears to be only about 600 feet deep. She would like to see an analysis of noise impacts and how the noise would attenuate as it goes off the hillside with no intervening vegetation to the heron nests. That would be a factor to consider. Ms.Fontes: Specifically with respect to Exhibit 12, City is going to object to Fig 4, tine one with the line in it. The witness testified she was not with the person who took it and can only guess where it was taken from. There is an arrow directed at what could be a structure, she could not testify what that structure was or where it was. In her testimony, she implied that there was some correlation between being able to maybe see what could be a building and the fact that the nests don't come any further west, the person who took this picture is not here to testify and there are a host of questions on this photograph and there is no one to cross examine. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 20 Mr. Mann: The person who took the photo is here in the room today and Suzanne Krom, who was there standing next to him, can verify everything in the photo. The Examiner: Perhaps it could be admitted separately. Normally everything is admitted. Depending on the direction of angle: what's west and what's north. depending on the focal point of that photograph it could be anywhere. It will be admitted with the report. Suzanne Krom. President. Heron's Forever. 4715-1/2 36" Avenue SW. Seattle, WA 98126 stated that Heron's Forever was formed in 1989. She has headed up tine organization the entire time. The organization consists of more than 400 members from the Puget Sound area. The group was formed to protect the Black River Riparian Forest and their sole focus has been to monitor the heron colony and to protect them. In 1989 the only section of the Black River Riparian Forest that was protected was actually the protected forest which was a City designation. that's where the name came from. it is the forested area, on the south edge of the P- I Pond. The main colony located on the small island is where the herons began nesting in 1986. During the past 15 years they have worked with the City to acquire public funds to purchase a good part of this land. Tract A was acquired, the tract closest to the pump plant and then the section they were not able to purchase was the section right on the corner of SW 7°i and Oakesdale. The Seattle Audubon Society. Sierra Club. and Heron Habitat Helpers participate in all activities supporting Heron's Forever. Recently, the Heron Coalition was formed in response to increased interest on the part of the public. Eight million dollars in public fiords was dedicated for use as acquisition funds to purchase the Black River Riparian Forest, millions of people in King County, the State and Renton are stake holders in this site. It was deemed worthy of acquisition and protection by elected officials. From the monitoring, the long -tens trends prior to 2002 were of relatively slow growth in the colony. Once the development .went in, the numbers stopped increasing and slowly started to decrease. The current conditions within the heron colony are that the walking trail along the south edge of the P-1 Pond is well used. All human activity takes place along this trail, virtually no activity takes place in the north section of tine Black River Riparian Forest between the hillside and the heron colony. In addition all human activity takes place during the daylight hours, little to no activity takes place at night, there are no lighted pathways and there are no residential areas in the neighborhood. Ms. Krom was present when the photo, known as Figure 4 in Exhibit 12, was taken. They were standing in the upper meadow which provided a little more visibility to see where the heron nests stopped. They were trying to see why the nests were stopping at this point. While evaluating that, they were standing directly in line with the eastern most structure for the Sunset View Apartments. Before that development went in on the comer of SW 71h and Oakesdale, the productivity of the main colony was very high, on the scale of 2.4 to 2.6 chicks per nest. it is usually somewhere between 1.9 and 2.1. Once those buildings went in, the productivity started going down. Right now we have zero productivity. Sunset Btu-_ ..nPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 21 The Examiner: Is it true that the herons manage to kill the trees that they nest in, which makes them less desirable as nesting sites also. Ms. Krom stated that that is something they are aware of. there is acid in the droppings and it causes cottonwoods, that are not a long lasting tree, to die sooner. In the protected forest, the colony is very productive this year. Ms. Fontes referring to Exhibit 18 asked, if Ms. Krom could indicate where it was that she were standing with the gentleman who took this picture; when this picture was taken? Ms. Krom had some trouble identifying the location from the map and asked if Mr. Hamilton could come forward to show the specific location. Mike Hamilton was the person actually taking the photograph in question. Mike Hamilton. 20418 NE 41" Street, Sammamish, WA 98074 placed an "X" on the map to show the approximate location from which the photo was taken. It is to the east of the path, approximately 25' to 50'. The Examiner stated that on Exhibit 18 Mr. Hamilton indicated approximately where he was standing when he took the photograph, the question is, did you shoot straight up toward the demarcation that was shown in Fig 4, sort of the break where there are herons to the east and no herons to the west? Mr. Hamilton stated that the way the photo was planned was to produce a photo that included what was perceived to be the eastern most building of the apartment complex which also included the western most portions of the protected forest nests. He did not have a compass at the time so it is a guess that the camera axis was pointed north, northwest which makes it about 22 degrees off of due north. That is a guess, the error bars would be perhaps +/- 10 degrees. He put no text or markings of any kind on the photo. The arrow is pointing to part of the apartment complex, it is the eastern most structure. It was our intent to produce a photo that would show the eastern most part of the Sunset View Apartments and the western most part of the protected forest. The Examiner stated the issues of the SEPA Appeal are narrow and focused. We are looking to determine whether the City made an appropriate decision in issuing a mitigated DNS that is, they decided that the project did not have significant adverse conditions that couldn't be mitigated with a list of about 26 conditions, and if you can add to that, otherwise, again if people want to testify against the project and for the herons, there will be an opportunity for that, if people have questions about the proposal itself, other than the SEPA, there will be an opportunity for that type of question. there will be opportunities at the plat hearing to also suggest modifications to the project and, of course, suggest that it be denied. It is up to the Hearing Examiner to make a recommendation to the Council, the Council would take final action on the plat. Is there any public testimony at this point? Discussion ensued as to whether public testimony was appropriate during the SEPA appeal hearing. The following testimony was heard. Sunset BlulTSEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 22 Mr. Marsh 3434 141h Avenue W, Seattle, WA 98119 stated that he was not called as an expert witness, but does hold a Ph.D. in zoology with studies in population ecology and would like to comment on the broad issue of whether we should be taking more habitat from the Great Blue Herons. Ms. Fontes stated that is sounds like a SEPA issue to her. Mr. Marsh stated that because humans in western civilization have taken what is now knoNvn as private oxvitership of specific areas of land and assigned a monetary value to them we engage in this legal gymnastics that xve have seen today. Herons care little for these concerns, but they are affected throughout their range in Puget Sound and the Georgia Straits by increasing conversion of native vegetation and increasing human intrusion and disturbance. The success and persistence of a population of animals depends on its members being able to secure enough energy to replace what they lose in growth and activity. Any disturbance resulting in increased activity causing them to fly may mean that the balance is tipped adversely so that energy for egg production. or growth of young is lost. If this City has any responsibility for the Great Blue Heron Colony in the Black River Riparian Forest it should consider that the proposed development of the hillside forest north of the heron colony represents the elimination of a portion of the available habitat for the herons and the introduction of a very disturbing period of construction activity. Including the felling of the forest in their plain view and hearing. Subsequent to this disturbance there would be a long-term source of disturbance visible to or at a greater elevation of the heron nests which Dr. Stenberg has mentioned as a serious consideration. If the loss of the hillside habitat and the introduction of disturbing elements to their environment here may convert one of the few growing heron colonies to another declining one. Barak Gale. Social Action Chair and Member of the Board of the congregation Eitz Or in Seattle. 6522 42"d Ave NE, Seattle. WA 981 15 stated that last Saturday, after services he and few congregants made a visit to the Black River Riparian Forest and watched the herons fly to and from the trees while repairing their nests. He shared a very short tale about blessings. He tutors several 12-year olds in preparation for bar and bat -mitzvahs. one boy, in his portion, has the most ancient blessing in the entire bible. In his speech he comments on that blessing where God shines his light upon you saying that when he's out walking in nature that's when lie feels God's light shining and I want all children to be able to feel God's light in nature. now and in the future. He further shared an interpretive rendition of the priestly blessing. If it is found that such trail is. in fact, damaging to the heron population. he would be very supportive of not having the privilege of visiting the area and letting the creature be in peace. After the break. scheduling for the Plat hearing and the continuation of the SEPA appeal were discussed: The SEPA Appeal hearing will continue on the Thursday, April 29d', at 9:00 a.m. Testimony will be heard from people who cannot come to a Plat hearing, the Plat hearing will be next Tuesday, April 27 at 9:00 am. Angela Romig, 305 Kensington Avenue S., Kent, WA 98030 stated that she is a 6d' grade teacher, and when she told her class that she would not be at school today, that she would be at a hearing to save the herons, they cheered. They were proud that she Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 23 would be standing up for the herons. Many urban/suburban children have grown up surrounded by development, the heron nesting site is a real gem in the overabundance of development in our area. We have the opportunity to save this last vestige of wilderness in our midst, not only for ourselves but for our children. May they marvel and cherish the beauty of these birds in a setting untouched by bulldozers and construction for years to come. Sally Neary, 1 190 Union Avenue NE, Renton, WA 98059 stated that she came today as a cheerleader for the herons. She opposes this development because it affects her quality of life as a Renton citizen. She moved here from New York State seven years ago to work for Boeing and she has been impressed and pleased since then with the efforts to beautify the downtowln area and bring people back to it. Her favorite discovery was the heron colony right on the fringe of downtown. She has enjoyed relaxing and connecting with nature without having to leave the city. This unique pocket of wildlife helps make Renton a livable city for her and her neighbors. She is not opposed to development per se, in fact I applaud Mr. Merlino's efforts to build in town rather than contribute to sprawl. Urban development such as the homes in the Transit Center area, and the new Sam's Club provide more opportunities for Renton residents. She opposes this development not only because she believes that it is fiscally irresponsible. King County invested almost $8 million to acquire the Black River site for the citizens of Renton, and as taxpayers they have the right and the obligation to see that the investment is protected. One private developer's needs should not be allowed to jeopardize what belongs to all of us. It is hoped that those in power will value this resource and do their best to protect it for us and for future generations. Jerry Holmes, 408 Index Place NE, Renton, WA 98056 stated that he is affiliated with an organization called Friends of the Black River. A request was made that there be a moratorium on heavy outdoor construction of the project during the heron's nesting season. Friends of the Black River do think this is a prudent mitigation in regards to this project. Returned to the SEPA hearing Scott Dinkelman, Geotechnical Consultant, Earth Consultants, 1805 136" Place NE, Suite 201, Bellevue, WA 98005. Upon questioning by Mr. Halinen. Mr. Dinkelman explained his background and connection with this project. Earth Consultants were brought on last fall to prepare a geotechnical engineering study. In November 2003 they dug 15 test pits, using that information a preliminary slope stability analysis was done as well as a preliminary geotechnical engineering study dated January 9, 2004, As part of the January 9 study, it was recommended that additional exploration be performed due to the depth of the cuts that were planned, the test pits that were dug couldn't get down to the bottom of the excavations as well as there were some fills being placed at the tops of some of the site slopes. In March 2004 that work was started, five additional borings were done, one to a depth of 73 feet, one to a depth of 50 feet and three other borings to a depth of about 30 feet. The samples collected from the borings and the rock core were sent to the lab and tests were performed. The soils on site consist primarily of silty sands. The site soils are fairly fine-grained and moisture sensitive. Summer construction would allow the soils to be aerated and Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 24 dried back to optimum moisture at which point they could be compacted, a 95% compaction criteria was specified. The intention has always been to use the site materials as structural fill. The slope stability test done for the original report was fairly preliminary; there was not a lot of soils data and certainly nothing much deeper than 15-17 feet. With the borings that were done more recently, more samples were obtained from a deeper depth as well as samples that could be tested for their strength properties. The slope stability analyses was rerun. some adjustments were made to the grading plan from the time the preliminary study was put together, using the values that .were obtained from the additional testing and the borings, the factors against sliding actually went up slightly. The factor of safety is the ratio of the driving forces such as gravity, slope inclination and water pressures. A factor safety of I means you are at a point of immanent failure. Based on the additional analysis, things are stable, it is slightly better than what we had expected based on the preliminary analysis. Upon questioning by the Examiner. Mr. Dinkelman stated that the emergency road was a large rock fill that had been built at the quarry. Mr. Dinkelman further stated that he didn't believe there were any 70-foot fills, he would rather defer that to dle civil engineer since it is something that he does not really get involved with. Upon questioning by Mr. Halinen. Mr. Dinkelman stated that Dyanne Sheldon was making an inference off of the soils that were encountered in the original report, there was some seepage at that location, the test pits were dug in November, a fairly wet time of the year, seepage was encountered at one foot which could havejust been some surface water that was coming into the test pit. The person doing the logging of the test pits was an engineering geologist and not a wetlands biologists, the information that is on the logs cannot be inferred as reflective as what a wetlands biologist would ascertain the moisture content to be. Upon questioning. by Mr. Mann. Mr. Dinkelman stated that the test sheets, part of Exhibit I, the test pit logs and the soil are showing. for example test pit 5, is moist to wet in the first 10-30 feet. The soils will hold some moisture but they are certainly not permeable soils. Slopes are often engineered at 50% and typically we'll put together a preliminary report fully anticipating that eventually we would be able to go out there and drill some borings. We recommended prior to the final construction drawings that the borings be done. If we had found something unusual in our test pits we would have recommended that we go out and do the borings before we issued our preliminary report. We actually found fairly favorable soil conditions in our test pits. We were also surprised to find the bedrock in our test pits, we were expecting different soil types based on the client's experience with the site. The slope stability analysis was performed before the January 9 report was issued. Advance site borings were done at the site, samples collected and taken to a soils testing lab and tested for moisture, density and direct sheer, which gave us the friction and cohesion values of the soils. That information was put into a computer model that calculated the factors of safety. It was recommended that more drilling work would be. needed. The soils should be aerated. It was the contemplation that the heat of the surmner months would I-- 'hough Sunset Bluu zEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 25 to dry out the soils, it certainly is a large enough site that you could spread the soils out and aerate them. We were talking about 160,000 or 180,000 cubic yards of soil that would be moved around on this site. Ms. Fontes asked if the site would be large enough to accommodate all of that soil to dry it out? Mr. Dinkelman responded that it isjust something that goes on during the earthwork construction process; as you spread the soils out in a lift, you may work them during the course of a hot summer day and try to get the moisture down. Upon questioning by Ms. Fontes. Mr. Dinkelman stated that perched seepage develops when you have a soil with a flow profile that varies in density or soil type as water migrates vertically through the soil profile it encounters these different layers and when it encounters a layer that has a different permeability characteristic either due to density or different soil type, the water will become perched and it will sit on top of that layer and then usually that layer will have some kind of a dip to it and then the water will start traveling laterally along that profile. At a certain elevation it will fluctuate, but it is there year round and it is uniform. The addendum was put together in order to respond to issues and provide some additional information with respect to the borings. Based on his experience with similar projects, he believes the project is feasible the way it is shown. The Examiner asked if this site could be developed without a lot of manipulations? Without grading it down 70 feet or up 40 feet, there's going to be a lot of fill and balancing of fill. 160,000 cubic yards, that's a very large change in the site. Mr. Dinkelman stated that he was not sure that he could answer that question, it depends on what you consider development. They could build one house with a very large yard, it's hard to say. The Examiner stated that Newport Hills was on fairly steep slopes, they've managed to develop it without flattening in out, bringing the top of the hill down to the bottom and the bottom up towards the top and coming up with some median. This site could be developed in some fashion like that. You're the geotech, you've done borings on the site, you've been on the site, do we need to manipulate this site that much? Mr. Halinen stated that there had a better expert for this question, who has studied this very issue and intends to address that question. Mr. Mann stated that he would like to know if the geotech on the site has an answer for that from the geological viewpoint. The question is valid and the geologists should be able to testify whether or not these soils are stable enough. Mr. Dinkelman stated the only way he could respond to it is that they have developed similar sites in the past, so it certainly is a feasible project, they would not have issued a report if it weren't. If you are building on level building lots, then the earthwork needs to be done. The soils will be difficult to work if wet. If the soils become wet and cannot be compacted they will need to use a drier material or dry them out. It also says that the soils need to be protected so that if we see a rainstorm coming we need to get the site sealed so the rain doesn't soak in and saturate the soils. Sunset BluffSEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 26 Hal Grubb, Civil Engineer, Barghausen Consulting Engineers 18215 72nd Avenue South, Kent, WA 98032 gave a description of his professional background and work history at Barghausen. His involvement in this project was to help evaluate the site and determine how to develop this for single-family development and to determine the basic design consideration for elevations and storm drainage control as well as the utilities consisting of water and sewer systems. Mr. Halinen stated that he was prepared to discuss the storm drainage design. but because of the questions that %vere posed by the Examiner to Mr. Dinkelman. could he provide an overview of the site grading constraints and how they have played into the design proposal. In particular, perhaps you could explain why the roadway was designed the way it was. Mr. Grubb responded that because of the existing slope of the grounds you have to take those existing slopes into consideration laying out roadways, lots, utilities. et cetera. After several reiterations they worked out a profile of the road to match pretty close to the existing elevation to come up with lots on the uphill side that were in a cut section, the lots on the downhill side in a fill section. The road itself fairly close to the existing ground as measured along the centerline. First we worked out a location of where the road can connect to SR 900. We come into the site at a fairly steep curve horizontally to limit the impact on this undisturbed area. The actual lot sizes are fairly small to limit how much area needs to be graded to accommodate the type of housing proposed. In the back you have a 2:1 slope going down and you have a flat pad, then you have the road which is pretty much at the existing ground elevation, and then you have a fairly flat pad which is in a fill situation, then a slope going down to the rockery/retaining wall set up that is on one side of the storm drainage pond facility. Either way it has been done on a number of single family development projects like this with the help of geotechnical. Upon questioning by The Examiner, Mr. Grubb stated that when they do plats with small lots like these, these are meant to have flat pad type typically two-story houses, very common that we see on developments like this. To limit the disturbance in there is something that creates the need to typically have a bigger lot, it's difficult to put in a house product on small lots effectively when you have a great deal in elevation such as daylight basements, which we sometimes do; but will sometimes do on larger lots on dovutihill side of roadways, because daylight basements are typically older style and builders usually want them on bigger lots if they are going to do that. Doing the type of things you are talking about might cut down a little bit on where your catch point is on the slope, you might be able to bring the slope down a little bit if you did some tuck under houses. You are not going to get rid of the slope, you might cut it back a little bit, but you won't get rid of it. We have a very elongated narrow pond, which is good for water quality. Narrowing up this pond starts to become ineffective to provide the storage requirements that our calculations showed that we needed to have. There are some sensitive areas in Tract C. It would seem that open pond facilities are more advantageous than enclosed vaults, you get a little better .water quality, you get a little better function, you can plant the side slopes, the tops, it provides a little buffer and having that pond as opposed to a vault underground would probably enhance the protection measures for the herons. There are walls retaining some of that fill if you eliminate the pond, obviously the fill is going to come down someplace. He did not know where the bottom would be, but it Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 27 would be further down than where the current bottom is located. The wall could be built abutting the rear property lines of the south tier of lots, but that does not limit your disturbance area. These walls are predominately a fill material and they are eight to ten foot maybe. The Examiner inquired if they could not build multi -family housing rather than single- family homes. Ms. Fortes stated that the development agreement was signed December 10, 2003, the maximum number of residential units that may be pennitted on the property are 69 units and all such units shall only be single-family detached units on individual residential lots. Mr. Grubb continued stating that he has identified predominately three areas that streams come into the site. These three basins have been evaluated using the King County's KCRTS model, which is a requirement out of the 1998 King County Storm Drainage manual; and detennine the flow rates coming from each one of these culverts going througli the site. At the low end of the site are the two culverts that cross under the railroad tracks, both 12" culverts that drain into this wetland area. The Examiner asked that the State built some culverts that drain just the roadway; and Of course, just the roadway is probably where we get a number of contaminants from cars that use the roadway and those drain directly on the site like some of these other culverts, but then they flow across the site in some fashion and if you start tight lining or catching this at the top of the site close to the road then you will be delivering that pretty much directly down without the benefit of slow migration across the 750 feet of slope and width that the site provides now, including going down to the bedrock at 17 feet or wherever. Mr. Grubb stated that they will be tightlining them through the site. It will carry the water down faster than it gets there now. He does not know how much treatment the water will get on the site. The eastem portion of the site through the stream course. enters the stream and then ends up in the wetland area that is standing water, there is no outlet from this system, at least via pipe. That is part of the native growth protection; most of the wetland is offsite, but part of it is onsite. There is a 100 foot buffer required onsite. The stream is not regulated by the City, the only part they intend to alter is what it takes to get underneath the road. The Department of Fisheries would rather us not do any more work in that stream than we have to, which is pretty standard anyway. On Exhibit 22 which shows a reduction of the development site; the piping of the upstream basin was going to go around and through the site. The blue line designates the route of where that water will travel through the site. The culvert on the western side will be intercepted at the top of the slope of the proposed cut and piped around and bypass undemeath the road and bypass the pond and discharge to the natural discharge point which is that western existing culvert that is under the railroad tracks. The center existing culvert draining onto the site, as well as the one that's towards the west will be connected at some point and it will be piped around the pond facility as well and will combine with the outlet of the pond and discharge to that natural location which is the other existing culvert that goes under the railroad tracks. The top of the proposed cuts as well as the toe of the proposed cuts behind the lots will have interceptor drain systems to capture surface water that will be coming off the slope during rainfall events, Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 28 those pipes will be connected into the pond system. That is just more of a safety feature to keep the stability of the side slopes from being a problem. The detention of water quality pond facility is like the rest of the drainage control system on here; is designed in accordance with the 1998 King County Storm Drainage Manual which incorporates a level and flow requirement; the runoff from the development portion of the area which is predominant lots and the roads and side slopes will discharge into the pond on the western end in this area and eventually leave the pond at the opposite ends. The pond is a combined detention and water quality pond which means that in non -rainfall events there will be between three to four feet of standing water at all times. During the rainfall events the detention requirement will come into play, that three to four foot depth of water will fluctuate and get deeper and have a controlled release device at a control structure at the east end of the pond that will meter water out. The outlet of the pond facility which incorporates those upstream pipes will be an energy dissipater which will be what a manhole with a large beehive grate to keep erosion from being a concern at that particular location. The water from this point goes directly into the existing pipe that is under the railroad. The hearing re -opened on Thursday April 29, 2004, at 9.04 a. in in the Council Chambers on the seventh floor of the Renton City Hall. This is a continuation of the hearing which began on Tuesday, April 20, 2004, The applicant was calling witnesses. Parties wishing to testes were affirmed by the Examiner. Dr. Ed McCarthy, 9957 171"Avenue SE; Renton, WA 98059 gave a description of his professional background and work history. His objective was to look at the hydrology of this depressional wetland that's been referred to in earlier testimony and he performed a quantitative assessment of the impacts of the proposed project on the hydrology of this depressional wetland. The Examiner inquired if the ERC had this information at the time of making their decision. It was detennined that they did not. Dr. McCarthy continued, the first step in this assessment was identifying what this depressional wetland is. The crosshatched area is the area that would constitute the depressional part of the wetland. This area has no outlet except when it overflows. Some of the characteristics of this wetland depression are that it is about 10.5 acres in size, the deepest part is about 3.5 feet deep and it contains over a million cubic feet of storage. The underlying soils are silty that all pass a #200 sieve. The permeability of that soil is in the range of 10 to the minus ) cm per second and 10 to the minus 4"' cm per second. The 10 to the minus 4°i is the slower rate and that is the one used in the model. Having a higher infiltration rate, the potential impacts from the project would be less. The next step in the process is to discover what in the area drains to the wetland now, this is largely driven by the topography. The boundaries were field verified; used aerial photos to determine what the cover types are for the land areas contributing to there, Table 1 in his report summarizes that for each of the sub -basins that were delineated. The site was also broken out as a sub -basin so that a comparative study could be done. It looks at the hydrology ofthe wetland under existing forested conditions on the site and then the only thing changed for the proposed development conditions was what would occur on the site with the proposed development. There would be clearing; grading of the site, construction of the homes and the addition of impervious area. There would also be associated changes in the way that upstream off - site water flows across the project site. There has been testimony that some of the runoff from SR 900 and some of the off -site residential areas drain across the and Sunset b.___ EPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 29 have the attenuation from this current drainage course. The changes would mean that water that now flows across the top would be collected and discharged at the bottom. The model looks at the changes in stage of the wetland. The current hydroperiod of the wetland was studied, that is the changes in stage through time. In the model KCRTS (King County's Model) was used which is based on the HSPF (Hydrologic Simulation Program Fortran) model which is commonly used in the Puget Sound area for basin studies. The model is calibrated to regional soils. The model is used extensively to model storm water facilities and have used it in the past in similar types of wetlands. One of the key impacts from any development is that when you remove the forest and replace it with impervious surfaces and lawns, the surface generated runoff will increase. That is what the model predicted here, under existing conditions; the model predicted about 115 acre feet of runoff per year that would increase to 145 acre feet with the proposed development. This is an average annual per year. If this is going to have an impact on the wetland, you first have to look at the size of the wetland and the storage provided in that wetland. If the wetland is relatively big with a lot of storage then a relatively small amount of change in volume will not impact it. The other thing you need to look at is what else is contributing to the wetland, is this increase in volume small or large relative to the other contributing basins and then you have to look at the outflow characteristics of the wetland, in this case it is mostly infiltration and occasionally the wetland has predicted over top. There is a 25% increase, but that is typical, soil that doesn't have much opportunity for infiltration. About two weeks ago he did go to the site and observe and measure high water marks on the tree about 42". That is consistent with what had been suggested was the maximum depth of3.5 feet based on my delineation with the photography map. After running the model for 50 years of rainfall data, the model predicted the stages in the wetland through time. In Figure 3 from the report are the model results. The line represented with the diamond shape pattern, the lower line of the two are the average monthly stages in the wetland for the 50-year period. The model takes all the hourly values in all the Octobers for the 50-year period and came up with a single average. The average stage in October was predicted to be .5 feet under existing conditions. It reaches an average high in January and reaches zero in July. When you compare what the changes due to the development on the site; you see a slight increase on the order of about an inch. For existing conditions, the model predicts the runoff from all the contributing basins, that runoff is then routed through the wetland and the wetland is modeled as a reservoir. it has a depth and storage for every depth, so that as water comes in that wetland fills up and the model keeps a tally on that and the only way the water leaves the wetland is through infiltration which as the wetland fills up there is more surface area, the wetland in inundated and so the infiltration goes up, the model keep tract of that and with large events or extremely wet months the wetland might fill up and overtop, in which case that was modeled as a large broad crested weir and so it is just like a bathtub overflowing. The other way the water leaves the system is evaporation. That is one part that the model neglects and that would be more significant in the summer months. One inch is nothing to worry about, it is not a significant impact. This wetland does have wide range fluctuations in the water stages currently, those are depicted in Figure 4 of Dr. McCarthy's report. In comparing the volume that goes to the wetland now and after the development there will be on average 25% more. The detention pond is intended to regulate the speed with which, and the time in which the runoff makes it to the wetland. It will provide attenuation of the flow up to the 10-year event, up to the Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 30 10-year event it will match the existing conditions in terns of flow rate from the site, above the 10-year there will be some attenuation. but nothing substantial. The wetlands are a relatively large system and that is what is in favor of the wetland mostly. Between himself and Barghausen, they located all the important culverts. There were two culverts that were identified crossing the railroad grade going into the wetland. There are culverts that were identified crossing SR 900 onto the site, those were not modeled per se. The west culvert was relatively dry when he was out there, so he did not observe flow toward the west either. The model predicts two components of flow, one is surface runoff and the other is interflow which is shallow ground water. It represents both components. The King County Model, for till predict a high runoff rate for lawn and pasture cover types: for forest that would not be true. Forest will hold more water. The layer of the till 2-3 feet down where it's more dense. the King County Model assumes that that is going to be impermeable. Two to four feet is the average for more permeable soil. the models are not exact. The till soil is representative of what is on the site in the sense that there is a restrictive layer at some depth down. The way the KCRTS (King County Runoff Time Series) has been calibrated is on a regional scale, it has been calibrated for a watershed, so you can't really look at one test pit on something that is highly variable over the watershed or even over a 10-acre site, so the way the model is calibrated is that there might be a gauge station at the bottom of that basin and the response to the storm is measured and that's related back to the characteristics to the soil and the cover type and a whole host of different variables. There was no gauge station to relate back to the model for this site. The evapotranspiration rate for the tree cover that is currently on the site changes on a monthly level. So you can see in the winter months it's a very small component. Inches of water, a rainfall equivalent, instead of falling down, it is going up. PET is the Potential Evapotranspiration. By potential that is what would evaporate and be used by the trees. if the water were in fact available in the root zone. Many times in the dry part of the year that water might not be available and so the trees sort of go into a deficit. Assuming the water is available, it gets up to about three and a half inches for the months of June and July, you will see people who will irrigate, put on half an inch of water twice a week to keep up with this rate. The trees would be a little higher. Rebecca Lind. City of Renton. Planning Manager, Econonuc Development Neighborhoods and Strategic Planning; responsible for the group that does Comprehensive Planning Rezones, stated that she was familiar with the rezone history of the subject site. The 26-acres in question was originally split in two parcels, one in King County and the other in the City of Renton. The portion in King County was designated as Commercial Outside Centers. In 1994 the other parcel was annexed into the City of Renton and was zoned as Office. In 2000 the zoning designation of Office remained in place in King County until the property was annexed into the City of Renton. In the year 2000 the City received a Comprehensive Plan Amendment application for this property. 15.74 acres in King County designated Commercial Office and 8.47 acres in Renton designated Commercial Arterial. In 2000 an application was received to change zoning to Residential Multi -Family Infill. In 2001 the entire 26acres was changed to Residential Multi -Family Infill. Sunset BluffSEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 31 Later discussions occurred regarding the heron rookery and how future development with multi -family on this site might impact that rookery. Under the Office zoning there could have been 48 dwelling units per acre and 842 multi -family units, on the county portion it could have only been office, there could have been a total of 1.5 million square feet of office development as a mixed use combined with the residential. In August 2000 a development agreement was reached limiting the multi -family designation to 260 units. Part of this was to create a buffering from the rookery, a 100 foot setback was imposed for residential and recreation buildings from the railroad right-of-way and there was a requirement for construction of a six foot high fence along the south side of the development, along its entire length that was intended to protect the heron rookery. In February 2001 the City annexed the site along with some other acreage. The City received another Comprehensive Plan Amendment application for a further down zone of the property to Residential Options. The development agreement was also amended that limited the development to 69 single-family homes, the other conditions remained in tact. Theresa Dusek, Barghausen Engineers, 18215 72"d Avenue South, Kent, WA 98032 introduced several exhibits for discussion. She stated that she has worked on several projects in the Black River area and has been visiting this specific site since the spring of 2000. In 2003 the wetland conditions on the site were verified to have not changed and that regulations would still apply as current. It has been determined that there are no fish in the pond, the pond does not have a surface water connection to downstream fish bearing waters and that the stream itself does not contain fish. She is the author of the Habitat Wildlife Assessment and Stream Study Report, dated January 9, 2004 from the Sunset Bluff residential subdivision. This report described the forested condition of the site, it describes the general wildlife that was seen during the brief visits, it includes a record review of the Washington State Fish and Wildlife database for threatened, endangered and sensitive and priority species and the National Heritage database review for threatened, endangered, and sensitive plant species and review for special and/or protected habitats. The site is designated as an urban open space. The heron has been designated by Fish and Wildlife as a priority species because of their breeding tendencies. The trees and the nesting areas are protected, the birds are protected as a non -game species and they are not allowed to be hunted or harassed. Exhibit 60 discusses the visibility of the herons to the new neighborhood and the surrounding neighborhoods During the winter when there are no leaves on the trees, there is one nest that is visible from the site, the remainder of the protected forest is not visible. When leaf out occurs that nest is not visible unless you are standing on Sunset Boulevard; then the nest is visible over the top of the trees. Exhibit 61 starts at the east end of the site, showing the right-of-way for SR 900, and an area that is not part of the site. The trees in this location have been surveyed to be 295 feet in elevation. The cuts in this area are proposed to be 34 feet. The fill on the site is proposed at 18 feet maximum depth. On the exhibit four ranges of trees were identified. Tree 92 has an elevation of 98 feet, tree 93 has an elevation of 175 feet, as you continue on the ` - are in the protected forest heron colony, those trees vary in elevation from Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 32 150 feet to 170 feet. The highest nest was 130 feet in elevation. From the site to the tree areas, tree #3 is located approximately 600 feet from the southern boundary of the site and the heron colony is located approximately 980 feet from the southern boundary. A site line was established from the residences proposed for the site, the second floor was used as the site line going to the protected forest area. Photo Exhibit 64a is a viewv from the railroad tracks towards the heron colony in the Black River open space taken in April 2004. The two taller trees are the ones previously marked as Tree 92. The background area grouping of trees is the Tree 93 area. When the surveying and photos were taken they did not see any birds flushing. There were birds overhead,. flying; going about their nornial daily business. In a letter from Jones and Stokes; a Wildlife and Natural Resource consulting firm, they were asked to look at the eagles preying on the herons and where the herons were moving into the forest in 1991. The herons abandoned their nests on the island and tried to form nest areas in the trees to give them more protection from the bald eagles, those nests were not successful and the colony was abandoned, the herons were not successftil in breeding that year. Photo Exhibit 64c shows the nesting that is going on in the trees, these trees are in the Tree 44 area and most of the nests are near the P-1 forebay. Exhibit 62 is the metric topographic map from the City of Renton's GIS system, the site is overlaid on it with the tract locations, the road, the lots and some of the basins that were discussed earlier. Ground elevations have been provided of the Sunset View Apartments, SR 900 elevation begins at 223 feet, going to the east it drops to 190 feet, then 163 feet and at the entrance to the Sunset Bluff project the elevation is 155 feet. Exhibit 63 shows the water resource inventory. After discussion regarding figure 4 in Exhibit 12, the Examiner ruled that the photo will be admitted. A comment was made earlier regarding sensitive areas and mitigation that would be required for them, when she was talking about sensitive areas she was meaning critical habitat as described in her report that would be in reference to the City's codes and references. The only critical habitat located on the Sunset Bluff site is the Category I wetland. Mr. Halinen inquired if testimony that was given during the Plat hearing would be included in the Examiner's consideration when making his decision. The Examiner agreed that all testimony would be considered. Exhibit 66 will be the Plat hearing by reference. Upon questioning by Ms. Fontes. Ms. Dusek responded that the area of logging was between tree #2 and tree 93 on Exhibit 61 a. No logging has been done in the area between tree #3 and tree 94 on Exhibit 61 a. Upon questioning by Mr. Mann. Ms. Dusek responded that regarding Exhibit 65 mid the aerial photo the logging started in 1987 sometime in March through mid -summer. She learned this information from Jones and Stokes and from past testimony at past hearings. She did not review any stop work orders or correspondence which referenced herons taking flight when the logging first started. She was not aware if the City did issue a stop work order. The only information as to the impact on the herons ig the Sunset Btu_ —cPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 33 logging in 1987 is the nest information that was provided in the Department of Fish and Wildlife's documents. Emmett Pritchard, Raedeke Associates, 5711 NE 63`d Street, Seattle, WA 98115 gave a description of his professional background as a wetland ecologist and work history. In regard to the Sunset Bluff proposal, he was asked to visit the site to examine the vegetation communities that are growing there, look at the existing conditions and see what he could find in terms of the current hydrologic regime, positioning of various trees and make an assessment of whether or not based on the hydrologic analysis whether there would be any damage to the trees as a result of the development of the Sunset Bluff site. On the site lie found three distinct forested vegetation communities in the wetland basin that would be receiving discharge from the Sunset Bluff site. The first community was located in the northern portion of the basin that was logged in 1987. There were primarily Cottonwood trees 8"-14" in diameter and 50 feet tall, it was receiving storm water or flood water at times during the past season. There were watermarks at the base of some of the trees indicating that there had been standing water as deep as 12"-14" daring the past year. There did not appear to be any snags or dead trees, it appeared to be in relatively good health. The second community was toward the center of the wetland basin dominated by Pacific Willow with indication that there may have been more inundation of water. There were watermarks on the trees 36"-40" above the ground. The trees seem to be adapting to existing conditions. The third community was on the upland hummocks, there were several hummocks fringing this southern portion of the wetland basin, they were 4-6 feet higher than the bottom of the basin. These are drier areas, the trees were more mature, a number of large Cottonwood trees, one was in excess of 50" in diameter, there was also a large Oregon Ash that was about 40" in diameter. The larger trees would not be affected by a 1"-2" difference in flood stage during any time of the year. What was observed indicated that there was a widely fluctuating regime of inundation during the year. In the bottom of the basin there was no water at the surface, there was water at the discharge point at the easterly culvert, however that flowed down the slope into the basin about 75 feet before infiltrating into the soil and from there on did not encounter any water at the surface. Upon questioning by Mr. Mann. Mr. Pritchard stated that the watermarks were an assumption that they were from this year and not previous years. No weather records were reviewed for this report. Mr. Mann referred to a Seattle Times article dated October 22 regarding a rainfall that set the all time record for the Seattle area. Mr. Pritchard did not recall reading this article, but he did remember the rainfall that day. It is possible that the watermarks observed on the trees were from this one day record rainfall from last October. The probability is low since this rainfall happened so early in the season. The past year's rainfall through January was normal to low. Dr. Ken Raedeke, 5711 NE 63'd Street, Seattle; WA 98115 stated his credentials and past studies. There have been some issues about the status of the Great Blue Herons, all published data that we have shows that the herons are increasing in numbers across . North America with the possible exception of British Columbia. Starting in 1950 up until the current time largely of an increasing population. The Audubon Society's Christmas Bird Count for the US/Washington shows the numbers going up and down, Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 34 but basically it is a horizontal trend. The numbers are relatively stable, the big dips most likely represent years in which there is substantial nest failure and there were fewer young the following year to nest. From 1984 when the herons were first counted there has been a 3.5% increase in their numbers. In King County there has also been an increase in active heron colonies in the last two decades. If this colony were to be abandoned; most of the herons would go to satellite colonies. That has happened several times, there are other colonies, onejust east of the runway of the Renton airport. They would likely go to other areas where there is nesting habitats and form new colonies. The Peasley Canyon colony is inactive. The Great Blue Heron is listed as a priority species in Washington State due to its aggregated breeding behavior. The Black River Colony is thriving, in 2003 there were 135 birds, this data is from the Stabins thesis. Productivity in the colony was very high in 2002 after much of the clearing and grading was done on the Black River Corporate Park. When the City of Renton staff did their SEPA review they had extensive database available on the Black River heron that had been developed over time with various projects, there is a substantial body of published literature, there was substantial public expert testimony in the previous projects and a substantial amount of factual information provided to them. In discussions with the SEPA committee, they were well aware of all those bodies of inforniation. The proposed site plan provides distance buffers that meet or exceed those proposed for the Black River Corporate Park. This project meets or exceeds the guidelines proposed by the Department of Fish and Wildlife. Carlson and McLean Article dated 1996 looked at 19 different colonies in Canada and they characterized the condition outside these colonies and compared habitat conditions surrounding the colonies with regards to disturbance and other activities against activities in the colonies such as productivity. The buffers don't provide much protection for heron colonies; there was no correlation between the size of the buffer around the colony and productivity and long-term survival of the colony. The barriers to getting into the colony would be the most effective. In 1991 Dr. Butler recommended 300 meters, however in 1997 in Dr. Butler's book he has stepped back from that recommendation. Barriers that reduced human foot traffic under colonies had stronger effect on the number of herons than buffer zones around the colony. Barriers included fences. water and land that made access difficult for human beings. The Examiner inquired if it would be possible to monitor the impacts of lumbering, logging, chain -sawing, and clearing the site, and then to see how much the herons would flush, if they did not come back that day or the next, and then be able to put a hall to the work? Dr. Raedeke stated that the problem is having a causal relationship, we have to look at what is really causing the problems. There would be some value in looking at that. It would be worthwhile to set up a monitoring system to see if there is an impact, but there would have to be some clear criteria of what that would be and some sort of arbitration panel to make decisions. There does not seem to be any relationship to the Black' River Business Park; the herons were in the trees nesting before that and they are still there nesting after the construction Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 35 and day to day business in that area. One other reason that the herons may be shifting further over is the fact that the trees in the main colony area are starting to deteriorate. In Ms. Stabins thesis, there was inventory done on all the colonies in King County and found out what their current status was, then went through the records to determine what had happened over time. Her next step was to find out what habitat factors are influential on heron colonies success, productivity; duration and size. Using relative sophisticated geographic information, using 660 foot buffers around each colony, did a habitat inventory and then characterized how much of the area .within those buffers were high disturbance areas, human disturbance, roads and other factors. The distance to human activity, distance to salt water, distance to active bald eagle nests as well as number of years active was calculated and then a regression analysis was done to compare colony productivity versus those colony characteristics listed above and the long term success or failure of those colonies was calculated. This calculation used variables that were in the model, human activity never entered the model. The result of the regression analysis shows that none of those independent variables made any difference on productivity. The success or failure of a colony was related to the number of nests in the colony, the larger the colony the more likely it will persist over time. The amount of high human activity within the buffer appeared to not impact the success of the colony. The Black River colony is doing well today. A condition for construction moratorium is not necessary as there are people in the area, trains, construction going on all the time in the area of the Black River colony and it does not seem to have had any effect on the herons. The herons do not seem to flush from the north side, but walking on thesouth side of the heronry, they do seem to flush very easily. Upon questioning by Mr. Halinen. Dr. Raedeke stated given all that is known about the situation and these herons and the Sunset Bluff project, and without any additional mitigating conditions being imposed he does not believe that the project will have an impact on the herons. In 1986, 1987, and 1988 the heron numbers increased while logging could have been going on, it is not clear when the disturbance actually took place, if it was during the early spring and summer or later into the fall, but it did not affect the population growth in that colony. To the best of his knowledge, lie does not know of any construction season limitations being imposed on any other projects outside of a 1,000-foot radius of a heronry in King County. The Black River Business Park had a January through June limitation of 550 feet, there could have been others under 1,000 feet. In trying to protect the herons and the nesting sites, leaving some of the trees and not clear cutting the entire property could have some effect on the herons, but not significantly add to their preservation. Upon questioning by Ms. Fontes. Dr. Raedeke stated that keeping trees on the development site and according to the Stabins thesis, keeping trees would not make a measurable difference. People living at a location close to the heron does not seem to have made any impact according to the Stabins thesis. Just having people nearby does not necessarily make it good or bad for the heron colony. Aggression against the heron does cause a problern. Partying late at night, people throwing sticks and other things at the heron, these are the things that have been found to influence the birds. At the south end of the heron colony, across the water there is a trail that people walk, and there are actually tours taking place there, which has a negative impact on this colony. Anytime you ca• e birds to flush from their nests, there will be an impact on the birds. This Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 36 could be a significant impact in the lean years. There should be a no -entry zone around the pond to protect the herons. The use of that trail in an impact, it upsets the balance, nesting and foraging habits of the herons. Uponquestionine by Mr. Mann. Dr. Raedeke stated regarding the Carlson/McLean Study that the 1,000-meter recommendation was not necessary if there is no correlation between the size of buffers and the productivity in those colonies. The areas were already logged and cleared and graded. there was ongoing activity, farm equipment, vehicle traffic; train; low -Flying aircraft. The mechanical disturbances were less intrusive than foot traffic. He did not know of any areas where the herons have been flushed and never come back. He could not answer how many flushes it would take before you pushed the birds too much and they would not come back. Patricia Thompson. Wildlife Biologist, Washington State Department of Fish and Wildlife, 16018 Mill Creek Blvd., Mill Creek. WA 98012 stated herjob description and work history involving surveys at heron colonies. occupancy surveys on a yearly basis in mostly King County, but some in Snohomish County as well. She relies heavily on volunteer monitors of the heron colonies, and for the Black River colony she has relied heavily on Suzanne Krom who has monitored the colony for close to 12 years. Much of the data in the Raedeke report is quite old and is not reflective of the conditions today in the Puget Sound area. Some of the colonies that are recorded really are only 2-4 nest colonies which don't really qualify as a colony. Some of the colonies listed in the table do not exist any more. h12003 and2004 we cannot include all the colonies that are presented in the report, they are no longer there. The 1985 study referred to is basically 20 year old, some of these colonies have been abandoned, it was suggested that if and when a colony abandons they might re-establish a colony nearby, the problem with that is there have been no colonies found that have relocated, that is known for sure, that it is those same birds that came from the abandoned colony. in the Puget Sound area colony fragmentation and abandonment in slightly greater numbers than before, they do not seem to be replacing the large colonies, but rather two or three nest groupings. Many of the land use conditions have changed in that 20-year period that could have effected some of the wildlife population due to the destruction of the wildlife habitat. Don Norman's data in the reports are 10 years old and don't reflect the current conditions with the more fragmentation of the colonies and the increase in the bald eagle populations and the eagle predation on the heron colonies. Dr. Raedeke also used and compared studies that are not in Puget Sound, there have not been the increase in colonies and nests that this data reports. In fact, there is enough alarm to initiate a very large study on nesting and productivity of herons. It would be appropriate to compare the biology of species across North America, for example, herons lay 3 eggs per nest that is reasonably consistent, it is more difficult to extrapolate the health of a regional population, particularly a sub population. The Faninni sub -population exists here in the Puget Sound area. The McLean study was from Ohio, and some of the data in Dr. Raedeke's report was from the Mid -West, Alberta, Canada and New York and Louisiana. Those ecosystems are so entirely different from the Puget Sound area. comparing the health of our colonies with those so far away and in such different conditions. When collecting data regarding heron colonies, one needs to look very closely at the way and frequency the data was collected. Bar graphs can be misleading, the early years can be very sketchy about the heron data that were collected, the later years could be more intensive. The data taken Nvas not under strict protocol in the 1980's and early 1990's. The Heron Working Group is attempting to set strict protocol for da' Sunset! ?A Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 37 collection among the heron groups so that some degree of reliability and accuracy can help determine the health of the Puget Sound populations. There are no longer 13 colonies in King County, there are only 9 colonies because of the colonies that have abandoned since Ms. Stabins study. The WDFW Heron Occupancy report shows 100 fewer nests in 2003 than in 2000 in King County. Ms. Stabins data numbers vary widely from others at the same colony. At the Redmond Towne Center in 1997 there were three nests, 1998 the numberjumped to 15 and then in 2000 it jumped to 22. The following year in 2001 a different observer reported 6 nests; anything could have happened in that time, but the high numbers were very surprising. In 2003 Don Nonnan reported 8 nests. This year the colony was occupied with about 8 nests but tine colony has failed this year, the area appears to be deserted. A new Great Blue Heron nest could be surprisingly small and you wonder how three chicks can fit into that nest. As the nests get older, they add sticks to the nest and the nests become bigger and bigger. Those tend to stick to the trees, a new nest can blow out more quickly. We are not getting our re-establishment of the abandoned nests as the Raedeke report mentioned. It could be that the Spencer property herons are the Towne Center herons, but there is no way that we can know that. The birds are not marked nor were they followed. The relocation of the Peasley Canyon colony or the Dumas Bay colony have not been found. Those were two rather large colonies that contributed to the population numbers. She raised the question as to why it is so incontrovertible when a heron flushes off the pond as observers walk on the trail but it is not incontrovertible and it could be something else when a whole colony flushes due to sudden noise or construction. The same rigorous study should be applied to the visitors on the trail that flush the herons as Dr. Raedeke would like on the development disturbance. The Black River colony is a healthy colony, she agreed with Dr. Raedeke that it has been growing, it is an exceptional colony for the King County area. We are not gaining more colonies on the level of the Black River colony. In Dr. Raedeke's report there was no distinction between the large and small colony counts. The smaller satellite colonies cannot be compared to the Black River colony. In the report, Dr. Raedeke states that abandonment is always made due to some development or new disturbance, implying that it was incorrect to consider development as a factor of disturbance. It would help if the report suggested how to prove cause and effect after a development and the colony abandons. It is correct that there are several factors of which development and a disturbance from development are one and it would be good to know how to determine that. In the Spencer project a 250-foot buffer was allowed for townhomes under the heron colony. That colony did abandon, we don't know for what reason, there was bald eagle predation on those nests but it is not know if that was due to the increased pressure by the townhomes and the human activity so close to it. The actual cause of some abandonment is from the activities in the development. The conservative stance must be taken for this colony in order to preserve its viability. We must be very careful with what we do around this colony. The possibility of abandonment or decreased productivity should be taken very seriously in this colony. It contributes 6% of King County population. Sunset Bluff SEP.A Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 38 There are several phases of development, the first is where the development is put in, the land clearing, the grading, the outside construction and the inside construction; second is the people moving in and their activities, and phase three is the direct effect of developments that go in and not a coincidental event. Raedeke states so much noise and disturbance around the Black River colony, the question then becomes when will it be too much for these herons? What is the development that is going to break the back of that heron colony and how much can they take. Some of the bullets presented in the history and status section are lacking the dates as to when those development activities occurred. The ones without dates might have been conditioned to occur outside the nesting season. those activities would have been fixed not to have an effect on the colony as much as possible. The main colony, we cannot say it has been abandoned because it has not been five years, but the birds have pretty much moved out of the main colony which is the closest proximity to the development 500 feet away. One cannot assume that those birds are going to go back into that colony, it might not be suitable for them anymore, it would be better to preserve enough habitat on the hillside for replacement nesting habitat. If you preserve habitat on the hillside, get creative with the layout of the site plan, when you preserve habitat for those umbrella species, you are preserving habitat for other species and in this area there is a good number of new migrant species. Because of the extensive development and human activity around the colony already it's very important to save as much of the habitat around the colony for expansion. Because the colony is growing, this colony should not be limited by the lack of nest trees or closeness to the foraging area. To sustain the growth of this colony, large enough buffers and barriers should be left and barriers such as fences should be constructed to prevent those secondary effects of vandalism, climbing the trees, rock parties, beer parties under the colony. Effort needs to be made to prevent people from entering the colony from the north side. Because this colony is so important it's a growing healthy colony, she suggests invoking a site specific management plan as provided for in the Department of Fish and Wildlife management recommendations. These recommendations provide that should priorities need be set, larger colonies should receive more protection than smaller colonies. By definition the Black River Heron Colony is a larger colony so therefore should be afforded as much protection as it can get. A larger colony is one that is greater than 50 nests. There is a Permanent Protection Buffer into which basically no intrusion should occur. People do walk in those areas, there are some trails, then there is a construction buffer. The Protection Buffer where no activity is to take place is the 300 meters (928 feet), the Construction Buffer is a timing restriction buffer that is imposed on logging aid construction to 1000 meters (3, 200 feet). The window for the Construction Buffer is February 15 to.IUly 31 in the management recommendations. but the management recommendations allow for site specific management plans. The Construction Buffer has nothing to do with homeowner activities. People often forget and confuse the Construction Buffer with the Protection Buffer. These are strictly recommendations, the Department of Fish and Wildlife does not regulate heron habitat. The Examiner stated that unless the Department of Fish and Wildlife comes up with the money to purchase this property, it is private property and as such, they are entitled to develop it, not necessarily to the detriment to the surrounding environment. Ms. Thompson continued that there has not been a lot of experience in creating buffers for colonies that aren't on the level with it. It has been demonstrated that some the nests Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 39 might be line of site to the homes. That might be one of the things that might be taken into consideration when creating buffers and barriers for this site. This would be the first colony where a management plan could be put into practice. Dumas Bay colony has several homes that have been constructed at line of site and above, there were not management plans and the colony abandoned. Mr. Mann stated that Ms. Thompson was provided a copy of Dr. Raedeke's report and was asked to come here and provide comments on that report. Ms. Thompson stated that was correct. Upon questioning by Ms. Fortes. Ms. Thompson stated that she first heard about the Sunset Bluff project several months ago, not exactly sure of the date. Could have heard about it in a number of ways, she does not receive official notices from the City unless she has been a party of record and it could have been in that capacity that I heard about this project, she had given comments to the City previously regarding the Black River Colony. She has not seen the Environmental Check List for the Sunset Bluff project. She cannot speak for the habitat biologist, it is the role of the habitat biologist to review the Environmental Check List, that is not one of her specific roles. Fish and Wildlife was notified informally of this project. She continued to state that the Fish and Wildlife Department was given the opportunity to comment in an informal manner and that notification of this project was informally given to them. Jason Jordan stated that a notice of application was sent out, that application has a project description and the comprehensive plan regulations, the proposal, the permits that are being requested; in addition to that the proposed mitigation measures are listed and lastly a neighborhood exhibit is included showing where the project is located. Upon further questioning by Ms. Fontes. Ms. Thompson stated that Ms. Krom has been a volunteer helping to monitor the herons in the Black River colony. There is no contrary study here today to the 20 year old study done in Indiana. In order to track the number of herons in the Puget Sound area, there has been no set protocol because data has been collected in different ways over the years. So what the Heron Working Group is trying to do is come up with a protocol that we can say we are able to count reasonably accurately or at least get a sample of the population size in the Puget Sound area and hopefully it will be a good method. Counting colonies, counting nests is a good start if it's done consistently, the same way year after year. Im the Jensen and Bowers study they state that for every study that would say that development was a good thing there probably is corresponding study that says it's not a good thing. We don't know how development effects a lot of the species around here, that is why we should take the conservative approach since there is so much development around the Black River colony already that we don't know at what point it is going to be too much, this being a reasonably large development, clearing the hillside and terracing the hillside it is pretty severe. The construction buffer in the management recommendations is stated as being a thousand meters. The second phase is people actually moving into the development, there is no restriction on that at all. The third phase is that people are living there, they walk into the heron colony and those kinds of things, that does not affect the heron colony, once people move in. In time case of a road needing to be completely resurfaced, that v ' be a timing restriction. We would have to look at it and determine the status Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 40 of the colony and where the nests are and when it could be done and how much noise it would cause. It would not be as drastic as building a whole development. Some things are done site specifically and, action by action. It is usually triggered by somebody notifying me that that activity is going to take place and then we will get together and determine the status of the colony, .what time of year can you do it, are the herons closer to the site or farther away from the site, there are so many questions to ask to get to that. We learn about actions around a particular heron colony when we are notified by somebody and then these management recommendations are just given to either time proponent or the City as recommendations. If they need help interpreting them or help doing a site -specific management plan, we can step in and help. We do not crack down, we do not have any regulatory authority over Great Blue Heron colonies or their habitat. it is the cities and counties that have the ordinances and the comp plans. What we do is provide the recommendations hopefully for their assistance. to be able to come up with the management plans. We don't jump in at any time unless we are asked. Mr. Mann stated that he had provided Dr. Stenberg a copy of Dr. Raedeke's report and Ms. Stabins paper and various other papers referenced today. Dr. Stenberg stated that she had reviewed those documents. There were two very broad areas in Mr. Raedeke's report one dealing with the status of the Great Blue Herons and the other with their responses to disturbances. First to deal with the status of Great Blue Herons again as a reminder we are dealing with a sub -species called the Coastal Great Blue Heron, this is different from the species that you find throughout North America. Information and conclusions drawn from studies in other parts of the country may not be as relevant. The Christmas Bird Count data was presented today there are some problems over time more routes have been added, there has been more effort, more people participate in that activity and the other thing that seems to be coming up occasionally, the trend dates on the Christmas Bird Count don't seem to work as well for the very large, easily observable species that congregate. If you find a bunch of herons on a winter foraging ground during your Christmas Bird Count that can be an anomaly because you couldjust as easily miss them by how you time your route. It's interesting information, but it maybe is not the best. The researchers in British Columbia have observed an approximate 6% decline. That number was confirmed by recent research and reported at the last International Heron Working Group meeting in late 2003. A lot of the infonmation in Mr. Raedeke's report is based on trend predictions from information gathered 20 years ago which is probably not relevant to today's population. If we really were seeing this clear increase in the population of 10% a year as lie reports, it seems very unlikely that the Canadian Wildlife Service would have listed the Great Blue Heron as a species of concern. nor would they continue to do this intensive monitoring and research effort to see whether or not it was needed to list them as threatened. Looking through Ms. Stabins thesis. she has a table of all the colonies that they had any repots of in King County, on that table there are 30 colonies listed, of the 30 possible colonies in King county wfien Ms. Stabins went out to do her field work in the year 2000. she was only able to find 13 active colonies. Of those 13 active colonies, as Ms. Thompson has testified, we only have 9 here in 2004 and a couple of those are not active now. We actually are down to about 7 of the 13 we had in 2000. The applicant also seems to imply that a lot of this decrease in colony numbers has been due to very small colonies abandoning their locations, however; the information provide' ' *he Sunset Bluii SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 41 applicant shows that the Vashon/Maury Island colony was over 100 nests, it is no longer active and has been abandoned, Peasley Canyon reached a recorded peak of 47 nests, Dumas Bay was at one time maybe as mach as 55 nests, all three of those King County colonies have been unoccupied for a number of years. In 2000 Ms. Stabins work was double-checked by a number of independent researchers that same year, it was found that she consistently miscounted the number of nests in the colonies she was surveying. That has raised a lot of concerns among the heron community about relying too much on that particular data. The current population estimate for the coastal Great Blue Heron in Western Washington is now about 4000 individuals, we did hear quite a bit about how difficult it is to come up with a number, but that is an estimate that the State is currently using. That's the number that is cited by Dr. Butler in his letter and it is also the number that was presented just this last weekend by the Washington State Department of Fish and Wildlife in a report to the Wildlife Diversity Advisory Council. This Advisory Council is a group of people appointed by the Department Director to advise the Department Director on wildlife diversity issues and she has been a member of that council since it was formed in 1997. It was also reported last weekend that the Washington Department of Fish and Wildlife is preparing to mount a foraging ground survey to continue and try improve the accuracy of the data that we have on the status of the Great Blue Heron in Washington. Ms. Thompson also mentioned that monitoring effort, again if the existing data really did show a clear increasing trend, in this atmosphere of budget cuts and tight funding, that the State would be willing to incur that type of monitoring expense for this species. In Exhibit 63, Ms. Dusek presented a map of parks in the area surrounding the Black River Heron colony and what that does, it highlights some of the areas that are very close to the colony that are used by the herons for foraging. That map can be misleading and it may imply that there are a lot of areas that they could move to for nesting, a lot of those parks do not have the large stands of trees necessary, but a lot of those areas may provide foraging grounds. What that says, is that if we have a chance of maintaining the colony at Black River that they will continue to have enough foraging areas in the surrounding vicinity, there is a higher likelihood of being successful and continuing to persist here. In terns of the status of the Great Blue Herons, the conclusions of her April 18"' letter are unchanged by these recent submittals. The Coastal Great Blue Heron sub -species appears to be declining, there is considerable international concern about the status of this sub -species, both in Canada and Washington State, and the Black River Heron Colony itself is especially significant as it represents almost 6% of the Western Washington population in one location. This is not really the place to start experimenting with disturbances, if you start work and you see a problem, assuming that it is reported property, by the time that work is stopped, it may very well be too late. It's just too significant a colony to be trying to do these kinds of experiments. Disturbances come in may forms including construction noise, loss of natural vegetation, loss of habitat, light and glare, and human activity and pet intrusions. The applicant notes that water features like ponds that act like a moat and fences can be very effective barriers that may increase the nesting success of herons, we do concur that those types of barriers are very important protective features, however, those types of features do not exist on the north side of the Black River Heron Colony. There is a partial fence with three large gaps in it along the railroad tracks, that does not form a barrier. There is no water barrier, Sunset BluffSEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 42 The Black River Heron colony is protected on the south by the P-1 pond, this is a water feature that acts as a moat; you do see the human activity down there on that southern edge of the pone. That human activity is constrained by the pond and is thus very predictable to the herons. The human activity along the southern edge is also screened increasingly by the growth of shrubs and trees right along the pond's edge that is starting to act very much as a viewing blind. There are some gaps and there may be some things that the City may .want to look at in how that site is managed, there are some real differences between the north and south sides. The Black River Heron colony is also very sensitive to disturbances from the north side. They react to disturbances and activities on the north side like a more rural type of colony in an undisturbed location and not like an urban colony. The observations of several monitors confirm that the herons are more sensitive to human activity at distances up to a thousand feet on the north side, currently the level of activity on the north side is very low and so we see a successful colony. In the Master's Thesis that was submitted by Ms. Stabins. she selected one buffer width value to represent the buffer width and conditions around an entire colony, Black River has quite a bit of activity fairly close on one side and a very large distance on the other side with no activity, that sort of course filter is probably going to lead to some misleading results. It is going to misrepresent the actual conditions. It was also reported that there correlation with colony success and human activity and as Dr. Raedeke pointed out correlation is not causation, we can probably find a very strong correlation between drinking water and dying. In urban King County where there were only 13 colonies left in 2000 all of those would be expected to have some level of human activity around them. Now in 2004 we have fewer colonies, so, where is the cause and effect, it's not as clear. The data would show over that time period that it would be very dangerous to try and conclude that human activity was actually a factor in success. The logging around the colony that happened in 1987 has been mentioned. That happened when the colony was very small that no further disturbances or permanent habitat alterations occurred in subsequent years and the trees were allowed to re -grow there. We also do not know that they flourished in 1987 as was reported as we have no productivity data, all we have is a nest count. The Carlson and McLean paper has been presented as another study that purports to show that the buffer size is not a factor in colony success. When you look at that study, some of the colonies with the largest buffers also had good barriers and no human activity in those buffers, there seems to be a confounding issue going on there. They were measuring buffer width, they were measuring human activity and they maybe didn't get them separated independently as we might like. This colony is well within the parameters reported in the literature for the area where the heron colony is likely to be sensitive to disturbances such as clearing, grading and construction activities. There has been quite a bit of testimony about the elevation of the development in relation to the colony placing noise; lights and activity at or about the level of existing nests and that there will be virtually no screening between the nests and the development particularly once the hillside is cleared. The potential impacts from light and the activity during construction and occupancy are therefore likely to extend further than they would if the development were on the same elevation as the colony. The Black River Heron colony has responded to past disturbances, we have done some experiments here already; we have observed that the colony expanded westward significantly after the quarry blasting stopped and that it moved away from the commercial office park that was approved fairly close to the main colony to the extent that the main colony is not occupied this year. In that situation. there is a water barrier between the commercial park and the main colony, despite the water barrier we have still seen those birds move away from that location. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 43 They have actually been finding in recent years that herons do quite a bit of foraging at night. There has also been quite a bit made of the bald eagle predation. Bald eagle predation is not as permanent a change as a change due to habitat loss or development. The conclusions of her April 18 letter are unchanged by this new information, fences and water moats can provide effective barriers to disturbance, there are no natural barriers to disturbances originating on the north side of the colony currently and the Black River herons are very sensitive to disturbances at much greater distances on the north side than they are on the south side. The colony does appear to have reacted to past disturbances and developments at some distance from the colony. It is still her opinion that there will be significant adverse environmental impacts from the development as it is proposed currently. There were a number of recommendations in her April 18 letter and she has seen nothing that would change the need for those recommendations. A seasonal construction window restricting all outdoor construction, land clearing and grading between January 15 and July 31, those are dates that are based specifically on the nesting chronology of the Black River Heron colony, the average dates that the state recommends are February 15 to July 31, we have consistently seen the Black River Herons arrive and begin staging on January 15. The Black River Heron colony acid many other colonies do fledging much later than July 31, Black River has been observed not fledging until mid -September in some years, the reality of the situation is that birds that fledge that late in the season may not make it, they don't have as much time to learn how to forage and get enough size on them before winter really sets in, in an effort to be reasonable, we are suggesting the July 31 date. She cannot recommend experimenting with the nesting season and so the idea of having a monitor out there and if they seem disturbed then the construction will stop, all of the signs of disturbance may not be recognized and again there's problems of stopping in time, we don't know what those parameters would be and given the significance of this colony we cannot recommend that. It is still recommended that the pre -development water quantities and quality leaving the hillside do not change. One of the concerns that is a real problem with developments where we see downstream impacts, downstream areas get more water for longer periods of time. We have heard testimony that the downstream wetland seems to have quite a bit of water level fluctuation, that's only part of the water regime puzzle. There is also the issue of the length of inundation, a lot of these tree species that occur down in that area are adapted to having their feet wet, if you will, during the winter months when it is typically very wet here. October, November even January and February, they are fine with that. The problem is that if the water then stays longer than the season, if we find that they are still under a couple of feet of water into April; May and even early June, during the growing season. that's when we start to see the changes in vegetation, and changes in habitat. Retaining as much of the natural existing vegetation on the hillside would be important, providing some durable fencing around at least three sides of the developed area, gating the emergency access road to prevent human intrusions down into the quarry and around that way. It would be important to replant with native evergreen trees and shrubs in disturbed areas to try and recreate as much screening as possible. It has been mentioned to establish a buffer of 150 feet around the large Category I wetland on the property, as that is critical foraging habitat for the herons. Minimizing the outdoor fighting, making sure that is shielded so that it does not shine down into the Black River Riparian Forest and into the nests; some things to think about there are street lighting where they may be Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 44 on a pole and higher, there might be some creative ideas to make sure that street lighting is on shorter poles so that it illuminates just the property and not offsite areas. Developer installed landscaping should include a very large proportion of native plants to reduce the need for fertilizers, water and pesticides. Mr. Halinen inquired if Dr. Stenberg was aware of the June 15 construction limitations that was set forth in the memorandum agreement that has been referred to previously. Dr. StenberQ stated she had seen it and that nobody was very happy with that decision. It was considered at the time to be way too early. It would seem that the developer would have been happier with it than some other options. Kayren Kittrick; Development Services Division, Development Engineering Supervisor stated that primarily there are pits that are bored down to a certain depth; not necessarily the same depth as what will be graded for the development. At some point there is a requirement that before the development is allowed to be built. they are going to have to make borings dov\m to the depth of the grading for the development. If this is not done before the construction, the developer is not allowed a building permit. The building code requires that when they start building foundations the recommendations generally tell them to go down to a sound depth, if they have to take away more material and over excavate because they found junk, then they will dig deeper until they come up with something where they can refill and build the foundations. As to the stability of slopes, anything over four feet has to have a separate building permit, it will not be issued until it has been reviewed for that. They will have to prove stability to a third party before a building pennit will be issued. Monday, May 10, 2004 hearing reconvened at 9: 02 a. in Patricia Thompson returned for cross-examination by Mr. Halinen. Upon questioning by Mr. Halinen. Ms. Thompson stated that she had found some problems with Ms. Stabins data and that she had stated that in looking at some of Ms. Stabins data her numbers vary widely from other observers at the same colony, it happened in the Redmond Towne Center colony in 1997 there were three recorded nests. Her testimony was to show that the number that Ms. Stabins came up with were different than the numbers that other observers had come up with. She didn't want to sound like it was a heavy criticism on Ms. Stabins. she did not want to call into question Ms. Stabins integrity, but do want to make the observation that her numbers did differ from other observers numbers and they always tended to be more that what other people saw. Again Mr. Halinen read a quote from Ms. Thompson's previous testimony, "In 1998 in Ms. Stabins thesis the number of nests jumped to 15. and then in 2000 it jumped to 22 and I have to admit that I was a bit chagrined at that because I thought I had missed a bunch of nests when I was out there counting nests at the colony". When you said you thought you had missed a bunch of nests; wasn't what you were saying that you really had not missed a nest that Ms. Stabins must have been wrong. Isn't that your point? Ms. Thompson responded that if Ms. Stabins had seen.all those nests, she wondered why she had not seen them and went out to verify if in fact they were there or Sunset Blue oEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 45 missed them. She did not see any other nests, she was out there at approximately the same time, nests don't come and go within a week or two period. Upon questioning by Mr. Halinen if these statements were calculated to call into question the credibility of Ms. Stabins as a researcher, Ms. Thompson stated they were in her rebuttal to call into question the numbers that she had found not to call into question her ability as a researcher. but they were different than what other observers had found and that was the point for that. The observers were she, Don Norman and. Dr. Stenberg had volunteers from King County supplying data for the Department of Fish and Wildlife as well, she did not have their names. Upon further questioning by Mr. Halinen. Ms. Thompson stated that in reference to the question about closing a park; there is a park across the street and then there is a place opposite the heron colony where there are trails. Mr. Halinen showed Ms. Thompson an aerial photo. Ms. Thompson continued stating that on Oakesdale Avenue there is a small park area, there is a creek running through the area. Mr. Halinen was not referring to that park, but to the area north of Oakesdale Avenue which is the park that contains the heron colony. Ms. Thompson stated there were trails there throughout the area. She does not support the closure of that southern trail: Jason Jordan explained that the area south of the pond is actually a park and the area south of Oakesdale is not a park but a part of the Metro Treatment site. Ms. Thompson stated that she would not encourage closing the trails because that is used by people that appreciate wildlife and the ponds. She does water fowl surveys in the winter. She has not experienced the flushing that Dr. Raedeke said he had, so she is not sure there is all that much to be concerned about with that south trail. The north side is a lot more sensitive that the south side. The north side is more under the nests and that tends to disturb the herons more. There is an established trail on the south side that keeps people in a predictable area. People do walk the trail on the north side Mr. Halinen stated, during your April 29 testimony you said "what I do want to emphasize again is, some other people have emphasized that the main colony has been, we can't quite yet say abandoned because it hasn't been five years, but the birds have pretty much moved out of the main colony which is in the closest proximity to the development 500 feet away." Are you referring to the Black River Corporate Park that lies to the southeast of the colony? Ms. Thompson stated that was correct. We cannot rule out that the main colony was abandoned due to the construction of the Black River Corporate Park. She suggests that maybe that they revisit the design of the site to possibly preserve some of the trees and the habitat on the hillside. She has not been able to look at the site plan that carefully, there are many times she has worked with the client during the site management plan process to look at the site plan and say maybe we can move this here and see flow we can preserve some of the habitats. We have only the date that has been collected by the volunteers that shows the actual movement of the herons away from that Corporate Park site, we do not have a scientifically designed prograrn that has collected date on that. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 46 Observations have been taken all the way around, basically from north and south and then when the herons are gone,you actually go under the colony and you can pretty much tell which nests were active and which were not active. The Examiner questioned where these heron go after July or August. The species don't migrate, they stay in the Puget Sound area where other heron species move around more. Ms. Thompson stated that was correct, there have been no marking or radioing studies to find out where other herons move around. There's just been very little data on that. so they apparently disperse away from the nesting site, there will be herons there, they have seen herons there in the winter. some that stay the full year. Mr. Grubb explained that they had reproduced the aerial photo from Exhibit 13 and added more information. There are now two offset lines from the edge of the polygon. a 300 meter offset line and a 1000 meter offset line to show how that relates to the city streets. The City of Renton city limits line was added in relation to the site and the colony and some additional street callouts to give a better idea of where streets are in relation to the offset lines. A proposed native growth protection easement is defined in a red crosshatch. Jason Jordan, Sr. Planner Development Services, City of Renton stated that he is the project manager for the Sunset Bluff project since the initial submittal application to the City of Renton. Some information was given to the Hearing Examiner during the Preliminary Plat Hearing. Upon questioning by Ms. Fortes, Mr. Jordan stated that there is a set procedure that is given to folks that are interested in the application process for a preliminary plat with SEPA review. Jason walked everyone through the details of the process. This process was followed in the Sunset Bluff project, however there was some additional time taken in accepting the application because there was a substantial amount of infonmation submitted. Tile comment period was extended a couple of extra weeks. From the comment period, two letters were pulled for consideration today, one was from Suzanne Krom dated February 8, 2004 and one from Quailcroft Environmental Services dated February 7, 2004 and signed by Dr. Kate Stenberg. These letters were available to the ERC for their consideration. The Washington Department of Fish and Wildlife was given a notice of application, a SEPA environmental checklist and its attachments, and photo reproductions of the site plans and exhibits that were included in the original application. Jason further explained how the staff report is put together and what is contained in that report that goes to the ERC. The earth and slope hazards were reviewed including geotechnical analysis and hazard review. Drainage was reviewed both surface and wetland areas. Animals and habitat were studied, as well as fire prevention, transportation, parks and lastly air and noise. This was a mitigated DNS with specific mitigation measures. The discussion of a construction season window was heavily discussed at the environmental review because many of the letters that we received indicated that a construction season may be appropriate. Ultimately the staff and the ERC felt that the location and design of the project, the proximity of the project to the heron colony in itself was a mitigating factor. That is why there is no specific construction season placed as a mitigation measure for the project. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 47 There was a development agreement with Merlino in which he could develop only 69 single-family lots. There is a 100 foot setback required from the railroad right-of-way or the southern property boundary, as well there was a third requirement regarding fencing. The development agreement was presented to the ERC for consideration. If a 1000-foot circle were drawn around the heron colony, no part of the proposed project would fall within that circle. The distance from the trail on the south side of the heron colony is 250 to 350 feet. The land on which the heron colony is located is a 120-acre park owned by the City of Renton. There are several noise sources that are near the proposed site, they include commercial warehouses to the south and east, Metro wastewater treatment plant directly south of the subject site, there are multi -family complexes directly to the northeast and northwest, and then there is the Stoneway quarry site, and transfer station for disposal. It is a fairly industrial part of the City. The City did seek a second opinion regarding the geotechnical information, that is Code mandated when there are protected slopes and high landslide hazards. All the information was available to the ERC. Some additional borings have been done since the ERC issued its recommendations and mitigation measures. This is fairly typical for the geotechnical analysis. To make one clarification, the land immediately north of the sewer treatment, just south of Oakesdale Avenue SW that is not a City park, but it is a King County Park, at least as of 2002 when the City Parks Map was printed. Upon questioning by Mr. Mann. Mr. Jordan stated that he began working with the City of Renton December 20, 1999. The three ERC administrators are Gregg Zimmerman, the Planning; Building, Public Works Administrator, Dennis Culp the Community Facilities Administrator, and Lee Wheeler, the Fire Chief. The drainage basin area was reviewed and both wetlands on -site; the regulated and the non -regulated wetland in the native growth protection area, consideration was also given to the depressional wetland feature south of the subject site by the ERC. Upon questioning by W. Halinen. Mr. Jordan stated that he is aware of tine amount of time it takes to get through the infrastructure construction. Less complicated sites could take two to three months to complete the earthwork and grading that is necessary. A site like this could be expected to take the entire building season of spring to late fall. The geotechnical experts both said no construction for grading purposes or slope purposes was proposed. Upon questioning by The Examiner. Mr. Jordan stated that the ERC does not review the plat layout, they attempt to stick to the environmental conditions. As it is known, they do merge into each other. Alternatives in terms of pond location and design were discussed, internal access and the intersection with SW Sunset was discussed and different alternatives were evaluated. Lastly, the location of the houses, tine ERC felt that with the screening along Sunset Boulevard and then the housing and the detention facility along with the native growth protection area in the southeastern comer of the site, that that layout was sufficient. Many of the letters that were received discussed clustering and even some gave some ideas of what should be done and where the lots should be located, that's why the ERC moved into that realm. Sunset Bluff SEPA Appeal Pile No.: LUA•04-002, ECF, PP August 3, 2004 Page 48 If the ERC added a mitigation measure that effectively changed the plat, the ERC has never come back saying that the builder has to redesign the plat, but the ERC has imposed conditions knowing, in fact. if the developer adheres to this condition they will lose two or three lots. That option was discussed, but there were no specific recommendations for change. Mr. Mann stated that he Nvas going to have Ms. Krom testify about the faxed letter from Shelly Anderson because of their communications with each other over the years. However. since Ms. Thompson is still here. there was a question posed to her this morning about that letter. and she has now had a chance to read it. if The Examiner would like to ask her about that. The Examiner stated that Ms. Shelly Anderson sent faxes this morning, she describes some logging and clear cutting which has been referred to in the past about it having occurred and has grown back in, you can see it on the drawings that the vegetation looks slightly different in the aerials. Apparently the heron reacted to the fact that the area was clear-cut in February of 1987. The heron abandoned the colony and did not do very well that year, although they did come back eventually. Dr. Raedeke is a heron expert and Ms. Thompson represents Fish and Wildlife and while they are still here, is this something unusual, is this the kind of thing the City needs to be concerned about. He is looking to see if a construction window, not for erosion control and stormwater but to protect the heronry if necessary might be an appropriate idea. Dr. Raedeke stated that he did not know Ms. Anderson, this clear cutting was much closer than anything proposed for this project. The project site is over 1000 feet away from the herons and it doesn't seem to have any relevance since there have been other activities such as that further out. The Washington Department of Wildlife in 1987 reported 9 nests, 1988, tine year after this disturbance, there were 22 nests, 1989 there were 24 nests, 1990 there were 37 nests. There may have been some disruption during a period in the colony; but it does not seem to have had a numerical effect. The relevance to this project is that this site is over 1000 feet away. One of the issues with the 1000-meter construction moratorium is first, where did it come from and what is the basis for that. The citations for 1000 meter come from two reports. The Examiner stated that the birds are wild, they are in a somewhat natural setting, is there any way logging 20-acres of forest on a slope above their nests is not going to affect the birds. Dr. Raedeke stated that he did not think there would be any measurable impact to these herons. If you look at all the other activities that are going on within that same range of distances, from sewage treatment plants to highways to railroad tracks to stone quarry activities, it does not seem to be an impact to the herons. Dr. Butler in his letter. stated that this is a very habituated colony, they have been growing strongly xvith those disturbances. Ms. Thompson stated that what Ms. Anderson saw sounds like a typical reaction of a heron colony to a major disturbance. If the threat is a one-time event, they can settle back down on tine nests, if it is a very disruptive event, and they are not convinced that it is a one-time event, they could abandon. The heron colony's general reaction — the Sunset Blu« zEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 49 clear cutting of this site, that would also be a disruptive event for this colony. It is a drastic change in the environment. The conservative approach would be the best way to go. Something on this magnitude during the nesting season has potential to disturb this colony. This is nothing that can be predicted, if it takes several years for a colony to recover, as after the 1987 logging, that can be quite an impact on the population. it could take six to ten years for the colony to come back. Anil Butail, after being sworn in stated that he had reviewed Exhibit 20, a geotech addendum. A memo was prepared by him and sent to the Examiner dated April 26 in which he summarized his review of the report. One of his earlier questions was that there had not been sufficient deep sub -surface exploration conducted on the property and that to a certain extent has been addressed. The explorations that have been done are primarily in the middle and lower portions of the property, there is no exploration in the area immediately below Sunset Avenue which is of some concern. The lack of proper characterization of ground water on the site is of greater concern, during the previous hearing people stated that they were convinced that there was no deep ground water on the site, the only way to property characterize what the conditions are on a site like this is to install observation wells on the site and watch them for a period of time to see how the levels change. He took the cross sections and soil properties presented in the addendum and properties used in their analysis and constructed his own computer models. The computer program used, Winstabl, was the same as theirs, however the results he received were different than what Earth Consultants found. There appears to be a sigtficant difference between the numbers they reported andthe numbers that he calculated. These numbers are huge, the larger the number the safer the situation should be; but his numbers were all much lower than the minimum requirements and lower than what Earth Consultants found and that leads him to be concerned for the safety of the project. He could not explain the difference, he used their cross sections and their soil properties that they presented in their report. Upon questioning by Ms. Fontes, Mr. Butail stated that the proposed grading would have a significant impact on the stability of the slopes. The stability will be reduced considerably as a result of the proposed grading. If the stability can be demonstrated, it will eliminate concerns. Upon questioning by Mr. Halinen, Mr. Butail stated that there are always differences in safety factors of the different types of circles, different levels of circles, different locations of circles, that is the way that the program is used, you evaluate all of these conditions when you make your conclusions. The factors used in his conclusions were both shallow and deep-seated circles. When Ms. Krom came to him and talked, he told her very clearly that he would make the evaluation of the stability, an evaluation of the impacts of the proposed grading on the project, that was all he could do. If tite proposed grading does have adverse impacts then it is up to the project engineer to come up with appropriate mitigation measures for those impacts. There are always solutions. Upon questioning by The Examiner. Mr. Butail stated that any project can be built as long as it is properly designed and properly constructed. Unfortunately, over here we have serious potential impacts to stability which have not been properly considered in Sunset BluffSEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 50 the design of the project and these impacts have not been addressed as to how they will be mitigated. The Examiner stated that the Geotechs would be required to be on site, as something fails on a cut, presumably they would have to be out there addressing it, or are you saying that on the first curt the entire hillside may slough down into the railroad grade and the depression. Mi. Butail stated that that is essentially correct, however. the conditions that have been analyzed are supposedly representative of long -tern design configurations and those conditions have not been properly addressed and have not been properly mitigated. Upon questioning by Mr. Halinen. Mr. Butail stated that he was aware that they currently were in the preliminary plat process and that there is a construction plan review process that will follow the approval of the preliminary plat and that more detailed analysis will be performed as needed. Suzanne Krom in response to testimony by Mr. Jordan and Exhibit 78 stated that she did receive a copy of Notice of Application. She then requested the Application (Environmental Checklist) and it took at least 2 weeks to receive it. The Public Comment period ended February 9"' and she received the Checklist on February 5"', She asked twice for an extension on the comment period and one week past the comment period deadline she received notification that the deadline had been extended. Dr. Raedeke has testified that there are approximately 15 herons in the main colony. Ms. Krom stated that absolutely the main colony is silent as compared to the protected forest where there is the sound of constant noisy vocalization from the nestlings. This past week on two separate visits, on one visit she observed 22 herons entering and leaving the protected forest, there were no herons going anywhere near the main colony. Ms. Krom provided eight photographs which allow a comparison between the main colony and the protected forest. When she has visited the south side along the trail, the path is heavily vegetated. The heron colony is not visible from this path. In terms of flushing there may be an individual heron that will take Flight. The south path has been used since 1980, the heron colony was established after the pond was dredged which was dredged in 1984 or 1985. The colony was established in spring of 1986 with three nests. Ms. Anderson was involved with the dredging of the P-I Pond and they first met in February of 1989. The letter from Shelly Anderson dated May 10, is fully consistent with the discussions that were held between Ms. Anderson and Ms. Krom. There were two separate instances of logging, one in early February that took a day or two and then there was a second incident a week or two later that lasted a day or two. In the City of Renton files she found a number of documents, the first was dated February 19. 1987 a letter by Ronald G. Nelson of the City of Renton, Building and Zoning Director to First City Development, Ms. Barbara Moss, which states that a stop work order was placed on the subject property located at 500 Naches Avenue SW. Information was obtained that the Blue Heron population on this site is beingjeopardized by the work being perforned, tree cutting, grading. The stop work order will remain in effect until all issues have been reviewed and evaluated. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 51 A second letter dated February 24, 1987 from Ronald G. Nelson to Bogle & Gates, Mr. Charles R. Blumenfeldt, the subject of the letter is to question the stop work order by the City, the new information indicates significant adverse environmental impacts and to proceed would be detrimental to all concerned. The Environmental Review Committee chose to withdraw their determination of non -significance. The State DNR form that was filled out March 2, 1987 which does allow logging to continue. but there are conditions. The form is good for a one-year period, activities outlined were to be halted in four days and no activities could resume until August I. 1987 or whenever the young herons leave the nests. Upon questioning by Ms. Fontes. Ms. Krom stated that she collected the just presented letters from the City of Renton clerk's office this past Friday. She did know about the pre -application for the Sunset Bluff project, but she had no details. Once she knew that the documents were in the hands of the City staff, she did come into City Hall to look at the documents. At that time she asked for a photocopy of the documents and did not receive them until May 5. She stated that Michael Hamilton took the photos presented today and that she was with him when some of them were taken, but not all of them. When referring to the main colony, she is talking about the four cottonwood trees on the little island and the nests that are in those trees. Upon questioning by Mr. Halinen, Ms. Krom stated the nests in the main colony were not more subjected to eagle predation than the ones in the protected forest due to the fact that the conditions in the main colony are very similar to those in the protected forest. There was eagle predation in 1999, it is impossible to say what causes herons to abandon their nests. When the development went in in 2000 there has been a constant decline in the main colony. When you compromise a system like that you open it up to predators that will be looking for a more vulnerable system and the eagles found that in the main colony. In Exhibit 102 it says that the logging may continue outside a 700-foot radius. Ms. Krom wrote a letter dated February 8, 2004 addressed to Jason Jordan where she referred to the threshold determination that was presented by the ERC. The actual ERC determination was signed February 24, 2004 and the publication date is March 1, 2004, however, Ms. Krom had spoken to Mr. Jordan and he told her that a DNS-M was to be issued. Mr. Mann asked if she had discussed this project several times with Mr. Jordan after the issuance of the Notice of Application Optional DNS and attended the public hearing. Ms. Krom stated that she had talked with Mr. Jordan and that he did tell her that a DNS would be issued. Upon questioning by Ms. Follies. Mr. Hamilton explained the locations he was in when taking the photos for Exhibit 92 — 99. He also described the type of equipment that he used in taking those photos. The Examiner stated that if a closing brief was to be submitted by the applicant that would be fine, the appellant will be given an opportunity to respond but it will also have to be timely. Ms. Fortes gave her closing statement. The sole purpose of the attack on the application is because there are people who want no development at this location, but Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 52 they are not willing to pay the money to buy the land to keep it from being developed. The City is in a difficult spot, there is a land owner who by law is entitled to use his land, certain restrictions may, be imposed but they have to be reasonable and within the law. The standard that has to be imposed for a SEPA review is found in the WAC. There has to be a significant likelihood that there's going to be something more than a moderate adverse impact of environmental quality. How reasonable is it, the severity of the alleged impact; that should be weighted against and along with the likelihood that is going to occur. Geotechnical experts have testified. but the fact is that the City will not give them a building permit if they cannot prove stability of the site. If while they are building they cannot prove maintained stability of the site, they are stopped. Fish and Wildlife have testified and that agency chose not to comment at the ERC hearing. This is not the first time that has happened, in fact it is a pretty normal pattern with Fish and Wildlife, they don't comment and then they come in to the hearing at the last minute and talk about all the things that they would like. The bottom line is that this development is more than a thousand feet away from the heron colony. In any event the proposal is well outside the 1000-foot marker. The window of time seems ludicrous, we have heard that there is going to be disruption to the heronry because of this project, if you impose a seasonal constriction period it is going to mean that the project is going to go over a period of several years. We will have disruption of tile heronry for several years. Consider at attachment to Dr. Stenberg's report, between 1988 and the year 2003, the number of nests grew by 600% over a 15-year period. There were all kinds of production and constriction in that location for a couple of years that there are no numbers and a couple of years that the numbers were down because of eagle predation. There is no linkage between the construction and the work done. So when we look at the standard that you must impose that there be a reasonable likelihood that there is more than a moderate adverse impact to environmental quality and that it cannot be speculative. There was no causal connection. there were many theories and requests for surveys, but there is no clear connection between the things about which they complain and the adverse impact that they feared would occur. That's the standard that they have to meet and they have not met it. Their own experts have contradicted themselves about water in the lower depression area. Ms. Sheldon was asked about the volume of water and she said there is only going to be so much rain; we can't affect that. Mr. Rozeboom talked about the fact that there was going to be an increase in water. These two experts cannot agree. Ms. Thompson testified that she was not in support of the idea of closing down the south side trail. She stated that it is used by people that appreciate the wildlife. It sounds like the Civil War, the North vs. the South. The people from the south appreciate the wildlife and they should be able to keep that trail open. The people from the north presumably do not appreciate the wildlife and they should not be allowed to use their land as they see fit. Mr. Hamilton testified that they were looking for a picture that could show the nests on one side and a building on the other side of the picture. The Examiner set the following schedule for briefs: Mr. Halinen's brief will be due May 17, by 5:00 p.m. Mr. Mann's brief will be due May 24, by 5:00 p.m. 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 12:55 p.m. Sunset Bra-. ,6PA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 53 FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: 1. The appellants, Herons Forever (a private organization) and SR900 LLC, the underlying applicant, filed appeals of a Determination. of Non -Significance - Mitigated (DNS-M) issued for a proposed preliminary plat that would create 65 single family lots on an approximately 26.26 acre parcel. 2. The two appeals were filed separately by the respective parties. Both appeals were filed on March 15, 2004 and both were filed in a timely manner. 3. In reviewing the plat application the City subjected the application to its ordinary SEPA review process. The City, in the course of and as a result of its SEPA review, issued a Detennination of Non -Significance - Mitigated for the project. The Determination of Non -Significance - Mitigated (hereinafter DNS-M) contained 26 conditions. 4. The appellant -applicant objected to Mitigation Condition Number 24 and sought a correction of language in Condition 25. Condition 24 stated: "The applicant shall be required to install a raised median with pedestrian pass- through/refuge area in Sunset Boulevard NE, west of the access street. This condition shall be subject to the review and approval of the Development Services Division in conjunction with WASHDOT and shall be completed prior to final plat approval." Condition 25 stated: "The applicant shall pay the appropriate Traffic Mitigation fee based on a rate of $75.00 per net new average trip generated by the project prior to the recording of the preliminary plat." 5. The language that the appellant sought to correct was directed at the fact that a "preliminary plat" is not recorded. Final plats are recorded and the appellant applicant wanted the wording to be changed from "preliminary plat" to "final plat." 6. Regarding Condition 24, the appellant -applicant wanted the condition changed to read: "West of the project's public access street intersection with SW Sunset Boulevard, the applicant shall be required to install within SW Sunset Boulevard a raised median that is at least 8 feet wide for a length that need not exceed 40 feet. (No pedestrian crosswalk across SW Sunset Boulevard is intended or required.) This condition shall be subject to review and approval of the Development Services Division in conjunction with WSDOT." Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 54 7. As the hearing opened, the appellant -applicant indicated that staff generally addressed their concerns and that they only desired that the Hearing Examiner issue a decision incorporating their agreement and that the appeal was otherwise settled. 8. Herons Forever, the other appellant raised a number of objections to the determination and raised a number of issues. Six points or grounds for the appeal were raised as noted: "I . The DNS fails to adequately describe and analyze the change in surface water and shallow groundwater hydrology that will be created by the subdivision and the resulting impacts to the downgradient wetlands, wetland species and herons. 2. The DNS fails to adequately describe, analyze and mitigate the significant impacts to the Black River heronry caused by activities daring construction, including but not lirtuted to, clearing, grading: roadbuilding, infrastructure and home building. 3. The DNS fails to adequately describe, analyze and mitigate the significant impacts to the Black River heronry caused by the clearing of virtually all of the trees from the subject property. 4. The DNS fails to adequately describe, analyze and mitigate the significant impacts to the Black River heronry caused by increased human and pet interactions from the preliminary plat once built and occupied. 5. The DNS fails to adequately describe, analyze and mitigate the significant impacts to the Black River heronry caused by increased noise, light and glare from the preliminary plat once built and occupied. 6. The DNS fails to adequately describe, analyze and mitigate the significant safety impacts likely to result (sic) earth movements associated with the proposed clearing and grading for roadways, houses and the proposed stormwater retention pond." 9. The subject site is located at SWl 100 Sunset Boulevard. The subject site is located on the south side of Sunset. The majority of the site is west of Powell Avenue SW if it were extended south. 10. While it would appear that the subject site has a long frontage along Sunset Boulevard, the City approved a lot line adjustment that separated the majority of the subject site from its frontage along Sunset (allowing the applicant to avoid installing any frontage improvements along the frontage) 1 I The subject site is approximately 26.26 acres in size. Tile subject site is curved or crescent shaped and is approximately 2,400 feet long (east to west) by approximately 600 feet deep although it tapers to a very narrow point at its eastern end. The lot line adjustment noted above severed a large portion of the site's frontage along Sunset Boulevard creating a very long and very narrow separate lot. 12.The subject site is located in two zoning districts. The majority of the site (25.18 acres), predominantly the northern and western portions of the site, is zoned R-10 (Residential; 10 dwelling units per acre). The southeastern corner of the site (1.08 acres) is zoned RC (Resource Conservation). 13.The map element of the Comprehensive Plan designates the area in which the subject site is located as suitable for the development of residential options and rural Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 55 residential uses, but does not mandate such development without consideration of other policies of the Plan. 14.Access to the site would be via a new street intersecting Sunset Boulevard from the south. The new street would be located between Powell Avenue SW and Oakesdale Avenue SW. Both of those streets intersect Sunset Boulevard from the north. 15.The subject site has a heavy tree cover. The staff report stated "The site is heavily treed and is considered to be a second -generation forest (approximately 50 years in age). and native vegetation covers most of the site." (Page 3, Staff Report) "The site is heavily wooded with Maple, Alder, Cottonwood Fir, and Cedar trees ranging in size from 36-inches to 48-inches in diameter and is also vegetated with blackberry vines and other forested vegetation - most of which would be removed during site preparation activities." (Page 10, Staff Report) 16.The applicant during the course of the appeal disputed the forest makeup or characterization. I7.Staff noted that almost all the vegetation would be removed from the subject site: "As a result of the preliminary plat, the applicant has proposed to remove the majority of the on -site vegetation and perform approximately 160,000 cubic yards of earthwork activity." (Page 3, Staff Report) 18.Also disputed were the staff report comments that retaining walls or cuts of 30 feet and fills of 20 feet were required. "The grading activity will modify the site slopes, increasing the existing slope gradient from 15% - 20% to slopes in the range of 40% - 50% on the south and north sides of the proposed building lots. As a result of the proposed cuts and fills associated with the building pads and road development, the geotechnical report recommends that the applicant be required to maintain a 25-foot building setback from the top or toe of any 50% plus proposed slope." (Page 11, Staff Report) 19.The applicant will be creating slopes that actually are defined as protected. Immense grading activity will reshape the entire parcel and remove all vegetation on approximately 20 acres. 20.A secondary, independent geotechnical review requested by staff added an additional condition. That additional condition required "additional embedment or erosion control." (Page 12, Staff Report) 21.The staff report located the subject site vis a vis the heron colony but it appears that it used the location of what had been the train nest tree that apparently has been abandoned. "Finally, the site is located approximately 1,100 feet form the main heron nesting tree location within the City of Renton's Black River Riparian Forest." (Page 3, St-- ort) Sunset Bluff SEPA Appeal File No.'. LUA-04-002, ECF, PP August 3,2004 Page 56 22.Staff described the site's slopes as: "The site is characterized by having sensitive and protected slopes ranging from 10 to 50% plus in degree." (Page 3. Staff Report) 23.Staff noted that open space would be provided on the site: "The applicant has included three open space and/or utilities tracts throughout the project site that total over 16 acres." (Page 31 Staff Report) Most of this open space would be lawn areas above and below the actual homes or the retention pond surface. It would generally not be forest or larger native vegetation. 24.The rezone of the site was accompanied by a development agreement. That agreement requires the construction of a 6-foot fence along the south side of the development for the length of the development. It also provides that the development contain not more than 69 detached single-family housing units. 25.Approximately 5.68 acres of the site are deducted for roads, high landslide hazards area, sensitive slopes. wetlands (page 7, Staff Report) arriving at a net density of 3.2 dwelling units per acre on the resultant 20.58 acres. 26.The site can be described as a 200 foot high. south-southeast facing slope that descends from Sunset Boulevard to the railroad right-of-way. 27.The property north of the subject site across Sunset is zoned R-8 (Residential; 8 dwelling units per acre) and is. in King County, R-6, and is a mix of developed and undeveloped property. East of the site is RM-I zoning (Multiple Family) developed with multiple family uses. West is another RM-I district with multiple family units and industrially zoned property in King County that is developed and undeveloped including a closed quarry site. The quarry site would provide a route for an emergency access road for the proposed development. 28.Ms. Sheldon, a wetlands biologist, discussed the changes that will occur in hydroperiodicity due to the massive grading and alteration of the soils. The porous soils will be removed or compacted to allow the grading to achieve stable slopes and firm foundations. The volume of water (rain) that reaches the site will remain constant (taking into account normal yearly variations in rainfall) but it will be stored and released differently. Rather than stored in some manner by the natural soils. it will be channeled to the detention pond and released to the riparian forest differently than natural release. This had not been assessed by the documentation available to the ERC and public. She pointed out that while the project will meet design standards to retain water that does not address, in this case, the biological or ecological effects of altering the way this hillside now affects the water. The King County manual; in this regard. treats water as an inert substance to be handled, conveyed and detained but does not deal as effectively with its biological component. Releasing the water in a naturally controlled subsurface manner is different than channeling it over or around compacted soils. Sunsetb— .cPAAppeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 57 29.The appellants introduced evidence from Bill Rozeboom that questioned the effect of clearing the forest from the hillside and channeling water that enters the site from offsite. The appellants want to know how the clearing and channeling of water affects the riparian forest and its hydrology. Thereceiving area, the riparian forest and its wetland, are what is defined as a closed depression that is like a bathtub but without any outlet. Water flows into it but unless it tops the confines of the closed basin, it does not directly flow to the P-1 Pond. It either slowly evaporates or percolates through the walls of the basin. Currently, the undeveloped subject site releases water from stonn events and nonnal rain slowly to the closed depression. The appellants argue that the impacts of altering the vegetation, slopes and method of channeling water is unknown and has not been adequately studied or addressed. A term of art, "hydroperiod", was used to focus the discussion on the impacts of changing how and when water reaches the depression after it reaches the subject site now and then after its terrain and vegetation are dramatically altered. The issue was defined as not the amount of water that reaches the wetland or closed depression but the time frame, seasonally of the water flow. It was explained by the witness that the detention pond will control peak flows but not the volume of water and not the complete timing of the release. 30.Aliil Butail, a geotechnical engineer, provided testimony questioning the amount of information gleaned from the test pits that only went to a depth of approximately 17 feet whereas grading to a depth of approximately 70 was shown in the submissions, how the damp soils would be reworked on the site to make them suitable for foundation work, whether chemical additives might be necessary that could leach to the wetland areas. He questioned some of the stability information near Sunset and above the sensitive eastern slopes where the access road will be carved out as well as stability near and above the large detention pond. He did not believe that the 1.9 or 2.1 safety factor was appropriately calculated given the ground water characterizations. He testified that the nonnal standard of care is to test bore to at least the level of excavation, here approximately 70 feet, and that going 15 to 20 feet below the proposed excavation depth is reasonable. He suggested that on a site with steep slopes such as this, waiting for field results during actual excavation and reacting at that time to discoveries would be improper and could be disastrous. Using the applicant's data he determined that the safety factor was approximately 1.5 rather than the 2.1 safety factor that the applicant's representatives found. He noted that the lower safety factor of 1.5 is a borderline value. He also indicated that there was little indication of the safety factor just below Sunset Boulevard. 31.The only experts that have actually worked with or monitored heron recently or that were subject to cross-examination indicated that the birds have reacted hostilely to intrusive activities in both this heronry and in others in the Puget Sound region. Based on their extensive knowledge of these birds, they suspect that the proposed grading on the property adjacent to the colony will definitely have an impact. Reports appear to indicate that the birds were flushed and severely disturbed by logging just south of the railroad tracks at the western edge of the riparian forest area. The anecdotal evidence appears to show that the development of the office park complex at the north end ofNaches also caused a reaction in the heron and may be responsible for the colony's move north and west and to their abandoning what has been termed the main nesting tree or colony. While no one can be sure what the impacts will be of the overall development and eventual population change it seems clear that the immensity of the proposed clearing and grading, if not the homes and people will spur some reaction on the part of the heron. The site, at least some of Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF. PP August 3, 2004 Page 58 which appears to be their habitat, will be disturbed. Areas where they gather twigs and possibly forage for food will be clear-cut and almost all vegetation will be gone. Forest vegetation will be replaced by open space, detention pond, lawn and maybe smaller shrubs. The work will occur at or above the nesting level and while the maps appear to indicate that this would be out of sight of the nests, the birds will be flying above the nests and the shelter and visual screen and buffer that the upslope forest provided will be gone or will be removed possibly during nesting season. 32.The changes to the seasonal wetland were again raised as an issue since the results of grading and drainage changes could affect food sources for the heron. These impacts were not analyzed leaving a gap in knowledge. Changes in .water level would affect amphibians which heron, particularly newly fledged young heron, depend on as food sources. Similarly, changing water levels would affect invertebrate and insect populations affecting animals further up the food chain. None of the results of possibly changing the water flows were studied. 33.Doctor Stenberg questioned what affect to water quality might occur since water flowing across Sunset now flows across the site, into the soils and exits at the bottom of the hill receiving a level of treatment in the natural percolation process. After the site is developed and to maintain slope stability, this offsite water would be piped faster down the hill and receive substantially less natural treatment. It will also be routed around the new detention pond acid not receive any treatment in that pond. She also wondered about the possible addition of soil additives to stabilize the slope and noted homeowners are not exacting in their use of fertilizers and pesticides for lawn care once the site is developed. 34.She also pointed out the measurements to the colony reflect a radius from the older colony and pinpoint the location whereas the colony is more a polygon and she concluded that the heronry is approximately 950 feet not the 1100 feet noted in the staff report. 35.She mentioned that the Washington State Department of Fish and Wildlife has made recommendation for working around heron colonies and they found that working within approximately 2.600 feet creates problems and recommended 3.200 feet as a distance in which no construction or logging occur. This office does note that such a setback could eliminate most development of this private property. But she noted that in an urban setting where the birds were subject to more intrusions that may not be reasonable. In urban King County studies found colonies shrink when there is development within 1,000 feet. 36.She referenced the 1998 construction of the office park within 500 feet of the colony and noted that now the colony has all but, if not totally, abandoned the main colony and moved to what is called the protected forest further to the west and north. 37.Dr. Stenberg noted that Fish and Wildlife recommendations were based on the best available science. She noted this colony arrives at its nests earlier and some stay a bit later and that the window should accommodate this local variation from other colonies. She recommended mid -January to the end of July. which does not accommodate fully the late nesters. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 59 38.She noted that this colony appears to react more to disturbances from the north where there is currently more forest cover and generally less anticipated intrusions and seem less disturbed by southerly -based disturbances. 39.Ms. Krom testified and noted that most activity occurs along the south trail system and viewing area and that little activity occurs on the north side of the colony. Also it was pointed out that most activity occurs during daylight hours since most of the development east. south and west is commercial development or office or industrial uses which do not have much in the way of evening activity. The proposed development would be some of the first development to occur north since the colony was established and would introduce a more permanent, daily population including evening hoar activity and more lighting. 40.Ms. Krom testified that the main colony productivity declined substantially after the development at SW 7th and Naches. Then the main colony appeared to be abandoned and the heron moved to the area termed the "protected forest" which is north or northwest. The timing of this move also seemed to have corresponded with the termination of the blasting at the quarry which was located west of the subject site. 41.She indicated that there did not appear to be any change to the trees in the main colony such as dead or dying trees to cause the shift. 42.It was clear the heron colony attracts a lot of attention from the general public. They visit during the nest season to watch the activity. They walk the trail and use some viewpoints. Some folks may wander another trail to the north or rear of the colony but it does not seem to be popular. These visits to the trail may be affecting the heron in some fashion but that would not necessarily justify intensifying or adding more impacts such as the applicant's proposal without more study. 43.Scott Dinkelman, the applicant's geotechnical consultant discussed the borings. He updated information with new borings that were conducted after the initial environmental review. This new information was not seen by the ERC. It was revealed at the public hearing on the appeal. These new, deeper borings show that the site can be worked safely. He testified that it was always expected that it would be a summer construction type project due to moisture sensitive soils. This means that there should probably be no earthwork during the nornial rainy season. This information does not appear in the geotechnical report and a seasonal grading "window" was not part of the ERC's recommendations. He noted that the original soils report was fairly preliminary. 44.He disagreed with the Barghausen wetland report prepared for the applicant for this project that characterized the soils on the site as well drained. He noted that he would not characterize the soils as well drained. 45.He noted that they would have to dry the soils in the summer as they work the lifts. But the report did not contain any recommendations to this affect. . 46.Mr. Grubb was the civil engineer for the project. He noted that the road is designed to basically follow the existing grades. Homes would be built on cuts upslope and fills down slope from the roadway. The intersection with Sunset, its angle and sight dis— were important and constrained the design of the roadway thereafter. He Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 60 noted that the extensive grading for lots appears necessary to accommodate the small lot sizes and home design where daylight basements are not necessarily appropriate. 47.Mr. Grubb explained the drainage basins that drain across the subject site. The largest basin. approximately 43 acres, feeds a stream that is unregulated due to its small size and lack of fish. The only impact of this flow is that the access roadway will cross the stream. Except for the proposed road crossing, the stream flows in an area that will not be developed and feeds the site's protected wetland at the toe of the eastern slope. A 14.4 acre basin also feeds through the site as well as two smaller 4.7 acre and 6.6 acre basins north of Sunset that cross the site after exiting culverts under Sunset. The state has also collected water from Sunset and that flows across the site. 48.Almost all water that enters the site fiom external properties, that does not enter the site as precipitation, will be captured and piped around the site and released more or less at its natural exit. The water will receive no particular treatment nor will it be slowed by the soils on the site or absorbed by vegetation (evapotranspiration). Water that falls on the site will be detained in a detention pond at the bottom of the slope near the railroad tracks. He testified that the long skinny pond alliances water quality treatment. Storm water will also be directed around retaining walls or rockeries to protect those features. 49.Dr. McCarthy was the applicant's hydrologist. He discussed the riparian forest and its prominent featurejust south of the subject site and railroad tracks, the depressional wetland. It is about 10.5 acres. It is about 3.5 feet deep at its deepest and has a million cubic feet of storage. He noted that the change would be an increase from approximately 115 acre-feet of runoff under current conditions to 145 acre-feet after development in an average year. This was not considered a significant change given the capacity of the wetland. He had not actually observed any flows on the site or to the wetlands. It was based on modeling the flows and on the soils maps not on the actual borings or the results revealed by those borings. It was noted that most of this was new information that was not available to the ERC or public prior to the hearing. 50.Rebecca Lind testified for the applicant. She stepped through thevarious dowmzones that occurred, including considerations for buffering the heronry. Each rezone action or Comprehensive Plan amendment; in general, reduced the overall intensity of development that could occur on the site. The applicant or predecessor in interest sought some of these actions- 5 LMs. Dusek prepared the Habitat Wildlife Assessment and Stream Study Report for the applicant. No fish were found on the site or its wetlands or the stream on the site. The heron are designated by Fish and Wildlife as a priority species, trees and nesting areas are protected and the birds cannot be hunted or harassed. There is a need to identify potential impacts on them but there is no requirement to replace habitat. 52.Ms. Dusek using a variety of cross-section exhibits demonstrated that the heron nests are not visible from the site when the trees leaf out which generally occurs in April. One nest is visible in winter. Elevation profiles show the nest elevations. the tree screening at mid -range and the profile of the site and proposed buildings. This information reportedly shows that the heronry will not be visible from in(,-' -r the Sunset b,, 6PA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 61 site even after developed and that the site would in turn, not be visible by the heron in their nests. A fence that is required in the Development Agreement should help limit entry from the north. 53.Mr. Pritchard testified as an expert in wetland ecology. His assessment was not available to the ERC and was conducted for the public hearing. The forest showed good, vigorous growth and no snags. There were some very large trees on upland hummocks. Cottonwood trees of 14" to 18" caliper at chest height and some large specimens 40" to 50". Water marks on trees varied from 12" to 14" to 36" to 40". The water marks could have been caused by the large October storm event or could be seasonal. He had not reviewed weather records. A variation of 1" to 2" should not affect the larger trees and excess inundation should flow over the south edge of the depressional wetland into the P-f pond. 54.Doctor Raedeke testified as a wildlife and heron expert for the applicant. He relied on a number of studies of heron. He indicated that with the possible exception of British Columbia herons appeared to be increasing in number. He has been involved in heron projects around Puget Sound. His testimony made this project seem like a "non-event" in terms of potential impacts to this colony. He noted that if the birds are displaced, they relocate to other locations. Whereas Dr. Stenberg testified that due to concerns about numbers, they are trying to refine the counting methodologies. They also formed an international working group because of those declining numbers. There are limited locales for heron colonies due to the nature of the trees; the forest and the wetland environment they prefer. Doctor Raedeke noted that buffers per se do not necessarily protect the heron but barriers to entry are a better option. The buffer proposed in this case meets or exceeds past recommendations. He characterized a construction zone moratorium as illogical and punitive this far away from the colony. He noted that the birds do habituate to disturbances but noise and activity does cause them to flush. He did note that it might be better to leave some habitat and that monitoring to see what happens and react accordingly probably should be done. 55.Ms. Thompson, Washington Fish and Wildlife Department, represented that department and testified in her official capacity. She admitted that the state did not appear to comment earlier in the review process for this application. She noted that while this colony appears to be thriving, others have been reduced in numbers and two larger ones; Peasley Canyon and Dumas Bay have been abandoned. Some small two -nest colonies may be satellite colonies. The 1985 study is 20 years old and out of date. They see more fragmentation of colonies and more abandonment. Of the 13 colonies mentioned in that report only 9 remain. Some of the studies cited by the applicant's representative are from a different subspecies of heron and the information and characteristics do not carry over. She noted that Alberta, NY and Louisiana have entirely different ecosystems. She noted that the Stabins study showed perceived increases in nests but that does not seem to be verifiable. Others including herself found smaller numbers than Stabins. There have been increased efforts of late to establish a clear methodology and protocol. The number of nests has decreased by approximately 100 in 2003 versus 2000. She noted that suitable habitat is limited for nesting and foraging. 56.Stabins data also varied from other data collected and it was noted that the increase seen in the Redmond Towne Center colony went from 22 nests reported by Stabins in 2000 to 6 nests in 2001 and the colony has since failed. But Ms. Thompson noted Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 62 that with no formal protocol, the number differences might be explained by different reporting methods or possibly flawed data. 57.There was speculation that more disturbances actually might increase success. It was not known why this might be true since the heron do flush and react but possibly, eagles, which have attacked colonies are even more disturbed by human intrusion, have moved further away from the intrusions. 58.Ms. Thompson was in favor of site -specific management plans. Incontrovertible is that walking and sudden noise will flush the birds. The larger colony may need more protection, more habitat reserve and reasonable buffer in terms of no intrusion. approximately 300 meters, and a construction window in terms of time (nest related) and distance. 1.000 meters. 59.She noted that this colony represents approximately six percent (6%) of the heron of King County and therefore, experimenting on them is not a good idea as it represents too significant a colony. 60.The applicant's expert would have us believe that birds that have been identified as very flighty, easily flushed and shy, have been mischaracterized and are helped and flourish because of human activity. This testimony alone, even a suggestion that is the case robs most of his testimony of credibility and makes the conclusions suspect. or fairly lacking in science. It would appear that the testimony relies on predominately one source, a Masters student and he was her advisor. It also is a source that was not subject to cross-examination. 61.Mr. Jordan testified that the ERC considered the design of the complex and its proximity or lack thereof, to the heron colony when issuing its decision and omitting a construction window. They required a second opinion on the slopes and modified the decision to accommodate those additional recommendations. They noted the trail distance and that tours were given showing the heron a bit less sensitive than expected. They also considered the existing and surrounding uses and noise sources including the railroad, quarry, industrial uses and the treatment plant. They did anticipate additional geotechnical information as development and plans were developed. Staff did not recommend a construction season to work around either the wet season or for the heron's nesting behavior and timing. 62.This office issued a decision in an appeal supporting the City's detennination that no site clearing, grading or similar work would occur on the Debar Property (File Number: LUA-01-58) adjacent to May Creek. The City was concerned with the stability of that steep slope and the sensitive nature of May Creek. In that matter the applicant challenged a condition imposed by the ERC that read: "The applicant shall limit site disturbance including clearing, grading, utility, and roadwork activities to occur during the relatively dry months of April through October." The ERC imposed this condition to limit work to the dry season in spite of the fact that the then applicant introduced expert testimony that the site could be worked during the wet season and that the ground stability would not bejeopardized. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 63 63.In Emma's Plat (file Number: LUA-04-025) the ERC imposed a specific condition on earthwork activity where a wetland was involved but where slopes were less than 5%. The ERC condition was: 1. The applicant shall be required to perform all earthwork activities during the dry summer months of August through October. This condition shall be subject to review and approval of the Development Services Division." 64.The jurisdiction for the Hearing Examiner in appeals can be found in Section 4-8- 110.E APPEALS TO EXAMINER OF ADMINISTRATIVE DECISIONS AND ENVIRONMENTAL DETERMINATIONS: (Amd. Ord. 4827, 1-24-2000) 1. Applicability and Authority: a. Administrative Determinations: Any administrative decisions made may be appealed to the Hearing Examiner, in writing, with the Hearing Examiner, Examiner's secretary or City Clerk. (Ord. 4521, 6-5-1995) b. Environmental Determinations: Except for permits and variances issued pursuant to RMC 4-3-090, Shoreline Master Program Regulations, when any proposal or action is granted, conditioned, or denied on the basis of SEPA by a nonelected official, the decision shall be appealable to the Hearing Examiner under the provisions of this Section. c. Authority: To that end, the Examiner shall have all of the powers of the office from whom the appeal is taken insofar as the decision on the particular issue is concerned. 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, stded: "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 will not be modified or reversed if it can meet the above test. For reasons enumerated below, the decision of the ERC is reversed. 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 Er mental Impact Statement. Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3, 2004 Page 64 4. An action is detennined 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 197-1 1-794 has been adopted, it defines "significant" as follows: 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. All 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, ... Probahle is used to distinguish likely impacts from those that merely have a possibility of occurring, but are renhoat or speculative. (WAC 197-1 1-782). 6. Impacts also include reasonably related and foreseeable direct and indirect impacts including short -tern and long -tern effects. (WAC 197-1 1-060(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 fixture actions. (WAC 197-11-060(4)(d)). Environmental impact is also related to the location. A development whether an office building or a single-family development may or may not create impact depending on the existing surroundings. 7. In this case we have approximately 26 acres of forested property located uphill from a City park that for the most part is a unique riparian forest and wetland environment and one that contains one of the larger heron colonies in King County. It appears very reasonable to explore in more detail the probable impacts of developing the subject site as proposed as well as possible alternatives. What is clear is that the conditions imposed by the ERC are more compliance measures that do not necessarily mitigate the impacts of this development. 8. The applicant suggests that the appellant should have challenged this project earlier in the process. This argument is not persuasive. The appellant may not have objected to single-family uses on this site. The appellant might have relied on the very SEPA review process now occurring to help mitigate impacts of single-family development on this site. Many have suggested in the past that mere map changes are insufficient to challenge a land use action when no physical changes are proposed. Instead it has been suggested that when real development is proposed, SEPA and the parties could get a better handle on the potential impacts. That is exactly what has happened in this case. A concrete proposal has allowed the various parties to analyze what is proposed and what its impacts might be. The appellants have a right to challenge the proposal at this time even if they did not challenge it earlier. 9. The applicant's attorney attempted to paint the appellant's representative as a zealot willing to do anything to protect the heron and prevent development. This is not a characterization that this office needs to decide. The issues in this case a tiler Sunset Big__ .,cPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 65 the ERC made the appropriate determination and whether this project will have more than a moderate impact on the quality of the environment. The motivation, at least, at this point does not matter. If the proposal will have more than moderate impact on the environment then a Determination of Significance should have been issued by the ERC. I O.The record shows that the ERC relied on past .experience with development on steep hillsides, or adjacent to wetlands and near time heron colony. The record reveals that when development on or near a steep sensitive hillside was proposed near May Creek, the ERC imposed a condition for special reporting and limited work to the dry season. (See above) The ERC even defended that decision in the face of an appeal and expert evidence that the development could proceed during the wet seasons. Similarly, in Emma's Plat the ERC imposed a condition limiting earthwork to the dry months. In this case the applicant 's expert indicated that it was presumed that the development would be seasonally limited. No such condition appears in writing. I i .Besides not imposing a "wet -season" limitation on working on the steeper hillside. the ERC imposed no construction window to lessen impacts on nesting heron. It would appear that they did consider the horizontal distance between the subject site and the heronry. But there appears to be evidence that the vertical offset could adversely affect the heron including the loss of dense cover in an area where it has long existed. While there are other large complexes in the area, the ones north of the site are both more remoat and were apparently established when the heron began establishing their colony. 12.The City's obligation to is to fully and fairly determine the potential impacts of developing this property in the manner proposed by the applicant. That is the City must analyze the impacts of removing approximately 20 acres of mature forest from a slope that varies from 20 to 40 percent and that is located upslope from a sensitive riparian forest that is inhabited by a large colony of heron. The ERC's report does not contain any particular information on the complex mesh of slope -wetland -heron. It is as if there were an implicit admission that the City and its planners and probably the decisionmaker already know about the impacts of development in these kinds of environments and that documenting them would be unnecessary or redundant. This ignores the fact that the general public does not have this information and cannot intelligently comment in the absence of such information. Time failure to further explore the impacts and consequences of a specific proposal also ignores the fact that occasionally a full exploration of the probable impacts might lead to better design, particularly for a non -routine site or one with significant features or attributes. This does not mean an EIS can be demanded in the absence of a showing that a proposal will have more than a moderate impact on the quality of the environment. In this case the nature of the proposal, the nature of the subject site and the nature of the surrounding area requires more disclosure and more analysis. 13.SEPA requires review "at the earliest possible point in the planning and decision - making process" (WAC 197-11-055(2). This review should be performed prior to irrevocable commitment of either resources or land. It is apparent that the SEPA determination required at this, the earliest time when alternatives can be realistically considered, would be to require an EIS. By attempting to eliminate the full disclosure mandated by SEPA, the applicant may be foreclosing reasonable and better alternatives for the site. They may be committing to a course of action that has not been fully explored. SEPA demands more in this case. The approval of the Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 66 proposed development without a SEPA study would foreclose considering alternative development scenarios such as clustering the single family homes, using detention vaults in conjunction with storm water control, utilizing the topography with less drastic an alteration of the slope as is now proposed. Then again, a full study might fully support the current proposal as the best development alternative or, at least, a more than reasonable method of allowing development on the subject site. 14,This decision should not be read to discount or dismiss most of the rebuttal testimony provided by the applicant. Rather what this decision does is conclude that the information provided does not mitigate the impacts of the proposal on the quality of the environment, impacts such as its total forest and vegetation removal from approximately 20 acres, its grading of slopes varying from 20% to 40% on approximately 20 acres, its alteration ofhydrology that will affect the hydroperiod of the riparian forest, or its proximity to the heron colony. Also important is the fact that none of this supplemental information was available in a timefranme where it could help the public knowledgeably comment on this project. This supplemental information was presented in an appeal hearing, not a forum where it could easily be digested and certainly not in a format where the general public could read it. comment on it and rebut it. The information is late and does not help weigh tine impacts and possibly derive alternatives that might lessen the impacts. 15.1 i addition, the applicant's supplemental information. as noted above, in many cases conflicts with the information submitted by the appellants. This information needs to be laid out side -by -side and sorted and sifted in a way that only an Environmental Impact Statement can provide. This information needs to be assembled by an expert team that is managed by the City, the agency withjurisdiction and which is in charge of gathering such full disclosure information. Frankly, right now, we have a battle of experts and it may ultimately come down to that but only after the full disclosure mandated by SEPA. 16.This does not mean that an exhaustive study of the development of the site is necessary. it appears that the appellants and others who have written about this proposal have focused on certain issues. Those are clearly the areas that need to be studied. The issues that need particular analysis are: a). The hydrology ofthe site and its affect on the riparian forest including hydroperiod. b). Habitat alteration and .water quality c). Tile slope stability. d). The affects of the loss of vegetation and regrading of approximately 20 acres of mature forest, and the impacts of tree removal and grading and construction noise on the heron colony, e). The impacts of the potential new residential population including noise and light and glare on the heron colony 17.Studying minimum and maximum development and inid-range development alternatives does not mean that the ultimate development cannot be constructed as Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 67 the applicant envisions. The focused EIS only serves as a full disclosure document. One has to remember that while the document serves the needs of the decisionmaker, it truly serves the needs of those who need information to formulate appropriate questions for the decisionmaker - that is neighbors and other interested persons who may not be as knowledgeable of development results as City staff. 18.It is misguided to believe that because the applicant's proposal will comply with code that it is a measure of successful mitigation. One has to hope; if not presume, that all projects will meet their minimum code requirements or they should not be permitted. If merely complying with code for achieving slope stability, or stormwater detention ended the environmental analysis, there would be no need for SEPA review. While this is a tact that some have sought in the legal environmental arena, SEPA review is still required since projects that meet code may still have a significant impact on the quality of the environment. This office in its handout on dealing with environmental appeals notes the development of Gene Coulon Park, a gem of a park along Lake Washington's shoreline, an almost incontrovertible asset, was constricted only after arm Environmental Impact Statement vas prepared. While that was a number of years ago, the principles of environmental review are still intact. "A threshold determination shall not balance whether the beneficial aspects of a proposal outweigh its adverse impacts, but rather, shall consider whether a proposal has any probable significant adverse environmental impacts under the rules stated in this section. For example, proposals designed to improve the environment, such as sewage treatment plants or pollution control requirements, may also have significant adverse environmental impacts." (WAC 197-11-330 (5). 19. If a project will have more than a moderate impact on the quality of the environment and all of its impacts have not been mitigated, then an EIS, an environmental full - disclosure document, is required. In this case, once again, we have a proposal that will result in the clearing of absolutely all vegetation and stripping of topsoils on a very steep hillside above a City park and above a significant heron colony. We have a project that will change the rate of flow for storm water. We have a proposal that will potentially alter the constituents (contaminants from Sunset or herbicides and pesticides and fertilizers) of that flow. This is because the stormwater that now percolates into the natural soils will be channeled around the subject site or fall on a very compacted soil surface. We have a project that will alter an area that the heron may use for nest -building materials and possible foraging. These are significant impacts that have not been mitigated. Could there be more suitable development? Nothing in the development agreement or code forbids this project, developed in a sensitive location, from having a unit count of less than 69 units if it would be more suitable for this location. 20. This office has recognized in the past and again recognizes one issue that makes this decision problematic. This office not only reviews the SEPA appeal but is in the position of a decisionmaker ("recommendation maker" to time City Council in this case). As the decisionmaker, more information is always welcome but not just for time sake of exploring minutia or delaying the ultimate decision. This decisionmaker would like to have more information on alternatives for developing this site. 21. While development of private property is essential and the development of additional housing in the City is encouraged not every development plan serves the public use Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 68 and interest, a prime component of the review criteria for a plat. It would appear that the city and other governmental agencies expended a large sum of money not merely to protect a riparian forest, but a heron colony - an ecosystem. It would appear reasonable to take some additional measures to analyze the impacts and possible alternatives to protect that unique resource. 22.While not in any manner attempting to prejudge the next series of environmental documents that come out of this process, the appellants need to be mindful that this is private property and that once reasonable environmental information is compiled. the challenges will be harder. Disclosing the impacts of the development and even providing alternative development ideas does not mean that the subject site will not be developed as proposed by the applicant. SEPA does not necessarily prohibit development that will have an impact on heron, trees, rivers or [wetlands. It requires an informed decisionmaker who then decides if there are acceptable impacts and even losses. 23.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 finn conviction that a mistake has been made. There is no doubt that the reviewing agency erred in its determination. The plat is a major action that will significantly affect the quality of the environment. The proposed plat is a major action that will have more than a moderate impact on the quality of the environment. The mitigation measures imposed by the ERC do not fully mitigate the impacts of developing this site. Too many questions on environmental issues are still unanswered. Repeating the obvious: we have a heron colony and the impacts of this development on that colony and its environment need more analysis. It is possible that the development of environmental information will accomplish both the preservation of the heron colony and permit the development of the private property. 24.The appealing party must prevail on this appeal. A DNS, even a mitigated DNS, would be inappropriate for this proposal. First, at this point, without more information, it truly is hard to understand [what mitigation: that is, what conditions, would be sufficient to offset the potential impacts. In order to mitigate a proposal, one needs to fully understand the immpacts. The information now in the record does not provide the necessary information at this time. Full environmental disclosure should provide the necessary information and that means the preparation of an EIS. 25.Again, the record is replete with a great deal of conflicting and contradictory information provided by hired or voluntary experts. A concise EIS prepared tinder the City's auspices should provide a neutral document with more balanced presentation. 26.Since Section 4-8-1 10-E- I -c grants this office "all of the powers of the office from whom the appeal is taken insofar as the decision on the particular issue is concerned" this office will issue a Determination of Significance. 27.The determination of the Environmental Review Committee is reversed. A Determination of Significance is substituied in its place. 28.Having reached the conclusion that an EIS is required, no purpose would be served in reviewing the proposed plat request for the subject site. The evaluation perfornmed by the EIS may demonstrate that the proposed plat -needs modification. Sunset b,..__ 6PA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 69 DECISION: The decision of the ERC is reversed. A Determination of Significance will replace the decision of the ERC. ORDERED THIS 3rd day of August, 2004 FRED J. KAUF N HEARING EX IINER TRANSMITTED THIS 3rd day of August, 2004 to the parties of record: Jason Jordan David Hallinen Zanetta Fontes 1055 S Grady Way 10500 NE 8t' Street, Suite 1900 Assistant City Attorney Renton, WA 98055 Bellevue, WA 98004 Renton, WA 98055 Kayren Kitnick David Mann Suzanne Krom 1055 S Grady Way 1424 Fourth Avenue, Suite 1015 4715-1/2 36" Avenue SW Renton, WA 98055 Seattle, WA 98101 Seattle, WA 98126 Bill Rozeboom Anil Butail Dyanne Sheldon NW Hydraulic Consultants Geotechnical Engineer 5031 University Way NE 16300 Christianson Rd, Ste. 350 12525 Willows Road, Suite 80 Seattle, WA 98105 Tukwila, WA 98188 Kirkland, WA 98034 Kate Stenberg, MD Michael Hamilton Mr. Marsh 23022 SE 48"' Street 20418 NE 41" Street 3434 14" Avenue W Satmnamish, WA 98075 Sammamish, WA 98074 Seattle, WA 98119 Barak Gale Angela Romig Sally Neary 6522 42'" Avenue NE 305 Kensington Avenue S 1190 Union Avenue NE Seattle, WA 98115 Kent, WA 98030 Renton, WA 98059 Jerry Holmes Scott Dinkelman Hal Grubb 408 Index Place NE Earth Consultants Barghausen Consulting Engineers Renton, WA 98056 1805 136"' Place NE, Suite 201 18215 72' Avenue South Bellevue, WA 98005 Kent, WA 98032 Ed McCarthy, Ph.D Rebecca Lind Theresa Dusek 9957 171" Avenue SE 1055 S Grady Way Barghausen Consulting Engineers Renton, WA 98059 Renton, WA 98055 18215 72'"r Avenue South Kent, WA 98032 Emmett Pritchard Dr. Ken Raedeke Patricia Thompson Raedeke Associates Raedeke Associates Department of Fish and Wildlife 5711 NE 63rd Street 5711 NE 63'd Street 16018 Mill Creek Blvd Seattle, WA 98115 Seattle, WA 98115 Mill Creek, WA 98012 Ivana Halvorsen Kevin L. Jones, P.E. Patricia Sumption Barghausen Consulting Engineers The Transpo Group 10510 11" Avenue NE 18215 72' Avenue South 11730 118" Ave NE, Suite 600 Seattle, WA 98125 Kent, WA 98032 Kirkland, WA 98034 Brenda Buchanan 10840 14"i Avenue S. Seattle, WA 98125 TRANSMITTED THIS 3" day of August, 2004 to the following: Mayor Kathy Keolker-Wheeler Larry Rude, Fire Jay Covington, Chief Administrative Officer LarryMeckling, Building Official Julia Medzegian, Council Liaison Planning Commission Larry Warren, City Attorney Transpiration Division Sunset Bluff SEPA Appeal File No.: LUA-04-002, ECF, PP August 3,2004 Page 70 Gregg Zimmerman, PBPW Administrator Utilities Division Alex Pietsch, Economic Development Neil Watts, Development Services Jennifer Henning, Development Services Janet Conklin, Development Services Stacy Tucker, Development Services King County Journal All Parties of Record Pursuant to Title IV, Chapter 8, Section IOOGof the City's Code, request for reconsideration must be filed in writine on or before 5:00 p.m., August 17, 2004. 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 I equest 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 en'ors 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 S75.00 and meeting other specified requirements. Copies of this ordinance are available for inspection or purchase in the Finance Department, fast floor of City Hall. An appeal must he filed in writing on or before 5:00 p.m., August 17 2004 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 nrocessino of the Fite. You may contact this office for information no formatting covenants. The Appearance of Fairness Doctrine provides that no ex pane (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. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. CITY OF RENTON COUNCIL AGENDA BILL AI #: , C, SUBMITTING DATA: Dept/DivBoard... City Clerk Staff Contact...... Bonnie Walton SUBJECT: Bid opening on 9/3/2004 for CAG-04-113, 200 Mill Building Chiller Replacement Project EXHIBITS: Staff Recommendation Bid Tabulation Sheet (three bids) FOR AGENDA OF: AGENDA STATUS: Consent......... X Public Hearing.. Correspondence.. Ordinance....... Resolution...... Old Business.... New Business.... Study Session... Other........... RECOMMENDED ACTION: APPROVALS: Legal Dept...... Council concur Finance Dept.... Other. FISCAL IMPACT: Expenditure Required... $121,594.88 Transfer/Amendment.. Amount Budgeted........ Revenue Generated... Total Project Budget... $290,000.00 City Share Total Projei SUMMARY OF ACTION: Engineer's Estimate: $180,000 RECOMMENDED ACTION: In accordance with Council procedure, bids submitted at the subject bid opening met the following three criteria: There was more than one bid, the low bid was within the project budget, and there were no irregularities. Therefore, staff recommends acceptance of the low bid submitted by MacDonald -Miller. Facility Solutions, Inc., in the amount of $121,594.88. MEMORANDUM : If. � CITY OF RENTON COMMUNITY SERVICES 0 Committed to Enriching Lives 0 DATE: September 3, 2004 TO: Bonnie Walton, City Clerk FROM: Peter Renner, Facilities Director X6605 ?C SUBJECT: 200 Mill Building Chiller Replacement Project CAG-04-13 200 Mill Building Chiller Replacement Project, the bid opening was held on September 3r , 2004, at 2:30 PM. Three (3) bids were submitted. The project estimate was $180,000. The original project budget estimate was $290,000.00. This was based on an estimate established in 2000. Once the consulting engineer had reviewed the project and created specifications and plans earlier this year, it was determined that the project could be completed with reduced complexities, resulting in a lower cost. The bids ranged from a low of $121,594.88 to a high of $163,061.00. The low bid for the projects was $121,594.88, including WSST from MacDonald -Miller Facility Solutions, Inc. Our staff has reviewed the low bid for completeness, inclusion of all required forms, acknowledgments of addenda and mathematical correctness of the bid. All of the paperwork is in order. The low bid of $121,594.88 including WSST is within the amount the Facilities Division budgeted for the project. Funding for the program will be under account number 306.000003.005.5940.0019.64.000000 Leased City Properties. The appropriated amount for the project is $180,000. The Facilities Division therefore recommends that this item be placed on the September 13th, 2004 consent agenda for Council concur. Staff further recommends that Council award the contract to the lowest responsive, responsible bidder, MacDonald -Miller Facility Solutions, Inc., for the amount of $121,594.88. CITY OF RENTON BID TABULATION SHEET ZOJECT: 200 Mill Building Chiller Replacement; CAG-04-113 DATE: September 3, 2004 FORMS BID BIDDER Triple Includes 8.8% Sales Tax Form Addenda J.P. Francis & Assoc., Inc. X X $163,061.00 8223 S. 222nd St. Kent, WA 98032 Julius P. Francis MacDonald -Miller Facility Solutions X X $121,594.88 PO Box 47983 Seattle, WA 98146 Dave Herr W.A. Bolting Company X X $137,034.00 PO Box 1200 Woodinville, WA 98072 Michael Burras 1NGINEER'S ESTIMATE TOTAL: $180,000.00 LEGEND: Forms: Triple Form: Non -Collusion Affidavit, Anti -Trust Claims, Minimum Wage CITY OF RENTON COUNCIL AGENDA BILL SUBMITTING DATA: Dept/DivBoard.. AJLS/City Clerk Staff Contact... Bonnie Walton SUBJECT: CRT-04-006; Court Case — Kelly A. Wright vs. City of Renton EXHIBITS: Summons and Complaint Al11 #:Y r1 1 FOR AGENDA OF: 9/13/2004 AGENDA STATUS: Consent ......... XX Public Hearing.. Correspondence.. Ordinance... Resolution... Old Business....... New Business...... Study Session.... Other.... RECOMMENDED ACTION: APPROVALS: Legal Dept...... Refer to City Attorney and Insurance Services Finance Dept.... Other. FISCAL IMPACT: Expenditure Required... Transfer/Amendment.. Amount Budgeted ........ Revenue Generated... SUMMARY OF ACTION: Summons and Complaint for Damages filed in King County Superior Court, by Diane L. Vanderbeek, Attorney at Law, 110 Pacific First Plaza, 155 - 108th Ave. NE, Bellevue, 98004, on behalf of Kelly A. Wright, alleging assault and battery, violation of civil rights, intentional infliction of emotional distress, and negligence while in the custody of the Renton Police Department on 8/27/2002. 1 2' 3'i 41' 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Subs,Joi. w!+rt ("j(Z(V IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY KELLY A. WRIGHT, a single person, Plaintiff, vs. CITY OF RENTON, a Municipal Corporation, Defendant NdD4®2®21250®2KNT SUMMONS TO: CITY OF RENTON, a Municipal Corporation, Defendant(s) A lawsuit has been started against you in the above entitled Court by the Plaintiff. Plaintiffs claim is stated in the written Complaint, a copy of which is served upon you with this Summons. In order to defend against this lawsuit, you must respond to the Complaint by stating your defense in writing, and serve a copy upon the undersigned attorney for the Plaintiff within twenty (20) days after the service of this Summons, excluding the day of service, and file a copy with the Court named above. If you do not, a Default Judgment may be entered against you without notice. A Default Judgment is one where Plaintiff is entitled to what he asks for because you have not responded. If you serve a Notice of Appearance on the undersigned attorney, you are entitled to notice before a Default Ma. jn i onceIn, ie� SUMMONS-1 DIANE L. VANDERBEEK Attorney at Law 110 Pacific First Plaza 155 - 108th Avenue N.E. Bellevue, WA 98004 Telephone (425) 451-3991 Facsimile (425) 637-9944 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Judgment may be entered. You may demand that the Plaintiff file this lawsuit with the Court. If you do so, the demand must be in writing and must be served upon the person signing this summons. Within 14 days after you serve the demand, the plaintiff must file this lawsuit with the Court, or the service on you of this summons and complaint will be void. If you wish to seek the advice of an attorney in this matter, you should do so promptly so that your written response, if any, may be served on time. This Summons is issued pursuant to Rule 4 of the Superior Court Civil Rules of the State of Washington. SUMMONS - 2 this d,(dZay o � 2004. s DIANE L. VANDERBEEK Attorney at Law 110 Pacific First Plaza 155 - 108th Avenue N.E. Bellevue, WA 98P " Telephone (425) 451-3 Facsimile (425) 637-99, 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 27 28 n IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY KELLY A. WRIGHT, a single person, NO.' W2 - 21 2 5 Q - 2 K?vT Plaintiff, i . vs. CITY OF RENTON, a Municipal Corporation, COMPLAINT FOR DAMAGES Defendant COMES NOW the above -named Plaintiff by and through her attorney, Diane L. VanDerbeek, and for claim of relief against the above -named Defendants, alleges as follows: 1. IDENTIFICATION OF THE PLAINTIFF. That at all times described herein, Plaintiff, KELLY A. WRIGHT, was a resident of King County, Washington. 2. IDENTIFICATION OF THE DEFENDANTS. That at all times described herein, Defendant, CITY OF RENTON, was a municipal corporation organized under the laws of the State of Washington. 3.DATE OFOCCURRENCE Plaintiff was injured as hereinafter alleged on or about August 27, 2002, in King County, Washington due to the Defendants' intentional conduct and/or negligence as hereinafter alleged. COMPLAINT FOR DAMAGES -1- DiAm L. VANDERBEEK Attorney at Law 1 to Pacific First Plaza 155 -108th Avenue N.E. Bellevue, WA 98004 Telephone: (425) 451-3991 Facsimile: (425) 637-9944 1 2 3 4i 5 6 7II 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4.NATURE OFOCCURRENCE: The Plaintiff was arrested by the Mercer Island Police Department for the crime of Driving While Intoxicated. She was subsequently placed in the custody of the Renton Police Department. Officers and/or agents of the Renton Police Department brutally physically abused and assaulted and battered the Plaintiff resulting in serious and permanent personal injury. 5. INTENTIONAL ACTS: The acts alleged in Paragraph 4 of Plaintiff's Complaint were done intentionally by the Defendant City of Renton. The Plaintiff was brutally assaulted and battered while in the custody of the Renton Police Department. Her civil rights were violated. She was subjected to intentional infliction of emotional distress. One of her multiple injuries was so severe that she ultimately required surgery to repair her injured shoulder. 6. NEGLIGENCE: The acts alleged in Paragraph 4 of Plaintiffs Complaint were done negligently by the Defendant City of Renton. The police officers had a duty to avoid injuring the Plaintiff while she was in the custody of the Renton Police Department, they violated said duty by physically and psychologically injuring the Plaintiff. The officers acted in violation of City of Renton Police Department policies relating to care and treatment of prisoners in some cases and accordingly their actions are negligent per -se. 7. INJURIES RECEIVED 7.1 That as a further direct and proximate result of the treatment to which she was subjected while in the custody of Defendant City of Renton, Plaintiff has sustained serious personal injury, the exact extent of which are presently unknown, but which include injuries to the body and other injuries which could be permanent and debilitating. 7.2 That as a further direct and proximate result of the incident, Plaintiff has suffered and will in the future continue to suffer pain, mental anguish and suffering all to damages in an amount presently unknown but which will be proven at the time of trial. COMPLAINT FOR DAMAGES - 2- DIANE L. VANDERBEEK Attorney at Law 1 to Pacific First Plaza 155 - lo8th Avenue N.E. Bellevue, WA 98(—' Telephone: (425) 451-. Facsimile: (425) 637-9-, _ _ 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 27 28 8. EXPENSES INCURRED That as a further direct and proximate result of the incident of August 27, 2002, Plaintiff has incurred reasonable and necessary expenses, both past and future, for medical care and treatment, including but not limited to physicians, clinics, and massage therapy. In addition, as a further direct and proximate result of the incident at hand, Plaintiff has lost wages. 9. RIGHTS RESERVED: Plaintiff reserves the right to amend this complaint to add other parties and/or causes of action, with any amendments relating back to the original date of filing of this complaint 10 .JURISDICTION AND VENUE: The acts alleged herein are alleged to of occurred within the jurisdiction of the King County Superior Court. WHEREFORE, Plaintiff prays for judgment against the Defendant in such amounts as will be proven at the time of trial, together with costs, disbursements and such other and further relief as the Court deems just and proper. TED this Nday of (h 2004. No.11884 v for Plaintiff I am the Plaintiff herein, I have read foregoing complaint for damages and believe the same to be true and correct. SIGNED in $e&ice.. Washington this 18 day of ijcc�k , 2004. COMPLAINT FOR DAMAGES - 3- KELLY A. WRIGHT, Plaintiff DIANE L. VANDE"EES Attomey at Law 110 Pacific First Plaza 155 - 108th Avenue N.E. Bellevue, WA 98004 Telephone: (425) 451-3991 Facsimile: (425) 637-9944 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING KELLY A. WRIGHT, vs Plaintiff(s) CITY OF RENTON, Defendant(s) NO. 04-2-21250-2 KNT Order Setting Civil Case Schedule (*ORSCS) ASSIGNED JUDGE Gain FILE DATE: TRIAL DATE: 14 08/20/2004 02/06/2006 A civil case has been filed in the King County Superior Court and will be managed by the Case Schedule on Page 3 as ordered by the King County Superior Court Presiding Judge. I. NOTICES NOTICE TO PLAINTIFF: The Plaintiff may serve a copy of this Order Setting Case Schedule (Schedule) on the Defendant(s) along with the Summons and Complaint/Petition. Otherwise, the Plaintiff shall serve the Schedule on the Defendant(s) within 10 days after the later of: (1) the filing of the Summons and Complaint/Petition or (2) service of the Defendant's first response to the Complaint/Petition, whether that response is a Notice of Appearance, a response, or a Civil Rule 12 (CR 12) motion. The Schedule may be served by regular mail, with proof of mailing to be filed promptly in the form required by Civil Rule 5 (CR 5). "I understand that I am required to give a copy of these documents to all parties in this case." Print Name Sign Name Order Setting Civil Case Schedule (*ORSCS) REV. 6/200 1 1. NOTICES (continued) NOTICE TO ALL PARTIES: All attorneys and parties should make themselves familiar with the King County Local Rules [KCLR] -- especially those referred to in this Schedule. In order to comply with the Schedule, it will be necessary for attorneys and parties to pursue their cases vigorously from the day the case is filed. For example, discovery must be undertaken promptly in order to comply with the deadlines for joining additional parties, claims, and defenses, for disclosing possible witnesses [See KCLR 261, and for meeting the discovery cutoff date [See KCLR 37(g)]. SHOW CAUSE HEARINGS FOR CIVIL CASES [King County Local Rule 4(g)] A Confirmation of Joinder, Claims and Defenses or a Statement of Arbitrability must be filed by the deadline in the schedule. A review of the case will be undertaken to confirm service of the original complaint and to verify that all answers to claims, counterclaims and cross -claims have been filed. If those mandatory pleadings are not in the file, a Show Cause Hearing will be set before the Chief Civil or RJC judge. The Order to Show Cause will be mailed to all parties and designated parties or counsel are required to attend. PENDING DUE DATES CANCELED BY FILING PAPERS THAT RESOLVE THE CASE: When a final decree, judgment, or order of dismissal of all parties and claims is filed with the Superior Court Clerk's Office, and a courtesy copy delivered to the assigned judge, all pending due dates in this Schedule are automatically canceled, including the scheduled Trial Date. It is the responsibility of the parties to 1) file such dispositive documents within 45 days of the resolution of the case, and 2) strike any pending motions by notifying the bailiff to the assigned judge. Parties may also authorize the Superior Court to strike all pending due dates and the Trial Date by filing a Notice of Settlement pursuant to KCLR 41, and forwarding a courtesy copy to the assigned judge. If a final decree, judgment or order of dismissal of all parties and claims is not filed by 45 days after a Notice of Settlement, the case may be dismissed with notice. If you miss your scheduled Trial Date, the Superior Court Clerk is authorized by KCLR 41(b)(2)(A) to present an Order of Dismissal, without notice, for failure to appear at the scheduled Trial Date. NOTICES OF APPEARANCE OR WITHDRAWAL AND ADDRESS CHANGES: All parties to this action must keep the court informed of their addresses. When a Notice of Appearance/Withdrawal or Notice of Change of Address is filed with the Superior Court Clerk's Office, parties must provide the assigned judge with a courtesy copy. ARBITRATION FILING AND TRIAL DE NOVO POST ARBITRATION FEE: A Statement of Arbitrability must be filed by the deadline on the schedule if the case is subject to mandatory arbitration and service of the original complaint and all answers to claims, counterclaims and cross -claims have been filed. If mandatory arbitration is required after the deadline, parties must obtain an order from the assigned judge transferring the case to arbitration. Any party filing a Statement must pay a $220 arbitration fee. If a party seeks a trial de novo when an arbitration award is appealed, a fee of $250 and the request for trial de novo must be filed with the Clerk's Office Cashiers. NOTICE OF NON-COMPLIANCE FEES: All parties will be assessed a fee authorized by King County Code 4.71.050 whenever the Superior Court Clerk must send notice of non-compliance of schedule requirements and/or Local Rule 41. King County Local Rules are available for viewing at www.metrokc.gov/kcscc Order Setting Civil Case Schedule (*ORSCS) REV. 6/200 2 II. CASE SCHEDULE DEADLINE or Filing CASE EVENT EVENT DATE Needed Case Filed and Schedule Issued. Fri 08/20/2004 Confirmation of Service [See KCLR 4.1]. Fri 09/17/2004 Last Day for Filing Statement of Arbitrability without a Showing of Good Fri 01/28/2005 Cause for Late Filing [See KCLMAR 2.1(a) and Notices on Page 2]. $220 arbitration fee must be paid . DEADLINE to file Confirmation of Joinder if not subject to Arbitration. Fri 01/28/2005 [See KCLR 4.2(a) and Notices on Page 2]. Show Cause hearing will be set if Confirmation is not filed. DEADLINE for Hearing Motions to Change Case Assignment Area. Fri 02/11/2005 [See KCLR 82(e)] DEADLINE for Disclosure of Possible Primary Witnesses Tue 09/06/2005 [See KCLR 26(b)]. DEADLINE for Disclosure of Possible Additional Witnesses Mon 10/17/2005 [See KCLR 26(b)]. DEADLINE for Jury Demand [See KCLR 38(b)(2)]. Mon 10/31/2005 DEADLINE for Setting Motion for a Change in Trial Date Mon 10/31/2005 [See KCLR 40(e)(2)]. DEADLINE for Discovery Cutoff [See KCLR 37(g)]. Mon 12/19/2005 DEADLINE for Engaging in Alternative Dispute Resolution [See KCLR Mon 01/09/2006 16(c)]. DEADLINE for Exchange Witness & Exhibit Lists & Documentary Exhibits Tue 01/17/2006 [See KCLR 16(a)(4)]. DEADLINE to file Joint Confirmation of Trial Readiness Tue 01/17/2006 [See KCLR 16(a)(2)] DEADLINE for Hearing Dispositive Pretrial Motions [See KCLR 56; CR 56]. Mon 01/23/2006 Joint Statement of Evidence [See KCLR 16(a)(5)]. Mon 01/30/2006 Trial Date [See KCLR 40]. Mon 02/06/2006 Indicates a document that must be filed with the Superior Court Clerk's Office by the date shown. III. ORDER Pursuant to King County Local Rule 4 [KCLR 4), IT IS ORDERED that the parties shall comply with the schedule listed above. Penalties, including but not limited to sanctions set forth in Local Rule 4(g) and Rule 37 of the Superior Court Civil Rules, may be imposed for non-compliance. It is FURTHER ORDERED that the party filing this action must serve this Order Setting Civil Case Schedule and attachment on all other parties. DATED: 08/20/2004 PRESIDING JUDGE Order Setting Civil Case Schedule (*ORSCS) REV. 6/200 3 IV. ORDER ON CIVIL PROCEEDINGS FOR ASSIGNMENT TO JUDGE READ THIS ORDER PRIOR TO CONTACTING YOUR ASSIGNED JUDGE This case is assigned to the Superior Court Judge whose name appears in the caption of this Schedule. The assigned Superior Court Judge will preside over and manage this case for all pre-trial matters. COMPLEX LITIGATION: If you anticipate an unusually complex or lengthy trial, please notify the assigned court as soon as possible. The following procedures hereafter apply to the processing of this case: APPLICABLE RULES: a. Except as specifically modified below, all the provisions of King County Local Rules 4 through-26 shall apply to the processing of civil cases before Superior Court Judges. CASE SCHEDULE AND REQUIREMENTS: A. Show Cause Hearing: A Show Cause Hearing will be held before the Chief Civil/Chief RJC judge if the case does not have confirmation of service on all parties, answers to all claims, crossclaims, or counterclaims as well as the confirmation of joinder or statement of arbitrability filed before the deadline in the attached case schedule. All parties will receive an Order to Show Cause that will set a specific date and time for the hearing. Parties and/or counsel who are required to attend will be named in the order. B. Pretrial Order: An order directing completion of a Joint Confirmation of Trial Readiness Report will be mailed to all parties approximately six (6) weeks before trial. This order will contain deadline dates for the pretrial events listed in King County Local Rule 16: 1) Settlement/Mediation/ADR Requirement; 2) Exchange of Exhibit Lists; 3) Date for Exhibits to be available for review; 4) Deadline for disclosure of witnesses; 5) Deadline for filing Joint Statement of Evidence; 6) Trial submissions, such as briefs, Joint Statement of Evidence, jury instructions; 7) voir dire questions, etc; 8) Use of depositions at trial; 9) Deadlines for nondispositive motions; 10) Deadline to submit exhibits and procedures to be followed with respect to exhibits; 11) Witnesses -- identity, number, testimony; C. Joint Confirmation regarding Trial Readiness Report: No later than twenty one (21) days before the trial date, parties shall complete and file (with a copy to the assigned judge) a joint confirmation report setting forth whether a jury demand has been filed, the expected duration of the trial, whether a settlement conference has been held, and special problems and needs (e.g. interpreters, equipment), etc. If parties wish to request a CR 16 conference, they must contact the assigned court. Plaintiff/petitioner's counsel is responsible for contacting the other parties regarding said report. D. Settlement/Mediation/ADR: 1) Forty five (45) days before the Trial Date, counsel for plaintiff shall submit a written settlement demand. Ten (10) days after receiving plaintiff's written demand, counsel for defendant shall respond (with a counteroffer, if appropriate). 2) Twenty eight (28) days before the Trial Date, a settlement/mediation/ADR conference shall have been held. FAILURE TO COMPLY WITH THIS SETTLEMENT CONFERENCE REQUIREMENT MAY RESULT IN SANCTIONS. E. Trial: Trial is scheduled for 9:00 a.m. on the date on the Schedule or as soon thereafter as convened by the court. The Friday before trial, the parties should access the King County Superior Court website at www.metrokc.gov/kcsc to confirm trial judge assignment. Information can also be obtained by calling (206) 205-5984. A. Noting of Motions Dispositive Motions: All Summary Judgment or other motions that dispose of the case in whole or in part will be heard with oral argument before the assigned judge. The moving party must arrange with the courts a date and time for the hearing, consistent with the court rules. King County Local Rule 7 and King County Local Rule 56 govern procedures for all summary judgment or other motions that dispose of the case in whole or in part. The local rules can be found at www.metrokc.gov/kcscc. Nondispositive Motions: These motions, which include discovery motions, will be ruled on by the assigned judge without oral argument, unless otherwise ordered. All such motions must be noted for a date by which the ruling is requested; this date must likewise conform to the applicable notice requirements. Rather than noting a time of day, the Note for Motion should state "Without Oral Argument." King County Local Rule 7 governs these motions, which include discovery motions. The local rules can be found at www.metrokc.gov/kcscc. Motions in Family Law Cases not involving children: Discovery motions to compel, motions in limine, motions relating to trial dates and motions to vacate judgments/dismissals shall be brought before the . assigned judge. All other motions should be noted and heard on the Family Law Motions Calendar. King County Local Rule 7 and King County Local Rule 94.04 govern these procedures. The local rules can be found at www.metrokc.gov/kcscc. Emergency Motions: Emergency motions will be allowed only upon entry of an Order Shortening Time. However, emergency discovery disputes may be addressed by telephone call, and without written motion, if the judge approves. Filing of Documents All original documents must be filed with the Clerk's Office. The working copies of all documents in support or opposition must be marked on the upper right corner of the first page with the date of consideration or hearing and the name of the assigned judge. The assigned judge's working copy must be delivered to his/her courtroom or to the judges' mailroom. Do not file working copies with the Motions Coordinator, except those motions to be heard on the Family Law Motions Calendar, in which case the working copies should be filed with the Family Law Motions Coordinator. Original Proposed Order: Each of the parties must include in the working copy materials submitted on any motion an original proposed order sustaining his/her side of the argument. Should any party desire a copy of the order as signed and filed by the judge, a preaddressed, stamped envelope shall accompany the proposed order. Presentation of Orders: All orders, agreed or otherwise, must be presented to the assigned judge. If that judge is absent, contact the assigned court for further instructions. If another judge enters an order on the case, counsel is responsible for providing the assigned judge with a copy. Proposed orders finalizing settlement and/or dismissal by agreement of all parties shall be presented to the assigned judge or in the Ex Parte Department. Formal proof in Family Law cases must be scheduled before the assigned judge by contacting the bailiff, or formal proof may be entered in the Ex Parte Department. If final orders and/or formal proof are entered in the Ex Parte Department, counsel is responsible for providing the assigned judge with a copy. C. Form: Memoranda/briefs for matters heard by the assigned judge may not exceed twenty four (24) pages for dispositive motions and twelve (12) pages for nondispositive motions, unless the assigned judge permits over -length memoranda/briefs in advance of filing. Over -length memoranda/briefs and motions supported by such memoranda/briefs may be stricken. IT IS SO ORDERED. FAILURE TO COMPLY WITH THE PROVISIONS OF THIS ORDER MAY RESULT IN DISMISSAL OR OTHER SANCTIONS. PLAINTIFF/PETITIONER SHALL FORWARD A COPY OF THIS ORDER AS SOON AS PRACTICABLE TO ANY PARTY WHO HAS NOT RECEIVED THIS ORDER. PRESIDING JUDGE CITY OF RENTON DIANE L. VANDERBEEK IJ tt /d C.C1ity ATrORNEY AT. LAW RECEIVED Ci"rY CLERK'S n!=FIGE Family Law Criminal Law General Practice August 23, 2004 VIA PERSONAL SERVICE Bonnie Walton City Clerk City of Renton 1055 S. Grady Way Renton, Washington 98055 Re: Kelly A. Wright v. City of Renton King County Superior Court Cause Number 04-2-21250-2 KNT Dear Ms. Walton: Served upon you herewith find the Summons and Complaint for Damages along with the Order Setting Civil Case Schedule. Currently, the previously filed Administrative Claim is being investigated by Lisa Knapton, Claims Adjuster, at the Washington Cities Insurance Authority. However, in light of the approaching two year Statute of Limitations on some of my client's causes of action, I had no choice but to file this case at this time since no response from Ms. Knapton has been forthcoming. I am going to be out of town until September 9, 2004 but hope that upon my return I will have a settlement offer or other response from Ms. Knapton so that this case will not have to be fully litigated. Thank you for your assistance in this matter. truly yours, e L. VanDerbeek nclosures cc: Lisa Knapton Kelly A. Wright 1 10 Pacific First Plaza - 155 - 108th Avenue N.E.- Bellevue, WA 98004 - (425) 451-3991 • Fax (425) 637-9944 CITY OF RENTON COUNCIL AGENDA BILL Submitting Data: Planning/Building/Public Works For Agenda of: September 13, 2004 Dept/Div/Board.. Development Services Division Agenda Status Staff Contact...... Arneta Henninger X7298 Consent .............. X Public Hearing.. Subject: PARKVIEW HOMES FINAL PLAT Correspondence.. File NO.: LUA 04-071FP (Preliminary Plat LUA 02- Ordinance ............. 061) Resolution ............ X Old Business........ New Business....... Exhibits: 1. Resolution and legal description Study Sessions...... 2. Staff report and Recommendation Aug. 20, 2004 Information......... Recommended Action: Council concur Fiscal Impact: Expenditure Required... Amount Budgeted....... Total Proiect Budget N/A SUMMARY OF ACTION: Approvals: Legal Dept ......... X Finance Dept...... Other ............... Transfer/Amendment...... . Revenue Generated......... Share Total Project.. The recommendation for approval of the referenced final plat is submitted for Council action. This final plat subdivides 1.77 acres into 10 single family residential lots with sanitary sewer, storm drainage, street lighting, curb and gutter, sidewalks and street improvements. Design and construction of utilities, lighting and pavement will be approved, accepted or deferred (and a security device posted) as required through the Board of Public Works prior to recording the plat. All conditions placed on the preliminary plat by the City of Renton will be met prior to recording the plat. STAFF RECOMMENDATION: Approve the Parkview Homes Final Plat, LUA 04-07117P, with the following conditions and adopt the resolution. 1. All plat fees shall be paid prior to recording the plat. 2. All plat improvements shall be either constructed or deferred to the satisfaction of City staff prior to recording the plat. I: \Temp] ate s\AGNBHPII. doc/ CITY OF RENTON, WASHINGTON RESOLUTION NO. A RESOLUTION OF THE CITY OF RENTON, WASHINGTON, APPROVING FINAL PLAT (PARKVIEW HOMES; FILE NO. LUA-04- 071 FP). WHEREAS, a petition for the approval of a final plat for the subdivision of a certain tract of land as hereinafter more particularly described, located within the City of Renton, has been duly approved by the Planning/Building/Public Works Department; and WHEREAS, after investigation, the Administrator of the Planning/Building/Public Works Department has considered and recommended the approval of the final plat, and the approval is proper and advisable and in the public interest; and WHEREAS, the City Council has determined that appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools, schoolgrounds, sidewalks and other planning features that assure safe walking conditions for students who walk to and from school; and WHEREAS, the City Council has determined that the public use and interest will be served by the platting of the subdivision and dedication; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I. The above findings are true and correct in all respects. SECTION II. The final plat approved by the Planning/Building/Public Works Department pertaining to the following described real estate, to wit: See Exhibit "A" attached hereto and made a part hereof as if fully set forth RESOLUTION NO. (The property, consisting of approximately 1.77 acres, is located in the vicinity of Camas Avenue and NE 24" St.) is hereby approved as such plat, subject to the laws and ordinances of the City of Renton, and subject to the findings, conclusions, and recommendation of the Planning/Building/Public Works Department dated August 20, 2004. PASSED BY THE CITY COUNCIL this day of APPROVED BY THE MAYOR this Approved as to form: Lawrence J. Warren, City Attorney RES.1068:8/24/04:ma Bonnie I. Walton, City Clerk 2004. day of , 2004. Kathy Keolker-Wheeler, Mayor X Exhibit A The East half of Tract 223, C.D Hillman's Lake Washington Garden of Eden Addition to Seattle Division No. 4, according to the plat thereof recorded in Volume 11 of Plats, Page 82, in King County, Washington. o STALE ROU7F 405 All JONES. AVE. NE. An A6ERDEEN AVE. �NE. CA AVE. NE EDA40NOS AVE. NE 8 z lob t-i �• Camas Avenue Northeast N00'30'57"W 610.92' - .00 .•30385.00 ao 12' N00 '3057"W 306. oo. 55.00 I 82. 39' m to j iO 86.54' �y o . 101.83' 50.00' 50.00 50.00' ----- — ---T � o SS�fONd Sl k �p�a 1r4/FFy " y P�EYOR `u00 x ^ N 0`�.y�y N r _D w m S `�CNrI < S NV• UQ m u� MJ I x o Maw � , z n p z o � x � y O z aura/2NMM xN N j y m RS. ip \ 2.Oi. 69S'4 \i./J N00.30'57"W °1 z I s Rom: in �n tO �Cg m 80.50' mm m ro l6 \ —J .. 59 L4 N—�-------- m m c y ui ti o'�Sn in..-424: 77.', 50.00' ..x m' � o I 9' crc lone tense 1 awatl I I - �..�soo 7dN3N7 >:N I C' I C+ aaa ?' I 30' r.) N00'29'47"W 1063. 8_ N00'29'54"W 332.82' _ �B 9'Edmonds Avenue NE a=m �7n C �XN OXN m ' �NH n o� o 0 11 11 u w Qq !c'i" Y' 2 A� nN GTI lC!yD.� U � ur NZ_ n NN Ut H N7 n m ut (4m w �n z JN 00 50.0050, 00' 54. t ten e�auaua� N00'30'S4'W281690.42�e/ � 93.59' m auatO9,3. 59 n g 06X .64 C', C DEVELOPMENT SERVICES DIVISION BUILDING/PLANNING/PUBLIC WORKS CITY OF RENTON STAFF REPORT AND RECOMMENDATIONS APPLICANT: LOCATION: SUMMARY OF REQUEST: RECOMMENDATION: Marc Rousso J & M Land Development Parkview Homes Final Plat (Preliminary Plat LUA 02-061PP) File: LUA 04-071FP Camas Ave NE and NE 24th St Section 5, Twp. 23 N. Rng. 5 E. Final Plat for 10 single family residential lots with water, sewer, storm, streets and lighting. Approve With Conditions FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record documents in this matter, staff now makes and enters the following: FINDINGS: The applicant, J & M Land Development, filed a request for approval of a 10 lot Final Plat. 2. The yellow file containing all staff reports, the State Environmental Policy Act (SEPA) documentation and other pertinent materials was entered into the record as Exhibit No. 1. 3. The Environmental Review Committee (ERC), the City's responsible official, issued a Determination of Non -Significance -Mitigated on June 18, 2002, for the subject proposal. 4. The subject proposal was reviewed by all departments with an interest in the matter. 5. The subject site is located at Camas Ave NE and NE 24th St. The new plat is located in Section 5, Twp. 23 N. Rng. 5 E. 6. The subject site is a 1.77 acre parcel. 7. The Preliminary Plat received City of Renton Council approval on September 16, 2002. 8. The property is located within the R-8 zoning designation (single family - 8 dwelling units/acre). 9. The Final Plat complies with both the Zoning Code and the Comprehensive Plan. 10. The Preliminary Plat was subject to a number of conditions as a result of both environmental review and plat review. The applicant has complied with the conditions imposed by the ERC: 1. The applicant shall install a silt fence along the down slope perimeter of the area that is to be disturbed. The silt fence shall be in place before clearing and grading is initiated, and shall be constructed in conformance with the specifications presented in of the King County Surface Water Design Manual. This will be required during the construction of both off -site and on -site improvements as well as building construction. A silt fence was installed prior to any clearing and grading in accordance with the City of Renton Standards. The silt fence will stay in place during construction of the building structures. 2. Shallow drainage swales shall be constructed to intercept surface water flow and route the flow away from the construction area to a stabilized discharge point. Vegetation growth shall be established in the ditch by seeding or placing sod. Depending on site grades, it may be necessary to line the ditch with rock to protect the ditch from erosion and to reduce flow rates. The design and construction of drainage swales shall conform to the specifications presented in KCSWDM. Temporary pipe systems can also be used to convey storm water across the site. This will be required during the construction of both off -site and on -site improvements as well as building construction. All sedimentary control measures have been completed and removed as construction is complete. Additional control may be necessary at time of the building permit process. 3. The project contractor shall perform daily review and maintenance of all erosion and sedimentation control measures at the site during the construction of both off -site and on - site improvements as well as building construction. The projects on-site/off-site supervisor performs inspections of all sedimentation and erosion control structures on a daily basis to confirm compliance with the King County Surface Water Design Manual (KCSWDM). 4. Weekly reports on the status and condition of the erosion control plan with any recommendations of change or revision to maintenance schedules or installation shall be submitted by the project Engineer of record to the public works inspector for the construction of the civil improvements of the plat. Certification of the installation, maintenance and proper removal of the erosion control facilities shall be required prior to recording of the plat. All erosion control has been completed and removed. No violations were reported. Additional erosion control will be in place at the time of the building permit process. S. The applicant shall be required to design the project according to the 1998 King County Surface Water Manual Level 2 Flow Control. The project was built in accordance with the 1998 King County Surface Water Manual Level 2 Flow Control. 6. The applicant shall pay the appropriate Fire Mitigation Fee based on a rate of $488.00 per new single family lot with credit given for the existing single family lot prior to the recording of the final plat. Fire Mitigation Fees will be paid in the amount of $488.00 per new single family lot (9) prior to Final Plat Approval. PARKVIEWFP.DOC/ The applicant shall ensure that the full 50 foot right-of-way as depicted on the preliminary plat has been dedicated to the City and the street is built prior to recording of the final plat. The satisfaction of these requirements shall be subject to the review and approval of the Development Services Division prior to recording of the final plat. The 50' right of way shown on the Preliminary Plat will be dedicated upon recording of the final plat. The Plat of Parkview Homes will dedicate the easterly 15 feet of the 50' right-of-way. The westerly 35 feet were dedicated by the adjoining plat. At this time road improvements have been completed. 8. The applicant shall pay the appropriate Traffic Mitigation Fee based on a rate of $75.00 per each new trip average daily trip with the project with credit given for the existing single family lot prior to the recording of the final plat. The applicant will pay the appropriate fee for Traffic Mitigation prior to Final Plat Recording. Fees will be based on a $75.00 per each new average daily trip. 9. The applicant shall pay the appropriate Parks Mitigation Fee based on a rate of $530.76 per new single family residential lot with credit given for the existing single family lot prior to the recording of the final plat. Park Mitigation Fees in the amount of $530.76 per new single family lot (9) will be paid prior to Final Plat Recording. 11. In addition, the applicant has complied with the conditions imposed as a result of Preliminary Plat: 1. The applicant shall comply with the conditions imposed by the Environmental Review Committee (ERC). The conditions imposed by the ERC were complied with as shown above. 2. The applicant shall obtain a demolition permit and complete all inspections and approvals for demolition of all outbuildings located on the property. The satisfaction of this requirement is subject to the review and approval of the Development Services Project Manager prior to recording of the final plat. A copy of the demolition permit for all demolished structures will be submitted prior to the recording of the Final Plat. 3. A Homeowners' Association or maintenance agreement shall be created concurrently with the recording of the final plat in order to establish maintenance responsibilities for all shared improvements. A draft of the document(s), if necessary, shall be submitted to the City of Renton Development Services Divisions for review and approval by the City Attorney and Property Services section prior to recording of the final plat. The maintenance agreement included in this submittal package will be recorded prior to the recording of the final plat. The Final Plat generally appears to satisfy the conditions imposed by the preliminary plat process and therefore should be approved by the City Council. PARKVIEWFP.DOC/ RECOMMENDATION: The City Council should approve the Final Plat with the following conditions: 1) All plat improvements shall be either constructed or deferred to the satisfaction of City staff prior to the recording of the plat. 2) All fees shall be paid prior to the recording of the plat. SUBMITTED THIS 20TH DAY OF AUGUST, 2004 DEVELOPMENT SERVICES DI N PARKVIEWFP.DOC/ Submitting Data: Dept/Div/Board. Staff Contact. Subject: CITY OF RENTON COUNCIL AGENDA BILL 0(tblic.14e,�trlrl) DaTe CUaoje) Economic Development, Neighborhoods and Strategic Planning Dept./Strategic Planning Division Don Erickson, x6581 ZONING HEARING AND ANNEXATION EFFECTUATION Johnson Annexation — Second public hearing on zoning and effectuation of the annexation by first reading of annexation ordinance and R-8 zoniniz ordinance. Exhibits: 11 Issue Paper, Boundary Review Board Closing Letter, Council Minutes of 4/19/04 Recommended Action: Council concur For Agenda of. September 13, 2004 Agenda Status Consent .............. X Public Hearing.. X Correspondence. Ordinance ............. X Resolution............ Old Business........ New Business....... Study Sessions...... Information......... Approvals: Legal Dept......... Finance Dept...... Other ............... Fiscal Impact: Expenditure Required... Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... Total Project Budget N/A City Share Total Project.. SUMMARY OF ACTION: Council accepted the 60% Direct Petition to annex for this 18.24-acre annexation site located east of 142nd Avenue SE and south of SE I I8th, if extended, on April 19, 2004. It also authorized staff to forward the Notice of Intention package to the Boundary Review Board. The BRB forwarded its Closing Letter to the City on August 16, 2004 approving the annexation subject to statutory requirements and procedures being met. STAFF RECOMMENDATION: Council set October 18, 2004 for a second public hearing on the proposed R-8 zoning for the Johnson Annexation and direct the Administration to prepare the annexation and zoning ordinances for first reading. Johnson 60% Petition Agenda Bill/ bh Submitting Data: Dept/Div/Board. Staff Contact.. CITY OF RENTON COUNCIL AGENDA BILL I 1 Al #: I` Economic Development, Neighborhoods and Strategic Planning Dept./Strategic Planning Division Don Erickson, x6581 For Agenda of September 13, 2004 Agenda Status Consent .............. Subject: Public Hearing.. Correspondence. ZONING HEARING AND ANNEXATION Ordinance............ EFFECTUATION Resolution ............ Johnson Annexation — Second public hearing on zoning Old Business........ and effectuation of the annexation by first reading of annexation ordinance and R-8 zoning ordinance. Exhibits: New Business....... Study Sessions...... Issue Paper, Boundary Review Board Closing Letter, Information......... Council Minutes of 4/19/04 Recommended Action: Council concur Approvals: Legal Dept......... Finance Dept...... Other ............... Fiscal Impact: Expenditure Required... Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... Total Project Budget N/A City Share Total Project.. X X X SUMMARY OF ACTION: Council accepted the 60% Direct Petition to annex for this 18.24-acre annexation site located east of 142nd Avenue SE and south of SE 1181h, if extended, on April 19, 2004. It also authorized staff to forward the Notice of Intention package to the Boundary Review Board. The BRB forwarded its Closing Letter to the City on August 16, 2004 approving the annexation subject to statutory requirements and procedures being met. STAFF RECOMMENDATION: Council set �ep`;rz� ,"�z^vr for a second public hearing on the proposed R-8 zoning for the Johnson Annexation and direct the Administration to prepare the annexation and zoning ordinances for first reading. Johnson 60% Petition Agenda Bill/ bh CITY OF RENTON PLANNINGBUILDING/PUBLIC WORKS :.ME.MORANDUM DATE: September 2, 2004 TO: Don Persson, Council President Members of the Renton City Council VIA:�ayor Kathy Keolker-Wheeler FROM: Alex Pietsch ,Q STAFF CONTACT: Don Erickson, x6581 SUBJECT: Johnson Annexation Effectuation — Annexation and Zoning Ordinances ISSUE: Whether the City Council should adopt an ordinance effecting the annexation of the 18.24-acre Johnson Annexation site into the City now that the Boundary Review Board has approved it, and Whether the City Council should adopt an ordinance zoning the non -street portions of the subject 18.24-acre site R-8 consistent with Comprehensive Plan land use designation of Residential Single Family? RECOMMENDATION: Adopt an ordinance effectuating the annexation of the 18.24-acre Johnson Annexation site; and, • Adopt an ordinance rezoning the non -street portions of the Johnson Annexation site R-8, eight units per net acre. BACKGROUND SUMMARY: The applicant initially submitted for this annexation on December 19, 2003 with a 10% Notice of Intention to Commence Annexation petition. Council considered this request on February 9, 2004 and authorized the petitioners to circulate a 60% Direct Petition to annex. On February 18, 2004 the City received the Direct Petition and on March 3, 2004 the King County Department of Assessments notified the City that they had certified that there were sufficient signatures on the petition to represent 60% of the area's assessed value. Johnson Annexation September 2, 2004 Page 2 On April 19, 2004 Council accepted the 60% Direct Petition to annex for the Johnson Annexation and authorized the Administration to transmit the Notice of Intent package to the Boundary Review Board for their required 45-day review and evaluation. The Boundary Review Board notified the City that they had approved the proposed annexation effective August 16, 2004. Staff conducted a fiscal analysis for this site and determined that at full development (assuming 96 new homes) that there would be minor annual net fiscal positive impact to the City. A one- time future park acquisition and development cost was estimated at $48,289 based upon an estimated future population of 227 residents. CONCLUSION: With the exception of the second required public hearing on the proposed R-8 zoning for the Johnson Annexation and the effectuation of the annexation through the annexation and zoning ordinances, all the specified requirements under state law (RCW 35.A.14.120-130, Annexation — Direct petition method) will have been met. The 18.24-acre Johnson Annexation appears to be in the City's best interest and general welfare since it furthers City business goals, has been approved by the Washington State Boundary Review Board for King County and is generally consistent with City annexation policies. Attachments EDNSP/Strategic Planning/PAA/Johnson/Effectuation Issue Paper.doc Washington State Boundary Review Board ,v For King County Yesler Building, Room 2'20, 400 Yesler Way, Seattle, WA 98104 Phone: (206) 296-6800 • Fax: (206) 296-6803 • http://www.metrokc.gov/annexations August 16, 2004 City of Renton I AUG G 1 2004 Attn: Don Erickson, AICP EcoNordtr E , Senior Planner NEIGHBQRE ���ciENT AND STRATA IC''lN. UING 1055 South Grady Way` "` �A��°� a•,-R�,�,.� Renton, WA 98055 RE: CLOSING LETTER FOR COMPLETED ACTION - File No. 2175 - City of Renton - Johnson Annexation Dear Mr. Erickson: We are writing to advise you that the Boundary Review Board has now completed the required Evaluation, as specified in RCW 36.93, for the above -referenced proposed action (filed with the Board effective June 29, 2004 The Boundary Review Board also provided a 45-day public review period June 29 - August 13, 2004 prescribed by RCW 36.93. The Board received no request for a public hearing of this proposed action during the public review period. The Boundary Review Board, therefore, hereby deems this proposed action approved effective August 16, 2004. Final approval of the proposed action is also subject to the following actions, where applicable: 1. Sewer and Water District actions and some other actions are also subject to approval by the Metropolitan King County Council. If the Council makes changes to the proposal, the Board may then be required to hold a public hearing. 2. Filing with King County of franchise application(s), as required, accompanied by a copy of this letter. 3. Filing with King County of permit application(s), as required, accompanied by a copy of this letter. 4. Fulfillment of all other statutory requirements and/or procedures specified in your Notice of Intention. Page two continued, August 16, 2004 Form 13 5. Notification in writing of your intended effective date of annexation. This notification should be provided as early as possible. Please send this information to Michael Thomas, Office of Management and Budget, 516 Third Avenue, Room 420, Seattle, Washington 98104, and 6. Filing with King County Council of: (1) one certified copy of final resolution or ordinance accomplishing this proposed action; and (2) a copy of this letter. This document should be fled with the Clerk of the Council (Attn: Anne Noris), King County Courthouse, Room 1025, Seattle, Washington 98104 If you have questions or would like additional information, please contact our office at 206-296- 6800. Sincerely, Lenora Blauman Executive Secretary cc: Anne Noris, Clerk of the Council Harry Sanders, Records and Elections Division Diane Murdock, Department of Assessment Lydia Reynolds -Jones, Manager, Project Support Services King County "911 " Program Paul Reitenbach, Department of Development & Environmental Services Michael Thomas, Office of Management and Budget April 19, 2004 Renton City Council Minutes Page 116 Jason Jordan, Senior Planner, explained that the City Code currently specifies a list of prohibited signs, or those which are specifically not allowed throughout the City. Outside the City Center area, the sign code regulations allow prohibited signs subject to an administrative modification; however, within the City Center area, the modification criterion prevents the allowance of prohibited signs. Mr. Jordan pointed out that the newly remodeled Pavilion Building was designed with a support structure intended to display hanging banners on its southern facade. He explained that this type of sign is categorized as a roof sign, and as a result of the prohibition, the City cannot place any sign text into the sign support structure. Therefore, staff recommends amending the City Center sign regulations to allow prohibited signs in the City Center area subject to the granting of a modification by the Development Services Division Director. The modification must take into account the City's Comprehensive Plan, precedence setting, and neighborhood impacts. Public comment was invited. There being none, it was MOVED BY PERSSON, SECONDED BY NELSON, COUNCIL CLOSE THE PUBLIC HEARING. CARRIED. Stating that the matter was reviewed in Planning and Development Committee, Councilwoman Briere noted that the amendment does not drastically change anything and there are still limits as to the types of signs allowed. (See page 120 for ordinance.) Annexation: Johnson, 142nd This being the date set and proper notices having been posted and published in Ave SE accordance with local and State laws, Mayor Keolker-Wheeler opened the public hearing to consider the 60% Direct Petition to annex and R-8 prezoning for the proposed 18.24-acre Johnson Annexation located between 142nd Ave. SE and 144th Ave. SE, if extended, south of NE 9th St., if extended, to a line approximately 110 feet south of SE 121st St. Don Erickson, Senior Planner, reported that the signatures on the petition were certified by King County on March 3, 2004. He described the location and existing conditions of the site, noting the existence of eight single-family dwellings. The site slopes from west to east, a wetland is located near the southeast corner, and Honey Creek flows north beyond the eastern edge of the site. Reviewing the public services, Mr. Erickson noted that the site is served by Fire District #25 and the Renton School District, and is within the Renton water and sewer utility service area. Continuing, Mr. Erickson stated that the site's zoning under King County is R-4 (four units per gross acre). Renton's Comprehensive Plan designates this area Residential Single Family, for which R-8 (eight units per net acre) zoning is proposed. Regarding the fiscal impact of the proposed annexation, he indicated that the City will realize a $44 surplus at full development, assuming an increase to 106 single-family homes and an assessed home value of $300,000. There is an estimated one-time parks acquisition and development cost of $60,743. Mr. Erickson concluded that the proposed annexation is within the best interests and general welfare of the City, and is consistent with City policies. He noted that the Surface Water Division indicated some potential flooding in the area, suggesting mitigation with future development. April 19, 2004 Renton City Council Minutes Page 117 Public comment was invited. Eleanor Bagley, 11860 142nd Ave. SE, Renton, 98059, expressed concern regarding the increase in traffic caused by development and inquired as to what provisions have been made to address this problem. Mayor Keolker-Wheeler explained that this public hearing addresses the proposed annexation and zoning; however, there will be opportunity to comment on any development proposals in the future. She asked that Ms. Bagley be made a party of record on upcoming development proposals. There being no further public comment, it was MOVED BY PERSSON, SECONDED BY LAW, COUNCIL CLOSE THE PUBLIC HEARING. CARRIED. MOVED BY PERSSON, SECONDED BY CORMAN, COUNCIL ACCEPT THE 60% DIRECT PETITION TO ANNEX FOR THE JOHNSON ANNEXATION AND AUTHORIZE THE ADMINISTRATION TO SUBMIT THE NOTICE OF INTENT TO ANNEX PACKAGE TO THE WASHINGTON STATE BOUNDARY REVIEW BOARD FOR KING COUNTY. CARRIED. ADMINISTRATIVE Chief Administrative Officer Jay Covington reviewed a written administrative REPORT report summarizing the City's recent progress towards goals and work programs adopted as part of its business plan for 2004 and beyond. Items noted included: • Flowers, fruits, vegetables, arts, crafts and the dedication of a new 25-foot tree in honor of National Arbor Day will be the focus of the Spring Festival at the Piazza on April 24th. • Over the past two weeks, the Airport office has received several noise complaints between the hours of 11:00 p.m. to 2:00 a.m. concerning helicopter operations around neighborhoods in South Seattle and Mercer Island. These operations are associated with Boeing Field International. Local and Federal law enforcement agencies have increased operations in particular areas around Seattle, utilizing helicopters for survey and surveillance. • A Level 3 sex offender community notification meeting will be held at the Renton Community Center on April 22nd. Minor children should not attend due to the dissemination of graphic information. AUDIENCE COMMENT Sandel DeMastus, Highlands Community Association (HCA) President, 1137 Citizen Comment: DeMastus - Harrington Ave. NE, Renton, 98056, reported that Spencer Orman, City of Highlands Community Renton Solid Waste Program Specialist, will speak on the topics of organic Association gardening and recycle day at the HCA meeting on April 22nd. Citizen Comment: O'Halloran - Mike O'Halloran, Municipal Arts Commission Chair, 4420 SE 4th St., Renton, City Art Collection 98059, thanked Recreation Director Sylvia Allen and her staff for conducting the City art collection inventory project. He noted that Municipal Arts Commission members also contributed time to this project. CONSENT AGENDA Items on the consent agenda are adopted by one motion which follows the listing. Council Meeting Minutes of Approval of Council meeting minutes of April 12, 2004. Council concur. April 12, 2004 CITY OF RENTON COUNCIL AGENDA BILL Al N: Submitting Data: For Agenda of: 9/13/2004 Dept/Div/Board.. Hearing Examiner Staff Contact...... Fred J. Kaufman, ext. 6515 Agenda Status Consent .............. X Public Hearing.. Subject: Correspondence.. Jericho Preliminary Plat Ordinance ............. File No. LUA-04-031, PP, ECF Resolution........... . Old Business........ New Business....... Exhibits: Hearing Examiner's Report and Recommendation Study Sessions...... Legal Description and Vicinity Map Information......... Recommended Action: Council Concur Approvals: Legal Dept......... Finance Dept...... Other ............... Fiscal Impact: Expenditure Required... N/A Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... Total Project Budget Citv Share Total Project.. SUMMARY OF ACTION: The Hearing Examiner's Report and Recommendation on the Jericho Preliminary Plat was published on June 22, 2004. The appeal period ended on July 29, 2004. The Examiner recommends approval of the proposed preliminary plat, subject to the conditions outlined on page 7 and 8 of the Examiner's Report and Recommendation. This office notes that the conditions placed on this project are to be met at later states of the platting process. STAFF RECOMMENDATION: Staff recommends approval of Jericho Preliminary Plat. Rentomiet/agnbill/ bb July 15, 2004 OFFICE OF THE HEARING EXAMINER CITY OF RENTON Minutes APPLICANT: OWNERS: CONTACT: LOCATION: SUMMARY OF REQUEST: SUMMARY OF ACTION: DEVELOPMENT SERVICES REPORT: Terry DeFoor GWC, Inc 24633 NE 133`d Street Duvall, WA 98019 Ribera-Balko Ent. Family Ltd. Partnership 16400 Southcenter Pkwy., Ste. 308 Seattle, WA 98088 Howard & Patricia Banasky 1402 N 26"' Street Renton, WA 98056 GWC, Inc. 24633 NE 133`d Street Duvall, WA 98019 James Jaeger Jaeger Engineering 9419 S 204"' Place Kent, WA 98031 File No.: LUA 04-031, PP, ECF 355 Jericho Ave NE Approval for a 35-lot subdivision of five parcels, a 5.31-acre site intended for detached single-family homes. Development Services Recommendation: Approve subject to conditions The Development Services Report was received by the Examiner on June 15, 2004. 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 June 22, 2004 hearing. The legal record is recorded on VHS. Jericho Preliminary Plat (cont.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 2 The continued hearing re -opened on Tuesday, June 22, 2004, at approximately 9:20 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. 7: Revised Preliminary Plat Plan Exhibit No. 8: Revised Preliminary Drainage and Road Plan Exhibit No. 9: Revised Staff Report The hearing opened with a presentation of the staff report by Susan Fiala, Senior Planner, Development Services, City of Renton, 1055 S Grady Way, Renton, Washington 98055. The subject site is located at 355 Jericho Avenue NE. The applicant is requesting approval for a 35-lot subdivision of a five parcel, 5.31-acre site. The four parcels, 4.22 acres, to be subdivided into 26 lots are within the Residential 8 (R-8) zoning designation. The 1.09-acre parcel is to be subdivided into 9 lots and is within the Residential 10 (R-10) zone. Access is proposed via Jericho Avenue NE, a new public road and private streets and easements within the plat. Tract A would include the storm detention/water quality pond and be located within the R-8 zoned portion of the plat. Tract B was designated as a private street, however, this is to become an easement. Looking at the Revised Plat and the new location of NE 3`d Street, located 167 feet from the curb line of NE 4'h Street, that will provide adequate queuing distance required for these intersections. There is approximately 36,590 square feet of public road to be deducted from the R-8 portion, leaving a net density of 7.69 dwelling units per acre. There are no changes in the R-10 zoning portion of the tract. All units will remain as detached single-family residences. In the revised Plat Plan, in the R-8 zone, Lots 1-26 meet or exceed the requirement for lot dimension. In the R- 10 zone, Lots 27-35 meet or exceed the requirements for lot dimension. The applicant is proposing a 15-foot setback along NE 4'h Street to provide additional yard and building setback from the NE 41h Street frontage. The proposed subdivision would create Lots 1, 10, 20, 21, and 26 to be located at the intersection of public rights -of -way. The proposed radius for these lots would meet code, all would have a radius of 25 feet. Tract B is to be converted into a private access easement with the land area divided among the adjoining lots. The proposed drainage will be collected by catch basins within the new road and routed to a detention/wetpond within Tract A. Tract A should be fenced, landscaped and irrigated. The north and west property lines of Tract A fronting NE 3`d will include plant materials which would provide a year-round dense screen within three years from the time of planting. The east property line is to be fenced with a minimum width of five feet of landscaping and the south property line is to be fenced. The fence should be of a quality material, not a chain link. Staff recommends approval of the Jericho Preliminary Plat subject to conditions. Jericho Preliminary Plat (coat.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 3 James Jaeger, Jaeger Engineering, 9419 South 204°i Place, Kent, WA 98031 stated that he represents the applicant and that they have been working with the City to revise the Preliminary Plat Plan. He had some concerns over some of the conditions, in particular: #7. The left turn lane is on Hoquiam and turns on to 4`' Avenue. #10. The detention pond is basically the same as when it was located on 4"i, now it has been moved to 3rd and he wondered why the additional screening and landscaping requirements. In the construction of the pond, there will be an eight foot rockery installed as well, the fence is appropriate, a chain link might be a little more protective and last longer. A solid wood fence would tend to obscure visibility for traffic in the area. It was questioned why standard requirements for drainage ponds were not being used on this parcel. The Examiner stated that they would have the same problem along Hoquiam and Jericho with the height limit issue. Ms. Fiala stated that on corners the height limit was 42 inches and 20 feet from the property line. The fence would have to be stepped down in that area to allow for the limits. Mr. Jaeger stated that a step-down fence or a lower fence would be workable on those particular lots. Staff indicated that they would be willing to work with the applicant to come to some agreement. The solid wood, modulated landscaping will eventually be turned over to the City, the City would have to maintain that. The Examiner stated that he believed at this point the City was not taking over maintenance and care of drainage facilities. Mike Romano, Centurion Development Services, 22617 8"' Drive SE, Bothell, WA stated that he was here on behalf of the buyer and not the applicant. He has not been involved in the discussions. In Track A, he felt that "no chain link" fences should be struck from the wording. There are some very high quality, vinyl coated chain link fences that provide good visibility in the pond which is required for safety reasons. It should be a six-foot high fence, so people do not climb over it. There is no problem with the landscaping, but it does not seem feasible to have landscaping inside the pond area. The cut slopes for the pond will begin about five feet in from the property line. The fence should be about a foot from the line and landscaping should be between the fence and the sidewalk. Along the east line of Tract A, that is private property and to have a landscaped section and then a fence does not make sense. There probably will be a wood fence along that property line, his recommendation would be fencing along the east property line and then a six foot, high quality fence along the north and west property line of Track A. He would like to negotiate with staff as to what type of materials could be used for that fencing. In condition 49, staff has written that the fence on NE 41h must be five feet from the north property line. Lots 21, 22, 23, and 24 have only about four and a half feet from the property line. There is a three-foot jog so he would like to see the fence placed on the property line. Lastly the buyer has an issue with the 15-foot setback along NE 4`h. The development standards call for a 10- foot landscaped setback from the street or a 20-foot landscaped setback from the back of the sidewalk, whichever is less. If you take a 15-foot side yard setback and then you have a five-foot side yard setback, using Jericho Preliminary Plat (cont.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 4 Lot 25, what you end up with is a 20-foot deduction from that lot. What they would like to do is stick with the code and have a 10-foot side yard setback. Examiner asked what was the correct amount of setback required by code. It was determined that Mr. Romano was using a Code book from 1999, and the staff was using the newest version dated 2002. The 15-foot setback is what is required today. Mr. Jaeger stated that regarding the three-foot jog they have planned for a 15-foot setback along the entire north property line. The applicant wanted to come to this hearing so that it would be approved_ Perhaps the setback could be reduced to 12 feet, so that where the property Iine does jog, the fence will be consistent the entire length. Mr. Romano agreed to the 12-foot setback to be consistent with the jog. Kayren Kittrick, Development Services Division stated that King County Surface Water Design Manual requires a chain link fence, the City of Renton requires a solid fence. It is a private drainage pond and will be maintained by the homeowner's association. An access easement is required to get into the pond to check in case of emergency or complaint. Hoquiam is wide enough for a left turn lane. A three -lane section coming from the south to the north hitting NE 41h. The left turn lane will be on Hoquiam. Hoquiam is on the plans to be opened and go through, there will be signage to that effect placed on Hoquiam. The landscaping around 4`' and Track A, legislation is currently being revamped and will become stricter. Fences will be required as a safety measure rather than landscaping for esthetics. Obviously when you are talking about 8-foot retaining walls and very steep slopes, this would not be open to recreation. 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 approximately 10:13 a.m. FINDINGS, CONCLUSIONS & RECOMMENDATION Having reviewed the record in this matter, the Examiner now makes and enters the following: FINDINGS: 1. The applicant, Terry DeFoor, GWC, Inc., filed a request for approval of a 35 lot 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) for the subject proposal. 4. The subject proposal was reviewed by all departments with an interest in the matter 5. The subject site is located at 355 Jericho Avenue NE. The subject site is located along the south side of NE 4th Street and is generally located between Jericho Avenue on the east and Hoquiam Avenue on the west, although the parcel extends a bit west of Hoquiam. Jericho Preliminary Plat (coat.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 5 The subject site is located in two zoning districts. The portion of the subject site west of Hoquiam is zoned R-10 (Residential - Multiple Options; 10 dwelling units per acre) while the portion east of Hoquiam is zoned R-8 (Single Family; 8 dwelling units per acre). 7. The map element of the Comprehensive Plan designates the area in which the subject site is located as suitable for the development of both single family detached and multiple options or potentially low density multiple family uses, but does not mandate such development without consideration of other policies of the Plan. 8. The subject site was annexed to the City with the adoption of Ordinance 4760 enacted in February 1998. 9. The subject site is approximately 5.31 acres. It consists of five underlying parcels. Existing structures are proposed to be removed if the plat is approved. The property is approximately 800 feet long (east to west) by approximately 286 feet deep. The north property line contains an approximately 3-foot jog. 10. The subject site has approximately 800 feet of frontage along NE 4th Street, but because of the heavy arterial flows on that roadway, staff determined that there will be no direct access to NE 4th from individual lots. IL The applicant proposes developing all detached single-family homes on the site, including that portion of the site that would allow multiple family housing. The applicant will create 26 lots on the R-8 portion of the site and 9 lots on the R-10 portion. 12. The original plat was designed with roadways that did not meet code. The matter was sent back to staff and the applicant to create a design that met, at least, the minimal legal requirements_ 13. The 26 lots in the R-8 zone will be arranged north and south of a new east -west road (NE 3rd Street). There will be one tier of lots south of the road. 14. The second tier of lots will be double -stacked and will lie between the new roadway and NE 4th Street. The proposed lots located abutting NE 4th Street will be oriented in an east -west fashion but will gain access via easement driveways to the south as access to NE 4th Street has been foreclosed. These lots will be sandwiched in between NE 4th and a row of lots south of them. Their sideyards will abut the rear yards of the lots to the south. 15. Code Section 4-2-110(A) requires a minimum sideyard along a street to be 15 feet and the homes located along NE 4th will have to observe this setback as a minimum. 16. The nine R-10 lots will be three lots deep west of Hoquiam and they will be in three tiers. Access to the interior lots will be via private roadways. The applicant had proposed one of those access roads be a separate legal tract but staff noted that private roads are created by easement with joint ownership. 17. The plat will have its access off of NE 4th via Hoquiam on the west and Jericho on the east. These two streets will run north -south from NE 4th and provide access to the new east -west street that links them to each other. Hoquiam will be a 55-foot wide right-of-way while the new east -west street will be 42 feet. 18. A drainage tract, Tract A, will be created at the southwest corner of the R-8 parcels. It will be contained in a parcel approximately 150 feet long (east to west) by 92 feet wide. The tract will have to be fenced Jericho Preliminary Plat (coat.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 6 according to standards used by the City. It will contain a deep pond and passersby will have to be protected. The fence will have to accommodate sight lines accommodating the street intersections. 19. Staff recommended that the frontage along NE 41h be fenced to protect the privacy of the homes along that street as well as to provide a uniform appearance. Any fence will have to accommodate the jog in the property line. 20. Staff recommended that Proposed Lots 1, 10 and 20 be oriented so that their respective front yards face the new interior east -west street (NE 3rd) and that they meet the requirements for corner lots for street side setbacks. 21. Staff also recommended that Proposed Lots 21 to 26 be oriented so that their respective front yards face their respective access easements. As noted above, they all have a north side yard along NE 4th Street and appropriate setbacks are required. 22. Staff recommended a covenant to assure that the R-10 lots remain detached single family as designated in the proposed plat. 23. In order to protect turning movements at Hoquiam and Jericho where they intersect NE 4th Street, staff recommended that no lot be permitted direct access to those side streets within 160 feet of NE 4th Street. CONCLUSIONS: The proposed plat, subject to the conditions noted below, appears to serve the public use and interest. It provides additional housing opportunities and additional choices in larger and smaller single family detached housing. 2. The plat, frankly, is a compromise. The traffic and noise along NE 4th Street will not provide a quiet single-family experience, particularly to those homes located with sideyards facing that street. The fence proposed by staff should help ameliorate the situation. The larger sideyard of 15 feet is the minimum to help create a reasonable buffer between the traffic and the homes. 3. Clearly, the density demands of the R-8 zoning appear to mandate the number of lots and therefore, the layout of lots lying "sideways" to neighboring lots and abutting NE 4th Street. More flexibility in density would certainly provide more ability to design plats with more aesthetic characteristics. A tradeoff that would have permitted larger lots and lower density would have allowed larger lots along NE 4th and that could have provided greater separation of the homes from the traffic. 4. The plat's road system now meets code requirements for the distance between road intersections and appears to provide reasonable access given the dimensions of the property. Both public roads and the private easements will give access to the homes and allow emergency access. Staffs recommendation to convert a tract that was proposed for access to an easement seems appropriate. The easement is needed for access to what will be private lots while the tract, at least, normally is owned in common by the entire plat ownership. Maintenance belongs with the specific homeowners and an easement would be a better arrangement to reflect that. The applicant will have to comply with code requirements for the fencing and other design features of the detention pond. Landscaping and fence setbacks, where possible, should be used to soften the visual hard edge that fencing might create. Jericho Preliminary Plat (cont.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 7 6. Staffs recommendations on front yard location or building orientation appears reasonable. Their proposal will create a more consistent streetscape and uniform building setback line along the new east - west street. Similarly, the homes along NE 4th that take access from the easements should face each other for a more neighborly outcome. In conclusion, the Proposed Plat now appears to satisfy code requirements for its street system and while its lot arrangement is a compromise, it appears to be the best alternative given the density requirements of code. RECOMMENDATION: The City Council should approve the proposed plat subject to the following conditions: 1. The applicant shall comply with the conditions imposed by the ERC. 2. The applicant shall place a restrictive covenant on the final plat stating to the effect that "All detached dwellings are proposed within the R-10 zoning designation of the plat with a permitted density up to 13.00 du/ac. Any change to the unit mix shall require the density and unit mix requirements of the R-10 zone to be complied with and reviewed by the City of Renton." The satisfaction of this requirement is subject to the review and approval of the Development Services Division. 3. The applicant shall place a note on the face of the final plat indicating the following yard orientations for these lots: ➢ Lot 1: Front -NE 3rd St./North Prop. Line; Rear - South Prop. Line 15 ft.; Side Yard Along St. - Jericho Ave. NE ➢ Lot 10: Front - NE 3rd St./South Prop. Line; Rear- North Prop. Line; and Side Yard Along St. - Hoquiam Ave. NE ➢ Lot 20: Front - NE 3rd St./South Prop. Line; Rear- North Prop. Line; and Side Yard Along St. - Jericho Ave. NE ➢ Lot 21: Front - West Prop. Line facing 20 ft. easement; Rear -East Prop. Line abutting Jericho Ave. NE; and Side Yard Along St. - NE 4th St. ➢ Lot 22: Front - East Prop. Line facing 20 ft. easement; Rear -West Prop. Line; and Side Yard Along St. - NE 4th St. ➢ Lot 23: Front - -West Prop. Line facing 20 ft. easement; Rear- East Prop. Line; and Side Yard Along St. - NE 4th St. ➢ Lot 24: Front - East Prop. Line facing 20 ft. easement; Rear- West Prop. Line; and Side Yard Along St. - NE 4th St. ➢ Lot 25: Front - West Prop. Line facing 20 ft. easement; Rear- East Prop. Line; and Side Yard Along St. - NE 4th St. Jericho Preliminary Plat (cont.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 8 i Lot 26: East Prop. Line facing 20 ft. easement; Rear- West Prop. Line; and Side Yard Along St. - NE 4th St. 4. No direct access from any lot within the plat shall be allowed onto NE 4th Street. This condition shall be placed on the face of the final plat prior to recording. 5. No direct access from any lot within the first 160 feet from the south curb line of NE 4th Street lot shall be allowed onto Hoquiam Ave. NE or Jericho Ave. NE. This condition shall be placed on the face of the final plat prior to recording. 6. The applicant shall obtain a demolition permit and complete all inspections and approvals for all buildings located on the property prior to the recording of the final plat. The satisfaction of this requirement is subject to the review and approval of the Development Services Project Manager. 7. The applicant shall convert Tract B into a private access easement with the land divided among the adjoining lots prior to recording of the final plat. The satisfaction of this requirement is subject to the review and approval of the Development Services Division. 8. The applicant shall provide a roadway section on Hoquiam Ave. NE based upon design requirements for proposed traffic signal. The design shall accommodate one through lane in each direction and a left turn lane from the new internal street to NE 4th Street. The satisfaction of this requirement is subject to the review and approval of the Development Services Division. 9. A homeowner's association or maintenance agreement shall be created concurrently with the recording of the final plat in order to establish maintenance responsibilities for all shared improvements. A draft of the document(s), if necessary, shall be submitted to the City of Renton Development Services Division for review and approval by the City Attorney and Property Services section prior to recording of the final plat. 10. The applicant shall install a modulated, decorative fence with a minimum of five feet in width of irrigated landscaping along the entire north property line of the site fronting NE 4th Street. All fencing shall be located and designed to not interfere with sight distances required at the intersections of Hoquiam Ave. NE with NE 4'h St. The applicant shall submit a landscape plan and fence design to the City's Development Services Division for review and approval prior to installation. The fence and landscaping shall be installed prior to recording of the final plat. 11. The applicant shall install a fence of a quality material (no chain -link, if possible), decorative and modulated with a landscaped visual barrier that includes plant materials which would provide a year-round dense screen within three (3) years from the time of planting along the north property line of Tract A fronting NE 3`d St. and Hoquiam Ave. NE. The east property line shall be fenced with a five-foot width of irrigated landscaping. The south property line shall be fenced. All fencing shall be located and designed to not interfere with sight distances required at the intersections of Hoquiam Ave. NE with NE 3`d St. The applicant shall submit a landscape plan and fence design to the City's Development Services Division for review and approval prior to installation. The fence and landscaping shall be installed prior to recording of the final plat. Jericho Preliminary Plat (cont.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 9 ORDERED THIS 15°i day of July, 2004. ri FRED J. KA MAN HEARING EXAMINER TRANSMITTED THIS l 5th day of July, 2004 to the parties of record: Susan Fiala 1055 S Grady Way Renton, WA 98055 Kayren Kittrick 1055 S Grady Way Renton, WA 98055 Howard & Patricia Banasky 1402 N 26d' Street Renton, WA 98056 James Jaeger 9419 S 204"' Place Kent, WA 98031 Mike Romano Centurion Development Services 22617 8°i Drive SE Bothell, WA 98011 TRANSMITTED THIS l5th day of July, 2004 to the following: Mayor Kathy Keolker-Wheeler Jay Covington, Chief Administrative Officer Julia Medzegian, Council Liaison Larry Warren, City Attorney Gregg Zimmerman, PBPW Administrator Alex Pietsch, Economic Development Jennifer Henning, Development Services Stacy Tucker, Development Services Terry DeFoor GWC, Inc. 24633 NE 133`d Street Duvall, WA 98019 Ribera-Balko Ent. Family Ltd. Partn 16400 Southcenter Pkwy, Ste. 308 Seattle, WA 98088 Stan Engler, Fire Larry Meckling, Building Official Planning Commission Transportation Division Utilities Division Neil Watts, Development Services Janet Conklin, Development Services King County Journal Pursuant to Title IV, Chapter 8, Section I OOGof the City's Code, request for reconsideration must be riled in writing on or before 5:00 p.m., July 29, 2004. 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., July 29, 2004. Jericho Preliminary Plat (cont.) File No.: LUA-04-031, PP, ECF July 15, 2004 Page 10 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. The Doctrine applies not only to the initial public hearing but to all Requests for Reconsideration as well as Appeals to the City Council. LEGAL DESCRIPTION A PORTION of the N.E. 1/4, SECTION 15, TOWNSHIP 23 N., RANGE 5 E., W.M. PARCEL u2]os 9o]J FINE EASE 105 FEET OE NE -OR HALE OF 'HE NORNEASF OU-V- SITE DATA N R., F. � • _- � OF THE NORTHWEST OVANE- OF THE -N.. g1Mi[a OF -HER, toDwvsD .1 WORTH, PR+4E ! EAST. YALIAA- WERos�F, Ix SITE SERVICES AREA: 4.27 ACRES - IRS -1 u w] K c c ASHlucroN: AREA'. 1.09 ACRES - RIO 3 EVCEF, THE WI 2D FEET No. -FOR Rob; SEWER: CITY OF RENTON AREA IN STREETS: 0.76 AC - RB ac,PT THE NORFN .2 FEET rxwroF cpNo[ux[D IN KIMD COUNTY WATER: WATER DISTRICT NO. 90 SCHOOL: RENTON SCHOOL DISTRICT AC - Rt0 AREA STREETS: ACRES RB NET AREA: 3.51 ACRES - /) '1 SUPERIOR COURT CAUSE NUMBER 632233 FOR SOUTHEAST 12ON STREET. FIRE: CITY OF RENTON NET AREA: 0.89 ACRES - RIO - .. TELEPHONE: OWEST PROPOSED N0. LOTS: 28 - R8 FARDEL 1s2J06 9+a6 ELECTRICAL & GAS: PUGET SOUND ENERGY PROPOSED N0. LOTS: 9 - R10 •I FHE WEST JD FEET [1 0<[R EAST +3s of rI¢ xoaN HALF of NE EEC* CABLE 7v.: COMCAS7 CABLEVIS!ON ZONING: RB & R10 2 R I IORNM QUARTOF THE HOF WEST DUARTC1 of THE NORTHEAST DUARTER OF 5ECTD1 15. i0WN511P 23 HORN, RAMSC 5 CAST. PROPOSED DENSITY: 7.96 UNITS/ACRE - R8 I� PI wALAUFFTE MERI..W, IN Hw0 CDU.TY. WASHwoTDN PROPOSED DENSITY'. 10.11 UNITS/ACRE - R10 I 'I III THE NORTH JO - NEWEOF LWND wrNR1 NE RICTIT OF WAY PROPOSED USE: R-8 ZONE: SINGLE FAMILY DETACHED RESID. ..__I .ALL, _ "• ITT DF OUN1 126TH STREET. FA5 ALSO EKCERT THE SOUTH 12 « EF OF THE NORTH 42 FEET OF SAD TRACTS: PROPOSED USE: R-10 ZONE: SINGLE FAMILY DETACHED RESID. NDarN cUBgL65roN CO-D TO KING COUNTY - '0. PURPOSES BY DEW TRACT A: DRAINAGE - 9180 SF TRACT 9: PRIVATE ROAD - 2605 SF fLOROED UNDER RECORDwO NUMBER U73812, PARCEL 1s2Jo!.11 ASSESSOR'S NOS, 152305-9033 0.58 Al VICINITY MAP w.Lr OF NE NORTHEAST OUNITER OF THE NORTHWEST DUARTER W 152305-9047 ((1.63 AC \1 's NORTH THE xoa-1 -111 Dr s[cTloN 1s. 1OWNSIR 2J NORTH. � 1523 05-9148 (0.18 AC J R-6 RANGE s EAST, "L "-I MERIYAN. IN Kara 1-1, wASHINOTDW 152305-9019 1.88 AC gOEPr NE WEST 2175 FEET AND THE SST 135 FEET THEREOP I I I 152305-9045 (1.09 AC) R-10 i 0 ExLERT PORTION CONVYED FO - COUNTY FOR ROAD BY DEED RECORDED UND" RECORE NO NUMBER 3713166. �'• . ' 1 I 1 SITE ADDRESS: 355 JERICHO AVE. NE P.RLEL 152Jo5 Do19 I THE WEST 2]] 5 FEET Or THE NORM HAD: Or THE NORTHEAST OWRTER -� _ _ I I1. . L,� - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ �_ _ _! ..'T Or THE FORTH' I DUARTER Or THE -EAST Ow 1 OF B-ON `W _. 15. ioWNSHIv 2J HORN. aAHOf 5 CAST. WntAVCTTE u(nlpM21 IN wNG .: � ._ •.. .. ... -..... ...... ... ... .... -.-_�---- [Y T THE NORTH }p FEET THEREOF FOR COUNTY ROAD --- ALSO [YOM TIE SOUTH 12 FEET OF THE WORN 42 FEET THEREOF __ COWVQTED TO ' ND COUNTY FOR ROAD PURPOSES BY DEED RECORDED -_ N6621I W. UNDER .1-HG WUMBER 563 -; -- .. -_ .._.... - R-- -- .-- .__7JE 4th�treeT I M.SO EWCEPT THE !WN 3 FEET OF THE WORN aS FEET NEREOF t S --- `- COH-ITO TO KING COUNTY FOR ROAD PURPOSES BY DCE05 RECORDfp -� UNDER REOCADaW NUMBERS .10126.13 6]09260695. 11092.6.1. a2.NO 1 •!' .-. T-'sw us.1i 41- _ _ _ --^ - - - -- - r PARCEL 1-1 1011 • J ,]�o so.m m. m moo otl I / OF�NE°$Npgr1 .1 THE WOR o-1N[�nT1Ri Or NC NORTHWEST .-ER 1 9 _ _ _ _- . LRED 16 3]OS2] Af ! ]OD2BE069B HJ9T1 TOWNSmP 2J OaNR ANCC 5 UST, w1LUMCTTC NERIpux, N KNO �8B I• 'I I DRMNACC ----• C COUNTY, wASmNGrON I JI $1- ,,}} I $I 8 k $I 5 �I PJ 12 Is sl 1 HODS N R JlIpp ST SS Jp� 1' [ • ) 9T95 Y!� 10 it D :1 a600 Y F150 Y 'f A]50 Y t150 S, FI "SO SF 1 F]50 Y .]SD P !F>A S, LESS COUNTY RObS Afro B LESS Vlufaµ RILNTS a600 Y a600 SF i 0' ROAD I.,...__. EASEMENT SURVEY DATA BASIS OF BEARING BREAKDOWN PER PUT OF MORGAN PLACE, V 205, P9 10 VERTICAL DATUM CITY OF RENTON CONTROL 02119, ELCV-126.41 REFERENCE SURVEYS PUT OF MORGAN PLACE, V 205, Po 70 NAPLEKOWD uEADOwS SHORT PLAIT V 156. Po 1264 RECORD OF SMRVEY A. 9511139Da RECORD OF S12RVIS A. 930916900a RECORD OF SURvEv INN 671102900a RECORD OE SURVE Art+ 9a062a9006 PITL ..___Le_- - I I i�oo6+Loa FR vAF �1ERlie $ A89 "P.1' 9.� I ` _ �- _ _ - 1. °° 1 - - �so �... !ry�1✓. " P PPo R aOAD X n ro L2C .6Da 132305 8019 1523 05 8047 I52305 8039111 -- _ - m � I � $ )2 l5ro SF ^ Ja (p s2oo' Ham m.m 1 1 I '..Y I ap9y Y I I Jl10 sr I II j°T I I i�le 2• I' --RI p .ate; _ _ s.m• I .9a sr el I 1. J8 ie 'I I$ xo I$ ci I R s ss sr AJ I y`'- $ jJ >" 1 $ _W 19 19 a500 Sr le a500 s, 35 )N I ■ I I .• I � ] _D SF I 21 sr-0--�-, �U93) -� m50Y K>50Y I rl; a500Y Soo SF Y�1 om' 500� I�I I� ]l] JSoss $ Js - 1 I s-i., (�]E7 I 'T' �.em a W Y' 6I 35f0 Y` I ^ oo' CT. 71;L _ fo-�i�� S'�'I ___� 1°-� �`- _ -l�T� III'., - - 3 12 ` - 57, m .m r l I Q . ' m.m'R, ODL. IY I J aspl Y �' T IN I. ea l J 27 I I' 2e IE I I I I 'R Is IB I 1 $1 IR ]33 I 5229 sE 1$ IS, a0' iI}I aaV I i x lSOS S' �F 5065 Y �: (�19E� Ix 'gl (ae]E) IS A>56 9r F �nV JU-E T�-L S -- - - - - - 1.�,g� Daarc gj[ mid it p j ;I. se,TiYDT IFSN' 5667}'n [ ]n.St 5F7Z , iU.50yu) - -- R6]2n'I ]F6>n' - 3001 p �2� 1p 30• I TOPOGRAPHY AND BOUNDARY SURVEY BY, DRYCO DRYDo Surveying, Incorporated ® ° 1 12114 VALLEY AVENUE EAST WA 98390 SUMNER, 253-826-0300 FAY 253-826-9703 LOT AREAS eosl sr _ (G+OSs L07 AREA) I (-A Y) - (NOT 1S. AREA Or LOT LESS THAN aD-E) PROPERTY OWNERS: 152305 9033 152305 9019 152305 9148 152305 9015 G.W.C., INC. HOWARD BAN ASKY EASEMENTS NOT SHOWN: TERRY DEFOOR 2A633 HE133 ST. 1402 W 26 ST. RENTON. WA. 98056 1. UNSPECIFIED SLOPE EASEMENT FOR CUTS AND FILLS DUVALL, WA. 98019 FOR THE BENEFIT OF KING COUNTY, PARCEL 152305 90a5: REC.I 5799277 152305 9047 PATRICIA BANASKY GRAPHIC SCALE 463 TER DALE AVE. NE PARCEL 1525 9019: REC4 58236a3 30 R18ERA-8ALKO ENT. FAMILY LID, REN TON. WA. 95056 PARCEL [52J05 9047: REC.I 5773188 PARCEL 152305 9148: REC.1 5823642 PARTNERSHIP OANA RIBERA 16400 SOUTHCENTER PKWY., N308 n IK FaR ) SEATTLE. WA. 98188 C Order No. 554825 A.L.T.A. COMMITMENT SCHEDULE A Page 2 The land referred to in this commitment is situated in the State of Washington, and described as follows: The west 277.5 feet of the north half of the northeast quarter of the northwest quarter of the northeast quarter of Section 15, Township 23 North, Range 5 East, W.M., in King County, Washington; EXCEPT the north 30 feet thereof for County Road; ALSO EXCEPT the south 12 feet of the north 42 feet thereof conveyed to King County for road purposes by deed recorded under Recording Number 5823643; ALSO EXCEPT the south 3 feet of the north 45 feet thereof conveyed to King County for road purposes by deeds recorded under Recording Numbers 8709280693, 8709280695, 8709280696 and 8709280697. END OF SCHEDULE A - 90 to, NOTE FOR INFORMATIONAL PURPOSES ONLY: The following may be used as an abbreviated legal description on the documents to be recorded, per amended RCW 65.04. Said abbreviated legal description is not a substitute for a complete legal description within the body of the document. NW NE 15-23-05 A PORTION of the N.E. 1/4, SECTION 15, TOWNSHIP 23 N., RANGE 5 E., W.M. 'v AM Ac. 047A . ; _w(5 ui IL Ld 11) z uj — ----------- A=. 4.14 Ar. I F w L2 8 W rn 4v" < ly 0) 0 I Z a wtl i cl: SINGLE F0,WL'Yj Re-50, GJ NE 4 .451%QE, Wei 1p Q) 4.14 CM Ll &I A, 1_9 4,14 Ac, 0. '771 —ri j'i s—MM— UI 0,47 'all 7 lCIT, v IS) 14) 5 al !ail Il;t 7 ui 1.50 AG. 5.4-10034 vi C) 4.)l A,. 7s ........... CL ti CL ON —SITE AND SURROUNDING USES ARE ALL SINGLE :s co FAMILY RESIDENTIAL NQZ . 0 1E 21 - I 1" 2 .. �6a GRAPHIC SCALE D( rM SWEET 1 L..h . e00 140th Ave. , A 142nd Ave, SE 143rd Ave. SE SE 144th Ave. SE 45th Ave. E CID 'D Q0 146th Ave qP IZA - 1 r. T?-AV 'D Cr U7 1/-7 c 1 0 140th Ave. SE .......... Ave.142 nd Ave, flsE , -,, co 143rd Ave. SE -,WIWI ............ ........... .............. Id a 144th Ave. SE 16 h, Lyons Ave. NE A PORTION of the N.E. 1/4, SECTION 15, TOWNSHIP 23 N., RANGE 5 E., W.M. <! 112 [YR11ND ORWE O PROPOSED CENTERLINE .ao Q � j 1a336a •- z 4S6 PROPOSED GRADE O OEMERINEPoD cxre I as' z a37 I__ Z PROFILE — EAST/WEST STREET J31 a30 SOALE: NORIZ' I•.a0' I W ° a3e KRT I'.1' a •26 uur \� \ 1l�• c[x/ur coex(r( W c p J 100 1i00 5i00 6100 616+.53 \ 1 gar Z 126 126 t' .•.. cau . Pr•r. Cl.ta 'e I—,, coxcxlrr J �\� 1 5 „P o p•ISTiNO OP•DE ® \ �lx rK•t luxe a3a t ROPOSEO CENIEPLIN[ 9 ♦• vxr. cWor 0(er.. CxvS+Ka SV.r•C1w r0• C°vxt< J \ •( z , d a2a vim. <p.x r. Pl— C+v 1 SW(aCW /•a! —111 -� 5 Z 3 �. O.00 1.90 2.o0 PROPp;CO GRADE O ,a t.>Jx i 4" cx KI • a( rcI•sa '•, x.• e( .(o P xl..Pw soa (wwPws '•. W rn Y CENIERLINE 70 TYP. INTERIOR PLAT ROAD LJP 0.00 '.00 2..00 3100 3.28.63 MT rp SC•![ w Q PROFILE — HOOUTAM AVE. NE SCKE: NOR'2.: 1••10' VEPT,; I'.1' Prn•R tn5,. Ia• I `� a��` Ill MP[ wxCW I e' [ Iowa) IO "s:.... Z.r_ -- - -- --- -- -- -- -- — - — ¢ Cl 7 Zo me° [[,�• -- � T oaaC ��- Evbo r 5' +��x +O � I I .3°50 I arse s 's X A ea•o sr .e °a r, . [m,n, seuu r,rn pr�sT, sPNx ,aS.Nev Seoo sr .1 s9I1 s c < •! 1+P.r5 �[: 1II.5 (II A 11� to l _ ' ' _ _'uv_o"' I ,o •o.° . R: -as I'•.SN ' tl .. I a i n i per , 'SoR', Sam raw w.00 uu.sNl � s Ix �• _ .•m _ A.aT - - o.w _ i .5,5 -nib'---- I Ip 'Il+I 1510 iTI'V I ireuI I�j i�Ma S"»I° DRAINAGE DETENTION: e12B046, '1' �1 tP I o LEVEL 2 OETETION STANDARD v it FENCED POND WITH 2:1 SIDE SLOPES♦ F.I•. _I_ I J� �� ELEVATIONS. I . TOP: 421.0 rt oao I a I` 1 I Z; � $°'R . m' - - y ""-1 n wm' r..ro we• waa ' 50 YEAR WATER LEVEL: 420.0. AREA=10317 -SF �g BOTTOM: 412.0 AREA- 4691 SF VOLUME PROVIDED: 60032 CF 5 ( ° ! Is x M, • a 1 "' VOLUME REOUIED: 47840 CF I I6 '� 11 Rio A uR v aeao v oP• •°[ IB I I Ii '8 . '" v P .e'oo s '• Sae• sr it s' °Dr' ?; 2 8 I I ' 9 aW tl .e00 it a° I tl .Ii WATER DUALITY: sinr++Visa( ""i�i1•d'TITii unrmt lAf:P` a.oss l �I�rT°nrs 3 Saar _• _ ° l J0 WETPOND BELOW DETENTION STORAGE. '« 2o�R[s'R¢ra rro[ I • +° TOP WETPOND ELEV: 412.0. AREA- 4691 SF e•Px I /�j 1 . ,;�° I ' , BOTTOM WETPOND ELEV: 406.0, AREA-1815 SFeu�s'cA�e VOLUME PROVIDED: 19518 CF VOLUME REQUIRED: 17160 CF ' 11. Rn1 5 1 CITY OF RENTON COUNCIL AGENDA BILL Al #: 1' Submitting Data: For Agenda of: Dept/Div/Board.. Planning/Building/Public Works 9/13/04 Agenda Status Staff Contact...... Karen McFarland, x7209 Consent .............. Public Hearing.. Subject: Determination of Surplus Property Status for Old Fire Correspondence.. Station 12 (901 Harrington Ave NE) Ordinance ............. Resolution............ Old Business........ New Business....... Exhibits: Issue Paper Study Sessions...... Resolution Information......... /A Recommended Action: Approvals: Refer to Community Services Committee Legal Dept......... Finance Dept...... Other ........... Parks/Facilities X Fire X Fiscal Impact: Expenditure Required... Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... Total Proiect Budget City Share Total Project.. SUMMARY OF ACTION: Until recently, the property at 901 Harrington Ave NE was used as Fire Station 12. In January 2001, the property located at 1209 Kirkland Ave NE was purchased for the relocation of Fire Station 12. The City has completed construction of the new Fire Station 12 on this site. The property located at 901 Harrington Ave NE is no longer needed by the City of Renton. A public hearing was held on November 17, 2003, to accept public comment on the disposition of old Fire Station 12. In order to sell this property, this property needs to be declared surplus. STAFF RECOMMENDATION: The Planning/Building/Public Works Department requests the City Council to declare surplus old Fire Station 12 located at 901 Harrington Ave NE and set compensation at $475,000.00. P:\Current Projects\Surplus\2004FireStationl2\ab_firestl2_0904.doc\KLMtp CITY OF RENTON PLANNING/BUILDING/PUBLIC WORKS MEMORANDUM DATE: September 3, 2004 TO: Don Persson, Council President Members of the Renton City Council VIA:'' Mayor Kathy Keolker-Wheeler FROM: Gregg Zimmerman, Administrator Planning/Building/Public Works Department STAFF CONTACT: Karen McFarland, x7209 SUBJECT: Determination of Surplus Property Status for Old Fire Station 12 (901 Harrington Ave NE) ISSUE: Until recently, the property at 901 Harrington Ave NE was used as Fire Station 12. In January 2001, the property located at 1209 Kirkland Ave NE was purchased for the relocation of Fire Station 12. The City has completed construction of the new Fire Station 12 on this site. The property located at 901 Harrington Ave NE is no longer needed by the City of Renton. A public hearing was held on November 17, 2003, to accept public comment on the disposition of old Fire Station 12. In order to sell this property, this property needs to be declared surplus. RECOMMENDATION: • The Planning/Building/Public Works Department requests the City Council to declare surplus old Fire Station 12 located at 901 Harrington Ave NE and set compensation at $475,000.00. BACKGROUND SUMMARY: On January 23, 2001, the City purchased a property located at 1209 Kirkland Ave NE for a future fire station. Fire Station 12 has been relocated from the city -owned property located at 901 Harrington Ave NE to the property located at 1209 Kirkland Ave NE. Thus, the property located at 901 September 3, 2004 Page 2 Harrington Ave NE is no longer be needed by the City of Renton's Fire Department. In order to sell this property, this property would need to be declared surplus. According to City Policy, surplus property is defined as "property acquired by a division which is no longer needed to fulfill the original or an alternate need within the same division". The Fire Department has determined that Fire Station 12 located at 901 Harrington Ave NE is no longer needed for the purpose for which it was acquired and is not needed for any alternate purpose in the Fire Department. Thus, although the Fire Department has no need for the property located at 901 Harrington Ave NE, it cannot dispose of this property unless the Council determines this property to be surplus. City Policy and Procedure sets forth the process for determining whether a City -owned property should be declared surplus property. Initiation of this process requires City Council approval. At its September 22, 2003 meeting, Council approved the initiation of the Surplus Real Property Procedures (City Policy & Procedure #100-12) and authorized that an appraisal be ordered. The Lema Consulting Group, Inc. appraised the property on October 17, 2003. The value determined by the appraisal was $475,000.00. Staff has reviewed the appraisal and notes that the analysis used in the appraisal meets industry standards and that the determinations were based upon current market data and are reasonable. If Council should determine this property to be surplus, City policy requires that the property be offered to other City departments, other local agencies, the abutting property owners, and any parties having expressed an interest in the property. Accordingly, City departments and local agencies were contacted to determine their interest in this property. A proposal was circulated to all City departments for identification of any need for or interest in the property located at 901 Harrington Ave NE. No need or interest exists to date. In addition to City departments, three agencies were contacted. Neither WSDOT or King County had any interest in this property. The Renton Historical Society was interested in acquiring the property for meeting space and storage but indicated that it was not able to pay the $475,000 dollars that the appraisal determined as fair market value. A public hearing was held on November 17, 2003, to accept public comment on the disposition of old Fire Station 12. Public comment was taken, at that time, from Doug Kyes, Municipal Arts Commission member, and Craig Soucy, Vice President of Renton Firefighters Local 864. If Council should decide to declare this property surplus, abutting property owners and any parties having expressed an interest in the property would be contacted at that time to determine their interest in purchasing the property. The Renton Historical Society, the Municipal Arts Commission, and the Renton Firefighters Local 864 are all parties of record and would be notified if Council should decide to declare this property surplus. HAFile Sys\PRM - Property Services Administration\Current Projects\Surplus\2004FireStationl2\ip_firestl2_0904fnl.doc\KLMtp September 3, 2004 Page 3 If Council should decide to declare this property to be surplus, a resolution which makes this declaration and which sets the amount of compensation would need to be adopted. If the property were declared surplus, proceeds from the sale would be credited to an appropriate Fire Department account, less any administrative costs. CONCLUSION: Fire Station 12 has been relocated from the city -owned property located at 901 Harrington Ave NE to the property located at 1209 Kirkland Ave NE. The property located at 901 Harrington Ave NE is no longer needed by the City of Renton's Fire Department. This property was appraised and the value was determined to be $475,000.00. In order to sell this property, Council needs to declare this property surplus and set compensation. HAFile Sys\PRM -Property Services Administration\Current Projects\Surplus\2004FireStationl2\ip_firestl2_0904fnl.doc\KLMtp 00 DRAFT CITY OF RENTON, WASHINGTON RESOLUTION NO. A RESOLUTION OF THE CITY OF RENTON, WASHINGTON, DECLARING AS SURPLUS THE OLD FIRE STATION 12, LOCATED AT 901 HARRINGTON AVENUE NE, AND AUTHORIZING THE MAYOR AND CITY CLERK TO SIGN SUCH DOCUMENTS AS NECESSARY TO TRANSFER TITLE. WHEREAS, the City of Renton, after a news release and publication of a notice for a public hearing, held a public hearing on November 17, 2003, to consider the issue of declaring certain real property surplus, such property being legally described in Exhibit A attached hereto and incorporated by reference as if fully set forth, and being commonly known as Old Fire Station 12, located at 901 Harrington Ave NE; and WHEREAS, those members of the public who wished to testify were duly allowed to testify, and their testimony was considered by the City Council; and WHEREAS, the law requires an appraisal; and WHEREAS, the City Administration has ordered an appraisal of the value of this real property; and WHEREAS, the City Council has determined that the sale of this property is in the public interest; NOW, THERFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO RESOLVE AS FOLLOWS: SECTION I. The above findings are true and correct in all respects. SECTION II. The property in question is declared surplus. RESOLUTION NO. SECTION III. The Mayor and City Clerk are hereby authorized to sign the necessary documents to consummate the conveyance of the real estate that has been surplused, contingent upon the property being sold for a price that is at least $427,500, but on the most advantageous terms, including price, that the City can obtain. PASSED BY THE CITY COUNCIL this APPROVED BY THE MAYOR this Approved as to form: Lawrence J. Warren, City Attorney RES.1069:9/9/04:ma day of 12004. Bonnie I. Walton, City Clerk day of Kathy Keolker-Wheeler, Mayor 2004. 2 RESOLUTION NO. Q EXHIBIT "A" OLD FIRE STATION 12 PROPERTY LEGAL DESCRIPTION: Lots 17, Block 6, Plat of Renton Highlands, according to the plat thereof recorded in Volume 46 of Plats, Pages 34 to 41, records of King County, Washington; All situate in the Northwest Quarter of Section 9, Township 23 North, Range 5 East, W.M., in the City of Renton, King County, Washington. 3 CITY OF RENTON COUNCIL AGENDA BILL Submitting Data: Dept/Div/Board.. Staff Contact...... Police Penny Bartley x7565 Subject: Interlocal Agreement for Jail Administration Exhibits: A. Issue Paper B. Interlocal Agreement for Jail Administration C. Resolution Recommended Action: Refer to Public Safety Committee Al N: For Agenda of: 9/13/04 Agenda Status Consent .............. Public Hearing.. Correspondence.. Ordinance ............. Resolution........... . Old Business........ New Business....... Study Sessions...... Information........ . Approvals: Legal Dept......... X Finance Dept...... Other ............... X Fiscal Impact: Expenditure Required... 2004:$4,393/2005:$2,922 Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... Total Project Budget City Share Total Project.. SUMMARY OF ACTION: In 2002, the City of Renton and many of the other 35 cities utilizing King and Yakima County Jails entered into a Cities Interlocal for Jail Administration. However, not all of the parties to the contract ratified the Interlocal and it became null and void without the Interlocal ever being implemented. The new Interlocal has been under review by the Cities for the past 12 months. The Interlocal provides for the framework for cities within King County to work together to manage the King County and Yakima County jail contracts, dispose of property held for jail purposes by Bellevue, and develop a plan to manage the cities' inmate population after the termination of the King County Jail Contract in 2012. STAFF RECOMMENDATION:. The Renton City Council concurs with the recommendation of City Administration to approve the Interlocal Agreement for Jail Administration and adopt a resolution authorizing the Mayor and City Clerk to sign the Interlocal Agreement. Rentonnet/agnbill/ bb RENTON POLICE DEPARTMENT MEMORANDUM DATE: August 9, 2004 TO: Don Persson, Council President Members of the Renton City Council VIA: athy Keolker-Wheeler, Mayor FROM: Garry Anderson, Chief of Police STAFF CONTACT: Penny Bartley, Police Manager SUBJECT: Issue Paper — Interlocal Agreement for Jail Administration ISSUE: In 2002, 35 of 37 King County cities entered into agreements with King County and/or Yakima County for the purpose of inmate housing. The jail contract with King County provides for the creation of a Jail Administrative Group (JAG) to respond to issues regarding the administration, implementation or interpretation of the King County jail contract. The King County Jail contract further provides for the transfer of real property to the City of Bellevue on behalf of the Cities. The multiple jail contracts have required the cities to address a variety of issues related to the phase out of King County jails and the maximum use of Yakima County Jail. This new direction places new burdens on the cities over the next several years. This Interlocal Agreement for Jail Administration provides the framework for cities within King County to work together to manage the King County and Yakima County jail contracts, dispose of property held for jail purposes by Bellevue, and develop a plan to manage the cities' inmate population after the termination of the King County Jail Contract in 2012. BACKGROUND: In 2002, the City of Renton and many of the other 35 cities entered into a Cities Interlocal for Jail Administration. However, not all of the parties to the contract ratified the Interlocal and it became null and void without ever being implemented. The new Interlocal has been under review by the Cities for the past 12 months. This Interlocal agreement is specifically created to do the following: • Clarify the roles of Cities in planning, implementation, operation, and administration of Interlocal agreements related to the provision of current jail services; • Plan for the future of facilities and programs for municipal inmates; and, • Establish a payment method for unused beds if the Cities collectively fail to meet their estimated Minimum Bed Commitment with Yakima County. It does this by creating a governance structure which: • Provides for the administration group (JAG) created by the King County Jail Contract; • Creates a group in order to facilitate cooperation in the examination of policy issues, questions and/or disputes involving the administration of the King County Jail Contract and the Yakima Jail Contract; • Authorizes the disposition of the Jail Property and associated proceeds; and, • Provides for the planning for new misdemeanant secure jail facilities, non -secure alternative facilities, or programs to create additional misdemeanant capacity. To accomplish these tasks, the Jail Administration Interlocal agreement creates: • Three different committees with specific responsibilities 1. Oversight Group of Elected Officials - Assembly Membership: An elected official from each participating city. Purpose: The Assembly will meet at least once a year to provide guidance to the JAG and JOG. This will include issues such as annual budget, assessment and work program, disposition of the jail property, creation of a new misdemeanant facility, fiscal agent and other policies as necessary. 2. Administrative Entity - JAG- (Jail Administrative Group) Membership: A group of 6 city representatives with 1 from Seattle, 1 from Bellevue, and 4 other contract cities, one of which will include an SCA city that is the largest jail user and is party to both the King County and Yakima County ILAs. Purpose: The JAG will administer the Cities Interlocal and other jail related agreements. This will include making recommendations to the Assembly, working closely with the JOG, and supervising staff. These 6 members will also serve as the city representatives to the King County JAG. 3. Operations Entity - JOG — Jail Operations Group Membership: A representative from each of the cities Purpose: Advise the Assembly and JOG on operational issues of the jail contracts. • An annual budget and assessment method for all cities to pay for staff support • A fiscal agent (currently Tukwila) to manage fiscal responsibilities This Interlocal agreement does not decide the outcomes of future planning efforts, nor does it bind any city to participate in these efforts. It sets up a cooperative process to create the plan for how these future efforts will be undertaken. The agreement continues until December 31, 2012, which is the termination date of the King County Contract. It can be renewed. Cities can terminate by written notice by the end of any given year, but remain responsible for any budget expenses incurred for that "year. The Interlocal provides for a financial assessment to each of the King County Cities to carry out the above tasks. The City of Renton's assessment is $4,393. The proposed assessment for the City of Renton for 2005 is $2,922. RECOMMENDATION: The City of Renton Council concurs with the recommendation of City Administration that the Interlocal Agreement for Jail Administration be signed. INTERLOCAL AGREEMENT FOR JAIL ADMINISTRATION ESTABLISHING THE TERM, PURPOSE, MEMBERSHIP, GOVERNANCE, JAIL OVERSIGHT ASSEMBLY (ASSEMBLY), JAIL ADMINISTRATION GROUP (JAG), JAIL OPERATION GROUP (JOG), MEETINGS, FISCAL AGENT, STAFFING, ANNUAL ASSESSMENT, TERMINATION, DISPOSITION OF REAL PROPERTY, INSURANCE AND INDEMNIFICATION REQUIREMENTS AND GENERAL PROVISIONS This Interlocal Agreement ("Agreement") is dated effective November 1, 2003 and is made and entered into between Algona, Auburn, Town of Beaux Arts Village, Bellevue, Black Diamond, Bothell, Burien, Carnation, Clyde Hill, Covington, Des Moines, Duvall, Enumclaw, Federal Way, Hunts Point, Issaquah, Kenmore, Kent, Kirkland, Lake Forest Park, Maple Valley, Medina, Mercer Island, Milton, Newcastle, Normandy Park, North Bend, Pacific, Redmond, Renton, Sammamish, SeaTac, Seattle, Shoreline, Skykomish, Snoqualmie, Tukwila, Woodinville and the Town of Yarrow Point, Washington, municipal corporations organized under the laws of the State of Washington (collectively the "Cities"). A. The Cities enter into this Agreement pursuant to and as authorized by the Interlocal Cooperation Act (Chapter 39.34 RCW). B. Some of the Cities have entered into a long term Interlocal Agreement with Yakima County, as amended, for the purpose of housing the Cities' inmates in Yakima County jail facilities ("Yakima Jail Contract"). The Yakima Jail Contract commits the Cities to deliver a certain number of inmates to Yakima County to satisfy a Minimum Bed Commitment. The Yakima Jail Contract and any addendums to it are incorporated herein by this reference. C. Previously, the Cities negotiated the terms of an agreement regarding the use by the Cities of the Minimum Bed Commitment, including the allocation of jail beds among the Cities and the allocation of charges for jail service under the Yakima Jail Contract; however, that agreement never took effect. D. Some of the Cities have entered into a Jail Services Agreement with King County ("King County Jail Contract") providing for the Cities' use of jail beds in King County jail facilities for a limited time not to exceed ten years. The King County Jail Contract is incorporated herein by this reference. E. The King County Jail Contract provides for the creation of a Jail Administration Group to respond to any issue regarding the administration, implementation or interpretation of the King County Jail Contract. F. King County and the City of Bellevue have entered into a Land Transfer Agreement pursuant to Paragraph 12 of the King County Jail Contract which provides for the transfer of ownership of the eastside Jail site ("Jail Property") to Bellevue on behalf of all of the Cities. The Land Transfer Agreement is incorporated herein by this reference. Interlocal Agreement for Jail Administration Page 1 of 23 -1- G. The Cities desire to enter into this Interlocal Agreement for Jail Administration in order to set forth the purpose, membership, governance, meeting frequency, fiscal agent, staffing, term, annual assessment, termination, and insurance and indemnification requirements, and regarding the use by the Cities of the Minimum Bed Commitment under the Yakima Jail Contract, including the method for allocating those jail beds as between the Cites, and to establish the formula for payment for unused beds should the Cities collectively fail to meet their Minimum Bed Commitment with Yakima County, as more specifically set forth in this Agreement. H. The Cities of Kent and Enumclaw are not parties to the Yakima Jail Contract or the King County Jail Contract. Kent and Enumclaw are included as parties to this Interlocal Agreement to clarify the City of Bellevue's authority with respect to the Jail Property, and to provide for Kent's and Enumclaw's participation in the planning process for disposition of Jail Property proceeds and for future jail facilities. IT IS HEREBY AGREED AS FOLLOWS: 1. PURPOSE This Interlocal Agreement is entered into by the Cities to further clarify the role of the Cities and their representatives in planning, implementation, operation and administration of interlocal agreements related to the provision of current jail services, and in planning for future facilities and programs for municipal inmates, and to establish a formula for the payment of unused beds should the Cities collectively fail to meet their Minimum Bed Commitment with Yakima County. This Agreement implements the administration group created by the King County Jail Contract and creates a group in order to facilitate cooperation in the examination of policy issues, questions and/or disputes involving the administration of the King County Jail Contract and the Yakima Jail Contract, the disposition of the Jail Property proceeds, and the planning for new misdemeanant secure jail facilities, non -secure alternative facilities or programs to create additional misdemeanant capacity. 2. CREATION OF THE ASSEMBLY, JAG AND JOG To accomplish the purposes of this Agreement, the Cities hereby create an oversight group of elected representatives called the Jail Oversight Assembly ("Assembly"), an administrative entity called the Jail Administration Group ("JAG"), and an operations entity called the Jail Operations Group ("JOG"), all as further described in Section 6 of this Agreement. 3. DEFINITIONS Assembly means the Jail Oversight Assembly created pursuant to Section 6 of this Agreement with the duties described herein. Average Daily Population ("ADP") means that number of City Inmates confined in Yakima County jail facilities for a year, divided by 365. Interlocal Agreement for Jail Administration Page 2 of 23 Cities means Algona, Auburn, Town of Beaux Arts Village, Bellevue, Black Diamond, Bothell, Burien, Carnation, Clyde Hill, Covington, Des Moines, Duvall, Enumclaw, Federal Way, Hunts Point, Issaquah, Kenmore, Kent, Kirkland, Lake Forest Park, Maple Valley, Medina, Mercer Island, Milton, Newcastle, Normandy Park, North Bend, Pacific, Redmond, Renton, Sammamish, SeaTac, Seattle, Shoreline, Skykomish, Snoqualmie, Tukwila, Woodinville, and Town of Yarrow Point, Washington. City means a Washington city or town that is a party to this Agreement. City Member means any city or town that has signed this Agreement. Estimated Average Daily Population ("EADP") means that number of City Inmates that each City estimates it will confine in Yakima County jail facilities in a year, divided by 365. Fiscal Agent means the "fiscal agent" selected by the Assembly pursuant to RCW 39.34,030. JAG means the Jail Administration Group created pursuant to Section 6 of this Agreement, and the King County Jail Contract. JOG means the Jail Operation Group created pursuant to Section 6 of this Agreement and with the duties described herein. Jail Property means that certain real property located in Bellevue, Washington and commonly known as 1440 116`h Avenue NE and 1412 1161h Avenue NE, Bellevue, Washington, to be conveyed to the City of Bellevue to hold on behalf of all King County cities as third party beneficiaries consistent with the King County Jail Contract. Minimum Bed Commitment means the bed commitment made by the Cities collectively to maintain an Average Daily Population in Yakima County jail facilities equal to 440 City Inmates from October 1, 2003 through December 31, 2009, or as otherwise set in the Yakima Jail Contract. Overused Bed Commitment means the difference between a City's EADP and the actual number of City Inmates sent to Yakima County jail facilities by that City, where the actual number is less than that City's EADP. 4. TERM This Agreement shall be dated effective November 1, 2003 and shall continue until December 31, 2012, the date of the expiration of the King County Jail Contract ("Term"). This Agreement may be renewed for any successive periods, by written addendum, under terms and conditions acceptable to all of the Cities. No City that is a party to this Agreement at its inception or thereafter will be required to be a party to any renewal of this Agreement. 5. TERMINATION 5.1 Termination Unrelated to Yakima Jail Contract. Any City may terminate its participation in this Agreement by delivering written notice to the Assembly, by Interlocal Agreement for Jail Administration Page 3 of 23 December 31 in any year, of its intention to terminate effective December 31 of the _ following year. Any City terminating this Agreement shall remain legally and financially responsible for any obligation incurred by the City pursuant to the terms of this Agreement, including its obligation to pay its annual assessment for the current budget year as described in Sections 8 and 9 of this Agreement. 5.2 Termination for Cause — Yakima Jail Contract. In the event any City's participation in the Yakima Jail Contract is terminated for cause, as defined in the Yakima Jail Contract, such City shall remain legally and financially responsible to Yakima County for its EADP until December 31, 2009, or the end of the then existing term if the Yakima Jail Contract has been extended before the termination for cause; provided, that the terminated City may be entitled to a credit under Section 10 of this Agreement. 6. GOVERNANCE 6.1 Jail Oversight Assembly (Assembly). (a) Membership. Each City Member shall appoint one elected official to be a member of the Assembly. The initial Assembly member for each City shall be the elected official designated by the City in the space provided below the City's signature on this Agreement. In the event that a City's initial Assembly member becomes unable to serve as an Assembly member, the City shall designate a new or alternate Assembly member. (b) Assembly Powers. The Assembly shall make policy determinations necessary to guide and direct the administration of this Agreement, and to guide JAG and JOG in the performance of duties under this Agreement, the King County Jail Contract, the Land Transfer Agreement, and the Yakima Jail Contract. The Assembly shall have the following duties and powers: (i) Annual Assessment, Budget and Work Program. The Assembly shall receive recommendations from JAG regarding the annual budget pursuant to Section 8 of this Agreement, the amount 'of the annual assessment pursuant to Section 9 of this Agreement, and an annual work program. On or before July 1st of each year, the Assembly shall submit to the legislative body of each City a recommendation for the annual assessments, the annual budget, and the work program for the next year. (ii) Disposition of Jail Property. The Assembly shall receive recommendations from JAG and/or JOG regarding use of any proceeds of the sale or transfer of the Jail Property, and then either approve, reject or approve with modification such use of the proceeds. (iii) New Misdemeanant Facilities. The Assembly shall receive recommendations from JAG and/or JOG regarding alternatives for assessment and planning for new misdemeanant secure jail facilities, proposals to site or create jail facilities, options for non -secure alternative facilities or programs and issuance of long term debt for construction of such facilities and then either approve, reject, or modify the recommended alternative. Interlocal Agreement for Jail Administration Page 4 of 23 (iv) Amendments. The Assembly shall receive recommendations from JAG and/or JOG regarding any amendments to this Agreement, including the amendment of the annual assessment formula set forth in Section 9 of this Agreement, or the other interlocal agreements referenced by this Agreement and incorporated herein, and then make a recommendation to approve, reject or modify such amendment to the legislative bodies of each City or return the recommendation to the JAG or JOG. (v) Fiscal Arent. The Assembly shall appoint a Fiscal Agent for the purposes of carrying out and recording financial transactions pursuant to RCW 39.34.030. (vi) Policy Determinations. The Assembly may make such policy determinations as are necessary to guide the administration or implementation of this Agreement, the King County Jail Contract, the Yakima Jail Contract, and the Land Transfer Agreement, including but not limited to policy regarding the hiring of employees or contracting with consultants, purchasing of goods or services, and adoption of procedures for the administration of this Agreement. (c) Meetings. The Assembly shall meet at the times convened by its officers, but at least once each year. For any meeting held in addition to one annual meeting regarding the annual budget, assessments, and work program, the Assembly may meet by telephone, electronically, video conferencing, or any other communications mechanism that allows simultaneous communication between all persons in attendance; provided, that at least fourteen days notice of the meeting is provided to all Assembly members. A quorum shall consist of Assembly members representing sixty percent (60%) of the total residential population of all City Members. Decisions shall be made or action shall be taken by the affirmative vote of Assembly members from Cities having sixty percent (60%) of the total residential population of all City Members. For purposes of this section, each Cities' residential population shall be deemed to be the most recent population estimate available from the State of Washington's Office of Financial Management. If an Assembly member will be absent from a meeting, the Assembly member may, but is not required to, designate by written proxy another person to attend the meeting and vote on behalf of the Assembly member. The Assembly may seek a straw vote for informational purposes only. (d) Assembly Officers. The Assembly members shall select up to four officers, including a chairperson and vice -chairperson to serve as the executive committee; provided, that if representatives are not selected from each of the three largest jail users among the cities that are parties to both the Yakima and King County jail interlocal agreements for housing misdemeanant inmates, such representatives shall be included as additional members of the executive committee. "Largest jail user" is determined by the sum of the jail inmate populations in the King County and Yakima jail facilities from the prior calendar year. The officers serving as the executive committee shall (1) convene meetings of the Assembly as the officers determine appropriate, but at least once a year, (2) establish the agenda for each meeting, (3) act as spokespersons for the Assembly, and (4) convene and make assignments to Assembly subcommittees, as Interlocal Agreement for Jail Administration Page 5 of 23 appropriate. The chairperson shall preside over the Assembly's meetings, and the vice -chairperson shall preside in the chairperson's absence. 6.2 Jail Administration Group (JAG). (a) Membership. The JAG shall be composed of six (6) members as follows: City of Seattle Representative (1) City of Bellevue Representative (1) Suburban Cities Representatives (4) The Mayor of Seattle shall appoint the City of Seattle representative, and shall also appoint an alternative Seattle representative to serve in the event that the original representative is absent or becomes unable to serve. The Bellevue City Manager shall appoint the City of Bellevue representative, and shall also appoint an alternative Bellevue representative to serve in the event that the original representative is absent or becomes unable to serve. The Suburban Cities Association ("SCA") shall select three (3) representative cities through a process defined by the SCA, and a fourth representative among the SCA cities shall be selected by the Mayor or City Manager of the SCA city that is the largest jail user and a party to both the King County and Yakima interlocal agreements for housing misdemeanant inmates. "Largest jail user" is determined by the sum of the jail inmate populations in the King County and Yakima jail facilities from the prior calendar year. For each city representative selected by SCA, and the suburban city selected based upon largest jail population, the Mayor of a mayor/council city or the City Manager of a manager/council city shall appoint that City's representative, as well as an alternative representative to serve in the event that the original representative is absent or becomes unable to serve. The Seattle, Bellevue, and Suburban Cities members of the JAG created in this Section shall be the same as the members of the JAG created under the King County Jail Contract. (b) JAG Powers. The JAG shall administer this Agreement pursuant to the terms of this Agreement, the Yakima Jail Contract, the King County Jail Contract, and the Land Transfer Agreement and pursuant to any procedures adopted by the Assembly or JAG. The JAG shall have the following duties and powers: (i) Act as the Cities' representatives to the King County Jail Contract and perform all duties assigned to JAG under that Contract, consistent with policy direction provided by the Assembly under this Agreement; (ii) Make policy recommendations as defined in Section 6.1 of this Agreement to the Assembly including, without limitation, recommendations on the disposition of the Jail Property proceeds (subject to Section 7 of this Agreement), alternatives for assessment and planning for new misdemeanant secure jail facilities, proposals to site or create jail facilities, options for non - secure alternative facilities or programs and issuance of long term debt for construction of such facilities, and contract language Interlocal Agreement for Jail Administration Page 6 of 23 associated with any re -opener of the provisions described in Section 7 of the King County Jail Contract; (iii) Make recommendations to the Assembly on the appointment of a Fiscal Agent for the purposes of carrying out and recording financial transactions pursuant to RCW 39.34.030; (iv) Evaluate JOG recommendations regarding the interpretation of the King County Jail Contract or Yakima Jail Contract and issues related to inmate transportation, alternative and community correction programs, coordination with the courts and law enforcement, mental health, drug and alcohol treatment, alternative facilities within or outside of King County or other related issues; (v) After consultation with JOG, develop and recommend a budget, including annual assessments, and work program to the Assembly, and implement the budget and work program, subject to the Cities' obtaining legislative body approval of each City's individual annual assessment, the annual budget, and the work program in accordance with Section 8 of this Agreement; (vi) Following budget and work program approval by the Assembly and City Members in accordance with Section 8 of this Agreement, and subject to the availability of funds, the JAG, acting through its chairperson, will have the following additional powers: (1) Hire and supervise any staff, consultants or private vendors consistent with the annual budget, work program, and any human resource policies and procedures of the Fiscal Agent; (2) Negotiate and enter into any contracts or agreements with third parties for goods and services consistent with the annual budget and work program; (3) Approve or disapprove expenditures consistent with the annual budget and work program; (4) Make purchases or contract for services consistent with the annual budget and work program; and (5) If an annual budget becomes effective under Section 8.1, but insufficient Cities approve and pay assessments to fund the entire work program for that budget year, then JAG has the authority to assign priorities to various items in the work program and to determine which items or portions of items will be removed from the work program for that budget year. (vii) Adopt procedures for the conduct of JAG's meetings; Interlocal Agreement for Jail Administration Page 7 of 23 (viii) Uniformly inform and consult with the Assembly and JOG for contract disputes, operational policy issues, hiring and supervision of staff, creation of the work program, creation of the budget, revisions to the cost allocation formula to establish the annual assessment set forth in Section 9 of this Agreement, disposition of the Jail Property proceeds and any decisions regarding assessment and planning for new misdemeanant secure facilities, misdemeanant non -secure alternative facilities or programs; (ix) Mediate disputes or issues presented to JAG by a City or Cities regarding the interpretation of or otherwise arising out of this Agreement, the Yakima Jail Contract, or the King County Jail Contract. In the event that any City or Cities present a dispute to JAG and JAG is unable to resolve the dispute in a manner acceptable to the Cities involved, the Cities shall submit the dispute to mediation prior to initiating any action in a court; and (x) Conduct any and all other business allowed by applicable law and necessary to carry out the purposes of this Agreement. (c) Meetings. The JAG shall meet as often as it deems necessary, but not less than quarterly. A quorum shall consist of a simple majority of the JAG's members or alternates. Decisions will be made by consensus of all the JAG members in attendance at a meeting. The JAG may seek a straw vote for informational purposes only. (d) Chairperson. The JAG members shall select a chairperson and vice - chairperson from among the JAG members to preside over JAG's meetings. 6.3 Jail Operation Group (JOG). (a) Membership. Each City Member shall appoint one representative to be a member of the JOG. The initial JOG member for each City shall be designated by the City in the space provided below the City's signature on this Agreement. (b) JOG Powers. The JOG shall advise the Assembly and JAG on operational issues regarding the King County Jail Contract or the Yakima Jail Contract, including without limitation, issues or disputes among the City Members related to contract interpretation, contract disputes, inmate transportation, alternative and community correction programs, coordination with the courts and law enforcement, mental health, drug and alcohol treatment, alternative facilities within or outside of King County, and any other related issues. The JOG shall consult with JAG regarding recommendations for the annual budget, assessments, and work program. (c) Meetings. The JOG shall meet as often as it deems necessary, but not less than quarterly. A quorum at any meeting of the JOG shall consist of a simple majority of the JOG members. Decisions will be made by consensus of all the JOG members in attendance at a meeting. The JOG may seek a straw vote for informational purposes only. Interlocal Agreement for Jail Administration Page 8 of 23 (d) Chairperson. The JOG members shall select a chairperson and vice - chairperson from among the JOG members to preside over JOG's meetings. 7. JAIL PROPERTY 7.1 Land Transfer. Pursuant to the terms of the King County Jail Contract and the Land Transfer Agreement, King County will convey the Jail Property to the City of Bellevue prior to July 1, 2004. Bellevue will hold the Jail Property on behalf of all cities in King County as third party beneficiaries. Bellevue shall act as the fiscal agent of the cities for purposes of taking action with respect to the Jail Property. Any disposition of the Jail Property shall also be consistent with the terms and provisions of Section 12 of the King County Jail Contract, which provides in pertinent part as follows: "The Property will be used to contribute to the cost of building secure capacity, or contracting for secure capacity, and, at the sole discretion of the Contract Cities, building or contracting for alternative corrections facilities, sufficient to enable the Contract Cities to meet the final step (occurring on December 31, 2012) of the population reduction schedule as detailed in Sections 11.3 and 11.4 of this Agreement. The parties understand that the Property may be sold or traded and the proceeds and/or land acquired from such sale or trade used for the purposes detailed in the preceding sentence. The parties further agree that in the event the cities do not build secure capacity, or contract for secure capacity, and, at the sole discretion of the Contract Cities build or contract for alternative corrections facilities, sufficient to enable the Contract Cities to meet the final step (occurring on December 31, 2012) of the population reduction schedule as detailed in Sections 11.3 and 11.4 of this Agreement the City of Bellevue shall transfer title to the Property back to the County if such Property has not been sold; or if such Property has been sold, pay the County an amount equal to the net sale price of the Property, plus investment interest earned; or if the Property has been traded, pay the County the appraised value of the Property at the time of the trade, as determined by an MIA appraiser selected by mutual agreement of King County and the City of Bellevue, plus investment interest earned." 7.2 Expenses. The City of Bellevue is authorized to sell the Jail Property for no less than fair market value. Fair market value shall be determined by an MIA appraisal commissioned by the City. The City of Bellevue is authorized to deduct from the gross proceeds customary expenses necessary to dispose of the property and costs incurred to perform due diligence studies necessary to exercise the option to take possession of the property from the County including, but not limited to, tests inspections, survey, appraisal, expenses resulting from any legal challenge, maintenance activities during the time the City of Bellevue has possession of the property. The total deductions shall not exceed five percent (5%) unless approved by the Assembly. If the Jail Property is sold and Cities fail to meet the terms set out in Section 12 of the King County Jail Contract referenced in Section 7.1 above regarding use of the proceeds, Cities are responsible for their proportional share of the amount required to reimburse Interlocal Agreement for Jail Administration Page 9 of 23 King County as referenced in that section. This responsibility will be met collectively by requiring the fiscal agent to invest the sale proceeds in investment instruments that will preserve the full value of the capital assets, assure liquidity for funding future misdemeanant jail facilities and achieve the best rate of investment return. Until these conditions can be met, the fiscal agent shall retain the sale proceeds in the State Local Government Investment Pool. 8. FINANCE AND BUDGET 8.1 Budget. The budget year for jail administration and operations shall be January 1 to December 31 of any year. On or before July 1" of each year, a recommended budget, assessments, and work program for the next budget year shall be prepared by JAG, reviewed and recommended by the Assembly, and transmitted to each City's legislative body for approval or disapproval. Approval of the budget by a City's legislative body shall obligate that City to pay the assessment budgeted for that City for the next budget year; if a City's legislative body disapproves the budget that City shall not be obligated to pay the assessment budgeted for that City for the next budget year. An annual budget, including assessments, and work program shall not become effective unless the annual budget is approved by the legislative bodies of Cities representing sixty percent (60%) of the total residential population of all City Members. If an annual budget becomes effective under this Section, but insufficient Cities approve and pay assessments to fund the entire work program for that budget year, then JAG has the authority to assign priorities to the various items in the work program and to determine which items or portions of items will be removed from the work program for that budget year. For budget year 2004, the Cities shall make a good faith effort to accomplish the budget, assessment, and work program approval process by December 31, 2003. In the event that the Cities are unable to complete the process by that date, the Cities agree that the assessments for the year 2004 shall be as stated in Exhibit A to this Agreement, and the budget and work program approval for the year 2004 shall be completed by March 31, 2004 and shall be consistent with the assessments stated in Exhibit A. 8.2 Authority. The JAG, acting through its chairperson, and consistent with the budget, assessments, and work program approved by the City Members, is authorized to (1) apply for loans or grants in order to accomplish the purposes of this Agreement consistent with Chapter 39.34 RCW, (2) seek and negotiate partnerships with public and private corporations or entities as allowed by law, and (3) approve expenditures and direct the Fiscal Agent to make payments. The Fiscal Agent is empowered to receive all annual assessments received from the Cities and to make disbursements as approved by the JAG chairperson. If grants or other unbudgeted funds become available, budget amendments will be referred to the Assembly for its review and recommendations to City Members. 8.3 Fiscal Agent. The City of Tukwila shall act as the Assembly's initial Fiscal Agent pursuant to RCW 39.34.030 until the Assembly approves another Fiscal Agent. 8.4 Intergovernmental Cooperation. The Assembly and JAG will cooperate with state, county, and other local agencies to maximize use of any grant funds or other Interlocal Agreement for Jail Administration Page 10 of 23 resources and enhance the effectiveness of the programs and projects created or implemented pursuant to this Agreement. 9. ANNUAL ASSESSMENT Funding for the activities under this Agreement shall be provided solely through the budget process described in Section 8 and collection of the annual assessment described in this Section 9. No separate dues or assessments shall be imposed or required of the Cities except upon unanimous vote of all of the Cities. The annual assessment shall be paid to the Fiscal Agent on a quarterly basis at the beginning of each quarter. Each City shall be assessed an annual assessment fee equal to Two Hundred and Fifty Dollars and No/100 ($250.00) or equal to its proportional share of the approved budget based upon the following cost allocation formula, whichever is greater: (i) 50% of the annual fee shall be based upon the percentage calculated by dividing each City's residential population into the total residential population of all City Members, multiplied by one-half of the total amount of the annual budget; and (ii) 50% of the annual fee shall be based upon the percentage calculated by dividing a City's EADP into the actual total annual jail bed usage by the Cities in the Yakima jail facilities, multiplied by one-half of the total amount of the annual budget. The cost allocation formula is expressed as follows: (City's res. population) (Total of all Cities' res. population) multiplied by (% of total annual budget) plus (City's EADP) (Total Annual Jail Bed Usage of all Cities) multiplied by (%2 of total annual budget) in Yakima County jail facilities) equals City's Total Annual Assessment 10. DEFICITS IN USAGE OF YAKIMA JAIL BEDS Each City has generated an EADP. Attached hereto as Exhibit B, and incorporated by this reference, is the EADP of each City. In the event the Cities collectively fail to meet their Minimum Bed Commitment for any year during the term of the Yakima Jail Contract, the EADPs set forth in Exhibit B shall be used by the Cities to calculate the proportionate share owed by any individual City to Yakima. Interlocal Agreement for Jail Administration Page 11 of 23 Each City will be responsible for its bed commitment to Yakima. Only those Cities that did not meet their EADPs and have unused bed commitment for the year will be responsible for paying Yakima for such unused bed commitment. However, if some cities exceed their EADP, their overage will be distributed as a credit to the cities whose jail use was less than their EADPs. Each City's credit will be based upon its percentage share of the total EADP. A City whose actual jail use equals or exceeds its EADP will pay Yakima an amount equal to its actual jail use. A City whose actual jail use is less than its EADP will pay Yakima an amount based on its EADP less the credit as described in this section. For purposes of this section, "credit" shall mean the product resulting from multiplying the (Beds in excess of Cities' EADP) by the quotient obtained by dividing the (EADP of a City with Unused Bed Commitment) by the (Sum of EADPs of all Cities with Unused Bed Commitment.) The calculation of a City's credit is expressed in the formula below: City Credit = (Sum of amount over the EADP X (EADP of a City w/Unused Bed Commitment) of All Cities Which Exceed Their EADPs) (Sum of EADPs of Cities w/Unused Beds) For a City whose actual jail use was less than its EADP, its "credit" will be subtracted from the number of unused city beds. The difference is the amount that shall be paid to Yakima as expressed in the formulas below: City's unused beds = City's EADP — City's actual bed use Amount owed to Yakima = City's unused beds — city credit Exhibit C, attached hereto and incorporated by this reference, provides an example of a hypothetical application of this formula. 11. SURPLUS USAGE OF YAKIMA JAIL BEDS The Cities acknowledge that the Yakima Jail Contract does not require each City to maintain a jail usage equal to that City's EADP. Overused Bed Commitment by one City may inure to the benefit of the other Cities. However, Overused Bed Commitment in excess of five percent (5%) may create a hardship for the other Cities. Therefore, prior to usage in excess of five percent (5%) of its EADP, a City must obtain consent from another City or Cities to use a portion of the other City's or Cities' EADP. 12. NEW MEMBERS Any city or town may become a member to this Agreement so long as such city or town has entered into contracts for jail services with King County or Yakima County, executes an Addendum to this Agreement agreeing to comply with the terms and provisions of this Agreement, as now existing or hereafter amended, and obtains approval of the current budget by its legislative body. The Assembly shall determine what, if any, funding obligations such additional member city shall pay as a condition of becoming a member city to this Agreement. Interlocal Agreement for Jail Administration Page 12 of 23 13. MAILING ADDRESSES All notices and correspondence to the respective parties to this Agreement shall be sent to the City Manager or Mayor for each City. All notices and correspondence to the Assembly shall be sent to the office of the Fiscal Agent. 14. INSURANCE 14.1 Evidence of Insurance Coverage. Each City agrees to provide the other Cities with evidence of insurance coverage, in the form of a certificate of insurance from a solvent insurance provider and/or a letter confirming coverage from a solvent insurance pool or self-insurance program which is sufficient to address the insurance and indemnification obligations set forth in this Agreement. 14.2 Minimum Liability Limits. Each City shall obtain and maintain throughout the term of this Agreement coverage in minimum liability limits of one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate for its liability exposures, including comprehensive general liability, errors and omissions, auto liability and police professional liability. The insurance policy shall provide coverage on an occurrence basis; except that insurance on a "claims made" basis may be acceptable with prior approval from JAG. If coverage is approved and purchased on a "claims made" basis, the City Member providing such insurance warrants continuation of coverage through policy renewals or the purchase of a tail, and/or conversion from a "claims made" form to an "occurrence" coverage form. 15. HOLD HARMLESSANDEMNIFICATION Each City shall defend, indemnify and hold harmless all other Cities, their officers, agents and employees, from and against any and all claims, including third party claims, costs, judgments or damages, including attorney's fees, arising out of the negligent acts or omissions of the City, its officers, agents and employees, in connection with this Agreement. The Cities hereby waive, as to each other only, their immunity from suit under industrial insurance, Title 51 RCW. This waiver of immunity was mutually negotiated by the Cities. The provisions of this Section shall survive any termination or expiration of this Agreement. 16. GENERAL PROVISIONS 16.1 This Agreement contains all of the agreements of the Cities with respect to any matter covered or mentioned in this Agreement. No provision of this Agreement may be amended or modified except by written agreement authorized by the legislative bodies of all of the Cities and signed by all of the Cities. Interlocal Agreement for Jail Administration Page 13 of 23 16.2 Any provision that is declared invalid or illegal shall in no way affect or invalidate any other provision. 16.3 In the event any City defaults on the performance of any terms of this Agreement or any City places the enforcement of this Agreement in the hands of an attorney, or files a lawsuit, the prevailing City or Cities shall be entitled to an award of all its/their attorney fees, costs, and expenses. 16.4 Failure of any City to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall not constitute a waiver of such breach or default. 16.5 Any action, suit, or judicial proceeding for the enforcement of this Agreement shall be brought and tried in the Superior Court or the State of Washington in King County. Presenting disputes to the JAG and to a mediator consistent with this Interlocal Agreement shall be conditions precedent to the commencement of any judicial process to enforce the terms of this Agreement. 16.6 This Agreement may be executed in any number of counterparts. 16.7 The laws of the State of Washington shall govern this Agreement. 16.8 This Agreement shall be recorded with the King County Department of Records. THIS AGREEMENT has been executed by the undersigned Cities and shall be dated effective November 1, 2003. CITY OF ALGONA, WA Approved as to Form: By: George Kelley, Algona City Attorney Glenn Wilson, Mayor Initial Assembly Member: Initial JOG Member: CITY OF AUBURN, WA Approved as to Form: By: Peter B. Lewis, Mayor Daniel B. Heid, Auburn City Attorney Initial Assembly Member: Initial JOG Member: TOWN OF BEAUX ARTS VILLAGE, WA Approved as to Form: By: Charles R. Lowry, Mayor Wayne Stewart, Town Attorney Initial Assembly Member: Initial JOG Member: Interlocal Agreement for Jail Administration Page 14 of 23 CITY OF BELLEVUE, WA By: Steve Sarkozy, City Manager Initial Assembly Member: Initial JOG Member: CITY OF BLACK DIAMOND, WA By: Howard Botts, Mayor Initial Assembly Member: Initial JOG Member: CITY OF BOTHELL, WA By: Jim Thompson, City Manager Initial Assembly Member: Initial JOG Member: CITY OF BURIEN, WA By: Gary P. Long, City Manager Initial Assembly Member: Initial JOG Member: CITY OF CARNATION, WA By: Woody Edvalson, City Manager Initial Assembly Member: Initial JOG Member: CITY OF CLYDE HILL, WA By: George S. Martin, Mayor Initial Assembly Member: Initial JOG Member: Interlocal Agreement for Jail Administration 'Page 15 of 23 Approved as to Form: Richard L. Andrews, Bellevue City Attorney Approved as to Form: Loren D. Combs, City Attorney Approved as to Form: Michael E. Weight, Bothell City Attorney Approved as to Form: Lisa Marshall, Burien City Attorney Approved as to Form: Phil A. Olbrechts, Carnation City Attorney Approved as to Form: Clyde Hill City Attorney CITY OF COVINGTON, WA Approved as to Form: By: Andrew D. Dempsey, City Manager Duncan C. Wilson, Covington City Attorney Initial Assembly Member: Initial JOG Member: CITY OF DES MOINES, WA Approved as to Form: By Tony Piasecki, City Manager Des Moines City Attorney Initial Assembly Member: Initial JOG Member: CITY OF DUVALL, WA Approved as to Form: By: Becky Nixon, Mayor Bruce Disend, Duvall City Attorney Initial Assembly Member: Initial JOG Member: CITY OF ENUMCLAW, WA Approved as to Form: By: John Wise, Mayor Michael J. Reynolds, Enumclaw City Attorney Initial Assembly Member: Initial JOG Member: CITY OF FEDERAL WAY, WA Approved as to Form: By: By; David H. Moseley, City Manager Patricia A. Richardson Federal Way City Attorney Initial Assembly Member: Initial JOG Member: CITY OF HUNTS POINT Approved as to Form: By: By; Fred McConkey, Mayor Hunts Point City Attorney Initial Assembly Member: Initial JOG Member: Interlocal Agreement for Jail Administration Page 16 of 23 CITY OF ISSAQUAH, WA Approved as to Form: By: By. Ava Frisinger, Mayor Wayne D. Tanaka Issaquah City Attorney Initial Assembly Member: Initial JOG Member: CITY OF KENMORE, WA Approved as to Form: By: Stephen L. Anderson, City Manager Initial Assembly Member: Initial JOG Member: CITY OF KENT, WA By: Jim White, Mayor Initial Assembly Member: Initial JOG Member: CITY OF KIRKLAND, WA By: David H. Ramsay, City Manager Initial Assembly Member: Initial JOG Member: CITY OF LAKE FOREST PARK, WA By: Michael R. Kenyon, Kenmore City Attorney Approved as to Form: Tom, Brubaker, Kent City Attorney Approved as to Form: Gail Gorud, Kirkland City Attorney Approved as to Form: David R. Hutchinson, Mayor Michael P. Ruark, Lake Forest Park City Attorney Initial Assembly Member: Initial JOG Member: CITY OF MAPLE VALLEY, WA Approved as to Form: By: John F. Starbard, City Manager Lisa Marshall, Maple Valley City Attorney Initial Assembly Member: Initial JOG Member: Interlocal Agreement for Jail Administration Page 17 of 23 CITY OF MEDINA, WA Approved as to Form: By: Douglas J. Schulze, City Manager Kirk R. Wines, Medina City Attorney Initial Assembly Member: Initial JOG Member: CITY OF MERCER ISLAND, WA Approved as to Form: By: Londi K. Lindell, Mercer Island City Attorney Richard M. Conrad, City Manager Initial Assembly Member: Initial JOG Member: CITY OF MILTON Approved as to Form: By: By: Milton City Attorney Katrina Asay, Mayor Initial Assembly Member: Initial JOG Member: CITY OF NEWCASTLE, WA Approved as to Form: By: Andrew J. Takata, City Manager Dawn Findlay, Newcastle City Attorney Initial Assembly Member: Initial JOG Member: CITY OF NORMANDY PARK, WA Approved as to Form: By: Merlin MacReynold, City Manager Susan Rae Sampson, Normandy Park City Attorney Initial Assembly Member: .Initial JOG Member: CITY OF NORTH BEND, WA Approved as to Form: By: Joan Simpson, Mayor Michael R. Kenyon, North Bend City Attorney Initial Assembly Member: Initial JOG Member: Interlocal Agreement for Jail Administration Page 18 of 23 CITY OF PACIFIC, WA Approved as to Form: By: Howard Erickson, Mayor Bruce Disend, Pacific City Attorney Initial Assembly Member: Initial JOG Member: CITY OF REDMOND, WA Approved as to Form: By: Rosemarie Ives, Mayor James E. Haney, Redmond City Attorney Initial Assembly Member: Initial JOG Member: CITY OF RENTON, WA Approved as to Form: By: Lawrence J. Warren, Renton City Attorney Jesse Tanner, Mayor Initial Assembly Member: Initial JOG Member: CITY OF SAMMAMISH, WA Approved as to Form: By Ben Yazici, City Manager Bruce Disend, Sammamish City Attorney Initial Assembly Member: Initial JOG Member: CITY OF SEATAC, WA Approved as to Form: By: Robert L. McAdams, SeaTac City Attorney Bruce A. Rayburn, City Manager Initial Assembly Member: Initial JOG Member: CITY OF SEATTLE, WA Approved as to Form: By: Gregory J. Nickels, Mayor Thomas. A. Carr, Seattle City Attorney Initial Assembly Member: Initial JOG Member: Interlocal Agreement for Jail Administration Page 19 of 23 CITY OF SHORELINE, WA Approved as to Form: By: Steven C. Burkett, City Manager Ian Sievers, Shoreline City Attorney Initial Assembly Member: Initial JOG Member: CITY OF SKYKOMISH, WA Approved as to Form: By: Skip Mackner, Mayor Jeffrey Ganson, Skykomish City Attorney Initial Assembly Member: Initial JOG Member: CITY OF SNOQUALMIE, WA Approved as to Form: By: Randy Fuzzy Fletcher, Mayor Pat Anderson, Snoqualmie City Attorney Initial Assembly Member: Initial JOG Member: CITY OF TUKWILA, WA Approved as to Form: By: Robert F. Noe, City Attorney Steve Mullet, Mayor Initial Assembly Member: Initial JOG Member: CITY OF WOODINVILLE, WA Approved as to Form: By: Pete Rose, City Manager Jeffrey L. Taraday, Woodinville City Attorney Initial Assembly Member: Initial JOG Member: TOWN OF YARROW POINT, WA Approved as to Form: By: Jeanne R. Berry, Mayor Wayne Stewart, Yarrow Point Town Attorney Initial Assembly Member: Initial JOG Member: Interlocal Agreement for Jail Administration Page 20 of 23 EXHIBIT A 2004 ANNUAL COST PER CITY FOR THE JAIL ADMINISTRATIVE GROUP (JAG) Yakima Estimated 2002 Average of city pop. & jail Bed Population beds; $250 minimum Commitment Total 440.1 1,327,706 $88,000 Auburn 88.5 43,970 11.9% $10,056 Bellevue 27.0 117,000 7.6% $6,462 Bothell 2.0 16,264 0.9% $728 Burien 4.0 31,810 1.7% $1,432 Covington 2.4 14,395 0.8% $705 Des Moines 17.0 29,510 3.1% $2,622 Federal Way 29.0 83,850 6.6% $5,571 Issaquah 2.0 13,790 0.8% $647 Kenmore 3.0 19,180 1.1% $921 Kirkland 12.5 45,790 3.2% $2,717 Lake Forest Park 2.5 12,860 0.8% $665 Maple Valley 15,040 0.6% $493 Mercer Island 4.0 21,955 1.3% $1,109 Newcastle 8,205 0.3% $269 North Bend 2.0 4,735 0.4% $350 Redmond 20.0 46,040 4.1 % $3,456 Renton 27.0 53,840 5.2% $4,393 Sammamish 1.5 34,660 1.5% $1,282 SeaTac 4.1 25,320 1.5% $1,229 Seattle 155.0 570,802 40.0% $33,793 Shoreline 18.0 53,250 4.1 % $3,497 Tukwila 11.0 17,270 1.9% $1,637 Woodinville 1.5 9,830 0.6% $468 Algona 3.0 2,525 0.4% $250 Beaux Arts Village 295 $250 Black Diamond 4,015 $250 Carnation 0.0 1,905 $250 Clyde Hill 0.0 2,895 $250 Duvall 1.0 5,190 $250 Hunt's Point 455 $250 Medina 0.7 3,010 $250 Milton 815 $250 Normandy Park 0.4 6,395 $250 Pacific 5,405 $250 Skykomish 215 $250 Snoqualmie 1.0 4,210 $250 Yarrow Point 1,010 $250 Estimated Annual Cost (salary/benefits) for JAG staff position = $88,000 Interlocal Agreement for Jail Administration Page 21 of 23 EXHIBIT B TO INTERLOCAL AGREEMENT BETWEEN THE CITIES CONTRACTING WITH YAKIMA City or Town 2003 EADP Algona 3.0 Auburn 88.5 Beaux Arts Village 0.0 Bellevue 27.0 Black Diamond 0.0 Bothell 2.0 Burien 4.0 Carnation 0.0 Clyde Hill 0.0 Covington 2.4 Des Moines 17.0 Duvall 1.0 Federal Way 29.0 Issaquah 2.0 Kenmore 3.0 Kirkland 12.5 Lake Forest Park 2.5 Maple Valley 0.0 Medina 0.7 Mercer Island 4.0 Newcastle 0.0 Normandy Park 0.4 North Bend 2.0 Pacific 0.0 Redmond 20.0 Renton 27.0 Sammamish 1.5 SeaTac 4.1 Seattle 155.0 Shoreline 18.0 Skykomish 0.0 Snoqualmie 1.0 Tukwila 11.0 Woodinville 1.5 Yarrow Point 0.0 TOTAL 440.1 Interlocal Agreement for Jail Administration Page 22 of 23 EXHIBIT C TO INTERLOCAL AGREEMENT FOR JAIL ADMINISTRATION Hypothetical Example - formulas for distributing unused bed capacity at Yakima Scenario: 3 cities contract with Yakima for a minimum of 130 beds. The cities are under their collective commitment by 20 beds; 2 cities are under and 1 city is over its bed commitment. Total Bed Commitment Actual Unused Contract Cities (EADP) Bed Use Beds City A 80 70 (10) City B 40 25 (15) city C 10 15 5 Total 130 110 (20) Amount Owed to Yakima Under Formula Stated in Section 10 of this Agreement Each city pays for its unused beds but then receives a credit based on its % share of the total bed commitment. For example, City C exceeded its bed commitment by 5 beds. City A's share of this 5 bed overage (aka the "credit") is calculated by taking City A's % share of the total bed commitment (67%) times the overage of 5 beds = a credit of 3.3 beds. City C owes Yakima for 76.7 beds (EADP of 80 beds less the credit of 3.3 beds). Cities with Unused Bed Total Bed Commitment % Share Actual Unused Amount Owed to Commitment EADP EADP Bed Use Beds Credit Yakima City A 80 67% 70 + 10 - 3.3 = 76.7 City B 40 33% 25 + 15 - 1.7 = 38.3 Subtotal 120 100% 95 + 25 - 5.0 = 115.0 city C 10 15 + 0 - 0 = 15 Total 130 110 + 25 - 5 = 130 Interlocal Agreement for Jail Administration Page 23 of 23 CITY OF RENTON, WASHINGTON RESOLUTION NO. A RESOLUTION OF THE CITY OF RENTON, WASHINGTON, AUTHORIZING THE MAYOR AND, CITY CLERK TO ENTER INTO AN INTERLOCAL AGREEMENT ("AGREEMENT") BETWEEN ALGONA, AUBURN, TOWN OF BEAUX ARTS VILLAGE, BELLEVUE, BLACK DIAMOND, BOTHELL, BURIEN, CARNATION, CLYDE HILL, COVINGTON, DES MOINES, DUVALL, ENUMCLAW, FEDERAL WAY, HUNTS POINT, ISSAQUAH, KENMORE, KENT, KIRKLAND, LAKE FOREST PARK, MAPLE VALLEY, MEDINA, MERCER ISLAND, MILTON, NEWCASTLE, NORMANDY PARK, NORTH BEND, PACIFIC, REDMOND, RENTON, SAMMAMISH, SEATAC, SEATTLE, SHORELINE, SKYKOMISH, SNOQUALMIE, TUKWILA, WOODINVILLE AND THE TOWN OF YARROW POINT, WASHINGTON, MUNICIPAL CORPORATIONS ORGANIZED UNDER THE LAWS OF THE STATE OF WASHINGTON (COLLECTIVELY THE "CITIES"), ESTABLISHING THE PURPOSE, MEMBERSHIP, AND GOVERNANCE OF OVERSIGHT GROUPS TO ADMINISTER THE JAIL CONTRACTS WITH YAKIMA AND WITH KING COUNTY. WHEREAS, the Cities enter into this Agreement pursuant to and as authorized by the Interlocal Cooperation Act (RCW 39.34); and WHEREAS, some of the Cities, including Renton, have entered into a long term Interlocal Agreement with Yakima County, as amended, for the purpose of housing the Cities' inmates in Yakima. County jail facilities; and WHEREAS, some of the Cities, including Renton, have entered into a Jail Services Agreement with King County ("King County Jail Contract") providing for the Cities' use of jail beds in King County jail facilities for a limited time not to exceed ten years; and WHEREAS, Bellevue and King County have entered into a Land Transfer Agreement to transfer ownership of the Eastside jail site to Bellevue on behalf of all of the Cities; and RESOLUTION NO. WHEREAS, the Cities desire to clarify the role of the Cities and their respective representatives in planning, implementation, operation, and administration of the interlocal agreements related to the provision of jail services; and WHEREAS, it is necessary to document the terms and conditions of contracts between the Cities; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO RESOLVE AS FOLLOWS: SECTION I. The above findings are true and correct in all respects. SECTION H. The Mayor and City Clerk are hereby authorized to enter into the Interlocal Agreement ("Agreement') between the above -mentioned Cities, to establish certain terms relating to the planning, implementation, operation, and administration of the interlocal agreements relating to the provision of jail services. PASSED BY THE CITY COUNCIL this day of APPROVED BY THE MAYOR this Approved as to form: Lawrence J. Warren, City Attorney RES.1060:7/23/04:ma Bonnie I. Walton, City Clerk 2004. day of , 2004. Kathy Keolker-Wheeler, Mayor 2 CITY OF RENTON COUNCIL AGENDA BILL Submitting Data: Planning/Building/Public Works Dept/Div/Board.. Transportation Division Staff Contact...... Ryan Zulauf, x7471 Subject: Approval of Addendum to Lane Hangar Condominium Owners Association Lease for Consumer Price Index Rate Increase Exhibits: Issue Paper Lease Addendum Recommended Action: Council Concur Al #: For Agenda of: September 13, 2004 Agenda Status Consent .............. Public Hearing.. Correspondence.. Ordinance ............. Resolution ............ Old Business........ New Business....... Study Sessions...... Information......... Approvals: Legal Dept......... Finance Dept...... Other ............... Fiscal Impact: Expenditure Required... Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... $13,597 Total Project Budget City Share Total Project.. SUMMARY OF ACTION: Lane Hangar Condominium Owner's Association lease, LAG-99-003, provides for a periodic increase in rent using the Consumer Price Index for Urban Seattle. This rate increase was effective July 31, 2004, and resulted in an annual increase of $914, for a total annual rent of $13,597. Approval is requested of a lease addendum documenting this rate increase. STAFF RECOMMENDATION: The Transportation Division staff recommends approval of a lease addendum to Lane Hangar's lease, LAG-99-003, and an increase in rent using the Consumer Price Index for Urban Seattle. X X Rentonnet/agnbill/ bh CITY OF RENTON PLANNING/BUILDING/PUBLIC WORKS MEMORANDUM DATE: September 2, 2004 TO: Don Persson, Council President Members of the Renton City Council VIA: Mayor Kathy Keolker-Wheeler FROM: Gregg ZimmermarY PBPW Administrator STAFF CONTACT: Ryan Zulauf, x7471 SUBJECT: Approval of Addendum to Lane Hangar Condominium Owners Association Lease for Consumer Price Index Rate Increase ISSUE: Lane Hangar Condominium Owner's Association lease, LAG-99-003, provides for a periodic increase in rent using the Consumer Price Index for Urban Seattle. This rate increase was effective July 31, 2004, and resulted in an annual increase of $914, for a total annual rent of $13,597. Approval is requested of a lease addendum documenting this rate increase. RECOMMENDATION: • The Transportation Division staff recommends approval of a lease addendum to Lane Hangar's lease, LAG-99-003, and an increase in rent using the Consumer Price Index for Urban Seattle. LAG 99-003 Addendum #02-04 ADDENDUM TO LEASE AGREEMENT (City of Renton to Lane Hangar Condominium Owners Association) THIS ADDENDUM to Lease Agreement LAG 99-003 is effective as of the date of execution by the City of Renton, as indicated on the last page of this addendum. RECITALS: WHEREAS, Lane Hangar Condominium Owners Association has a Lease Agreement with the City of Renton, LAG-99-003; and WHEREAS, in 1998, the starting date of lease LAG-99-003, the land rental rate for the approximately 41,366 square feet was established at $0.28 per square foot per year and continued until July 31, 2001; and WHEREAS, on July 31, 2001, and for the ensuing three (3) year period, the land rental rate was adjusted, using the Consumer Price Index -Urban, to a rate of $.3066 per square foot per year for the 41,366 square feet of leased area, resulting in an annual rental amount of $12,682.82, and continuing until July 31, 2004 and WHEREAS, the land rental rate has been adjusted by and between both parties, effective July 31, 2004, and for the ensuing three (3) year period using the Consumer Price Index -Urban, to a rate of $0.3287 square feet per year. NOW, THEREFORE, IT IS HEREBY AGREED AND COVENANTED BY AND BETWEEN THE CITY OF RENTON AND THE ASSOCIATION AS FOLLOWS: WITNESSETH: 1. Lessor and Lessee agree that the difference between the CPI-U of August 1, 2001 to July 31, 2004, is 7.2% (193.4-180.4=13/180.4=.072 or 7.2%). This results in an annual rate increase from $0.3066 to $0.3287 per square foot ($0.3066x7.2%=$0.3287). 2. The Lessor and Lessee do hereby agree to an annual land rent of $13,597.00 for the 41,366 square feet identified in Lease Agreement LAG 99-003. 3. Lessor and Lessee do hereby agree that the annual land rent rate in Paragraph 1 shall remain in effect until August 1, 2007, and, effective that date the rental rate shall automatically be readjusted by and between the parties as specified in paragraph 3 of the Lease Agreement, using the increase of the Consumer Price Index, and for each three (3) year period thereafter. Minimum base rental for any extended period shall not be less than the current annual rental of $13,597.00. Lease Agreement 99-003 City of Renton to Lane Hangar Condominium Owners Association LAG 99-003 Addendum #02-04 4. Lessor and Lessee do hereby further agree that the Consumer Price Index information to be used for rental adjustments shall be the Consumer Price Index -Urban (CPI-U) then in effect for all urban consumers, as published by the US Department of Labor for the Seattle -Tacoma Metropolitan Area. 5. Lessor and Lessee do hereby further agree that at least thirty (30) days prior to the Rental Adjustment Date either party shall, if they desire to adjust the base land rental rate for the ensuing three (3) year period by a means other than the Consumer Price Index -Urban, provide to the other party a written request for readjustment of the rental rate pursuant to RCW 14.08.120(5). 6. All other terms and conditions of the original Lease Agreement shall remain in full force and effect. LANE HANGAR CONDOMINIUM OWNERS ASSOCIATION a Washington Corporation Lease Agreement 99-003 City of Renton to Lane Hangar Condominium Owners Association CITY OF RENTON a Municipal Corporation Mayor, Kathy Koelker-Wheeler City Clerk, Bonnie Walton Date City Attorney 2 CITY OF RENTON COUNCIL AGENDA BILL Submitting Data: Dept/Div/Board. Staff Contact...... Subject: Planning/Building/Public Works Transportation Systems Ryan Zulauf, Ext. 7471 Operating Permit and Agreement for Ace Aviation Exhibits: Issue Paper Operating Permit and Agreement Sublease Agreement between Bosair, LLC and Ace Aviation AI N: For Agenda of: 13. 2004 Agenda Status Consent .............. Public Hearing.. Correspondence.. Ordinance ............. Resolution........... . Old Business........ New Business....... Study Sessions...... Information........ . X Recommended Action: Approvals: Legal Dept......... X Refer to Transportation (Aviation) Committee Finance Dept...... Other ............... Fiscal Impact: Expenditure Required... Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... Total Project Budget City Share Total Project.. SUMMARY OF ACTION: Approval is requested for an operating permit and agreement between the City and Ace Aviation. Ace Aviation has been subleasing from Bosair, LLC, since October 1, 1996, and had an approved operating permit and agreement that expired on June 30, 2004. Bosair, LLC executed a new sublease agreement with Ace Aviation to replace the expired sublease. The new operating permit and agreement extends the term of the sublease to December 31, 2010. Ace Aviation operates an aircraft maintenance facility on the Airport. STAFF RECOMMENDATION: The Transportation Division staff recommends approval of the sublease agreement between Bosair, LLC and Ace Aviation and the Operating Permit and Agreement with Ace Aviation. H:Trans/admin/agenda bill/2004/Ace Aviation operating permit and agreement CITY OF RENTON PLANNING/BUILDING/PUBLIC WORKS MEMORANDUM DATE: September 2, 2004 TO: Don Persson, Council President Members of the Renton City Council VIA: 10 Mayor Kathy Keolker-Wheeler FROM: Gregg Zimmerma3f, PBPW Administrator STAFF CONTACT: Ryan Zulauf, x7471 SUBJECT: Operating Permit and Agreement with Ace Aviation ISSUE: Bosair, LLC, is requesting approval of their sublease agreement with Ace Aviation and an operating permit and agreement between the City and Ace Aviation. Ace Aviation's previous operating permit and agreement and sublease expired on June 30, 2004. Bosair executed a new sublease agreement with Ace Aviation on April 1, 2004, for a period of six years, extending the expiration date to December 31, 2010. Ace Aviation operates an aircraft maintenance facility on the Airport. RECOMMENDATION: The Transportation Division staff recommends approval of the sublease agreement between Bosair, LLC and Ace Aviation and the Operating Permit and Agreement with Ace Aviation. DocumenQ/ PAG OPERATING PERMIT AND AGREEMENT between the City of Renton and Ace Aviation, Inc. THIS IS A PERMIT TO OPERATE AN AVIATION RELATED ACTIVITY UPON THE RENTON MUNICIPAL AIRPORT AND AGREEMENT between THE CITY OF RENTON, a Washington municipal corporation ("Permittor"), and Ace Aviation, a Washington corporation ("Permittee"). IN CONSIDERATION of the covenants and agreements hereinafter set forth, the parties agree as follows: 1. ACKNOWLEDGEMENT OF SUB -LEASE: Pursuant to Lease agreement LAG-003- 86, the City of Renton (Lessor) granted a lease of the subject premises to John, Julie and Terrance Lien, as Lessee, for the purpose of aircraft rebuilding and maintenance, aircraft modification, light manufacturing, engineering and sales, storage of aircraft parts, employee and customer parking and tiedown and storage of aircraft. Thereafter, John, Julie and Terrance Lien assigned the subject lease to Bosair, LLC. Lessor consented to this assignment in an agreement between Lessor and Bosair, LLC, entitled "Landlord's Consent to Assignment and Encumbrances," dated March 26, 2001. Thereafter, Bosair, LLC (Lessee) sublet the subject premises to Ace Aviation, (Permittee) by Commercial Lease Agreement, effective April 1, 2004, for the purpose of operating an aviation maintenance and related aircraft associated business for the benefit of the public. 1.1. Legal Description: The premises leased by Ace Aviation, the Permittee, is described in the sub -lease as: See Exhibit "A" attached hereto, which is incorporated by this reference. SUBJECT TO: (1) Easements, restrictions and reservations of record and as further set forth herein; (2) Such rules and regulations as now exist or may hereafter be promulgated by the Permittor from time to time, including the Airport's Minimum Standards which are incorporated herein by this reference, and Permittor's OPERATING PERMIT. AND AGREEMENT City of Renton to Ace Aviation, Inc. standards concerning operation of public aviation service activities from the Airport; and (3) All such non-discriminatory charges and fees for such use as may be established from time to time by Permittor; and TOGETHER WITH the privilege of Permittee to use the public portion of the Airport, including runway and other public facilities provided thereon, on a non-exclusive basis. 1.2. No Conveyance of Airport: This Operating Permit and Agreement shall in no way be deemed to be a conveyance of the Airport, and shall not be construed as providing any special privilege for any public portion of the Airport except as described herein. The Permittor reserves the right to lease or permit the use of any portion of the Airport for any purpose deemed suitable for the Airport, except that portion that is permitted hereby. 1.3. Nature of Permittor's Interest: It is expressly understood and agreed that Permittor holds and operates the Airport, and the Premises under and subject to a grant and conveyance thereof to Permittor from the United States of America, acting through its Reconstruction Finance Corporation, and subject to all the reservations, restrictions, rights, conditions, and exceptions of the United States therein and thereunder, which grant and conveyance has been filed for record in the office of the Recorder of King County, Washington, and recorded in Volume 2668 of Deeds, Page 386; and further that Permittor holds and operates said airport and premises under and subject to the State Aeronautics Acts of the State of Washington (chapter 165, laws of 1947), and any subsequent amendments thereof or subsequent legislation of said state and all rules and regulations lawfully promulgated under any act or legislation adopted by the State of Washington or by the United States or the Federal Aviation Administration. It is expressly agreed that the Permittee also accepts and will hold and use this lease and the. Premises subject thereto and to all contingencies, risks, and eventualities of or arising out of the foregoing, and if this lease or the period thereof or any terms or provisions thereof be or become in conflict with or impaired or defeated by any such legislation, rules, regulations, contingencies or risks, the latter shall control and, if necessary, modify or supersede any provision of this lease affected thereby, all without any liability on the part of or recourse against the Permittor in favor of Pennittee, provided that Permittor does not exceed its authority under the foregoing legislation, rules and regulations. 1.4. Future Development/Funding: Nothing in this lease contained shall operate or be construed to prevent or hinder the future development, improvements, or operation of Airport by Permittor, its agents, successors or assigns, or any department br agency of the State of Washington or of the United States, or the consummation of any loan or grant of federal or state funds in aid of the development, improvement, or operation of the Renton Airport. 2. TERM OF LEASE, SUBLEASE AND OPERATING PERMIT: OPERATING PERMIT AND AGREEMENT City of Renton to Ace Aviation, Inc. 2.1. Initial Term: The term of the Ace Aviation sublease is for a period of six years and 9 months (6.75 years) commencing on April 1, 2004 and terminating on December 31, 2010. 2.3. Permit Term: The term of this Operating Permit is six years 9 months (6.75 years) commencing on April 1,2004, renewable upon written application at least ninety (90) days prior to the date of expiration. This renewal is not automatic and the City of Renton is not obligated to renew this permit. 3. RENTAL: 3.1. Rent on lease: As rental for the premises described in LAG 003-86, Bosair, LLC (Lessee) has agreed to pay the City of Renton (Permitter) a monthly rental currently in the sum of $930.52 throughout the five (5) year period commencing on June 1, 2000. 3.2. Rent on sublease: As rental for the premises described in paragraph 1, above, during the term of this permit, Ace Aviation (Permittee) has agreed to pay Bosair, LLC (Lessee) a monthly rental in the sum of $3,230 and 31/100 Dollars ($3,230.31) throughout the 81 month period commencing on April 1, 2004. In the event Lessee fails to pay the rent identified in paragraph 3.1, then Permittee may, whether Permittee subleases all or part of Lessee's Airport leasehold interest as described in LAG 003-86, pay said rent, when due. In the event neither the Lessee nor Permittee pay said rent, then the Permittor may terminate this permit with ten (10) days notice. 3.3. Other Charges: Permittee further agrees to pay, in addition to the rental specified .and other charges hereinabove defined, all fees and charges now in effect or hereafter levied or established by Permittor, or its successors, or by any other governmental agency or authority, being or becoming levied or charged against the premises, structures, business operations, or activities conducted by or use made by Permittee of, on, and from the leased premises which shall include, but not be limited to, all charges for light, heat, gas, power, garbage, water and other utilities or services rendered to said premises. 3.4. Leasehold Excise Tax: In the event that the State of Washington or any other governmental authority having jurisdiction thereover shall hereafter levy or impose any similar tax or charge on the leasehold estate described herein, and Lessee fails to pay said tax or charge, then Permittee may, whether Permittee subleases all or part of Lessee's Airport leasehold interest as described in LAG 003-86, pay said tax or charge, when due. Such tax or charge shall be in addition to the regular monthly rentals. In the event neither the Lessee nor Permittee pay said tax or charge, then the Permittor may terminate this permit with ten (10) days notice. 4. PAYMENT OF UTILITIES AND RELATED SERVICES. 4.1. Whether Permittee subleases all or part of Lessee's Airport leasehold interest as described in LAG 003-86, and Lessee fails to pay such utilities and service charges, then Permittee may pay all light, heat, gas, power, garbage, water, sewer and janitorial service used in OPERATING PERMIT AND AGREEMENT City of Renton to Ace Aviation, Inc. or on the Premises when due. In the event neither the Lessee nor the Permittee pay said utility or service charges, then the Permittor may terminate this Permit with ten (10) days notice. Permittor shall not be liable for any loss or damage caused by or resulting from any variation, interruption, or failure of said utility services due to any cause whatsoever; and no temporary interruption or failure of such services incident to the making of repairs, alterations or improvements, or due to accident, strike, act of God, or conditions or events not under Permittor's control, shall be deemed a breach of the Permit or as an eviction of Permittee, or relieve Permittee from any of its obligations hereunder. 5. PERMITTEE'S ACCEPTANCE OF PREMISES. . 5.1. General Acceptance of Premises: By occupying the Premises, Permittee formally accepts the same in AS IS condition, and acknowledges that the Permittor has complied with all the requirements imposed upon it under the terms of this Permit with respect to the condition of the Premises at the commencement of this term. Permittee hereby accepts the premises subject to all applicable zoning, municipal, county and state laws, ordinances and regulations governing and regulating the use of the premises, and accepts this Permit subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Permittee acknowledges that neither Permittor nor Permittor's agent has made any representation or warranty as to the suitability of the Premises for the conduct of Permittee's business or use. Except as otherwise provided herein, Permittor warrants Permittee's right to peaceably and quietly enjoy the premises without any disturbance from Permittor, or others claiming by or through Permittor. 6. PURPOSE AND USE:: 6:1. Use of Premises: The Premises are leased to the Permittee for the following described purpose: 6.1.1. The operation of Aviation Maintenance in accordance with the Minimum Standards for the operation of this type of commercial aeronautic activity at the Renton Municipal Airport 6.2. Continuous Use: Permittee covenants that the premises shall be continuously used for those purposes during the term of the Permit, shall not be allowed to stand vacant or idle, and shall not be used for any other purpose without Permittor's written consent first having been obtained. Consent of Permittor to other types of activities will not be unreasonably withheld. 6.3. Non -Aviation Uses Prohibited: Permittee agrees that, except as expressly provided above, the Premises may. not be used for uses or activities that are not related, directly or indirectly, to aviation. 6.4. Signs: No advertising matter or signs shall be at any time displayed on the leased premises or structures without the written approval of Permittor, which will not be unreasonably OPERATING PERMIT AND AGREEMENT 4 City of Renton to Ace Aviation, Inc. withheld. One sign, of the type and dimensions specified by the Airport Manager, shall be permitted to be displayed on the Rainier and Airport Way entrance fences through the termination date of this permit. 6.5. Conformity with Rules: Permittee further covenants to keep and operate the Premises and all structures, improvements, and activities in conformity with all rules, regulations and laws now or hereafter adopted by Permittor, including the Airport's Minimum Standards which are incorporated herein by this reference, the Federal Aviation Administration, the State Aeronautics Commission, or other duly constituted governmental authority, all at Permittee's cost and expense. 6.6. Waste, Nuisance, Illegal Activities: Permittee covenants that he will not permit any waste, damage, or injury to the Premises or improvements thereon, nor allow the maintenance of any nuisance thereon, nor the use thereof for any illegal purposes or activities. 6.7. Increased Insurance Risk: Permittee will not do or permit to be done in or about the premises anything which will be dangerous to life or limb, or which will increase any insurance rates upon the premises or other buildings and improvements. 7. Hazardous Waste: 7.1. Permittee's Representation and. Warranty: In particular, Permittee represents and warrants to the Permittor that Permittee's use of the Premises will not involve the use of any hazardous substance (as defined by R.C.W. Chapter 70.105D, as amended), other than fuels, lubricants and other products which are customary and necessary for use in Permittee's ordinary course of business. 7.2. Standard of Care: Permittee agrees to use a high degree of care to be certain that no such hazardous substance is improperly used, released or disposed on the Premises during the term of this lease by Permittee, its agents or assigns, or is improperly used, released or disposed on the premises by the act of any third party. 7.3. Indemnity: The parties agree that Permittor shall have no responsibility to the Permittee, or any other third party, for remedial action under R.C.W. Chapter 70.105D, or other legislation, in the event of a release of or disposition of any such hazardous substance on, in, or at the Premises, and not caused by Permittor, during the term of this Permit. Permittee agrees to indemnify and hold harmless the Permittor from any obligation or expense, including fees incurred by the Permittor for attorneys, consultants, engineers, damages, including environmental resource damages, etc., arising by reason of the release or disposition of any such hazardous substance.upon the Premises not caused by Permittor, including remedial action under R.C.W. Chapter 70.105D, during the term of this Permit. 7.4. Dispute Resolution: In the event of any dispute between the parties concerning whether any release of or disposition of any such hazardous substance on, in or at the premises OPERATING. PERMIT AND AGREEMENT City of Renton to Ace Aviation, Inc. (a) occurred during the term of this lease, or (b) was caused by Permittor, the parties agree to submit the dispute for resolution by arbitration upon demand by either party. Each party shall select one (1) arbitrator. The two (2) selected arbitrators, if unable to agree upon an arbitration award within a period of thirty (30) days after such appointment, shall select a third arbitrator. The third arbitrator shall be an engineer with experience in the identification and remediation of hazardous substances. The arbitrators shall make their decision in writing within sixty (60) days after their appointment, unless the time is extended by the agreement of the parties. The decision of a majority of the arbitrators shall be final and binding upon the parties. Each party shall bear the cost of the arbitrator named by it. The expenses of the third arbitrator shall be borne by the parties equally. 8. MAINTENANCE: - 8.1. Maintenance of Premises: The Premises and all of the improvements or structures rn thereon and authorized by the Permittor for use by the Peuttee, shall be used and maintained by Permittee in an operable, neat, orderly, and sanitary manner. Permittor shall not be called upon to make any improvements, alteration, or repair of any kind upon the Premises. Permittee is responsible for the clean-up and proper disposal at reasonable and regular intervals of rubbish, trash, waste and leaves around the Premises, including that blown against fences bordering the Premises, whether as a result of the Permittee's activities or having been deposited upon the Premises from other areas. 8.2. Removal of Snow/Floodwater/Mud: Permittee shall be responsible for removal of snow and/or floodwaters or mud deposited therefrom from the Premises and those areas of the Sublessor utilized by the Permittee, with the disposition thereof to be accomplished in such a manner so as to not interfere with or increase the maintenance activities of Permittor upon the public areas of the Airport. 8.4. Permittor May Perform Maintenance: If Permittee fails to perform Permittee's obligations under this Paragraph, Permittor may at its option (but shall not be required to) enter the Premises, after thirty (30) days' prior written notice to Permittee, and put the same in good order, condition and repair, and the cost thereof together with interest thereon at the rate of twelve (12%) percent per annum shall become due and payable as additional rental to Permittor together with Permittee's next rental installment. 9. ALTERATIONS. 9.1. Protection from Liens: Before commencing any work relating to alterations, additions and improvements affecting the Premises, Permittee shall notify Permitter in writing'of the expected date of commencement thereof. Permittor shall then have the right at any time and from time to time to post and maintain on the Premises such notices as Permitter reasonably deems necessary to protect the Premises and Permittor from mechanics' liens, materialmen's liens or any other liens. In any event, Permittee shall pay when due, or bond around, all claims for labor or materials furnished to or for Permittee at or for use in the Premises. Permittee shall not OPERATING PERMIT AND AGREEMENT City of Renton to Ace Aviation, Inc. permit any mechanics' or materialmen's liens to be levied against the Premises for any labor or material furnished to Permittee or claimed to have been furnished to Permittee or to Permittee's agents or contractors in connection with work of any character performed or claimed to have been performed on the Premises by or at the direction of Permittee. 9.2. Bond: At any time Permittee either desires to or is required to make any repairs, alterations, additions, improvements or utility installation thereon, or otherwise, Permittor may at its sole option require Permittee, at Permittee's sole cost and expense, to obtain and provide to Permittor a lien and completion bond in an amount equal to one and one-half (1-1/2) times the estimated cost of such improvements, to insure Permittor against liability for mechanics and materialmen's liens and to insure completion of the work. 9.3. Permittor May Make Improvements: Permittee agrees that Permittor, at its option, may at its own expense make repairs, alterations or improvements which Permittor may deem necessary or advisable for the preservation, safety or improvement of the Premises or improvements located thereon, if any. 9.4. Notification of Completion: Upon completion of capital improvements made on the Premises, it is the Permittee's responsibility to promptly notify Permittor of such completion. 10. ASSIGNMENT: 10.1. Assignment/subletting: The sublease or any part thereof shall not be assigned by Permittee, by operation of law or otherwise, nor shall the premises or any part thereof be sublet without the prior written consent of Permittor, which consent shall not be unreasonably withheld. If Permittee is a corporation, the transfer of a majority of Permittee's stock shall constitute an I ssignment for purposes of this paragraph. 11. RIGHT OF INSPECTION. Permittee will allow Permittor, or Permittoe's agent, free access to the Premises at all reasonable times for the purpose of inspection, or for making repairs, additions or alterations to the Premises, or any property owned by or under the control of Permittor. 12. SURRENDER OF PREMISES: Permittee shall quit and surrender the premises at the end of the term in as good a condition as the reasonable use thereof would permit, normal wear and tear excepted. Alterations, additions or improvements which may be made by either of the parties hereto on the Premises, except movable office furniture or trade fixtures put in at the expense of Permittee, shall be and remain the property of the Permittor and shall remain on and be surrendered with the Premises as a part -thereof at the termination of this lease without hindrance, molestation, or injury. Permittee shall repair at its sole expense any damage to the Premises occasioned by its use thereof, or by the removal of Permittee's trade fixtures, 13. INSURANCE:. OPERATING PERMIT AND AGREEMENT - City of Renton to Ace Aviation, Inc. 13.1. Personal Property: It is agreed that Permittor shall not be held liable in any manner for, or on account of, any loss or damage to personal property of the Permittee, Permittee's invitees or other persons, which may be sustained by fire or water or other insured peril, or for the loss of any articles by burglary, theft or any other cause from or upon the Premises. It is acknowledged that Permittor does not cover any of the personal property of Permittee, Permittee's invitees or other persons upon the Premises through its insurance. Permittee, its invitees and other persons upon the Premises are solely responsible to obtain suitable personal property insurance. 13.2. Liability Insurance. The Permittee agrees to maintain in force during the term of this Permit a policy of comprehensive public liability and property damage insurance written by a company authorized to do business in the State of Washington against any liability arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. The limits of liability shall be in an amount of not less than $1,000,000.00 for injury to or death of one person in any one accident or occurrence and in an amount of not less than $1,000,000.00 for injury to or death of more than one person in any one accident or occurrence, and of not less than $1,000,000.00 for property damage. The limits of said insurance shall not, however, limit the liability of Penmittee hereunder. The insurance policy shall have a Landlord's Protective Liability endorsement attached thereto. 13.3. Insurance Policies: Insurance required hereunder shall be written in companies acceptable to Permittor and rated A-10 or better in "Best's Insurance Guides". Coverage's shall be submitted on forms prescribed by Permittor. Prior to possession, the Permittee shall deliver to Permittor copies of policies of such insurance acquired by Permittee, or certificates evidencing the existence and amounts of such insurance, with loss payable clauses satisfactory to Permittor. Permittor shall be named as an additional insured. No such policy shall be cancelable or subject to reduction of coverage or other modification except after thirty (30) days' prior written notice to Permittor. Permittee shall, not less than thirty (30) days prior to the expiration of such policies, furnish Permittor with renewals or "binders" therefor. Permittee shall not do or permit to be done anything which shall invalidate the insurance policies referred to above. Permittee shall forthwith, upon Permittor's demand, reimburse Permittor for any additional premiums attributable to any act or omission or operation of Permittee causing such increase in the cost of insurance. If the Permittee shall fail to procure and maintain said insurance the Permittor may, but shall not be required to, procure and maintain the same, but at the expense of Permittee. 14. LIMITATION UPON PERMITTOR'S LIABILITY. Permttor shall not be liable for any damage to property or persons caused by, or arising out of (a) any defect in or the maintenance or use of the Premises,or the improvements, fixtures and appurtenances of which the premises constitute a part; or (b) water coming from the roof, water pipes, flooding of the Cedar River or other body of water, or from any other source whatsoever, whether within or without the Premises; or (c) any act or omission of any Permittee or other occupants of the building, or their agents, servants, employees or invitees thereof. OPERATING PERMIT AND AGREEMENT g City of Renton to Ace Aviation, Inc. 15. INDEMNITY: Permittee covenants to indemnify and save harmless Permittor against any and all claims arising from the conduct and management of or from any work or thing whatsoever done in or about the Premises or the improvements or equipment thereon during the lease term, or arising from any act or negligence of the Permittee or any of its agents, contractors, patrons, customers, or employees, or arising from any accident, injury, or damage whatsoever, however caused, to any person or persons, or to the property of any person, persons, corporation or other entity occurring during the lease term on, in, or about the Premises, and from and against all costs, attorney's fees, expenses, and liabilities incurred in or from any such claims or any action or proceeding brought against the Permittor by reason of any such claim, except such claims arising directly or indirectly out of Permittor's sole act or omission. Permittee, on notice from Permittor, shall resist or defend such action or proceeding forthwith. 16. HOLDING OVER: Permittee understands that upon expiration of the term of this permit, Permittee must execute a new permit with the Permittor as a condition to remaining on the premises. Permittee further understands that if, without execution of any extension or renewal of this permit Permittee should remain in possession of the premises after expiration or termination of the.term of this permit, notwithstanding any extension of its sublease with Lessee, then the Lessee shall be in default of its lease, LAG 003-86 and Permittor may evict the Lessee and the Permittee. All the conditions, terms and provisions of this permit shall be applicable during such holding over. 17. NO WAIVER: It is further covenanted and agreed between the parties hereto that no waiver by Permittor of a breach by Permittee of any covenant, agreement, stipulation, or condition of this lease shall be construed to be a waiver of any succeeding breach of the same covenant, agreement, stipulation, or condition, or a breach of any other covenant agreement, stipulation, or condition. 18. NOTICES:. All notices under this lease shall be in writing and delivered in person, with receipt therefor, or sent by certified mail, to the following addresses: a) For the City of Renton: b) For the Permittee: Airport Manager Ace Aviation 616 West Perimeter Road 289 East Perimeter Road Renton, Washington 98055 Renton, Washington 98055 19. DISCRIMINATION PROHIBITED: 19.1. Discrimination Prohibited: Permittee covenants and -agrees not to discriminate against any person or class of persons by reason of race, color, creed, sex, national origin, or any other class of person protected by the Renton City Code, in the use of any of its facilities provided for the public in the Airport.. Permittee further agrees *to furnish services on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge on a fair, reasonable and not unjustly discriminatory basis for each unit of service; provided that Permittee may make OPERATING PERMIT AND AGREEMENT . 9 City of Renton to Ace Aviation, Inc. reasonable and non-discriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. 19.2. Minority Business Enterprise Policy: It is the policy of the Department of Transportation that minority business enterprises as defined in 49 C.F.R. Part 23 shall have the maximum opportunity to participate in the performance of leases as defined in 49 C.F.R. 23.5. Consequently, this lease is subject to 49 C.F.R. Part 23, as applicable. No person shall be excluded from participation in, denied the benefits of or otherwise discriminated against in connection with the award and performance of any contract, including leases covered by 49 C.F.R. Part 23, on the grounds of race, color, national origin or sex. 19.3. Application to Sub -leases: Subject to the provisions of Paragraph 10 of this Permit, Permittee agrees that it will include the above clause in all assignments of this lease or sub -leases, and cause its assignee(s) and sub-lessee(s) to similarly include the above clause in further assignments or sub -leases. 20. FORCE MAJEURE: In the event that either party hereto shall be delayed or hindered in or prevented from the performance of any act required hereunder by reason of strikes, lockouts, labor troubles, inability to procure materials, failure of power, restrictive governmental laws or regulations, riots, insurrections, war, or other reason of like nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be extended for a period equivalent to the period of such delay. The provisions of this paragraph shall not, however, operate to excuse Permittee from the prompt payment of rent, or any other payment required by the terms of this Permit, to be made by Permittee. 21. CAPTIONS: Article and paragraph captions are not a part hereof. 22. ENTIRE AGREEMENT: This Permit contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Permit may be modified in writing only, signed by the parties in interest at the time of the modification. In the event of conflict between the terms of this Permit and the sublease agreement between Permittee and Lessee, the terms of this Permit supersede. 23. CUMULATIVE REMEDIES: No remedy or election hereunder shall be deemed exclusive, but shall, wherever possible be cumulative with all other remedies at law or in equity. 24. CORPORATE AUTHORITY: If Permittee is a corporation, each individual executing this Lease on behalf of said corporation represents and warrants that he is duly authorized. to execute and deliver this Permit on behalf of said corporation in accordance with a duly adopted resolution of the Board of Directors of said corporation and in accordance with the Bylaws of said corporation, and that this Permit is binding upon said corporation in accordance with its terms. OPERATING PERMIT AND AGREEMENT 10 City of Renton to Ace Aviation, Inc. 25. TRANSFER OF PREMISES BY PERMITTOR: In the event of any sale, conveyance, transfer or assignment by Permittor of its interest in the Premises, Permittor shall be relieved of all liability arising from this Permit and arising out of any act, occurrence or omission occurring after the consummation of such sale, conveyance, transfer or assignment. 26. ARBITRATION: In the event of any dispute between the parties concerning whether or not there has been a breach or default of the Operating Permit and Agreement or dispute as to the remedy selected by the City, then the parties shall submit the dispute to binding arbitration upon demand by either party. Each party shall select one (1) arbitrator within thirty (30) days. The two (2) selected arbitrators, if unable to agree upon an arbitration award within thirty (30) days shall select a third arbitrator. The arbitrators shall make a decision within sixty (60) days of their appointment, unless the time is extended by agreement of the parties. The decision of a majority of the arbitrators shall be final and binding upon the parties. Each party shall bear the cost of the arbitrator named by. it. The expenses of the third arbitrator shall be borne equally by the parties. PERM=E: Ace Aviation, Inc. a Washington corporation By its: Date: PERMI TOR: THE CITY OF RENTON a Washington municipal corporation BY— - - - Mayor Kathy Koelker-Wheeler ATTEST: Bonnie Walton, City Clerk Date: Approved as to legal form: City Attorney Y 'OPERATING PERMIT AND AGREEMENT City of Renton to Ace Aviation, Inc. 11 Commercial Lease Agreement Bosair LLC. to Ace Aviation, Inc THIS IS A LEASE AGREEMENT, dated April V, 2004, between Bosair LLC, ("Lessor"), and Ace Aviation, Inc. a Washington corporation ("Lessee") IN CONSIDERATION of the covenants and agreements hereinafter set forth, the parties agree as follows: 1. Premises: Lessor hereby leases to Lessee the property located at 289 E Perimeter RD, Renton, WA. 98055. 2. TERM: The term of this lease shall be for a 10 years and 9 months (10.9) year period commencing on April 1 " 2004 and terminating on December 31 " 2010. 3. RENTAL: 3a. Initial Rental: As rental for the above -described premises through December 3 V 2010, Lessee shall pay unto Lessor a monthly rental in the sum of $3230 and 31/100 Dollars ($3230.31), plus Leasehold Excise Tax as described in Paragraph 3f. below, payable promptly in advance on the first day of each and every month. Lessee covenants that Ace Aviation, Inc. shall make all monthly rental payments to the Lessor on behalf of all condominium association members All such payments shall be made to Bosair, LLC 289 Perimeter RD E, Renton, Washington 98055. A Rental Adjustment Date: Effective as of April l' 2004, the starting date of this lease, and every three (3) years thereafter, said rental rate as herein specified shall be readjusted by and between the parties to be effective for each ensuing three (3) year period. 3c. Use of Consumer Price Index -Urban: Lessor and Lessee do hereby further agree that the Consumer Price Index information to be used for rental adjustments shall be the Consumer Price Index - Urban (CPI-U) then in effect for all urban consumers, as published by the US Department of Labor for the Seattle -Tacoma Metropolitan Area. 1 3d. Late Payment Charge: It is hereby further agreed that if such rental is not paid before the 10th of each month then there will be added a late payment charge of 5% per month for each month of delinquency until paid. It is agreed that this late payment charge is a reasonable estimate of the increased costs to the city of the staff effort to monitor and collect late payments, as well as related city expenses due to such late payment. If any check received by Lessor is returned unpaid for any reason, Lessor reserves the right to make an additional charge up to the maximum amount allowed by law. 3e. Attorneys Fees/Collection Charges: Should it be necessary to refer this lease to an attorney for collection or other court action involving breach of lease, occupancy after termination, or enforcement or determination of any other right and/or duty under this lease, then it is agreed that the prevailing party shall be entitled to recover its reasonable attorneys fees and costs of litigation as established by the court. If the matter is not litigated or resolved through a lawsuit, then any attorneys fees expenses for collection of past -due rent or enforcement of any right or duty hereunder shall entitle the city to recover, in addition to any late payment charge, any costs of collection or enforcement, including attorney's fees. 3£ Other Charges: Lessee further agrees to pay, in addition to the rentals hereinabove specified and other charges hereinabove defined, all fees and charges now in effect or hereafter levied or established by Lessor, or its successors, or by any other governmental agency or authority, being or becoming levied or charged against the premises, structures, business operations, or activities conducted by or use made by Lessee of, on, and from the leased premises which shall include, but not be limited to, all charges for light, heat, gas, power, garbage, water and other utilities or services rendered to said premises. 4. LEASEHOLD EXCISE TAX: Lessee hereby agrees and covenants to pay unto Lessor that certain leasehold excise tax as established by RCW Chapter 82.29A, as amended, or any replacement thereof, which tax shall be in addition to the stipulated monthly rental and shall be paid separately to the Director of Finance, City of Renton, at the same time the monthly rental is due. In the event that the State of Washington or any other governmental authority having jurisdiction thereover shall hereafter levy or impose any similar tax or charge on this lease or the leasehold estate, then Lessee agrees and covenants to pay said tax or charge, when due. Such tax or charge shall be in addition to the regular monthly rentals. 5. PAYMENT OF UTILITIES AND RELATED SERVICES. Lessee shall pay for all light, heat, gas, power, garbage, water, sewer and janitorial service used in the Premises. Lessor shall not be liable for any loss or damage caused by or resulting from any variation, interruption, or failure of said utility services due to any cause whatsoever; and no temporary interruption or failure of such services incident to the making of repairs, alterations or improvements, or due to accident, strike, act of God, or conditions or events not under Lessor's control, shall be deemed a breach of the Lease or as an eviction of Lessee, or relieve Lessee from any of its obligations hereunder. 6. LESSEE'S ACCEPTANCE OF PREMISES. 6a. General Acceptance of Premises: By occupying the Premises, Lessee formally accepts the same in AS IS condition, and acknowledges that the Lessor has complied with all the requirements imposed upon it under the terms of this Lease with respect to the condition of the Premises at the commencement of this term Lessee hereby accepts the premises subject to all applicable zoning, municipal, county and state laws, ordinances and regulations governing and regulating the use of the premises, and accepts this Lease subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Lessee acknowledges that neither Lessor nor Lessor's agent has made any representation or warranty as to the suitability of the Premises for the conduct of Lessee's business or use. Except as otherwise provided herein, Lessor warrants Lessee's right to peaceably and quietly enjoy the premises without any disturbance from Lessor, or others claiming by or through Lessor. 7. PURPOSE: The premises are to be used for the pupose of aviation maintenance and related aircraft associated business, and for no other purpose without the written concent of Lessor. Lessee shall nor permit anything to be done, in or about the premises, which will increase the existing reste of, or affect, any policy of fire or other insurance upon the building or its contents, because a cancellation of any insurance policy; or interfere with the rights of other tentants of the building or injure or annoy them, or use the premises for any unlawful purpose. Lessee shall not cause or permit any nuisance in, on or about the premises. 7a. Hazardous Waste: Lessee covenants that he will not permit any waste, damage, or injury to the Premises or improvements thereon, nor allow the maintenance of any nuisance thereon, nor the use thereof for any illegal purposes or activities. 3 8. MAINTENANCE: 8a. Maintenance of Premises: The Premises and all of the improvements or structures thereon shall be used and maintained by Lessee in a neat, orderly, and sanitary manner. Lessor shall not be called upon to make any improvements, alteration, or repair of any kind upon the Premises. Lessee is responsible for the clean-up and proper disposal at reasonable and regular intervals of rubbish, trash, waste and leaves upon the Premises, including that blown against fences bordering the Premises, whether as a result of the operation of Lessee's aircraft tie -down storage activities or having been deposited upon the Premises from other areas 8b. Removal of Snow/Floodwater/Mud: Lessee shall be responsible for removal of snow and/or floodwaters or mud deposited therefrom from the Premises, with the disposition thereof to be accomplished in such a manner so as to not interfere with or increase the maintenance activities of Lessor upon the public areas of the Airport. 8c. Repair of Personal Property: It is further agreed that all personal property on the Premises shall be used at the risk of Lessee only, and that Lessor or Lessor's agents shall not be liable for any damage either to persons or property sustained by Lessee or other persons due to the Premises or improvements thereon becoming out of repair. 8d. Lessor May Perform Maintenance: If Lessee fails to perform Lessee's obligations under this Paragraph, Lessor may at its option (brit shall not be required to) enter the Premises, after thirty (30) days' prior written notice to Lessee, and put the same in good order, condition and repair, and the cost thereof together with interest thereon at the rate of twelve (12%) percent per annum shall become due and payable as additional rental to Lessor together with Lessee's next rental installment. 9. ALTERATIONS. 9a. Lessor's Consent Required: Lessee will not make any alterations, additions or improvements in or to the Premises without the written consent of Lessor first having been obtained. 9b. Protection from Liens: Before commencing any work relating to alterations, additions and improvements affecting the Premises, Lessee shall notify Lessor in writing of the expected date of commencement thereof. Lessor shall then have the right at any time and from time to time to post and maintain on the Premises such notices as Lessee reasonably deems necessary to protect the Premises and Lessor from mechanics' liens, materialmen's liens or any other liens. In any event, Lessee shall pay, when due, all claims for labor or materials furnished to or for Lessee at or for use in the Premises. Lessee shall not permit any mechanics' or materialmen's liens to be levied against the Premises for any labor or material fiuvished to Lessee or claimed to have been furnished to Lessee or to Lessee's agents or contractors in connection with work of any character performed or claimed to have been performed on the Premises by or at the direction of Lessee. 9d. Lessor May Make Improvements: Lessee agrees that Lessor, at its option, may at its own expense make repairs, alterations or improvements which Lessor may deem necessary or advisable for the preservation, safety or improvement of the Premises or improvements located thereon, if any. 10. LIMITATION UPON LESSOR'S LIABILITY. Lessor shall not be liable for any damage to property or persons caused by, or arising out of (a) any defect in or the maintenance or use of the Premises, or the improvements, fixtures and appurtenances of which the premises constitute a part; or .(b) water coming from the roof, water pipes, flooding of the Cedar River or other body of water, or from any other source whatsoever, whether within or without the Premises; or (c) any act or omission of any Lessee or other occupants of the building, or their agents, servants, employees or invitees thereof. 11. HOLD HARMLESS: Lessee covenants to indemnify and save harmless Lessor against any and all claims arising from the conduct and management of or from any work or thing whatsoever done in or about the Premises or the improvements or equipment thereon during the lease term, or arising from any act or negligence of the Lessee or any of its agents, contractors, patrons, customers, or employees, or arising from any accident, injury, or damage whatsoever, however caused, to any person or persons, or to the property of any person, persons, corporation or other entity occurring during the lease term on, in, or about the Premises, and from and against all costs, attorney's fees, expenses, and liabilities incurred in or from any such claims or any action or proceeding brought against the Lessor by reason of any such claim, except such claims arising directly or indirectly out of Lessor's sole act or omission. 12. ASSIGNMENT: 12a. Assignment/Subletting: This lease or any part hereof shall not be assigned by Lessee, by operation of law or otherwise, nor shall the premises or any part thereof be sublet without the prior written consent of Lessor, which consent shall not be unreasonably withheld, subject to Lessor's receipt of commercially reasonable evidence that the proposed assignee or subtenant is in a financial condition to undertake the obligations of this lease, and, in the event of assignment, Lessor's receipt of an affidavit from the proposed assignee stating that it has examined this lease and agrees to assume and be bound by all of Lessee's obligations under this lease, to the same extent as if it were the original Lessee. If Lessee is a corporation, the transfer of a majority of Lessee's stock shall constitute an assignment for purposes of this paragraph. 5 12b. Subletting: Lessee may sublet portions of the Premises for the purpose of aircraft hangar storage, only, without the prior written approval by the Lessor of this permitted use, on a month -to -month or longer basis (but not longer than the term of this Lease), provided that Lessor is informed on at least an annual basis, in writing, of the name of the sublessee(s), the purpose of the sublease, the amount of the rental charged, and the type of aircraft stored (make, model and registration number. Such information shall be disclosed upon request by Lessor. 13. RIGHT OF INSPECTION. Lessee will allow Lessor, or Lessor's agent, free access at all reasonable times to the Premises for the purpose of inspection, or of making repairs, additions or alterations to the Premises, or any property owned by or under the control of Lessor. 14. CONDEMNATION: If the whole or any substantial part of the Premises shall be condemned or taken by Lessor or any county, state, or federal authority for any purpose, then the term of this lease shall cease as to the part so taken from the day the possession of that part shall be required for any purpose, and the rent shall be paid up to that date. From that day the Lessee or Lessor shall have the right to either (a) cancel this lease and declare the same null and void, or (b) to continue in the possession of the remainder of the same under the terms herein provided, except that the rent shall be reduced in proportion to the amount of the premises taken for such public purposes. All damages awarded for such taking for any public purpose shall belong to and be the property of the Lessor, whether such damage shall be awarded as compensation for the diminution in value to the leasehold, or to the fee of the premises herein leased. Damages awarded for the taking of Lessee's improvements located on the premises shall belong to and be awarded to Lessee. 15. SURRENDER OF PREMISES: Lessee shall quit and surrender the premises at the end of the term in as good a condition as the reasonable use thereof would permit, normal wear and tear excepted. Alterations, additions or improvements which may be made by either of the parties hereto on the Premises, except movable office furniture or trade fixtures put in at the expense of Lessee, shall be and remain the property of the Lessor and shall remain on and be surrendered with the Premises as a part thereof at the termination of this lease without hindrance, molestation, or injury. Lessee shall repair at its sole expense any damage to the Premises occasioned by its use thereof, or by the removal of Lessee's trades fixtures, furnishings and equipment which repair shall include the patching and filling of holes and repair of structural damage. 16. INSURANCE: 16a. Personal Property: It is agreed that Lessor shall not be held liable in any manner for, or on account of, any loss or damage to personal property of the Lessee, Lessee's invitees or other persons, which may be sustained by fire or water or other insured peril, or for the loss of any articles by burglary, theft or any other cause from or upon the 'remises. It_is acknowledged that Lessor does not cover any of the personal property of Lessee, Lessees invitees or other persons upon the Premises through its insurance. Lessee, its invitees and other persons upon the Premises are solely responsible to obtain suitable personal property insurance. 6 l 6b. Liability. Insurance. The Lessee agrees to maintain in force during the term of this Lease a policy of comprehensive public liability and property damage insurance written by a company authorized to do business in the State of Washington against any liability arising out of the ownership, use, occupancy orrmaintenance of the Premises and all areas appurtenant thereto. The limits of liability shall be in an amount of not less than $1,000,000.00 for injury to or death of one person in any one accident or occurrence and in an amount of not less than $1,000,000.00 for injury to or death of more than one person in any one accident or occurrence, and of not less than $1,000,000.00 for property damage. The limits of said insurance shall not, however, limit the.., liability of Lessee hereunder. The insurance policy shall have a Landlord's Protective Liability endorsement attached thereto. 17. TAXES: Lessee shall be responsible for the payment of any and all taxes and as upon any property or use acquired under this agreement. 18. HOLDING OVER: If, without execution of any extension or renewal of this lease Lessee should remain in possession of the premises after expiration or termination of the term of this lease, then Lessee shall be deemed to be occupying the Premises as a tenant from month -to -month. All the conditions, terms, and provisions of this lease, insofar as applicable to a month -to -month tenancy, shall Miewise be applicable during such period. 19. NOTICES: All notices under this lease shall be in writing and delivered in person, with receipt therefor, or sent by certified mail, in the case of any notice unto Lessor, at the following address: 289 Perimeter RD E, Renton WA. 98055 and in case of any notice unto Lessee, to the address of the Premises, or such address as may hereafter be designated by either party in writing. 20. DISCRIMINATION PROHIBITED: 20a. Discrimination Prohibited: Lessee covenants and agrees not todiscriminate against any person or class of persons by reason of race, color, creed, six or national origin in the use of any of its facilities provided for the public in the Airport. Lessee further agrees to furnish services on a fair, equal and not unjustly discriminatory basis to all users thereof, and to charge on a fair, reasonable and not unjustly discriminatory basis for each unit of service; provided that Lessee may make reasonable and non-discriminatory discounts, rebates, or other similar types of price reductions to volume purchasers. 2L ENTIRE AGREEMENT: This Lease contains all agreements of the parties with respect to any matter mentioned herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification. 22. CORPORATE AUTHORITY: If Lessee is a corporation, each individual executing this Lease on behalf of said corporation represents and warrants that he is duly authorized to execute and deliver this Lease on behalf of said corporation in accordance with a duly adopted resolution of the Board of Directors of said corporation and in accordance with the Bylaws of said corporation, and that this Lease is binding upon said corporation in accordance with its terms. 23. TRANSFER OF PREMISES BY LFSSOR: In the event of any sale, conveyance, transfer or assignment by Lessor of its interest in the Premises, Lessor shall be relieved of all liability arising from this Lease and arising out of any act, occurrence or omission occurring after the consummation of such sale, conveyance, transfer or assignment. The Lessor's transferee shall bedeemed to have assumed and agreed to carry out all of the obligations of the Lessor under this Lease, including any obligation with respect to the return of any security deposit. Wherefore, the parties have executed this lease this day of April 1' 2004. Ace Aviation, Inc. a WA. Corparation /;�Kurt Boswell its: President Date: Bosair, LLC a WA. Limited Liability Company AY44wll Member: Date: M n� 17, 200 `i 9 J4j1 15 04 O9:58a (425) 277-2689 P 2 ,+ 07/15/2004 THU 5:14 FAX 425 430 7472 Renton Municipal Airportj003/OG'3' ' . F r � �• — �... •- -� •' irk .. .' � � --� ,,y ��••• ,. I - 0 7 090AR b Q- �A WVP CITY OF RENTON COUNCIL AGENDA BILL Submitting Data: Planning/Building/Public Works Dept/Div/Board.. Transportation Systems Staff Contact...... Nick Afzali, x7245 Subject: Memorandum of Understanding for the I-405 Congestion Relief and Transit Projects Exhibits: Issue Paper Memorandum of Understanding Resolution _ Al #: For Agenda of: September 13. 2004 Agenda Status Consent .............. Public Hearing.. Correspondence.. Ordinance ............. Resolution ............ Old Business........ New Business....... Study Sessions...... Information........ . Recommended Action: Approvals: Legal Dept......... X Refer to the Transportation (Aviation) Committee Finance Dept...... Other. Fiscal Impact: N/A Expenditure Required... Transfer/Amendment....... Amount Budgeted....... Revenue Generated......... Total Project Budget City Share Total Project.. SUMMARY OF ACTION: Planning, designing, constructing and operating the I-405 Corridor improvements are complex tasks, requiring maximum cooperation between the City and the Washington State Department of Transportation (WSDOT). The purpose of this Memorandum of Understanding is to establish working principles that facilitate cooperation by and between the City and WSDOT to accomplish these tasks on those portions of the Nickel, Implementation and Master Plan that reside within the City. STAFF RECOMMENDATION: Staff recommends Council approve the resolution authorizing the Mayor and City Clerk to enter into the Memorandum of Understanding with the Washington State Department of Transportation for the I-405 Congestion Relief and Transit Projects. HITRANS\ADMINWGENDA 2004\ 1-405 Congestion Relief MOU CITY OF RENTON PLANNING/BUILDING/PUBLIC WORKS MEMORANDUM DATE: September 13, 2004 TO: Don Persson, Council President Members of the Renton City Council VIA: ,,)Mayor Kathy Keolker-Wheeler FROM: Gregg Zimmermaf , rdministrator STAFF CONTACT: Nick Afzali, x7245 SUBJECT: Memorandum of Understanding for the I-405 Congestion Relief and Transit Projects ISSUE: Council approval is needed to enter into a Memorandum of Understanding (MOU) establishing a cooperative relationship between the City and the Washington State Department of Transportation (WSDOT) for the I-405 Congestion Relief and Transit Projects. RECOMMENDATION: • Staff recommends Council approve the resolution authorizing the Mayor and City Clerk to enter into the Memorandum of Understanding with the Washington State Department of Transportation for the I-405 Congestion Relief and Transit Projects. BACKGROUND SUMMARY: Planning, designing, constructing and operating the I-405 Corridor improvements are complex tasks, requiring maximum cooperation between the City and the Washington State Department of Transportation. The purpose of this Memorandum of Understanding is to establish working principles that facilitate cooperation by and between the City and WSDOT to accomplish these tasks on those portions of the Nickel, Implementation and Master Plan that reside within the City. The 5-cent gas tax enacted by the Legislature in 2003 provides for the "Nickel Projects" in Renton and 5 % design of the "Master Plan" in Renton. Much of the City/WSDOT coordination for the Master Plan is needed at this 5 % level. Also, the Master Plan design must be refined in order to adequately design the Nickel Projects. For example, the Nickel September 13, 2004 Page 2 Projects will replace the Benson Road overpass and the new overpass must be able to accommodate the future Master Plan. The intent is to execute future memorandums of agreement regarding planning, designing, constructing and operating the I-405 corridor improvements. cc: Jay Covington Gregg Zimmerman Sandra Meyer Nick Afzali Keith Woolley I1:\TRANS\ADMIN\AGENDA 2004\ IA05 Congestion Relief MOU Issue Paper MEMORANDUM OF UNDERSTANDING ESTABLISHING A COOPERATIVE RELATIONSHIP BETWEEN THE CITY OF RENTON AND THE WASHINGTON STATE DEPARTMENT OF TRANSPORTATION FOR THE I-405 CONGESTION RELIEF & TRANSIT PROJECTS July 2004 TABLE OF CONTENTS 1. BACKGROUND......................................................................................................................1 2. PROJECT DESCRIPTION....................................................................................................2 MasterPlan............................................................................................................................ 2 ImplementationPlan.............................................................................................................. 2 NickelProject.........................................................................................................................2 DesignRefinement.................................................................................................................2 3. PURPOSE................................................................................................................................ 3 4. GOALS.....................................................................................................................................3 5. PRINCIPLES...........................................................................................................................3 6. STRUCTURE.......................................................................................................................I...4 Renton Advisory Committee (City Design Team).................................................................. 4 TaskForces............................................................................................................................ 5 Administrators Committee.....................................................................................................5 7. SCHEDULE............................................................................................................................. 5 8. FUNDING................................................................................................................................ 7 9. AMENDMENTS......................................................................................................................7 10. INDEMNIFICATION............................................................................................................. 7 11. ENDORSEMENT....................................................................................................................7 APPENDIXA................................................................................................................................ A EIS Concurrence Point — Purpose and Need EIS Concurrence Point — Draft EIS Alternatives EIS Concurrence Point — Preferred Alternative and Mitigation Concept I-405 North Renton Project Environmental Assessment Scoping Comments APPENDIXB................................................................................................................................ B Master Plan Exhibit Implementation Plan Exhibit Nickel Projects Exhibit APPENDIXC................................................................................................................................ C WSDOT I-405 Project Team / City of Renton Flow Chart City of Renton I-405 Organization Chart / City Design Team July 2004 MEMORANDUM OF UNDERSTANDING THIS Memorandum of Understanding is made this day of 2004, between the City of Renton (hereinafter referred to as CITY) and the Washington State Department of Transportation (hereinafter referred to as WSDOT). 1. BACKGROUND WSDOT is a department of state government with all powers, duties, and functions to coordinate transportation modes and to develop and maintain a statewide transportation system meeting the needs of the State of Washington as provided in RCW chs. 47.01. WSDOT owns and operates an extensive system of highways, high occupancy vehicle lanes, park and ride lots and access ramps serving general purpose traffic, transit and carpools. The City of Renton is an incorporated municipality, with the following adopted vision, mission, and business plan goals (2005-2010): Vision - Renton: A world -class city where people choose to live, work, and play. Mission - The City of Renton, in partnership with residents, businesses, and schools is dedicated to: • Providing a healthy atmosphere to live and raise families • Encouraging responsible growth and promoting economic vitality • Creating a positive community work environment • Meeting service demands through innovation and commitment to excellence Business Plan Goals - • Promote citywide economic development • Promote neighborhood revitalization • Promote the City's image in the community and region • Meet the service demands that contribute to the livability of the community • Influence regional decisions that impact the City Final Environmental Impact Statement (FEIS) The complete vision for the multimodal redevelopment of I-405 was developed during a three-year EIS process that established consensus on transit, roadway, and environmental investments to be made over the next 20 years. The Final EIS describes that complete vision, or Master Plan, and it received federal approval with the Record of Decision (ROD) in October 2002. The FEIS focused on broad issues. Subsequent environmental analysis, documentation, and review will be prepared for site -specific, project -level details. July 2004 - I - As part of the FEIS process, participating agencies signed -off on three concurrence points. The CITY signed off on all three concurrence points with comments for two of the three concurrence points. Appendix A contains the concurrence points and the CITY's comments as well as CITY comments regarding scoping for the North Renton Environmental Assessment. 2. PROJECT DESCRIPTION The I-405 Corridor Program proposes to implement a multimodal system of transportation improvements to reduce traffic congestion and improve personal and freight mobility throughout the I-405 corridor over the next 20 to 30 years. For the I-405 Corridor Projects, WSDOT has separated the I-405 corridor into five sections. Two of the sections encompass the CITY; the I-5 to SR-169 section (herein after referred to as South Renton) and the SR-169 to Coal Creek Parkway section (herein after referred to as North Renton). Master Plan The I-405 Master Plan, described in Appendix B, is a 20-year vision of multi -modal improvements to the freeway, transit system, and arterials along the I-405 corridor, stretching from Tukwila to Lynnwood. The selected alternative identified in the ROD is the basis for the I-405 Master Plan. Implementation Plan The I-405 Executive Committee endorsed a $4.713 Implementation Plan on October 2, 2003. The Implementation Plan represents projects that could be built over the next 10- 15 years. The new facilities and services included within the Implementation Plan are included in Appendix B. Nickel Project On April 27, 2003 the Washington State Legislature approved a Nickel Funding Package which includes $485 million to relieve congestion at three critical I-405 traffic hotspots in Kirkland, Renton and Bellevue. The funding provides for environmental, design and construction of Nickel Projects as well as "5% Design" of the Master Plan. The new facilities and services included within the Renton Nickel Project are included in Appendix B. Design Refinement The Implementation Plan and Master Plan phasing descriptions described above reflect what is known today based on the current conceptual -level of design and RTID funding discussions. RTID (Regional Transportation Investment District) is a joint effort of King, Pierce, and Snohomish counties to identify and fund transportation projects of regional significance. The design will evolve as the level of design becomes more detailed, RTID funding levels are determined, and design options are evaluated. The developed design is anticipated to fit within the definition of the "Selected Alternative" as documented in the October 2002 Environmental Impact Statement Federal Record of Decision. July 2004 -2- 3. PURPOSE Based on the background in the previous section, it is mutually agreed as follows. Planning, designing, constructing and operating the I-405 Corridor improvements are complex tasks, requiring maximum cooperation between CITY and WSDOT. The purpose of this Memorandum of Understanding is to establish working principles which facilitate cooperation by and between CITY and WSDOT to accomplish these tasks on those portions of the Nickel, Implementation and Master Plan that reside within the CITY. 4. GOALS The goals of this MOU are as follows: Describe the general relationship between WSDOT and CITY that will facilitate WSDOT's primary commitment to deliver the Nickel projects within the schedule, as mandated by the Legislature, and secondly, facilitate formulation of the Implementation Plan and Master Plan, beginning from the early stages of the NEPA Environmental Assessment through the final stages of construction. The organizational structure is contained in Appendix C. • Commit to expedited processes for planning, designing and constructing projects and integrating programs within the defined work plan/schedule (see section 7). • Declare intent to execute future agreements to implement the Nickel Project, the Implementation Plan, and the I-405 Master Plan within the CITY, as funding becomes available. 5. PRINCIPLES A. Nickel, Implementation and Master Plan investments are to provide an efficient, integrated, multimodal system of phased transportation solutions within the corridor. B. The projects and services implemented for I-405 will provide for maintenance or enhancement of livability for communities within the corridor, including maintenance or improvement of air quality, protection of the CITY's sole source aquifer, protection or enhancement of fish -bearing streams and the continued integrity of the natural environment. C. The CITY and WSDOT are committed to supporting a vigorous state and regional economy by responding to existing and future travel needs. July 2004 - 3 - D. Nickel, Implementation and Master Plan investments will accommodate planned regional growth by incorporating regional and local planning documents into the design analysis. E. WSDOT and CITY will coordinate respective capital programs to take advantage of opportunities to reduce cost and increase benefit. Allocation arrangements will be negotiated within individual agreements between relevant entities to ensure that the cost of joint projects is assigned on a proportional basis. F. WSDOT and CITY will work together to pursue additional grants or other funds where value can be added to specific capital projects or where added projects can add significant benefits to the I-405 program. G. Construction schedules will be coordinated and managed such that disruption to the public and construction contracting community is kept at acceptable levels. H. Recognizing the above principles and the complexities of the tasks involved in them, CITY and WSDOT will expedite processes as scheduled, including but not necessarily limited to: • Identify qualified representatives to ensure timeliness and effectiveness of discussions and decisions. • Organize functions to ensure good communication between team representatives and between teams and the respective organizations. • Evaluate processes on an on -going basis to minimize time required to design and construct projects, and when possible, run processes in parallel instead of sequentially. • Issues of conflict will be referred to the appropriate resolution process to reach agreement expeditiously and at the lowest level of hierarchy in accordance with Renton Advisory Committee flow chart included in Appendix C. The spirit of these discussions will ensure rapid resolution, maximum cooperation, respect for financial responsibilities, and high integrity of individuals and organizational missions. I. WSDOT will perform the lead role on I-405 Corridor community involvement. WSDOT will keep the CITY informed of the community involvement activities it is undertaking and provide involvement roles for CITY when appropriate. 6. STRUCTURE Renton Advisory Committee (City Design Team) The I-405 Renton Advisory Committee will act as a forum by which WSDOT can bring preliminary design sketches and information to gain CITY feedback. In coordination with WSDOT, the Renton Advisory Committee will assess project impacts to the City and provide recommendations/solutions. July 2004 - 4 - CITY will, in coordination with WSDOT, provide a recommended list of Renton City staff to comprise the Renton Advisory Committee. The WSDOT will provide the WSDOT Project Manager, South Renton and North Renton Contract Managers, and as appropriate other WSDOT staff or consultants to support the Renton Advisory Committee. The WSDOT Project Manager is responsible for all work — from preliminary design through construction — and is the primary contact for the CITY. The WSDOT Project Manager will coordinate with the CITY to develop the agenda for the committee meetings. The North Renton and South Renton Contract Managers are responsible for overseeing the Nickel projects and Implementation projects and for ensuring that all fit within the framework of the long-range Master plan. They also work with local jurisdictions, transit agencies and private developers to ensure coordination of project elements. As the project progresses into construction, the Renton Advisory Committee will continue to be a forum for the discussion of project related issues. Task Forces As appropriate, the Renton Advisory Committee will form Task Forces to coordinate on specific issues. The Task Force will appoint a lead to report back to the Renton Advisory Committee. The Task Forces will cease when the reason for forming has been resolved. Administrators Committee The Renton Administrators Committee will make recommendations and provide policy direction for the Renton Advisory Committee. This committee will represent the CITY for final issue resolution and will also provide recommendations to and seek policy direction from the mayor and city council. The Renton Administrators Committee will be comprised of CITY Administrators, the WSDOT Project Director and WSDOT Project Manager. The WSDOT Project Director is ultimately responsible for the success of the I-405 Project. Reporting to the WSDOT Urban Corridors Administrator, he makes the final decisions on behalf of the project and is the project's primary representative to local, state and federal elected and appointed officials. See Appendix C for the organizational structure of CITY/WSDOT coordination. 7. SCHEDULE The primary goal of the I-405 project is to deliver the Nickel Projects within the schedule mandated by the Legislature. To accomplish this goal, the anticipated I-405 Nickel work plan / schedule for the South and North Renton sections is shown below in Figures 1 and 2: July 2004 - 5 - 1-405 Congestion Relief and Transit Projects South Renton Work Plan / Schedule TASK DESCRIPTION 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 SOUTH RENTON: 1-5 to SR-169 5% FOOTPRINT DESIGN (MASTER PLAN) 1 I I I I 1 I I I I DATA COLLECTION / SITE INVESTIGATION OPTION ANALYSIS - MAINLINE, I-C CONCEPTS, ETC. ( I I I 1 1 I I 1 I OPTIONS SCREENING PROCESS INTERCHANGE LAYOUTS CITY STREET GEOMETRY GRADING PLAN 1 I I I I I I I 1 1 PLAN PREPARATION D/B DOCUMENT PREPARATION (NICKEL) ( I I I I I I I I I DEVELOP GEOMETRY 5 FOOTPRINT I 1 I I I I I 1 1 I DEVELOP RFP DOCUMENTS ' COMPLETE MOA 1 I I I LEGEND ! (Concurrence Point ENVIRONMENTAL DOCUMENTATION PUBLIC SCOPING ; I ®_ Decision Points__ DISCIPLINE REPORTS I I I I I T I FHWA DISCIPLINE REVIEW E APPROVAL I I I I 1 I I I I ENVIRONMENTAL DOCUMENTATION IBM FONSI PREPARATION I I I 1 I I I I I RIGHT OF WAY ACQUISITION (NICKEL) I I I I I I I I I I D/B RFP, SELECTION 3 AWARD (NICKEL) D/B CONSTRUCTION (NICKEL) I I 1 I I I 1 I 1 1 I I I 1 I I 1 1 t 1 CITY/I405 DESIGN TEAM COORDINATION ( I I Figure 1 1-405 Congestion Relief and Transit Projects North Renton - Work Plan / Schedule TASK DESCRIPTION. 2003 2004 2005 NORTH RENTON: SR-169 to Coal Creek Parkway 5% FOOTPRINT DESIGN I I I I I I I I LEGEND 15% DESIGN I 1 1 I I I I I I LOCAL STREET DESIGN CRITERIA E STANDARDS j j j j I ( Concurrence Point I I 1-405 MAINLINE DESIGN j j j j j I • Decision Points I 1 INTERCHANGE DESIGN CITY STREET DESIGN j j j 1 PLAN PREPARATION J ( I DEVELOP RFP DOCUMENTS I COMPLETE MOA I I I 0 1 I I I ENVIRONMENTAL DOCUMENTATION : Z I PUBLIC SCOPING LL DISCIPLINE REPORTS FHWA DISCIPLINE REVIEW I I I I 1 I I FONSI PREPARATION I ( I I I I I RIGHT OF WAY ACQUISITION DIB RFP, SELECTION 6 AWARD D/B CONSTRUCTION i �j iioi iyi iikii ii ' irti CITY L405 DESIGN TEAM COORDINATION l-110 ���/i// Figure 2 July 2004 - 6 - If an RTID public vote is held and approved in the fall of 2004, it is anticipated that the Nickel funding will roll into funding for developing the Implementation Plan. The work plans / schedules would be revised at such time. 8. FUNDING It is mutually agreed that each agency will fund their respective costs associated with staff time for coordination. WSDOT will provide staffing as needed to assist in the Renton Advisory Committee's work. WSDOT and the CITY will, on a case -by -case basis, negotiate costs associated with the staffing needs to assist with CITY coordination, review, and comments. 9. AMENDMENTS This Memorandum of Understanding and its exhibits may be amended at any time by mutual agreement of the parties. 10. INDEMNIFICATION Appropriate, reasonable, indemnification agreements shall be negotiated in good faith for each project agreement. 11. ENDORSEMENT IN WITNESS WHEREOF, the parties hereto hereby agree to the terms and conditions of this Memorandum of Understanding as of the date first written above. For Washington State Department of For City of Renton Transportation Craig Stone I-405 Project Director Kathy Keolker-Wheeler Mayor City Clerk Attests July 2004 - 7 - APPENDIX A EIS Concurrence Point — Purpose and Need City of Renton Concurrence 12/14/99 1 p EIS Concurrence Point — Draft EIS Alternatives City of Renton Concurrence with conditions 09/15/00 2 pp City of Renton Committee of the Whole Committee Report 01/22/01 1 p City of Renton letter with conditions 02/08/01 2 pp City Of Renton Letter "I--405 Corridor, Preliminary Preferred Alternative, Renton's Opposition To Securing Use Of The BNSF Right -Of -Way For Preservation Of Future Transportation Opportunities" 05/08/01 2 pp City of Renton Resolution No. 3504 05/07/01 3 pp City Of Renton Letter "1--405 Corridor, Preliminary Preferred Alternative, Renton's Opposition To Securing Use Of The BNSF Right -Of- Way For Future Transportation Opportunities" 06/04/01 1 p City of Renton Letter "1-405 Program Issues: 1) Renton's Recommendation, Preferred Alternative 2) Opposition to Sensible Solutions for I-405 Proposal 3) Concerns About The Lane Balance Option" 11/08/01 3 pp EIS Concurrence Point — Preferred Alternative and Mitization Concept City of Renton Concurrence with conditions 04/25/02 4 pp I-405 North Renton Proiect Environmental Assessment Scoping Comments I-405 North Renton Project Environmental Assessment Scoping Comments 10/29/03 1 Opp July 2004 A I-405 Corridor Program EIS Concurrence Form RFt;r-__!V(E0 DEC 1 F IJ39 Date sent:: September 29, 1999 Concurrence Point: l .Purpose and Need - The need is to improve personal and freight mobility and reduce foreseeable traffic congestion in the corridor that encompasses the I-405 study area from Tukwila to Lynnwood in a manner that is safe, reliable, and cost-effective. The purpose of the proposed action is to provide an efficient, integrated, and multi -modal system of transportation solutions within the corridor that meet the project need in a manner that: • provides for maintenance or enhancement of livability for communities within the corridor; • provides for maintenance or improvement of air quality, protection or enhancement of fish -bearing streams, and regional environmental values such as continued integrity of the natural environment; • supports a vigorous state and regional economy by responding to existing and future travel needs; and • accommodates planned regional growth. Agency: City o enton Attest: Signature: M tmwn, City Clerk Title: Mayo Date: 7 Concur Non -concur (Circle one) If the agency has selected Non -concur, they must include an explanation of what must be changed so that the agency could Concur: ( describe here or attach) Return to: Michael Cummings WSDOT Office of Urban Mobility 401 Second Avenue South Suite 300 Seattle, WA 98104-2862 cumminm@wsdot.wa.gov C:%WtNDOWS\TEMP\P_&_NCON.DOC July 23, 1999 September 15, 2000 Michael Cummings, Project Manager WSDOT Office of Urban Mobility 410 Second Avenue South, Suite 300 Seattle, WA 98104-2862 Subject: I405 Corridor Program Draft EIS Alternatives Dear Mr. Cummings: CITY OF RENTON REcFlVl�o SEP 2 0 2000 Mayor Jesse Tanner The City of Renton has reviewed the four alternatives to help ease congestion on the I-405 corridor, and is pleased to concur with WSDOT's alternatives for analysis purposes with seven (7) conditions as described below: 1. The City of Renton wants to make sure that accessibility of neighborhoods and communities to I-405 is emphasized in all options. Although the importance of the interstate highway for moving long distance through traffic is recognized, the corridor improvements must also recognize the increasing access needs of the communities through which I-405 passes. The Growth Management Act has brought about accelerated growth in these communities. Improvements for the long distance traveler must not come at the expense of local accessibility. 2. Portions of the I-405 corridor pass through Renton's sole source drinking water aquifer. Sensitivity of the aquifer to possible contamination must be considered in all options. 3. In order to minimize. the impacts on Renton neighborhoods, improvements to I-405 should be within existing right-of-way. 4. Impacts on neighborhoods should be minimized/mitigated. Avoid anymore "takes" to Renton Hill. 5. Any final option (preferred) needs to adequately address the SR 167/I-405 interchange situation. 6. Any grade separation of Rainier Avenue/Grady Way should not impact adjacent businesses. The City. relocated automobile dealerships from the downtown to this area. 7. The City may desire to limit arterial improvements along Duvall Avenue/Jones Road and 140th to five lanes. We are looking forward to working with WSDOT staff on this regionally important corridor. study. If you have any questions, please contact Sandra Meyer, Transportation Director, at (425) 430-7242. S :cerely, C Jesse Tanner Mayor 00-113/GZ.mp oc: Renton City Council Jay Covington Gregg Zinunennan Sandra Meyer 1055 South Grady Way - Renton, Washington 98055 - (425)430-6500 / FAX(425)430-6523 MThis oww coawim sox ncvaso rma". lox Dora consww I-405 Corridor Program EIS Concurrence Form Date sent:: July 20, 2000 Concurrence Point: I -Draft EISAlternatives - • Attached as Exhibit A, dated July 20, 2000 is a general description of the action alternatives that are proposed to be considered in the Draft Environmental Impact Statement for the I-405 Corridor Program. These four alternatives and a "No -Action" alternative will be the focus of the environmental investigation and disclosure in this document. Agency: Signature: Title: Date: oncur Per Attached Letter) Non -concur (Circle one) If the agency has selected Non -concur, they must include an explanation of what must be changed so that the agency could Concur: (describe here or attach) The City of Renton concurs with the four alternatives to help ease congestion on 1-405 corridor with seven (7) conditions as described in the attached letter of September 15, 2000, to Michael Cummings, project manager - Return to: Michael Cummings WSDOT Office of Urban Mobility 401 Second Avenue South, Suite 300 Seattle, WA 98104-2862 cumminm@wsdot.wa.gov C11YCr RENTv'1 ,:.L .c; IC WORKS ADL!'If4. CONIlV MEE OF THE WHOLE COMM TTEE REPORT January 22, 2001 I405 CORRIDOR PROGRAM (Referred August 21, 2000) APPROVED DY CITY COUNCIL Date 1- 22 - o i On January 22, 2001, WSDOT presented the Council with four (4) alteratives to help ease the congestion on the I-405 corridor. Alternative 17 High Capacity Transit/T DM, alternative 2 — Transit, alternative 3 — Mixed Mode, and alternative 4 — Roadway Capacity. The Committee of the Whole recommends that Council endorse WSDOT's Alternative Number 3 with several conditions put forth, including, but not limited to, installation of a lid over the freeway between Cedar Avenue and. Renton ...Avenue,:Adequate aoiw.walls along the corridor to mitigate impacts to neighborhoods, -and noise mitigation; measures: for. interchange . ramps. - . The Committee further recommends that the Mayor be authorized to sand a letter stating the City's endorsement with the conditions indicated and additional conditions determuie8 by members of the Committee. The Committee directs staff to organize a public meeting in the coming weeks to provide information and accept public comment on this important project` -The Committee also recommends that Council reserve the fight to change its position as more specific information becomes available on each alternative, -and upon receipt and review of citizen comment and input. Dan Clawson, Council P sident cc: Jercvviry a Gregg Zimmerman Sandra Meyer Nick Afiali DocumenQ\ rcv 01/01 BH 4 - - E RECEIVED CITY OF RNTON "a FEB 13 2001 Mayor Jesse Tanner February 8, 2001 Mike Cummings, Project Manager, I-405 Corridor Program WSDOT Office of Urban Mobility 401 Second Avenue South,' Suite 300 Seattle, WA 98104-2862 SUBJECT: I405 CORRIDOR PROJECT PRELIlIHNARY PREFERRED ALTERNATIVE Dear Mr. Cummings: Thank you for the 1405 Corridor Project Management Team's continued efforts to provide us with information about this complex and crucially important project. As you know, on January 22, 2001, the Renton City Council Committee of the Whole met to consider the I-405 Project Management Team's request that the cities and other jurisdictions of standing along the corridor endorse a Preliminary Preferred project Alternative. This Preliminary Preferred Alternative will help establish a favored alternative for the preparation of the project environmental impact statement. We are also aware of the need to select a preferred alternative to improve opportunities to obtain funding appropriation from the state. legislature. These are compelling reasons to select a Pceiiminaiy,Preferred. Alternative for this project. However, Renton's policy makers have expressed significaiif icservations about endorsing an alternative so early in the process. Although environmental discipline e'pr orts have been drafted, the environmental impact statement has not yet been prepared. This document will provide information that we feel is key in arriving at the optimal I-405 Corridor improvement project. Also, we have not yet had an opportunity to present information about the_ alternatives to the.members of our community, and to receive their comments. We have.also.been told that the final project may incorporate elements from several of the alternatives under study. We are concerned that selecting a Preliminary Preferred Alternative now may set processes in motion that will make it difficult to change or improve the plan in the firture as more information becomes avitiable: Given all of these legitimate concerns, the Renton policy makers chose to endorse Alternative Number 3 as Renton's Preliminary Preferred Alternative, with conditions (the Council Committee Report is attached). These conditions are as follows: 1) The City of Renton reserves the right to change its position as more specific information becomes available on each alternative, and upon receipt of citizen comment and input. 2) As mitigation for continued encroachment and impacts on the Renton Hill neighborhood and its park areas and amenities, a lid should be installed over I-405 between the Renton Ave. S. and Cedar Ave. S. overpasses. 3) Adequate noise walls must be installed along the I-405 and SR 167 corridors to mitigate noise impacts on the community. Adequate noise mitigation must also be provided for improvements to the I405/SR 167 interchange and other interchange ramps. 4) In recognition that the plan is to start the majority of work in the south end, consideration shall be given to the early start of work associated.with the NE 40 Street interchange, the I-405/SR 167 interchange, and the SR 169 interchange. 1055 South Grady Way - Rentm. Washington 98055 - (425) 43"500 / FAX (425) 430-6523 ® n* peW — -•I W% niywa i ** Sox pm oaw.w V8/01 Page 2 5) The seven (7) conditions described in the City's September 15, 2000, letter (copy attached) are incorporated into the project to the extent physically possible. We look forward to continuing to work with you in a cooperative and collaborative fashion on this important project. Sincerely, Q� � -.*- -. C M (�na, U.,J Jess lei Dan Clawson Ma r Council President 01-010/GZ:mp cc: Renton City Council Jay Covington Gregg Zinwx=nan Marilyn Petersen CITY OF RENTON Mayor Jeae Tanner May 8, 2001 Mike Cummings RECEIVED Project Manager, I-405 Corridor Program 2001WSDOT MAY 0 9 Office of Urban Mobility 401 Second Avenue South, Suite 300 Seattle, WA 98104-2862 SUBJECT: I405 CORRIDOR, PRELME NARY PREFERRED ALTERNATIVE, RENTON'S OPPOSITION TO SECURING USE OF THE BNSF RIGHT-OF-WAY FOR PRESERVATION OF FUTURE TRANSPORTATION OPPORTUNITIES Dear Mr. Cummings: It is with significant disappointment that we must forward to you our opposition to the inclusion of the provision to secure use of the Burlington Northern Santa Fe (BNSF) right-of-way for "future transportation opportunities" in the 1-405 Corridor Program preliminary preferred alternative. We are disappointed because this provision is a late change that was added without the exemplary degree of collaboration and regional discussion that has otherwise characterized the selection of a preliminary preferred alternative. It seems tows that this provisioik was more or less slipped into the mix for alternative #3 prior to the January 25 Executive Committee recommendation for a preliminary preferred alternative. Renton's Steering Committee members were taken by surprise, as were members of the Citizens Committee from the Renton area. Our main problem with the identification of the BNSF corridor for future transportation opportunities, to include possible fixed rail HCT, is that such a use could place trains operating every eight minutes during the peak period at a maximum speed of 79 miles per hour right through the middle of Renton residential neighborhoods (specifically Kennydale and South Renton). This would create safety, livability, and access problems that would affect not only the neighborhoods, but also businesses in North Renton and the downtown core, and such regional recreational amenities as Gene Coulon Park and the Lake Washington trail system. This route would truly bisect our City, and we feel it would create adverse impacts that would far outweigh the incremental benefits of introducing high capacity transit to this rail corridor. One of the most attractive features of preliminary preferred alternative #3 is its identification of Bus Rapid Transit (BRT) along the I-405 Corridor as its north/south high capacity transit element. We believe that BRT is superior to a fixed rail system along the BNSF corridor in that it provides far more flexibility, and it directly utilizes added freeway capacity provided by the new general-purpose lanes. The late addition of a provision to secure the use of the BNSF right-of-way for future transportation uses such as HCT would directly contradict one of the basic premises and selling points of preliminary preferred alternative #3. We concur with the concerns expressed in the March 8, 2001, letter to the Executive Committee by Kim Browne, President of the Kennydale Neighborhood Association (copy included). We would also like to remind you that the City of Renton's concurrence with the I-405 Corridor Program Draft EIS Alternatives is premised upon seven conditions, the third of which states "In order to minimize the impacts on Renton neighborhoods, improvements to I-405 should be within existing right-of-way" (copy of September 15, 2000, letter included). 1055 South Grady Way - Renton, Washington 98055 - (425) 43"SW / FAX (425) 430-6523 0 This paper aomahu sox Wy ed mat W1, Sox post oOnSUr' r I-405 Corridor Program May 8, 2001 Page 2 We request that you direct the efforts of the I-405 Management Team to restoring the integrity of preliminary preferred alternative #3, and returning this altemative to its previous status of regional consensus, by removing the provision that would preserve future transportation opportunities by securing use of the BNSF right-of-way. The 1405 corridor program faces enough challenges already, in our opinion, without incorporating elements of future programs that may or may not go forward, and thereby jeopardizing regional consensus. At. their council meeting on Monday, May 7, 2001, the City Council passed Resolution No. 3504 (copy included) authorizing this letter that clearly affirms the City's opposition to the securing of use of Burlington Northern Santa Fe right-of-way for transportation purposes. Sincerely, Jes Tanner Mayor 01-046:GZ:rM cc: 1405 Corridor Executive Committee Members 1405 Corridor Steering Connnittee Members 1-405 Corridor Citizen Committee Members Renton City Council Kim Browne, President KNA Association Jay Covington Gregg Zimmerman Sandra Meyer Nick Afzali Dan Clawson City Council President CITY OF RENTON, WASMNGTON RESOLUTI ON NO. 3504 A RESOLUTION OF THE CITY OF RENTON, WASHINGTON, AUTHORIZING THE MAYOR AND COUNCIL PRESIDENT TO SEND A LETTER OPPOSING THE SECURING OF USE OF BURLINGTON NORTHERN SANTA FE RIGHT-OF-WAY FOR PRESERVATION OF FUTURE TRANSPORTATION OPPORTUNITIES. WHEREAS, the I-405 Corridor Program is studying possible future transportation opportunities to relieve traffic conditions in the I405 corridor; and WHEREAS, the Renton Steering Committee has been participating in the I405 Corridor Program; and WHEREAS, the I-405 Corridor Program is preparing to name a preferred alternative; and WHEREAS, the concept of securing the use of the Burlington Northern Santa Fe right- of-way for preservation of future transportation opportunities was a last-minute addition for alternative 43; and WHEREAS, such addition surprised Renton Steering Committee members; and WHEREAS, it is believed that securing use of the Burlington Northern Santa Fe right-of- way has not been adequately discussed; and WHEREAS, the Burlington Northern Santa Fe corridor runs through the middle of downtown Renton, through the Kennydale and south Renton residential neighborhoods, and would further affect regional recreational amenities such as Gene Coulon Park and the Lake Washington trail system; and RESOLUTION NO. -3s o 4 WHEREAS, the bisecting of the City by possible fixed rail would create adverse impacts which far outweigh the incremental benefit of adding additional high -capacity transit to this rail corridor; and WHEREAS, the City of Renton's concurrence with the IA05 Corridor Program draft EIS alteratives is premised upon seven conditions, one of which states, "in order to min� the impact on Renton neighborhoods, improvements to I-405 should be within existing right-of-way," and this project violates that condition; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO RESOLVE AS FOLLOWS: SECTION I. 1 The above findings are true and correct in all respects. SECTION 11. The Mayor and Council President are hereby requested to send a letter to the project manager of the I405 Corridor Program, expressing the City's displeasure, disappointment and opposition to securing use of the Burlington Northern Santa Fe right-of-way for preservation of future transportation opportunities. PASSED BY THE CITY COUNCIL this 7t-h day of Mau , 2001. APPROVED BY THE MAYOR this 7th N 1�� 7"iw al?"tl Michele Neumann, Deputy City Clerk day of May , 2001. J anner, Mayor RESOLUTION NO. 3 5 0 4 Approved as to form: Lawrence J. Warren, City Attorney RES.848:5/2/01:ma CITY OF RENTON Mayor "'M Jesse Tanner June 4, 2001 RECEIVED Michael Cummings I405 Program Manager JUN 0 5 2001 401 Second Avenue S., Suite 300 Seattle, WA 98104 SUBJECT: I405 CORRIDOR PROGRAM, PRELE IINARY PREFERRED ALTERNATIVE, RENTON'S OPPOSITION TO SECURING USE OF THE BNSF RIGHT-OF-WAY FOR FUTURE TRANSPORTATION OPPORTUNITIES Dear Mr. Cummings: Thank you for your May 23, 2001, letter addressing this issue. We appreciate your efforts to distribute our May 8 letter, which expresses our opposition to securing the use of the BNSF right-of-way for future transportation uses, to the I-405 Corridor Program committees and your publication of the letter on the Program's web page. You mention that the Executive Committee in January 2001 recommended preserving the BNSF right-of-way without opposition. This would appear to be the case, however, unlike other elements within the Preliminary Preferred Alternative, this provision appears to have been added to the package rather suddenly without much discussion or deliberation on a regional level. In fact, the City of Renton's standing Executive, Steering, and Citizen Committee members were taken by surprise by the appearance of this new element within the Preliminary Preferred Alternative. I don't wish to further belabor the question of how this element was added to the package other than to say that I hope and trust that in the future a more inclusive and deliberative process will be used for altering a proposal under review by the committees. It is clear in your letter that the I-405 Corridor Program Management Team intends to move forward to include this element in the Preliminary Preferred Alternative. This is unfortunate. The City of Renton remains strongly opposed to this open-ended and vague provision in an otherwise clear proposal. What does "future transportation opportunities" mean? And how can the public support this when they don't know whether they would be advocating fixed rail high capacity transit or walking trails? If this feature is a page -holder for Sound Transit, which it now appears to be, it should be considered separately within the Sound Transit Phase II package. It should be removed from the I-405 Corridor Program plan. In answer to your question, the City of Renton's opposition to the concept pertains to the segment through Renton. We are concerned about the negative impacts fixed rail high capacity transit along the BNSF corridor would have in Renton as identified in our May 8 letter. There may well be segments of this corridor outside of Renton's city limits along, which fixed rail HCT or other transit systems could provide benefit without the unacceptable impacts that would occur in Renton. We -*vould expect the other jurisdictions along the corridor to identify these impacts, and we would certainly give them the attention that they deserve, as we expect our neighbors to do regarding impacts that have been identified in Renton. We hope this clarifies our position in regard to the question of securing use of the BNSF right-of-way for future transportation opportunities. t cerely, Jesse Tanner, Mayor Ol-056:GZ:mp cc: Renton City Council Jay Covington Gregg Zimmrnnan Sandra Meyer 1055 South Grady Way - Renton, Washington 98055 - (425) 430-6500 / FAX (425) 430-6523 0 ,lie pWw oordaim sole recyued meterW. Sox post oonwme. RECEIVED CITY OF RENTON V a.� NOV 12 2001 Mayor Jesse Tanner November 8, 2001 Mike Cummings Project Manager, I-405 Corridor Program WSDOT 401 Second Ave. South, Suite 300 Seattle, WA 98104-2887 SUBJECT: I405 PROGRAM ISSUES: 1) RENTON'S RECOMMENDATION, PREFERRED ALTERNATIVE 2) OPPOSITION TO SENSIBLE SOLUTIONS FOR I405 PROPOSAL 3) CONCERNS ABOUT THE LANE BALANCE OPTION Dear W. Cummings: We appreciate the continued efforts of the I-405 Corridor Project Management Team to find an optimal solution to the I405 capacity problems by obtaining regional consensus through an extensive public process. It has been a pleasure to be a participant in this process. We are aware that the goal of the Management Team is to obtain a recommendation on a preferred alternative from the I405 Executive Committee on November 16, 2001. Recommendation of a preferred alternative will bring us to the third concurrence point established in the I405 Corridor Program Concurrence process. When the preferred alternative has been selected, each agency and tribe with jurisdiction (ATJ) will be asked to approve, deny, or comment on the decision at hand. The City of Renton has conditionally approved the previous two concurrence points in the process: (1) purpose and need statement, and (2) selection of alternatives to advance for detailed study. We have also conditionally supported the Preliminary Preferred Alternative for this project that was recommended by the Executive Committee on January 25, 2001. Letters associated with Renton's conditional approvals are attached. We have now had an opportunity to review the DEIS and other information that has been provided about the program alternatives, and have heard from many of our citizens. We are, therefore, submitting to you the City of Renton's position regarding selection of a Preferred Alternative. PREFERRED ALTERNATIVE The City of Renton supports selection of the Preliminary Preferred Alternative as recommended by the Executive Committee on January 25, 2001, as the Preferred Alternative. The conditions that we previously identified (our letter of February 8, 2001, attached) still apply to our endorsement of this alternative. 1055 South Grady Way - Renton, Washington 98055 - (425) 430-6500 / FAX (425) 430-6523 ® This papw wnta ns sox recycled materW, 30% pose consu"w November 8, 2001 Page 2 OPPOSITION TO SENSIBLE SOLUTIONS FOR I405 PROPOSAL We have reviewed, and are opposed to, the Sensible Solutions for I-405 proposal. This proposal, sometimes referred to as Alternative #5, would among other things reduce the added lane proposal along I-405 to one lane in each direction, potentially a high occupancy toll (HOT) lane, and would introduce a diesel modular unit rail transit system on the BNSF rail line from Woodinville to Tukwila with high frequency service (10-15 minute headway). We have numerous concerns about this proposal that have led to our opposition. This proposal has not been subjected to the rigorous technical evaluation that the other alternatives have, and it has not been demonstrated that it will accommodate the endorsed purpose and need statement for the program. We believe that it will not. The proposal has not been evaluated in the DEIS and, therefore, its impacts have not been identified and evaluated. The impacts will be significant and severe. The introduction of the diesel modular unit rail transit element along the Burlington Northern Santa Fe corridor would divide residential communities in two and adversely impact quality of life and public safety, and would also seriously degrade access and mobility along the many at -grade street crossings in urban areas, including the downtown Renton Urban Center. Customer need and ridership for this inflexible commuter rail system proposal have not been established. The Boeing Company has stated in a letter. dated October 23, 2001, "it is vital that we continue to have rail access to our Renton Plant via the Burlington Northern rail lines that run along I-405. Currently, all of our 737 and 757 fuselages are shipped by rail from Kansas to Renton. The conversion of those rail lines to another use would severely and negatively impact the viability of the Renton Plant." Introduction of this diesel modular rail transit element to the BNSF rail corridor would interfere with freight mobility, and would appear to be inimical to the interests stated by the Boeing Company. We feel that the Sensible Solutions to I-405 proposal should be discarded as an untimely distraction, and eliminated from further regional consideration. CONCERNS ABOUT THE LANE BALANCING PROPOSAL The lane balancing concept would add lanes to the portion of I-405 between SR-167 and I-90. The most aggressive approach would introduce three lanes in both directions along this portion of the corridor. Such a proposal would impose significantly greater impacts to the neighborhoods and the environment, particularly if the lanes were to be constructed at grade. The I-405 right-of-way would have to be expanded into residential and business properties to accommodate this, and a great deal more impervious surface would be created. On the other hand, vertical stacking of lanes would add significantly to the project cost. It has not been demonstrated that the benefits of such an approach would justify the financial, community, and environmental costs. Renton would oppose a proposal to construct three lanes in each direction between SR-167 and I-90. We do recognize that the lane balancing concept is still being developed, and might in fact involve far less intrusive improvements than continuous three lanes would present. Such approaches could include revisions to collector/distributor lanes or modest improvements to specific segments of the corridor. While it might be prudent to explore such options, Renton would not support proposals we would deem to be excessively detrimental to our communities and environment. } November 8, 2001 Page 3 We look forward to the continuing regional collaboration on this important program. Sincerely, Jesse Tanner Mayor 0 1 - I I &IGZ:mp cc: I-405 Corridor Executive Committee Members 1-405 Corridor Steering Committee Members 1-405 Corridor Citizens Committee Members Kim Browne, President KNA Association Jay Covington Gregg Zimmerman Sandra Meyer Nick Afzali Dan Clawson City Council President RECEIVED APR 3 U 2002 April 25, 2002 Michael Cummings Corridor Planning Supervisor Washington State Department of Transportation 402 Second Avenue S #300 Seattle, WA 98104-2887 CITY OF RENTON City Clerk Bonnie I. Walton Re: I-405 Corridor Program — Concurrence Point #3 Dear Mr. Cummings: Enclosed.is the signed Concurrence, Point 3, for the I-405 Corridor Program. If you have any questions or comments concerning this matter, please feel free to contact Sandra Meyer, Transportation Systems Director at (425) 430-7242. Thank you. Sincerely, Suzann D. Lombard Records Management Coordinator Enclosure cc: Sandra Meyer (w/encl.) 1055 South Grady Way - Renton, Washington 98055 - (425) 430-6510 / FAX (425) 430-6516 R E N T O N ® This paw mrftka50% AHEAD OF THE CURVE regcfsd meteriet, 30%Poet conwmer 1-405 Corridor Program - Concurrence Point #3 . 1 �te sent: March 19, 2002 Concurrence orn : Preferred Alternative and Mitigation Concept (CEP) In signing this concurrence agreement, the Agencies with Jurisdiction agree to: 1.) Concur" with the Major Elements of the 1-405 Corridor Program Preferred Alternative (Attachment A), and 2.) Mitigation Concept (Corridor Environmental Program — CEP) (Attachment B) In signing this concurrence agreement, the State and Local Governments and Agencies that provide transportation services agree to: 3.) Pursue in good faith amendments of transportation plans and programs in order to implement the 1-405 Corridor Program's Preferred Altemative and Corridor Environmental Program. gency: CZ OF RENTON, WASHINGTON ignatum Title: Mayor Date: -111/_ 4Z00A Cirde one of the below. 1 )ncur Concur with Comments) Non -concur Weds as qoa di ed !f the agency has selected IVon-concur, they must in u e an explanation of what should be changed so that the agency could concur. (Describe here or attach.) Please return to: Michael Cummings, WSDOT, 401 Second Avenue South, Suite 300 Seattle, WA 98104-2862, cumminm@wsdot wa.cgov. *Concurrence means: • 'Formal written determination by agencies with jurisdiction that the project information is adequate for the current phase of the process.' At this phase, project information includes the Preferred Alternative Description, Corridor Environmental Program, PFEIS and Early Action Environmental Mitigation Decision Making Process. • "Concurrence means that the project may proceed to the next phase without modification. Agencies agree not to revisit previous concurrence unless there is substantial new information, or substantial changes have been made to the project the environment, laws and/or regulations! "Agencies will have the option to comment on elements of the project at the appropriate points in the process." (a) Agencies with jurisdiction will participate in additional project level environmental review under NEPA and SEPA and all applicable laws and regulations at a greater level of detail. (b) WSDOT will continue to coordinate with agencies with jurisdiction and others implementing 'Early Action' and other project level mitigation measures. (c) Concurrence on the Major Elements of the 1-405 Corridor Program Preferred Alternative does not indicate individual project concurrence. • "it is not intended that concurrence means that a permit will be issued -just that the project information for the current phase is adequate.' Agencies with jurisdiction will retain full permitting authority and the ability.to condition or deny future project permits and approve or disapprove associated mitigation measures. (Language in quotations is direly from Re -Invent NEPA definition of "Concurrence.' I405 Corridor Project Concurrence Point #3 Conditions of Approval All previous requirements and comments communicated to WSDOT and the I-405 Corridor Management Team remain in effect. This includes all concurrence point information, expertise report comments, Preliminary Draft Environmental Impact Statement comments, and Draft Environmental Impact Statement comments. Other comments to note at this concurrence point include: 1) All arterial improvements previously identified as part of the Program within the Renton area including: a) the north/south arterial of Duvall/Coal Creek Parkway with a connection to Maple Valley Highway, b) the east/west arterial of SW 43rd Street/Carr/Petrovitsky Road, and c) SW 27th Street/Strander Blvd. from SR-167 to West Valley Highway will be eligible for funding as part of a cooperative partnership. 2) The planned SW 27th Street interchange at SR-167 is identified as a fully funded WSDOT project as part of the I-405 Corridor Program. The NE 44th Street interchange is identified as a partially funded project as part of the I-405 Corridor program. 3) The Rainier Avenue/Grady Way intersection continues to need further evaluation and serious consideration in finalizing the SR-167/I-405 interchange improvement. WSDOT must work with the City to assure that any improvement to the interchange is compatible with the Rainier Avenue/Grady Way intersection operations and that operations are improved as a result of the improvement to the SR-167/I-405 interchange. Economic development considerations must be considered in any solution and coordinated with and approved, by the City. 4) The Sound Transit capital program and routing needs must be confirmed and found to be compatible with the I-405 Corridor Program. The City must be involved in this assessment and agree to all Sound Transit capital investments. Current voter approved capital investments include two HOV direct access interchanges (or equivalent). Three express bus routes as defined in the approved plan must be provided. Potential Sound Transit bus routes could include N.6th Street/Logan Avenue or Park Avenue/S 2nd and S 3rd Streets, and Rainier Avenue. As identified, these streets and others identified to the south need to be recognized as eligible for partnering in the securement of grants. 5) The lane balancing proposal will potentially add hill climbing and/or collector distributor lanes to portions of the I-405 corridor between SR-169 and I-90. Additional lanes in this area beyond the two general purpose lanes in each direction 1.405 Corridor Concurrence Point M3 April 9, 2002 Page 2 of 2 within the Preferred Alternative will create larger impacts to residential communities in Renton, particularly the Kennydale neighborhood. Such proposals, if seriously pursued must demonstrate transportation benefits to the I-405 corridor and be designed in a way to avoid, limit, minimize, and mitigate impacts to the neighborhoods to an acceptable level as determined by the City. 6) Noise impacts are of concern to the City. The preferred alternative must be demonstrated to not increase noise in the corridor by including sufficient mitigation to keep noise levels at or below current levels. 7) Although the Watershed Based Mitigation concept may be a reasonable approach to mitigation for the project impacts, some impacts may have to be mitigated for on - site and cannot be mitigated for offsite. The floodplain, increased quantity of runoff, water quality impacts, groundwater, some fish habitat and wetland impacts may have to be mitigated for on -site, if the impacts to the local jurisdiction are too great to be allowed for mitigation on a watershed (WRIA) level. KTnra/A&nidSudr&rM2A-405 Conwmnot 03 CITY OIF RENTON Zinvarcrui nit Il"S.,Adinfilistratur Gool.wr 20,20,03 Clirisfinz4 Envir6nm6htal Lead Washijle,ton Slaw D JoIn': Urban Corrldor-(A'01'eu 6431 Corsoli Avenue South, N 1182-23 0 -Seattle, AIA 981W-3445 SUBJECT: 1-405-NORTURE NTONVROACT, E N"VW6S EN .. TALWSASSItiSC70PING..COTIMENTS Dear'Ms, Martinez. The City'bf Rent6h,subtnJUIh e. Ffrvirpntrwril�.d Assam mcn I I Scoping. *kUR UT, - ILITY: 1111PACI 101ow:611 ofIRWAt�o�s".� tl�fg Afioldifte 1W.111br W6.119,h-nd � ry 0 -.99 P fibrrt the;: C 'd Ver 3. pi a eXIs t11 01 .r upp V. hi�a( ju _.r ,s be en corrosion aqui -b ty y'dje r—A, Ilie :six za�,fiuotidalirotv acili" an(] �rg ion conil.-pl .66)ily areal) 1pc*il6d;a.!ortgjA,6 bm. veen,the,,C-ed#AJ;Ver and the intersection 1-405 and. -SR Afjojjs.of NV;ater' day. Per The tonsiruclk" 1* tf 1405 N&ith Rtiftoh Pfje&tAs shQ'Nvfi 0. n (sheet .Lof 11 2001 z,.tNircua kthJ61inipO,e, City' drinking water supply; livpartkular;Ihe.propnorthbound ftom 1405 to.9KA.09 will cuttIt_t)jj�jjtlj__6 ,I 4yink-4ig water. well 5and Ibis, newmalignment Nvillrequire :the retoqllti(sn:and al rg�f ffieft let,, T e re g Wrtr:jls, id I t ,t fits h -16cati-On sit gliell 0 klks — ifiWudin ;:jj pore iftal ]:..A tronmenjo..-Impaot. Ift1w M100"ItIon of -the Vvells isconsidered, afcasibiM*.study Rtyd detailed -hydro,geologic investigation must,:be done to determine not onlyif ffie nev,,-wells tm-V,be cqjistructcdjbuvalsq, if t1i, `cih-prp iod-fl v ruliable supply of Mg ' 6Aiid federal , pal#y &. Additionm v�itqr drinking -vva or-.q ar III't4, be. requirc-,&to comph With,.,curreiit water'4uafity Y. 0aAit t: 6rBoalffi, Puroha�seor cond imti s6 dards lid" pled by 111c.. D, A ob em on of properties includin' City parks Nvill be needed for the: new wells,and Cacilifies. Test wells must. t)v. dug and pump tested to ensure, adequate yield. The Deparuoont-bf Ecoloo, J11Ay:II6t,Ajovthe , I , roVed F010 A,ue to -irnp4cls to ibAream, rat potential W 1.) TWDt 'ot: T.ecloire, new -,nut ki6ii, Ures. i f f lie lt&si 0�rtmmt oft.16 "Th -Mhm :fii6o—m rn CWI; rY, cl I, "."'haw,an Pump` e now. lng: 11 -wells andNvatertreatment facilities must eiirs-:Jto.�tnsure-a- rellablesupply :before: the: existing wells can be abandoned. 1055 South Grad Way- Renton, Washington 98055 RENTON �D ,-C*.Dh6'Iir)5 ',YY1(.MCY)C I L*J�j I ate(I a I �Ijq�j pest AIJEDLD or THE'CURVE DR D 1-40, '� North Renton Projj6cl October 2, 1 )003 ­1- Page 2, I) - ievel fir. " H YwAter. hrIM" �Ijo i) i . libil -3, ".2) Oh d ys I %V11:1 lwx� Wak';r RistiurceafCrciuntlwatcir of the; ­Prqjcct.,NF*PA/SEPA Preliminary Fiflill EJ'S: find "Final Prclim Mary, ;Sccl ion 4, '1), P.vol ijai ion dH(c(l Match 2Q112, including the referenced study 1405 Coiridpr Prpgrani DI -aft iroundwater. Resources El X, pertis,c Report bYCH2M Hill,'200" I b doe not' Provide. sufficient.info s: rmation.t.0 detemn 'ON11P, 1-405 Nottli kehtonftojecfoh the quantity,'664,4111 ality.obf g"" ' hd et to the.City's wells. re�u impact to %V4ter qU Y.and. The impa vL,,ater qtiantity froill tonstructi0n,Of structures -across the well field must. be thoroughly studied and .evaluated: � Tije construction ofa fly -over ' ramp within the sanitary control area, radius,, will pint the City water supply n at risk for-wntarnitiatio and violates the PMY,iskms i'm lhWAC,246=NOA ion source, w,at pruttct%iii. the On P) Ings:Ipay AffectjhjD flow. ofwatbr' to"the -kAhs Any deer rose i(I tit c qm1l'i.ity 61*:%votcr by Ibc wcllti or *my. .degradation ofweliAate.rqualityj-esu6ing, fi onthcw nsiniction and operation of Ii I 4051m ).rov elmilts :must,be,!nN,estiglatedan,dr'eme.di:ited,,atNNSL)OT'sexpenst. Reinediation may-ii elude theconstruction of , Clie M­W-41sused: fo*r'th. 18, 6n' ilbli 0..eonstrwAiqrto . i ,sup CI contaminate flit wa tit 'e �c c ta m- .Adequate Least 50 feet above t1w�ex*stingym] [build i I iig..roof must bc:providcd for, access -,by.­weh. drMing rigs; so.:..the -,,-wclIs.,tan k redeveloped':in the RAW' , ei Access:.-,qnd :clearance for (A`Mw>N­::1n0.t'.;11 I be grbVidt-A tb ternove the u fib Acic4ss--, for :chemical.p nip S umns , r��mam chanc. S-Orthec ` Grtiter, MHn4 and S4 ndic�,(f � (RU I: i0l'�C _1AM 0_30E�, s� n on Wif&, WQ c4- The fo11o8vinlo a re Z'onlc, I. of the: -dity.'s Aqvifix—Protccdon Arrea (APA-): Jon p0'shAll meet pipe', ino: -J io,tioWif4-3-0,SO S. 'fior. VtAlcmlAtew storage c emxca 4 frorn,morn than 91 tj rf'A" i(.!::: w a I cr ph-tises­.oeilhe lid allo-wed toltiniftsito-ini Ruh6fUMiou:Id:,�b'i_-, eJiqllocttd in- In , itd' de"t Ms,,4re'attd'Am , d6d, to si�rfkc�. A000aie dictent , ion zvoiM h e'ontaih ar, o s iizte0a 1,4 onti.l. Pond- Bridge over the, Cedar River: N'o brid-cl supports -are to be; insLAted in the riverbed to, prevelit. compromigo of the silt sr atin. the.'rive 110*tiomActivity 4,.'i -O�O 4 C-7):.'St, dar4s shall 'f.,db 'itij ed J. ring 6o4s , pqtion.: inore than 20 -gal forisof hazardous materials Nivill be:si6red on S'jtet or victiel es. NA 11 be fuejed, on site, rill. Source Statement(K C 4;,4-061 OL4)': A.fill sou.Pce :statemeiit i$Tequired if moretlim 50,cublo yards Offill 'aW. CT'A vvill be imparted W:W-14 . Tm �smtatian kti:*m E", Ciq,- 1-405 North Renton Project Octobcr27, 2003 pfige I PARKS: Codar Rivcw. PArk I -WeAol the existing active recreation tiles is I e$ ijjcjudjiig 6n.ol'it.dook aqu Aticftfoilit),; and soccer field, there.5hall be no -,tilde extending more than 50? -soutfivvest from the existing northeast park :property line along the Maple Valley Highway (line drawn parallel to the existing, park lirc)pculylil).e). AnyQ),mic iii tbc'pHrk 3rula, vAl jiOud lo'&;.rnitiipilvd Inaddilion,any ,shade ext'. ding en into tile flyintle f7f&lfl aT.6) will tic-liflilgificd by also laking into accountthe loss -of revenue fi-om a dQuease iii fki I ity ime csiused by. the sli't1dL '2 title to file joll 11sox. inqhjdI;kg,au utfidourmloatic. fa6l'ity/sunbathing r and . . 1. . C7, .1 . . 1� I a ea soccer:field�, p-oise impacts will need.to be mitigated with'A solmd barriell. A&fiti6ial -itiR 11 ii k, 14 p oCth" I .81'em it, otdo.r to oin ., 0 c prpPosu( - ramp SY reprall L7 determine t.)6te.6ttaVaddjtifinal Jmj.j)`6dt.s to, fht­wafclCidc s�Ytieixitics. ILA- lld4,-.: a,v ho :a1 fl31 .same e.kvatjon as'the.ramps,necessitating. an :increase. in noise: and aiit qvality� mjti _gation. .4. Loss; of usable'.-patkJand and air -spatevi 11 need to be-teplAced- in -k-ind-Witliiii tlic Cedar R I iWir Trail. Corridor,vstem jOcated e. 'i and kon Regis: 5Rlibb6t pafti66r6"idua.. om1 6t ritoIlieparc,a­ feiq4rd espec'ially tl fe, 1)6oI area TC1OXI io be mitigated_ .- This :residue iui.11 likelv: ca use-01creased. deterj'o 40 fife pool faCilrty:: C. 1-he: parks .,Division -:-will not acoqoj any, loss otpatic maintenance facility yard area or m-aintenance dfhto i"o i'lig litqxjtsij I'Ie . �WaQel, )V ity". An v - loSSf ill requir'lu rejoraflbn of `4 t1i 6 11'riIbai itonance tacilit, titcludIng tv f!qmpliii, 4 -t- ity qu.. ­O�ii ,d *1�!!* 7. j tOc 41 11 Ji h&JI AiiiWti till, fit] ladder trucks,hre­e4iiies,'��ai�,car's maintenance les and. pack. .,users .: (ipeludin,&trestle arca)'� T. c Auce.ss rrom the Ntapi 0.'V�ahe�y 11 li- access f , roin, 11611 .set" N.Va ed gj�wayand,,one.-at.c yneed-to'be-m-aittain ,K Trail access, from C04r'Rivbr fatkovet'tlie. rNorto the Nait~.o propet yjnast be.,.riizdht4ffied. Ahy I ds ape amenities; to ilie��,ex�ish tla actiN -recteatio'n uses and an c� 9-., Shad 6'.ffects.."66m fl �pafk­ama I n6A to.be -�miflgated.. ;�hade encroachment inhibits the will roinvellatioti Illerej?y lit "tingthe's6fitiluted 10. 1 d 1p:p pltlgoln jm alion,v nced to be 1' er tomiffivairi. th6 Big LeaflAiiple (Acer.-niacrophyll LIM) east of 1-405 will need -to ,bel cvaluatO..pi d, 47! a &aised t)y-a certified Arborist. I r removal i.s reqlijrpd, U44, id 0will: mUlIfirl" 12—Prjor tip , ton'.Wtie600., a ecitit'itcI Jqi.Wrist Al' IfiX.-S With A-Aree- (ginopy �-extending iiii6aiiy.,propo.sed:.c..onstra.c'tioit...Ii'm.ltq: tree identif).4ng recommendations for tree protectiort, sP ecial pruning practices., etc, to be utilized -durih-jhe construction pihas:q(s). )Pj'i!c swild.. 7r.N.Spotom1,1411rung A ropvv.WSJXYr 1-405'N Ktow!-N h, A Lily G) 1-405 NodfiR(Imion .Project -Octobej-27. 2003 Page-4 13. t�Jll rccluiry a-,ccrufi.'d' arbo isl perform <IJ] tree TOOt prtaking, limb. removal, limb pruning, tree, sj,-)rjdL:-m)fk; cte. 14. The City %%-ill require a -I element�Jncluding: Plait maarM." sIOdIscad,lo S iI 2jW i S. Ot '1311 1 g. i.vok 11r' Any loss Will need T' ,Ofc A611 buiimoji 16, rk o -be replaced.: Any parM. replacement parking will need to be -tl lroiu9!1 in kind T Tma C i r, Ptr do sys.tern located rk, (>. `I sic 1i,rol:)qscd ) SR9 I')— pArt,,,of t SR 169'project - ill need to be pivserved rind protected. I is remo,.%,ecl, and rejilaced;. -tAvork i 'pr 0-�ess- Ibe ..same arty ncorporate.&into the. oniiiqg. 0 17. N&W., wkd )Vd1h; coij5t ­&edfis pdd of tbipri)j&t acid -fi6o" 'a k I.. - -� I I - r PVC,O) 1) Tr( tS0Dg,:p6fk.-nnd recreational art ,I ..avwrropobrty and trail 9cc0,s:to-Ab'&,.N�arcp Wofmrtv atdint j ;v from-d --'all Tlrnjes� mprovmehWmcju "119A. clear spats 1jr n kx(I "ehiutilar, �P, CTP414 A a 'I, I d;,l') , ic , N Loss,:of us -Able parthindfind m"If-space .will neca for bc,rc laead:ix) k ii 1 1 7u" i1 p 11 bin. ihe.zCvdar River Trail Com(lorste�ni,loc�ii,ed:bet'A }?ark_. NV 3. Ti4ail from Cedg" RJVzf­Pk,bVqr tlicii the N'I LY IYftt�l' b Tjjajj�..Ajn �Any i6* jiib�,Pwrk- gic.yr,],epedestrian,access.,.-trom:the ce4ar kfver Traii W.'CRe&f kivcr I*atk. tied pvef to -Liberty, 'Park 2' Ott e, 'ab,orihst .vill be' N, a 'Awending"into �any.PrPpplmd �qpjistruc,66 n, )iih its, including : btith6tlimitdd to trcei&.018ion I Wri Way : -and Mouser %Yy'- :'A certified nrborist rcpqrj. wilf Am-. required f6r each . iree ideritifyft reccirtitnendations fits' tree proteeti CTA, "Spoci a j , P1.1111 jag prootj mil ized 'dtiritiv the qi,�% 10 tit construction Oha*s).. r xj and hsow*w Y b0-:CvHJp?IIc pprdis6d bv,a cer(ifled arborist if removal is requjrecl: The) -City will. requite monetary xcimbursement "Cor 1he 'appraised re la(-Cillexil value.., p 4'. the ita Will fbilbirb. a,qc'rfifi6d.- 666st bdribrill, 011 IN COAIX MIX fujib rerirtyval, limb im, pruning; tree '_ spad e") FITW Sys'.TJO - J-IL'YN'R6ftw,'�N It,,kvi EA Cdy Cvjmn"L.di wur 1-405-NIcWt 1) Renton, Pm.ject �,_Mober 27, '?003 5: '17he-,City will requlrea licensed landscape contractor to install -'all landscape Cieurnents, - :i . ncludint� plani, materials; god) 0 seedi, topsoi I and, irrigation: G. `there .shall IV tic) ftet Any Ibs J&'replAc.'ed, Ai ­s gill I ['need � to, I iy 1651 6FpArkIA1n(I frcid l6ss;-6f us -able Oaiklwtd through-the,cre6tion of Yelildceniehf p''Aing vill need1o'be- ni itigate throu I 1 in kind replacement within theCedar River Trail Corridor system located between Lake Washington ,and Ron kcgis.Park, 7. Tlie .(Josc",Prokimity pf The proposed relocated Houser Way to the: skate pail: creates safety'and access o0wk,riis'-fliaineed to be a­ddriss?:any Y soldfiQn safe access from Ffouse.r W# to he skat'e park,'(f6rskatiiig),wjd around.�ihu skate park, (b&twe eji the611 Whouse bti din a skate �park)tforIpMest-fian access.-, Ne.,,w noise' i ArC ak:1) orty tidod. to. nwOorate ,!�f this_ and &6A p _P A Alvvilb :pork tkl0 f Milre"s 4 Will' -:4d to up'CIn nII e C- 4 arRverTrail Corridor,systepl May Citek I LcKs, of* rkland a�nd:i ispace will 66odto,bc, r 11 'irridon O.Jbd it UTO "NV11ii 11 N ylch-oA Trail Ct M 2. osso vogetritIO&WI, 'A at ion sol I 11WIVO P. "lat H(t>rtrily 3., instal.41tioin n this Section o f the .eotridor due to the steepg ,topo`j h 'rap N1. A ',-constf-licted wund.harriOrpik y lass bf pArklaijd,and -bdkji 066v6 V� veg8ton --all ichill : ',.#00d to lie replaced: 'ells altid 11,01 _8 tlie. cotistt`aitttsIt8 tYP6fkandt'edAr giv�rPakk­dt`ito, these parks and the City `,of R6,nixan` well fi recedinu, lfiowever,,tosummarize� :tj1 6 Cit y7s positiow ITW -C.'itysS WvtlS etc r66t-lip ,xg , �Jocdt RVI I C( I fi -and"* terchange,configprat i : onsboull1be purS1104:tO Given the,, IISt.t -.o.positi6ns 'i an, alignment: In Aeferrn IiWIif Jt7 is posMbI6to for future 1" yover lips,thii Neill -a low direct­ac(tto North Renton. StO)EtMV-VATM. Tlw:proj.ecCshould Provide water quantity control �(&tention) and water qualityihiprovenients for all existing, nd proposed right-of-way fmprovements. The, quanfity�, and -quality conVols:should be designed 1.' act%i"Sa With the j` fqshhi. +r47Y S, Mano 1 a.fir If- N DOU -si& T1 systems cintr e or are Buccal.( i ia 0 ­,4'�is -4 h q -,'46 Ix I I V 5y p661jes shbuld',be, propo.qed- to,disciia ge 16 �C;. tys nnal:'ed itrid of( -.site improvements made as pail.of the prqjectas needed. be mitigated suchthatthere is no impaot immediately dowhstreaiji of .'the project, Wmetslied based Flummig P1vj6AV-WWUT JAONNX.Mi'.NRenuto VA City Cvutmmmdoex 1-405 North -Renton Project October 27. 21003 P;%,L 6 mitigation veil need to show 'that there :,ire:.no-tempoj-aD? oi- loing4erninlpacis doe ioi I w.row.-,ed: pChk. Tate and volume of runoff, along with changed water qualityl, downsireani of -the project cci evul site Mitigation is proposed ,by the :project. If --W-06, w•alershed tiiitl gc1te the quantity a'nd qtiality impActs, tp the- dovntsearntr syste`m' (stre 43 am..or con'Str'U.Cted stoml sy.steim-) then WETLANDS; area; "V At a minimum, the :project..: sh6uld be, heldtoi`no. not loss" ofivielldfid. alue. ftIlictibri. 611dr Replacemcot rai.iijs.rbr wedand.ji-liti ation, sh6uld"Itt "a'm in "nitin'- Satisfy wetland,repjaceinelli ii RcIto t Doparlinexa. , , zo. ,,gy , Co7&,of-E ngibeers' replacement coment ratios, shouldbe acce)tnble,if"Iiey are�qiinl to.or,-1Orc" S.0�ilpCJ1 I lmj,Reriton` ?s. Wt;( land :mitigation should be:dotie in-1he same Occur,". 'NIS 0 tilli7u1 establish Wetland rnitigation.bahks inAlj&'bas"ins yv em4v6t M'mill be impact6d" I V t1 :pr ject.and 8 the,wah Mig, rule . This will ens�* c t, ind bat "as roquired'$ 6, a 6, s` X"Ola'AdIM Otj tan y , , ...041 ­ 1. . -­. 0 slime flin6tion and _vabje.:as the..v-tiland. that is to be impacted. -prior to the wetlandbel6g,61fed by 1110 . W, RITAT: The'POj ho. I "illd,pi.6y, jj)�( losses' italue. In, addition the,:prq kh IIId R 01 a ath en t ratios I for, �4 , hi acts ,:*to; %,strcani-.buff�i-.s.,�,�ild fis lii tat Miould'! be-, p,� in~qtikiA, .Mi .�z.ifi6ji should: be - incorporated Et -.-.A ie`I-oc.ad'b..,nof ilw- 11m.pt­ct.to the ..e m.I a.x.itnum. ,dI ql- e pe ssible. taut -Alk addillonal t1111,j 3lTioi orild witbn the 9ffiipbasin,b A ttiitigattori fiend could b iatme i. th prime, fish` .1 , e:: en! idia 'to, Jh y mitiditte for- the action aa� I Or��j('.et i,bw have a ftstorafion. element to offset T1,10r, i111P1etc and the tact :th'Rf,,r;)iti& ion i ttrnedkitc ly auhieved..espm-Latly when it comes -exi, ins-tir 'triod' ris to, mean! bljff�rs. Any _qvrt,*� to to fish _P h h 'PMYOII or 10 , �,'s 1 , a quit-.464't t 'ftr­ t,fi, 1, -,-;s*hac Trib 028 3 ft d Ah- lo, 'er hT, eittetion. 41011,; j 'Ay NP�., i DIMS A �t 00, 0 near Aile th ig.small,,Iributz --have ed''and sw -c Hbutarv-04IS-4 ::bwi�xeroqt -tedT ., Slroo t 41th -"edini6pts-M.- 0.01. `PPAP, Temova QJ 'f 9 ter 'ct�asstrigcNIF4 '-d-NE.43rd Weet 6288.1 0 fie�-_Jliethbd;f6i, d6ins�,d ists r6p ficiii h it aq, Iy and aq - 6 93. wl �`-ifie tin&r 1-46:.:-�Wlth b Mrlriejs as,,*' 6led 16,1` :Coal :cc Tribwaq- (litelle.,`ftjol% Laj,,c whi6h convey vmt& to'May Creek. FLOODIPLAINSo The'project 'should be Id....'ComPen I sa . to . ry . so I a gg , r requir . "to prolvl0 t for filling''Of any floodplAim A "7i` 170 rise" to the floodway gizind d. t6: op.011td bO Project is� also required tjo oom ly ard Aou'l, tote P w illi all" 1-8M.A-. an(1 Nation Flood Instirmice Priogranl (NMP). standards zsfnce'Fe'deral fu n4ing`wffl be used. No encroachnictit into °thc lloodpliiin- oug id 0&-v it} T1W jiyd!i e _tltrjlysusshould 6based.,upon bedeniobstfMd'd that th standard 'M" � Rit6toh re Infid tisd difion'1.0'0-�iedr flo6d'fi61-Avq., M I " -:cj10sstiigk if:O'd e RVer_0114 Ay Cjt'A- TI' Should be the Rill span of tho.J00-year floodplainj i.e., no piers, al),titnicatsi etc. sliould he lt)catcd in the I1~File Sy,TR? 1A 05 North Rewoni Prqjje'.ct. mf6buv 27.. 2003 Vage'7 1.004eaf flobdpfain. New bridge .l:ow eh'ciird bridgsituld b,(�svbvc. I w Fuluto'l rid 65v 61(]J'Goil100,ytar flood A.Taiiiijjiijuj 6F1.hf6&Tc61 or liib46 otiS, I- �.Jirls Or , P frvceS, .W,ith'41,10 'Aojlt­ or ' In I t* ' lark d' b Per the F1 om)]n,Yuremeer I ii 7g, i 5 iwi),� April 2 , 0 0 1 1.1rMy N ef)O(l bc)riljwcq Hydraulic 0(mstillmors- flit: P-1 ip l podlo-mri.an bridge undeix, 1405exbericjjcas partial or completc pressure flow during the 100- year flood event. It iiiight be poSsibl6, to.;re me& this,S'jtudttoni by taising-pr:ieconstrootin e the Oed stfian bridge 'coincidentally ,wlih the proj5os6d']AOS knp.-�&verii.6.ts jaftihe.';Cedar kiwi' cfolssing. 5h:OItrYIA'A'1*R UTJ'IJTfC,§': Thej-405 right-oflivpyoreatma major burim-to util it),.sery ices.- Regarding storinwater,ii hydrologic and hy,,Arhuhc.analvsls. of 411ekisting"'.-and - p'rdTo6,std exilva-ts, and stoma systems that O-Oss 1-405th6ulld be, poe,fornied to verify iffit the sytt le, . Clit Tf the:anaiys s in,dwai6,.&at iheys ten s' t", b` urfici�YYnt.uapa�jt jh Vfl it asins. 'i zu Thi%:is nce4&I to'cusare: flint •ndoqiirjJe,,. �,Aom)watcr conv ante can be provi&d1iicr6ss tbi�- l'405 ri �id ey, cip r cY.r;­and-,thht- the.prpjoct will riot --create q. teeam d rainagpp*riDblerns. 'Any Cluj a ned'struc ores that ha e'io be,tefoci fed or P k(Od byjht. proj - t , I.. JM j� . C City �44 r6l, tion — Al,atxi tb the ., t atv.. A review Orin 0' 1 (xx) Al i a OrAbu��T-wqj �i(Jr S-y"itux-11 e )1.1. D tkin Wilb fin; City of ,;Ut_ hoe ][45-presentsAo -tile natural I fffi� " - 'ffoinventorymaps, -V D 101 I'dWirik list bf, 1405, 06 s 5 t b ilMrd tis- a defintt::no o e,6 ed , qp voOt :(Sge ait, e4 iilvolto� � At North S`t' Sttee 1vi3tl vay,behmeeii�.4.. ''19, Ph rkbrive'atid.-North,,K Street',' N At -Al 7*'.C`,!ourt North 64-'NP,�­44. :Stf et ShOlkti L, *'ES'.1 `The: ,rojeot.should .tohjoly'with the-cui4iAtyadopted I.. I _.- IB Omfine r Shctrelme TRAN$PO1kTAT1OjN; OtY AOix-J418,and Lo61'$tft t& Impacts. to traffic pamkizsaiid Srof mes�� ftrbets,need to be . i . d ified and. u .01il t%i ao-6 a,15,, and, kcal-: ent Mt` atej' tfieselm'pactsTdten I tiaflvzinehide; but -are -not limited to: ■ The,cul_de­sacp Meadbw:and Fa W A F.,., ory , ve 17ie" hddit" t and th' 16 n -A 6ue .100a, capacity needs S on Mr. tiO, ron�op iy, �A'O e bridge.over the. C , edtir River; Tni Mic pattern revisioxis on Smi-sd Boi.ilcvard at [lie SR 169N Mb I rd Stmi, I iT)tomharigv; Pinn6w.ft, Pn-,Zmmmi%;�TRPAO•I-OV;W Rmmn-.NRcnm.nPA Ciry Common cb..,-rm 1-403 North Renton Project October 27, 200.1 Page 8 ■ AdditionA traffic"- 8i.gm1ls, or ttaffc signal revisions, such M--On the Maple VAev flighway and NE 10 S(rcct; and, ■ The,vOlineWic)" Of llouwr Way North. to flic. SR -)ss 6 the 1 I�us r c to the, li f Wny Timnel. Nei bborboods'-.,nil linpa6tsto.traffic -through neighborhoods nce&tobeideDtii e d and mitigated. Neigbborboods potentially Relifon Ce Business: Dj'.Arict (ACBD), the north Renton residttitial neigh4orhOod, and%the d I.. 'a 11 - I .Isee3. uiisct Rcir,rlc, patte 1-01066f5-' skh 'I"; iCQcss and traffic ';Ms, :10 10ccl1mincsscs need to be identified and, miti -t ed p6icatially impacted bsi t0lSmr)seRotdcvard141cinst)II %,v,Nurth, Maple. Valley Highway and --Nfa.Jn Avenue South: .169/Nof(b 3rd�'SIANOI OqdestrMn� rid: 0 OC COO DU6 to -tile iflfCi�bfi��n - '- "'f' d D ' Street 'd V, ay I �.rnnf b.,Mode . li:I)g,;and- I SimuNfion 'haffiCMOdcl Ml4 qi�sftould'b,0-t00docted '0S1. -A In degi f. yAqd h juh d "Is. - W." �'.hlo e mg ty a S s V1118. 10404 "di'l�c�'UsSioll�.T,eZ,a,l-�dzlng.� tiaMi" i-d""'I i 'cis-intersec ion, capki -.an -v codrW in n d WSDOTthr migh,sepilat It 'is ,anticipated that -in- the. near f6ture the Renton ChCopncil',-Will be makin91-de.cisibiis-.regarding -,the : North -Rcwc Pow, Ii -I C thc'-jisihe�'fti atoil an( --nja'.x"Q'mPj li A-IIn0ndw.tMt§'. A Dr Rn�;Jro, Wats ., ocing-Propogal io re one.p-Ortioils 6f-. Ale- i i '..v fl� 4 0,6Ue is'. aite,�xf ub z`fh6ii ";&i� in''d change .anzfjysls;' The propefty:need lb�'b'e inolWed,. In not-in.clude the .. 'Boei : llg Land Vse I d'IS �" OdI"cO" S- 'ffi- fh't, lropasei , f Nkslon$­1 erp 1049e 70. QIxerat Od oil Aww"nec tbbe North. Renton'B'Oeim4;Dh'l§ identifies caj)Atiry neof i. n the Park. north6pund traffic. The- capacity needs of this i'change.§hold-be:mial For exan1'4' . "t.s iotldlie . deturmin6d if the castboundibnorthbomdloop , - in ra P shoi,ld lie retained in th.014turO; d6q'l',9n. it is proposed to eliminate the 1-46, ramps fto nv4un set B.I.v-d Sunset l3inuleviirrf 405'ad: connect into the North Remon..neighborhood local street system,. this the City' q pref6rbtvcb to go under 1 1.05,zf pos5 t te. TraTICIhOoling ff itini acts O.n x.g.ura ibiildf H h v)v4t.V,'SLX7I JAL'51W ReiikuAN Aujit-m FA Cay,CLnIImmIjt.d"dxq 1405 Noritt Rr uti.itl PvoiCia October '27. 200,3.. P.aze'9 Reiitrrn H,II>.Ai;��rtirc T7t4'.Cjt iliL (tlht r 17 ?_pa3 IrTGlriPl: 's sltohv veritie South aild Etentc>n Avonus Sritithj licijs ctfir►lt►ncrl 111to..tsar acccss,. wisp►. I11c +ii crl�r►ys c�rr the; Renton Avonuc South alignment: Although soutfi of the Cedar l6 er;.,clue to Its clove j:rtoxhttity to dje North Rentcm proiect limits, we, ofkr the folIowina perspectives regarding access to Renton Hill. 1. A second. access "to Renton Hill nccds16:6e. provided. 2. Any irn— (;ts due talhis second access rived by be 7iiinitiri e8 liid lititi atccl. 3. The second access<should be cost effeCti've: South Kenton funds saN•ed with this scconfla►y access alternative will then be>available :for,otber seciion5 of -South Benton. WSDOT pfoposed several options for a second ticeess,tQ kentoii Hiit, 'I ltese ctii#ions tncliidc.`cxtcrjdi►i ettl er Grains ��vetiue: South or Cc • /lvoniie Sot ih, south tnio the 13eiisdn Hill neighborhood. ccririect either :Nfi1t Avenu e 'Svuth br South ?Siteet ttrross ll 05, td Sottth :,Grady *ay between Citv,Hali and Sam° ('.Lull; and extelid Mill down liic hill; in order to utilize the existing NarcU pmperty access under, the 1-405 CMav Riverbrid"ge. `1r5t)()..T.'and tits (ity a&ill cent iiuc to dc��i I ip a .prciCr�i:cl'alt.c rrf�t►� t:tiff pray itlE:1}ris st:uund ac:crss. PAC Tlere are.severnt potentihFiinpacts;t'►}the.}'At.( Al2 f rnl�ertj ii at jzu ilAozb(. it14•zzt*A(-- i and 171it .gated: t'ite t�lgrtlith.Street direct:acee5s. r�itnt).intty hzt�te Jt3tl)utS Ti? t7iC I�Af.:( t1i2 J�rc+�ScrC� ort..titc toitti, side of ilia str�ect - e re}4?c3tlott o . I XOtiser W_Tiortti:to t> s;ft�rcr:ldatxt%n ace site, c t'Ct property;. r tfi..e ;potential ertelWi'ott .c i Sea;sat:`t3otile� rd co. <t}ae=west 4cross-P..Nrt:Ak property: to North .5'h St;rec.l_ 'FC03N(.)'gK—D1pVF:t:•0P14fNT \ tGtttlpREtC)�I)�y,,i�t�ST1:te1IMG� .,PLANNING I. pd(4hw,` Akigf this iiinih&r' oi�t the.9 itfi_£u` Sireet 140V:direct access;jamp;sh(�uld:allay `raritJ> iaaf ia,to acccss,the 6r,41li 1G; o.t`(34d ra ;Avowi , ticith in yv}tci tbe:: :ranip:l.•inds sand through sigrializ�ztion to;allt�3 +7:safatunliai ;;nirrleitie►its: Tomaintainthe finite vt161}it; : of Hpuser 1►Vay, potential Clttneetie)tis shoi)lti erl so tlil. Iiouxer �'a� bet���eeti Parrk r#lrenie and'f3r9l�isot�i ��`ay can fuiicfronas.a #i`ozi�e'roa. Jo.`Srniilart t, tlia Mirth ltentott 1-405 > itirirontlieiitri As�esIM61 t slirriil�l e izsicict' z�fltio►)s E'or St►iisca: uou}eVard NE to bave a ti,o#e dircdi Iiiik o T, t} : 4. The Park Avenue interchattge.northbound edit ramp slinuld lac iticateel :ti) rtillc► � citi►ttg}i rouzzt tier All ►eastbound to nort'hbouhd Ii op rartii,p. C,it�e 'Iteniot foYooasts izidt ttto ali t thrs:itx7p riunp would,he nee.essary even ttrider 6aselitte l.cir d Use(.ontit#y ii ;. 5. Earlier. A 44'h Street interchange desho$igiis showed an .ea.Ahound <to northbound letup. rants). T e northbound exit ramp uld ire located far. enough east to ailowroom`forthis .po ttitil loop: ramp, rl ••File Sve.TRP Trur1,191 tJOY.n Pi,Cting R PRaid in,WW.TRP 10 Transtr station Plnnni�r Px jn r.. 9iS3X?T 1 a�4.N r r,pm.� nempnr:.n eit..�nm�r+t,, ,onr 1-405 Norlb R.(-nIon,,,PvujmI October 27, 200.3 1,40D 10 'ni,v j.Pecting rmords.,rTom these mo. previous meetings accurately reflecicomments by the City regarding the Nooh. Rooton ■ Mcclin- R:O-ord:.. Agi-4cy5copi-bg , mting, 2003 Nf I!, oTRcn!on Meeting, Oc-lobeu.14, 2003. city` 'Reviewers: StAffil'V lVed iri tee rep ;in t1 e°sublet4boin t"a War, .m,nm" --IDO a , Nkh.P", : , g r- ej, '-or t U1.1k NV"411. Tfi itpervis, Le lte Roflac* P' t 13irectcir ave,any c point of colliad.for the :�51iptild you p .1-405 projem af(42-5) 430'-7 SY, Alex P`kmoh .Demi , i . stula, Us I'i a ' 13 6 fl a 0 k: Abdout"Cafobe" ILjruW.Ws1xYrj--Ios.-N xiolmi.N RefloA rA 0 m m, r APPENDIX B Master Plan Exhibit Implementation Plan Exhibit Nickel Projects Exhibit July 2004 B Congestion Relief & Bus Rapid Transit Projects Master Plan The 1-405 Master Plan will ultimately: • Add up to 2 lanes in each direction in 1-405 • Develop a Bus Rapid Transit line with stations along 1-405 and expanded transit centers • Improve key arterials • Accommodate an additional 110,000 trips per day in the corridor • Reduce time stuck in traffic by over 13 million hours per year —an average of over 40 hours per year per regular user • Produce travel time savings valued at $569 million each year • Save $42 million each year in decreased traffic accidents • Create 1700 new vanpools —a 100% increase • Increase local transit service by up to 50% within the study area • Build 5,000 new park -and -ride spaces • Create eight new pedestrian/bicycle crossings over 1-405 • Enhance freight mobility through better interchanges, travel time reduction, and updated and technologies • Provide much -needed economic benefits for Washington State —for each $1 million spent on new construction, an additional 30 jobs are created � 'MILL CREEK 525 99+ I' 52 fZLg;K;j W BOTHELL BRIER SNOHOMISH COUNTY KING COUNTY - E� NE MORE ' LAKE-1r!lo�x� POREST JUA TA SEA"LE KENT WOODINVILLE REDMOND �Y SAMMAMISH The 1-405 Master Plan, which was developed through an extensive public involvement process with an encompassing Environmental Impact Statement, reached a Federal Record of Decision in October, 2002. The Master Plan is a 20-year vision of multi -modal improvements to the freeway, transit system and arterials along the 1-405 corridor, stretching from Tukwila to Lynnwood. rLE ® Added Reeway lanes t Connections Ava nm lanes added each direction on . 1-405 and inlerchanges upgraded, ky chokepoints RAed at SR 167,1-90, Ahkland and Bothell --- - Bus Rapid Transit (BRT) Service New bus raOAi transit .system depleyed - Transit Service 59% transit service incmase �$ with HOV lane and dad access improvements Arterial Improvements -•+«-+ e Local adeLials improved ONOV lane Access Point -- W BRT Stations den new BRrstations Transit Centers Nine transit centers Park -and -Ride Lots n 4000newpan4-and-ride spaces Alfth. Washington State �� Department of Transportation MEM Congestion Relief & Bus Rapid Transit Projects Implementation Plan The Implementation Plan represents projects that could be built over the next 10-15 years if major transportation funding decisions occur in 2004. This phase may be partially funded through the Regional Transportation Investment District (RTID). In addition to RTID funding, the second phase may seek funding from state and federal resources, and a future phase of Sound Transit. • Provides continuous multi -modal corridor improvement from 1-5 in Tukwila to SR 522 in Bothell • Adds one lane each direction from 1-5 to SR 181 in Tukwila • Adds two lanes each direction from SR 181 in Tukwila to 1-90 • Adds one lane each direction from 1-90 in Bellevue to SR 522 in Bothell • On SR 167, adds one lane each direction between 1-405 and S. 180th Street • Constructs Bus Rapid Transit line with stations, HOV direct access ramps, park - and -ride lots, and bus service • Expands the vanpool program Roadway Improvements: ® Freeway: + 2lanes Freeway: +1 lanes N Arterial Connection Transit-HOV Improvements: HOV Lane Access Point OST Funded HOV Lane Access Point Transit �j Park & Ride Lots Freeway to Freeway HOV Connection $4.7 Billion SNOHOMISH COUNTY f KING COUNTY . .� NE I60fh SC W _NE 132W St OW NE 128th St N_E / Qh St. NE_ 116th SL_�, • �� ' •- - NE 85M St :S NE 70th St. ik Ave. SE Developed 10103 s /v WrWashington State Department of Transportation Phase 1: Nickel Projects [-a Bellevue 1-90 - Downtown Bellevue SE 8th St 8NSF RR 2 i8,h Ave SE; (1) Lane Added NBound (1) Lane 1 Added SSound Renton 1-4051SR 167 Interchange Kirkland 527 SR 520 - SR 522 szz - - - - - - - - - - - - - - - - - - c. FJ (I) LLane N Added ---- --- SBound N "'Lane Added SBound N. 1.F 124St, - - (1) Lane Added NBound 'VC 86th 'St, N -CY) E, st The nickel gas tax funds the improvements shown for Renton, Bellevue and Kirkland. These three projects are currently hPinc, rip-qianpri APPENDIX C WSDOT I-405 Project Team / City of Renton Flow Chart City of Renton I-405 Organization Chart / City Design Team July 2004 C Congestion Relief & Bus Rapid Transit Projects I FHWA I Context Well Sensitive Stations/ Solutions Parks (CSS) Local Agency Committees L - Tukwila Renton (Committee structure varies Bellevue by jurisdiction) Kirkland Economic Environ- Emergenc Develop- mental Response ment Mitigation Public Outreach and Information As needed for specific technical assignments and interdisciplinary coordination Washington State ww- Department of Transportation CITY OF RENTON, WASHINGTON RESOLUTION NO. A RESOLUTION OF THE CITY OF RENTON, WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER INTO A MEMORANDUM OF UNDERSTANDING ESTABLISHING A COOPERATIVE RELATIONSHIP BETWEEN THE CITY OF RENTON AND THE WASHINGTON STATE DEPARTMENT OF TRANSPORTATION FOR THE I-405 CONGESTION RELIEF AND TRANSIT PROJECTS. WHEREAS, the Washington State Department of Transportation (WSDOT) is a department of state government with all powers, duties, and functions to coordinate transportation modes and to develop and maintain a statewide transportation system meeting the needs of the State of Washington as provided in chapter 47.01 RCW; and WHEREAS, the I-405 Corridor Program proposes to implement a multimodal system of transportation improvements to reduce traffic congestion and improve personal and freight mobility throughout the I-405 corridor; and WHEREAS, the I-405 corridor traverses through and affects the City of Renton, including its residents, businesses, and schools; and WHEREAS, the 2003 Washington State Legislature approved a Nickel Funding Package that funds environmental work, design and construction of the I-405 "Nickel Projects" within the City, as well as "5% Design" of the I-405 Master Plan; and WHEREAS, planning, designing, constructing and operating the I-405 Corridor improvements are complex tasks, requiring maximum cooperation between the City and WSDOT; and RESOLUTION NO. WHEREAS, it is necessary to document the terms and conditions of this Memorandum of Understanding; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO RESOLVE AS FOLLOWS: SECTION I. The above findings are true and correct in all respects. SECTION II. The Mayor and City Clerk are hereby authorized to enter into a Memorandum of Understanding with the Washington State Department of Transportation entitled "Memorandum of Understanding between the City of Renton and the Washington State Department of Transportation for the I-405 Congestion Relief & Transit Projects." PASSED BY THE CITY COUNCIL this APPROVED BY THE MAYOR this Approved as to form: Lawrence J. Warren, City Attorney RES.1067:8/23/04:ma day of , 2004. Bonnie I. Walton, City Clerk day of , 2004. Kathy Keolker-Wheeler, Mayor 2 CITY OF RENTON COUNCIL AGENDA BILL Al #: Submitting Data: Planning/Building/Public Works For Agenda of: Dept/Div/Board.. Utility Systems Division September 13, 2004 Agenda Status Staff Contact...... Abdoul Gafour, x7210 J.D. Wilson, x7295 Consent .............. X Public Hearing.. Subject: Addendum No. 2 to Consultant Contract CAG-03-034 Correspondence.. with R.W. Beck, Inc. for Update of Water System Ordinance ............. Plan Resolution........... . Old Business........ New Business....... Exhibits: Issue paper Study Sessions...... Addendum No. 2 to CAG-03-034 Information......... Contract Addendum Exhibit A - Scope of Work Contract Addendum Exhibit B - Cost Estimate Recommended Action: Approvals: Refer to Utilities Committee Legal Dept......... X Finance Dept...... X Other.. ... . Fiscal Impact: Expenditure Required None Amount Budgeted $20,000.00 (2004) Total Project Budget $400,000.00 SUMMARY OF ACTION: Transfer/Amendment Revenue Generated City Share Total Project $46,000 from account 421/55260 to account 421 /55140 N/A $400,000.00 (2003-2005) • The Water Utility requests Council's approval of Addendum #2 to the Consultant Contract CAG- 03-034 with R.W. Beck, Inc. for additional work to complete the update of the Water System Plan. • The Water Utility further requests Council's approval to transfer $46,000 from the Reservoir Re -coat project budget (account # 421.000500.018.5960.0034.65.055260) to the Water System Plan Update project budget (account # 421.000500.018.5960.0034.65.055140). This transfer will not increase the total appropriation for the Water Utility's 2004 Capital Improvement Project budget. STAFF RECOMMENDATION: • The Planning/Building/Public Works Department recommends that Council authorize the Mayor and City Clerk to execute Addendum #2 to CAG-03-034, in the amount of $65,448.00 with R.W. Beck, Inc., to complete the update of the Water System Plan. • The Department further recommends that Council approve the transfer of $46,000 from the Reservoir Re -coat project budget (account # 421.000500.018.5960.0034.65.055260) to the Water System Plan Update project budget (account # 421.000500.018.5960.0034.65.055140). H:\File Sys\WTR - Drinking Water Utility\WTR-13 - Studies & Project Development\WTR-13-0082 - Water System Plan Update & 565 Pre-Design\RW Beck Contract\Addendum rY 2\agenda-bill-add-2-to-contract.doc/AGtp CITY OF RENTON PLANNING/BUILDING/PUBLIC WORKS MEMORANDUM DATE: August 30, 2004 TO: Don Persson, President Renton City Council VIA: ,,)Kathy Keolker-Wheeler, Mayor FROM: Gregg Zimmerma , Administrator STAFF CONTACT: Abdoul Gafour, x7210 J.D. Wilson, x7295 SUBJECT: Water System Analysis Update Addendum No. 2 to Contract CAG-03-034 with R.W. Beck, Inc. ISSUE: The Water Utility requests Council's approval of Addendum #2 to the Consultant Contract CAG-03-034 with R.W. Beck, Inc. for additional work to complete the update of the Water System Plan. - RECOMMENDATION: • Authorize the Mayor and City Clerk to execute Addendum #2 to CAG-03-034, in the amount of $65,448 with R.W. Beck, Inc., to complete the update of the Water System Plan. BACKGROUND SUMMARY: On March 26, 2003, the City contracted with R.W. Beck, Inc. to update a portion of the 1998 Water System Plan. The Department of Health (DOH) requires that the City updates the plan every six years and the next update is due for DOH's approval by April 30, 2005. The City also submits the draft plan to adjacent water purveyors and to the public for comments through the State Environmental Protection Act (SEPA) process. Following the Mayor and City Council's approval of the plan, the plan is submitted to the King County Utilities Technical Review Committee for review and for approval by the King County Council. Purpose of Addendum: The Water Utility would like to amend R.W. Beck's contract for additional work not included in the original scope of the contract and to complete the final plan on schedule. The work consists of the update of other portions of the plan, the review and editing of the entire plan, the preparation of responses to comments from various regulatory August 30, 2004 Page 2 agencies, the public and private parties of interest, the production of the final document in paper and electronic formats, and project management. Funding: The Water Utility has budgeted $100,000 in the 2004 Capital Improvement Project budget for the update of the Water System Plan to cover the remaining work on the current contract with R.W. Beck ($22,000) and also for City staff time ($58,000). The estimated remaining balance available for this proposed addendum is $20,000, therefore an additional $45,448 is needed. The Water Utility requests Council's approval to transfer $46,000 from the Reservoir Re - coat project budget (account no. 421.000500.018.5960.0034.65.055260) to the Water System Plan Update project budget (account no. 421.000500.018.5960.0034.65.055140). We do not anticipate recoating another reservoir by the end of 2004 due to weather conditions. This transfer will not increase the total appropriation for the Water Utility's 2004 Capital Improvement Project budget. cc: Lys Hornsby Abdoul Gafour J.D. Wilson H:\File Sys\WTR - Drinking Water Utility\WTR-13 - Studies & Project Development\WTR-13-0082 - Water System Plan Update & 565 Pre-Design\RW Beck Contract\Addendum # 2\Issue Paper - Addendum #2.doc/AGtp ADDENDUM NO. 2 to CONSULTANT AGREEMENT FOR PROFESSIONAL SERVICES CAG 03-034 Dated: March 26, 2003 This Addendum is made and entered into this day of , 2004 by and between the City of Renton, hereinafter called the "City" and R.W. Beck, Inc., hereinafter called the "Consultant". WITNESSETH THAT: Whereas, the City engaged the services of the Consultant under Consultant Agreement CAG 03-034 dated March 26, 2003, for project "Water System Analysis Update and Pre -Design for 565 Pressure Zone Water Distribution Improvements". Whereas, the City has not sufficient qualified engineering employees to provide the engineering within a reasonable time; and Whereas, the City and the Consultant have determined that additional work is required to meet the goal of the project. Those additional work items being defined in Exhibit A with costs anticipated as shown in Exhibit B. NOW, therefore, in accordance with Section VIII, Extra Work, of Consultant Agreement CAG 03- 034, dated March 26, 2003, the agreement is amended as follows: 1. Revise the maximum amount payable under section VI, Payment, from $254,767.00 to $320,215.00, an increase of $65,448.00. EXECUTION IN WITNESS WHEREOF, the parties have executed this Addendum No. 2 to CAG 03-034 with R.W. Beck, Inc. as of the date and year first above written. CONSULTANT CITY OF Renton Signature Charles Williams Director of Operations Date Signature Date Kathy Keolker-Wheeler Mayor Signature Bonnie Walton City Clerk Date HAFile Sys\WTR - Drinking Water Utility\WTR-13 - Studies & Project Development\WTR-13-0082 - Water System Plan Update & 565 Pre-Design\RW Beck Contract\Addendum # 2\Addendum#2.DOC/AGtp Exhibit A - Scope of Work Addendum No. 2 to CAG-03-034 General The scope of the services consists of additional services associated with Chapter 7, Water Supply for the City's 2005 Water System Plan Update, the editing and production of the Water System Plan and additional project management associated with the new and expanded tasks. Task 1 - Project Management The extension of the contract time associated through June 2005, during the review process for the updated Water System Plan requires additional project management for the supervision of the task. Task 11 - Updates to Source of Supply Analysis, Water Rights Evaluation, Water System Reliability Analysis and Intertie Analysis -Additional Scope The assumption used when accepting this task as part of Amendment 1, was that the revisions required to this Chapter in the previous Water System Plan would be minor and that most of the existing information could be used without modification. In fact, this Chapter needed to be substantially updated, rewritten, and expanded to reflect the City's current water supply situation and to meet current DOH requirements. Work Product: Updated Chapter 7- Water Supply to the Water System Plan. Task 13 - Editing and Production of Water System Plan -New Task The scope of the consulting contract requires the Consultant to conduct analyses and prepare specific chapters for the updated Water System Plan. The City was responsible for preparing other chapters and for assembling and producing the updated Plan. However, since the Consultant has the staff and resources to prepare the Plan and experience preparing other similar plans, the City deems it beneficial to have the Consultant prepare the 2005 Water System Plan Update. This includes preparing the draft copies required during the review process and the final document in paper and electronic format. The City will be responsible for managing the review process, including City reviews and approvals, sending the document to the required review agencies, receiving, and screening comments. The Consultant will incorporate the comments into the Water System Plan and has included an allowance to respond to comments on the sections of the Plan prepared by the Consultant. HAFile Sys\WTR -Drinking Water Utility\WTR-13 - Studies & Project Development\WTR-13-0082 -Water System Plan Update & 565 Pre-Design\RW Beck Contract\Addendum # 2\scope-of-work-draft-081904.doc\AGtp Page 1 The scope of services will include the following phases and activities: 1. Production of Draft Water System Plan a. Assemble both the City and R.W. Beck prepared sections and appendices of the Water System Plan. b. Format and edit all chapters for consistency. c. Print hard copies of draft report for internal City review (assume 5 copies). d. Revise Plan based on City review comments. e. Print draft Water System Plan for SEPA review and review of adjacent utilities and the Muckleshoot tribe (assume 12 copies). f. Print copies for SEPA review; review by adjacent utilities, and by the Muckleshoot tribe. 2. Production of Water Svstem Plan for Kina Countv Approval a. Incorporate comments from adjacent utility/tribe review. b. Compile new appendix with responses to comments and certificates of consistency. c. Print hard copies of Water System Plan for adoption by the Renton City Council (assume 7 copies). d. Print copies of the Water System Plan for King County Staff review (Assumes 7 copies). e. Prepare and submit revision sheet to address County comments. 3. Produce Final Water System Plan a. Print copies for DOH submittal, including DOE copy (assume 3 copies). b. Address any comments received from DOH and incorporate changes. c. Print copies of final Water System Plan and deliver to the City (assume 20 copies). d. Convert the Water System Plan to a PDF file (with bookmarks & links for navigation to prepare a CD -Rom of the Water System Plan). e. Produce CDs of final Water System Plan (assume 100 CDs). f. Deliver 1 CD to the City containing all of the original files and documents. Work Products: Draft and final Water System Plan documents in paper copies, PDF file, and CD -Rom. Also, R.W. Beck will deliver all of the original files to the City on a disk. HAFile Sys\WTR - Drinking Water Utility\WTR-13 - Studies & Project Development\WTR-13-0082 - Water System Plan Update & 565 Pre-Design\RW Beck Contract\Addendum # 2\scope-of-work-draft-081904.doc\AGtp Page 2 SUMMARY OF COSTS FOR ENGINEERING SERVICES Direct Salary Cost Overhead Cost @182.43% Subtotal Net Fee 15% Direct Non -Salary Cost a. Geotechnical subconsultant b. Surveying subconsultant c. Expenses Current Contract Amount thru Amendment No. 1 $60,300 110,006 $170,306 25,546 $24,370 25,460 9,085 $254,767 Amendment No. 2 $16,328 29,788 $46,116 6,917 $12,415 $65,448 Total $76,628 139,794 $216,422 32,463 $24,370 25,460 21,500 $320,215 RAI 1-00880\Contracts and Amendments/RentsonSumaryofEngServices.xls Water System Plan Update and 565 Pressure Zone Water Distribution System Pre -Design Labor Hours Details and Cost Summary Stafl Title Bill Rate LABOR HOURS BUDGETED Project Manager $162 Project Engineer $104 Technical Editor $88 Project Assistant $74 Word Processing $74 Total Hours Labor Expenses Sub- Consultants Total TASK DESCRIPTION 1 Project Management 40 0 0 40 0 80 $9,"0 $560 $0 $10:000 11 Updates to Supply Analysis 8 40 0 8 4 56 $6,051 $280 $c $6,331 13 Technical Writing $11,6676 is._i rroauce uran water system man Zu d tis 78 194 $57,b8Ft 13.2 Produce Water System Plan for KC Approval 24 60 40 124 $10,736 13.3 Produce Final Water System Plan 16 48 45 109 59,218 Total, Task 13 3,240 4,992 17,248 12,062 427 $31,542 $11,575 $49,117 Hour Totals: 68 88 196 48 163 563 AMENDMENTTOTAL 11,016 9,152 17,248 3,552 12,062 TOTAL $65,448 RASeatt1e\11-00880\ScopeandBudget\CostEstimateTaskl ,11,13.xis 17 Water System Plan Update and 565 Pressure Zone Water Distribution System Pre -Design Expenses EXPENSES BUDGETED Travel Mileage $0.360 per mile Fax/ Phone/ Postage $1.25 per hour Repro Color BW 11x17 CDs $0.10 $1.00 $5 per copy per copy each PC Charges Eng./CAD $5 per hour Other Supplies Total TASK DESCRIPTION '717, 4 9 Re MUM -417 1 -173, -MIN, TAUT 777-77 77777-7 "I . . . . . . . . . . . . IS Total Expenses $12,415 *Includes $8,000 for estimated printing costs of $140/copy for 54 copies of Water System Plan (total of $7,560) plus a small allowance for supplies and miscellaneous expenses. RAS( ScopeandBudget\CostEstimateTaskl,1 1,1 3.x1s CITY OF RENTON COUNCIL AGENDA BILL Submitting Data: Planning/Building/Public Works Dept/Div/Board.. Utility Systems/Wastewater Utility Staff Contact...... John Hobson, x7279 Subject: Final Pay Estimate - CAG-03-115 East Kennydale Sanitary Sewer Infill & Watermain Replacement Phase II, Contractor: Robison Construction Inc. (RCI) Exhibits: Final Pay Estimate Notice of Completion of Public Works Contract Recommended Action: Council Concur AI It: 1 0 r For Agenda of: September 13, 2004 Agenda Status Consent .............. Public Hearing.. Correspondence.. Ordinance ............. Resolution........... . Old Business........ New Business....... Study Sessions...... Information........ . Approvals: Legal Dept......... Finance Dept...... Other ............... X X Fiscal Impact: Expenditure Required... $7,881.46 (final pay estimate) Transfer/Amendment....... Amount Budgeted....... $6,000.00 (Wastewater Utility) Revenue Generated......... Amount Budgeted....... $3,000 (Water Utility) Total Project Budget $450,000 (2004 Wastewater Budget) Total Project Budget $432,000 (2004 Water Budget) City Share Total Project.. SUMMARY OF ACTION: The project was awarded on May 6, 2003. Construction was started on September 24, 2003, and was completed on April 4, 2004. The original contract amount was $1,310,562.37 and the final contract amount is $1,316,149.54. The final contract amount is less than 1/2 percent greater than the original contract amount and well under the amount budgeted by Water and Wastewater. The total Wastewater funds budgeted for this project was $800,000 of which $450,000 was from the 2004 Wastewater Budget. The Wastewater portion of the project cost $777,129.29. The total Water funds budgeted for this project was $550,000 of which $432,000 was from the 2004 Water Budget. The Water portion of the project cost $539,020.25. STAFF RECOMMENDATION: The Utility Systems Division of the Planning/Building/Public Works Department recommends that the project be accepted, the final pay estimate in the amount of $7,881.46 ($4,963.77 Wastewater & $2,917.69 Water) be approved and the retainage bond in the amount of $65,528.19 be released after 60 days, subject to the receipt of all required authorizations. H:\File Sys\WWP - WasteWater\WWP-27-3078 East Kennydale Sewer Infill PH II\Agnbi1_Fina1-EKEN2.docVHtp I , TO FINANCE DIRECTOR FROM PUBLIC WORKS ADMINISTRATOR (--"TRACTOR: RCI TRACT NO. CAG-03-115 ESTIMATE NO. 7 (Final) PROJECT: East Kennydale Sanitary Sewer Infill & Water Main Rep[ PH II. 1. CONTRACTOR EARNINGS THIS ESTIMATE $7,243.99 2. SALES TAX @ 8.80% $637.47 3. TOTAL CONTRACT AMOUNT THIS ESTIMATE $7,881.46 4. EARNINGS PREVIOUSLY PAID CONTRACTOR $1,202,452.28 5. EARNINGS DUE CONTRACTOR THIS ESTIMATE $7,243.99 6. SUBTOTAL - CONTRACTOR PAYMENTS $1,209,696.27 10. SALES TAX PREVIOUSLY PAID $105,815.80 11. SALES TAX DUE THIS ESTIMATE $637.47 12. SUBTOTAL - SALES TAX $106,453.27 GRAND TOTAL: $1,316,149.54 FINANCE DEPARTMENT ACTION: PAYMENT TO CONTRACTOR (Lines 5 and 11): ACCOUNT # 421.000400.018.5960.0035.65.045000/45390/5354 # 7 (Final) $4,963.77 # 421.000500.018.5960.0034.65.055170/55170/5354 # 7 (Final) $2,917.69 TOTAL THIS ESTIMATE: $7,881.46 CHARTER 116, LAWS OF 1965 CITY OF RENTON CERTIFICATIO I, THE UNDERSIGNED DO HEREBY CERTIFY UNDER PENALTY PERJURY, THAT THE MATERIALS HAVE BEEN FURNISHED, E SERVICES RENDERED OR THE LABOR PERFORM/ASSCRIB HEREIN, ANDTHATTHE CLAIM IS AJUST, DUE ANID OBLIGATION AGAINST THE CITY OF RENTON, ANAM�AUTHORIZED TO AUTHENTICATE AND CERTIFY TCLAIM Signed: Contractor has a Retainage Bond on File for this Project ` 10, I�� t I'�i Printed On: 08/18/2004 City of Renton Public Works Department Page 1 Printed On: 08/18/2004 City of Renton Public Works Department Page 1 East Kennydale Sanitary Sewer Infill & Water Main Repl PH Project: II. Contract Number: CAG-03-115 Contractor: RCI Pay Estimate 7 (Final) Closing Date: 04/15/2004 Item Description Unit Est. Unit Previous Previous This This Total No. Quantity Price Quantity Amount Quantity Amount Quantity Amount 001. Mobilization & Demobilization Lump Sum 1 $20,000.00 1.00 $20,000.00 002. Trench Excavation Safety Systems Lump Sum 1 $1,000.00 1.00 $1,000.00 003. Surveying, Staking, and As-Builts Lump Sum 1 $5,000.00 0.50 $2,500.00 004. Traffic Control Lump Sum 1 $5,000.00 1.00 $5,000.00 005. Temporary Erosion/Sedimentation Controls Lump Sum 1 $2,000.00 1.00 $2,000.00 006. Landscape Restoration Lump Sum 1 $2,000.00 1.00 $2,000.00 007. Re-establish existing Monuments Each 6 $300.00 3.00 $900.00 008. TV Inspection of Sanitary Sewers Linear Foot 4316 $1.00 4245.00 $4,245.00 009. 8" PVC Sewer Pipe and Cleanout Linear Foot 4316 $60.00 4245.00 $254,700.00 010, 6" PVC Side Sewer Pipe Linear Foot 1939 $60.00 1818.00 $109,080.00 011. 48" Sanitary Sewer Manhole Each 16 $3,500.00 15.00 $52,500.00 012. Connect New Sewer to Existing Sewer Facility Each 5 $2,000.00 4.00 $8,000.00 013. 8" ductile iron pipe, Cl 52, Poly Wrapped & Fittings Linear Foot 4385 $55.00 4313.00 $237,215.00 014. 8" gate valve assembly Each 19 $500.00 28.00 $14,000.00 015. 6" gate valve assembly Each 8 $400.00 2.00 $800.00 016. Fire Hydrant Assembly Each 14 $3,000.00 14.00 $42,000.00 017. 3/4" Water Service Connection Each 74 $950.00 74.00 $70,300.00 018. 3/4" Water Service Connection (no meter) Each 5 $900.00 5.00 $4,500.00 019. 1" Air -Release Valve Each 1 $1,000.00 1.00 $1,000.00 020. 2" Permanent Blow -off Assembly Each 1 $1,200.00 1.00 $1,200.00 021. Connection to Existing Water Main Each 8 $1,500.00 8.00 $12,000.00 022. Concrete Thrust Blocks & Dead -man Blocks Cubic yard 26 $80.00 22.00 $1,760.00 Removal of Existing Fire Hydrants, Valve Boxes and 023. Appurtenances Lump Sum 1 $500.00 1.00 $500.00 Removal and Replacement of Unsuitable Foundation 024. Material Ton 500 $12.65 0.00 $0.00 025. Select Imported Trench Ball Ton 2500 $12.65 282.96 $3,579.44 026. Asphalt Class B (Road Rebuild) Paving Incl. CSTC Sq, Yard 9400 $14.50 8628.00 $125,106.00 027. Asphalt Class B Patch Inc. CSTC Sq. Yard 2820 $52.00 3118.00 $162,136.00 028. Replace Pavement Markings and Traffic Buttons Lump Sum 1 $1,000.00 1.00 $1,000.00 029. Remove and Replace Sidewalk & Driveway Sq. Yard 515 $20.00 55.80 $1,116.00 $0.00 1.00 $20,000.00 $0.00 1.00 $1,000.00 0.50 $2,500.00 1.00 $5,000.00 $0.00 1.00 $5,000.00 $0.00 1.00 $2,000.00 $0.00 1.00 $2,000.00 3.00 $900.00 6.00 $1,800.00 $0.00 4245.00 $4,245.00 $0.00 4245.00 $254,700.00 $0.00 1818.00 $109,080.00 $0.00 15.00 $52,500.00 $0.00 4.00 $8,000.00 $0.00 4313.00 $ 00 $0.00 28.00 $14,000.00 $0.00 2.00 $800.00 $0.00 14.00 $42,000.00 $0.00 74.00 $70,300.00 $0.00 5.00 $4,500.00 $0.00 1.00 $1,000.00 $0.00 1.00 $1,200.00 $0.00 8.00 $12,000.00 5.50 $440.00 27.50 $2,200.00 $0.00 1.00 $500.00 $0.00 0.00 $0.00 $0.00 282.96 $3,579.44 $0.00 8628.00 $125,106.00 $0.00 3118.00 $ 00 $0.00 1.00 $1,000.00 $0.00 55.80 $1,116.00 Printed On: 08/18/2004 City of Renton Public Works Department East Kennydale Sanitary Sewer Infill & Water Main Repl PH P - It. Contract Number: C r: RCI Pay Estimate 7 (Final) Closing Date: Item Description Unit Est. Unit Previous Previous No. Quantity Price Quantity Amount 030. Remove and Replace Curb & Gutter Linear Foot 125 $20.00 128.00 $2,560.00 Change Order No. 1: Wastewater items per Contractors 031. Extra Work Orders Lump Sum 1 $52,819.89 1.00 $52,819.89 Change Order No. 2: Water items per Contractors Extra 032. Work Orders Lump Sum 1 $6,934.95 1.00 $6,934.95 Change Order No. 3: Wastewater items per Contractors 033, Extra Work Orders Lump Sum 1 $2,412.29 0.00 $0.00 Change Order No. 4: Water items per Contractors Extra 034. Work Orders Lump Sum 1 $991.70 0.00 $0.00 Subtotal Schedule A 8.8 % Sales Tax TT Total Page 2 CAG-03-115 04/15/2004 This This Total Total Quantity Amount Quantity Amount $0.00 128.00 $2,560.00 $0.00 1.00 $52,819.89 $0.00 1.00 $6,934.95 1.00 $2,412.29 1.00 $2,412.29 1.00 $991.70 1.00 $991.70 $1,202,452.28 $7,243.99 $1,209,696.27 $105,815.80 $637.47 $106,453.27 $1,308,268.08 $7,881.46 $1,316,149.54 olto0 �t14t0 n,l STATg O� State of Washington o Department of Revenue 9 s r Audit Procedures & Administration w PO Box 47474 �� 1889 ac Olympia, Washington 98504-7474 Reg.No.:UBI 600 260 353 Is NOTICE OF COMPLETION OF PUBLIC WORKS CONTRACT From: DEPARTMENT USE=ONLY City of Renton Assigned To 1055 S. Grady Way Renton, WA 98055 Date Assigned Notice is hereby given relative to the completion of contract or project described below. Description of Contract East Kennydale Sanitary Sewer Infill & Watermain Replacement Phase II Contractor's Name Robison Construction, Inc. (RCI) Telephone No. (253) 863-5200 Contractor's Address PO Box 1730, Sumner, WA 98390 Date Work Commenced September 24, 2003 Date Work Completed April 4, 2004 Date Work Accepted September 13, 2004 Surety or Bonding Co. Safeco Insurance Company of America Agent's Address Safeco Plaza, Seattle, WA 98185 Contract Amount: Additions or Reductions: $1,204,561.00 $5,135.27 Amount Disbursed: Amount Retained: Sales Tax: $106,453.27 Total: Total $1,316,149.54 0 Phone No: $1,316,149.54 Retainage Bond held by City of Renton $1,316,149.54 (Disbursing Officer) The Disbursing Officer must complete and mail THREE copies of this notice to the Department of Revenue, Olympia, Washington 98504- 7474, immediately after acceptance of the work done under this contract. NO PAYMENTS SHALL BE MADE FROM RETAINED FUND until receipt of Department's certificate, and then only in accordance with said certificate. FORM REV 31 0020 (12-92) H: Waste. wtr/WWP-27-3078/notcmplt-eken2.doc/JDH FINANCE COMMITTEE REPORT September 13, 2004 A7777—.,---� Fly Date APPROVAL OF CLAIMS AND PAYROLL VOUCHERS APPR r7l,177) F37 c i T V 0 -ai L Dat COMMUNITY SERVICES COMMITTEE REPORT September 13, 2004 Civil Air Patrol Request for Meeting/Office Space (Referred June 2, 2003) PLANNING AND DEVELOPMENT COMMITTEE COMMITTEE REPORT September 13, 2004 City Process for Street Vacations (June 14, 2004 cc: Lys Hornsby Dave Christensen Karen McFarland APPROVED ENV C;TV COUNCIL. Date 9-13-A0o y � CITY OF RENTON, WASHINGTON RESOLUTION NO. -3 %/ A RESOLUTION OF THE CITY OF RENTON, WASHINGTON, APPROVING FINAL PLAT (PARKVIEW HOMES; FILE NO. LUA-04- 071FP). WHEREAS, a petition for the approval of a final plat for the subdivision of a certain tract of land as hereinafter more particularly described, located within the City of Renton, has been duly approved by the Planning/Building/Public Works Department; and WHEREAS, after investigation, the Administrator of the PlanningBuilding/Public Works Department has considered and recommended the approval of the final plat, and the approval is proper and advisable and in the public interest; and WHEREAS, the City Council has determined that appropriate provisions are made for the public health, safety, and general welfare and for such open spaces, drainage ways, streets or roads, alleys, other public ways, transit stops, potable water supplies, sanitary wastes, parks and recreation, playgrounds, schools, schoolgrounds, sidewalks and other planning features that assure safe walking conditions for students who walk to and from school; and WHEREAS, the City Council has determined that the public use and interest will be served by the platting of the subdivision and dedication; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I. The above findings are true and correct in all respects. SECTION II. The final plat approved by the Planning/Building/Public Works Department pertaining to the following described real estate, to wit: See Exhibit "A" attached hereto and made a part hereof as if fully set forth 1 RESOLUTION NO. (The property, consisting of approximately 1.77 acres, is located in the vicinity of Camas Avenue and NE 24"' St.) is hereby approved as such plat, subject to the laws and ordinances of the City of Renton, and subject to the findings, conclusions, and recommendation of the Planning/Building/Public Works Department dated August 20, 2004. PASSED BY THE CITY COUNCIL this day of , 2004. Bonnie I. Walton, City Clerk APPROVED BY THE MAYOR this day of , 2004. Approved as to form: Lawrence J. Warren, City Attorney RES. 1068:8/24/04:ma Kathy Keolker-Wheeler, Mayor 2 Exhibit A The East half of Tract 223, C.D Hillman's Lake Washington Garden of Eden Addition to Seattle Division No. 4, according to the plat thereof recorded in Volume 11 of Plats, Page 82, in King County, Washington. SITE 27TH ST. w NORTH ME 24TH ST.. 4 4i 4i Q Q ME 20TH ST W Q VICINITY TAP. N.T.S. CITY OF RENTON, WASHINGTON ORDINANCE NO. S 9oZ AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, ANNEXING CONTIGUOUS UNINCORPORATED TERRITORY KNOWN AS THE TYDICO SITE ANNEXATION, BY THE ELECTION METHOD, SETTING THE TAXATION RATE, AND FIXING THE EFFECTIVE DATE OF THE ANNEXATION. WHEREAS, after public hearing, the City Council enacted a resolution calling for an annexation by election under RCW 35A.14.015 for an area commonly referred to as the Tydico Annexation, which area is the 9.61-acre property generally bounded by the centerline of NE 3rd Place, if extended, on the north; the centerline of SE 132nd Street, if extended, on the south; 1341n Avenue, if extended, on the west; and, Bremerton Avenue NE on the east, legally described in Exhibit A attached hereto and incorporated by reference as if fully set forth; and WHEREAS, said resolution also called for an election on a proposition that the property in the Tydico Annexation should be subject to existing bonded indebtedness; and WHEREAS, said resolution also called for an election on the proposition that all property located within the territory to be annexed, excluding street right-of-ways, simultaneous with the annexation, shall have imposed the City of Renton zoning regulations, with a Comprehensive Plan designation of Residential Single Family (RS) and a zoning designation of R-8; and WHEREAS, an election was held pursuant to State statute; and WHEREAS, said proposed annexation had been submitted to and approved by the King County Boundary Review Board; and WHEREAS, in the September 16, 2003, election for the Tydico Annexation, the assumption of indebtedness was approved by the voters; and ORDINANCE NO. WHEREAS, the election results certifying a sufficient majority to permit annexation of the area have been received by the City; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASFUNGTON, DO ORDAIN AS FOLLOWS: SECTION I. There has been filed with the City Council of the City of Renton, Washington, certified election results indicating a sufficient majority was received approving the Tydico Annexation to the City of Renton and such annexation has been approved by the Washington State Boundary Review Board for King County. The City Council finds it to be in the best interest of the citizens of the City of Renton to annex and does hereby annex the territory submitted to the voters as the Tydico Annexation situated in King County, Washington, as contiguous, proximate and adjacent to the present corporate limits of the City and as more particularly described by its legal description as set forth in Exhibit A and graphically shown on Exhibit B, attached hereto and incorporated in full by this reference. SECTION II. All property located within the territory to be annexed, excluding street right-of-way, shall, contemporaneously with the annexation, have imposed, by separate ordinance, R-8 zoning consistent with the ballot text that was approved by a majority of the voters within the annexation area. SECTION III. The territory set forth in this ordinance and for which said election results were certified for annexation should be and is hereby made a part of the City of Renton. The area shall be assessed and taxed at the same rate on the same basis as property within the City of Renton to pay for all or any portion of the outstanding indebtedness of the City of Renton, which indebtedness has been approved by the voters, contracted for, or incurred prior to or existing at, the date of annexation. 2 ORDINANCE NO. SECTION IV. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect five days after its passage, approval, and publication. PASSED BY THE CITY COUNCIL this day of APPROVED BY THE MAYOR this Approved as to form: Lawrence J. Warren, City Attorney Date of Publication: ORD. 1126:8/13/04:ma Bonnie I. Walton, City Clerk 2004. day of , 2004. Kathy Keolker-Wheeler, Mayor Exhibit A TYDICO SITE ANNEXATION LEGAL DESCRIPTION The southeast quarter of the northwest quarter of the northwest quarter of Section 15, Township 23 north, Range 5 East, W.M., King County, Washington. ./ -- - — — - -- - - - — - --- -- — - - v Jvv vvv Figure 3: Existing Structure Map bmmmnq M 0 0� Economic Development, Neighborhoods & Strategic Planning r"Z' . . Sue Carlson, Administrator 1 : 3 600 G. Del Rosario TOE 15 October 2002 q /3-ADD `i CITY OF RENTON, WASHINGTON ORDINANCE NO. V 93 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, ESTABLISHING THE ZONING CLASSIFICATION (R-8) FOR THE TYDICO ANNEXATION. WHEREAS, after public hearing, the City Council enacted a resolution calling for an annexation by election under RCW 35A.14.015 for an area commonly referred to as the Tydico Annexation, which area is the property generally bounded by the centerline of NE 3rd Place, if extended, on the north; the centerline of SE 132nd Street, if extended, on the south; 134' Avenue, if extended, on the west; and, Bremerton Avenue NE on the east, legally described in Exhibit A attached hereto and incorporated by reference as if fully set forth; and WHEREAS, said resolution also called for an election on the proposition that all property located within the territory to be annexed, excluding street right-of-ways, simultaneous with the annexation, shall have imposed the City of Renton zoning regulations, which at the time of the election had a Comprehensive Plan land use designation of Residential Single Family (RS) and called for a zoning designation of R-8; and WHEREAS, an election was held pursuant to State statute; and WHEREAS, those voting approved R-8 zoning for the annexation, consistent with the September 2002 Comprehensive Plan designation of Residential Single Family (RS); and WHEREAS, said R-8 zoning is to be established after public hearing, and contemporaneously with the annexation ordinance; and WHEREAS, the first public hearing on R-8 zoning was held on November 18, 2002, and the second public hearing was held on August 23, 2004; and WHEREAS, the territory will also be annexed on this date by separate ordinance; ORDINANCE NO. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I. Zoning for the annexed area known as the Tydico Annexation, which is more particularly described by its legal description as set forth in Exhibit A and graphically shown on Exhibit B, attached hereto and incorporated in full by this reference, is hereby designated as R-8, pursuant to the provisions of the election ballot approving this annexation. SECTION II. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect five days after its passage, approval, and publication. PASSED BY THE CITY COUNCIL this day of , 2004. Bonnie I. Walton, City Clerk APPROVED BY THE MAYOR this day of , 2004. Approved as to form: Lawrence J. Warren, City Attorney Date of Publication: ORD. 1127:8/13/04:ma Kathy Keolker-Wheeler, Mayor 2 Exhibit A TYDICO SITE ANNEXATION LEGAL DESCRIPTION The southeast quarter of the northwest quarter of the northwest quarter of Section 15, Township 23 north, Range 5 East, W.M., King County, Washington. 14 ', Q jlglgX2l !' l2eudscd� 8-a3•aoa� CITY OF RENTON, WASHINGTON ORDINANCE NO. 4-e i"/ AN ORDINANCE OF THE CITY OF RENTON, ESTABLISHING THE ZONING CLASSIFICATION TYDICO ANNEXATION. WASHINGTON, (R-10) FOR THE 41 ese ;icy l hes' WHEREAS, after public hearing, the City Council enacted a resolution calling for an annexation by election under RCW 35A.14.015 for an area commonly referred to as the Tydico Annexation, which area is the property generally bounded by the centerline of NE 3rd Place, if extended, on the north; the centerline of SE 132" d Street, if extended, on the south; 1341h Avenue, if extended, on the west; and, Bremerton Avenue NE on the east, legally described in Exhibit A attached hereto and incorporated by reference as if fully set forth; and WHEREAS, said resolution also called for an election on the proposition that all property located within the territory to be annexed, excluding street right-of-ways, simultaneous with the annexation, shall have imposed the City of Renton zoning regulations, consistent with --if the current Comprehensive Plan land use designation of Residential Single Family (RS) and a zoning designation of R-8; and WHEREAS, an election was held pursuant to State statute; and WHEREAS, those voting approved R-8 zoning for the annexation, consistent with the September 2002 Comprehensive Plan designation of Residential Single Family (RS); and WHEREAS, the Comprehensive Plan Land Use Map was amended in November 2003, changing the land use designation for the Tydico Annexation site from Residential Single Family (RS) to Residential Options (RO). Therefore, the site must be rezoned to R-10 to be consistent with this latter designation; and WHEREAS, said R-10 zoning is to be established after public hearing; and C ORDINANCE NO. WHEREAS, the first public hearing on zoning was held on November 24, 2003, and the second public hearing was held on August 23, 2004; and WHEREAS, the territory will also be annexed on this date by separate ordinance; and WHEREAS, development has been proposed for the annexed property and a Development Agreement negotiated for the property; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS:, SECTION I. Zoning for the annexed area known as the Tydico Annexation, which is more particularly described by its legal description as set forth in Exhibit A and graphically shown on Exhibit B, attached hereto and incorporated in full by this reference, is hereby designated as R-10, consistent with the current Comprehensive Plan designation of Residential Options (RO), subject to the terms and conditions of the certain Development Agreement entered into contemporaneously with this rezone, to be filed of record with the Auditor's office, a copy of which Agreement is attached hereto as Exhibit C. SECTION II. This ordinance, being an exercise of a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect five days after its passage, approval, and publication. PASSED BY THE CITY COUNCIL this day of , 2004. Bonnie I. Walton, City Clerk 2 ORDINANCE NO. APPROVED BY THE MAYOR this day of , 2004. Approved as to form: Lawrence J. Warren, City Attorney Date of Publication: ORD. 1 128:8/23/04:ma Kathy Keolker-Wheeler, Mayor 3 Exhibit A TYDICO SITE ANNEXATION LEGAL DESCRIPTION The southeast quarter of the northwest quarter of the northwest quarter of Section 15, Township 23 north, Range 5 East, W.M., King County, Washington. a - _ _ — _ --- -- — - - V JVV OVV Figure 3: Existing Structure Map Gtiz of . _ Economic Development, Neighborhoods & Strategic Planning �O0 Sue Carlson, Administrator �.• G. Del Rosario Z 15 October 2002 DEVELOPMENT AGREEMENT PARTIES This agreement (this "Development Agreement" or "Agreement") is made and entered into this 12th day of July, 2004, by and between the CITY OF RENTON ("City"), a municipal corporation of the State of Washington, and LIBERTY RIDGE L.L.C., a Washington limited liability company, the owner of the parcels of property covered by this Development Agreement ("Owner"). RECITALS WHEREAS, on November 18, 2002, the Renton City Council passed Resolution No. 3596 calling for annexation, by election, of certain territory described therein, and directing that, in conjunction with said election, a proposition be submitted to the electorate of that territory that, simultaneously with the annexation, the territory have imposed upon it the City of Renton zoning regulations, prepared under RCW 35.A.14.340, with a Comprehensive Plan designation of Residential Single Family (RS) and a zoning classification of R-8; and WHEREAS, an application was made to the City of Renton on December 16, 2002 for a Comprehensive Plan Land Use Map amendment and Zoning Map amendment of the Owner's property that is legally described as follows (the "Property"): The southeast quarter of the northwest quarter of the northwest quarter of Section 15, Township 23 North, Range 5 East, W.M., King County, Washington. EXCEPT roads. WHEREAS, the City has assigned City File Nos. LUA 02-113 A,ECF,R and 2003-M-14 to the Owner's requests; and WHEREAS, the Property (which is all of the private property lying within the territory of the annexation contemplated by Resolution No. 3596) is currently located in unincorporated DEVELOPMENT AGREEMENT --Page 2 King County within the City's Potential Annexation Area; and WHEREAS, certain nonconforming uses are currently being made of portions of the Property (the "Nonconforming Uses"); and WHEREAS, TYDICO, a Washington corporation ("Tydico"), is operating its construction business on the Property pursuant to a Lease between Owner and Tydico; and WHEREAS, at Owner's request, the City has commenced proceedings for annexation of the Property into the City and the election contemplated by Resolution No. 3596 has been held with all of the propositions set forth therein having been approved by the electorate; and WHEREAS, the owner sought to have the Property, which is approximately 9.46 acres in size, given a Residential Options (RO) Land Use Map designation to allow Residential 10 Dwelling Units Per Acre (R-10) zoning; and WHEREAS, the Owner is willing to have the City impose Residential 10 Dwelling Units Per Acre (R-10) zoning subject to this Development Agreement that would embody the site - specific restrictions that are set forth in Section 3, below upon annexation. WHEREAS, staff members of the City's Department of Economic Development, Neighborhoods and Strategic Planning and of the City's Department of Planning/Building/Public Works have reviewed the Site -Specific Restrictions and concur that they are appropriate; and WHEREAS, the Planning Commission held a public hearing concerning the proposed Comprehensive Plan Map Amendment and Zoning Map Amendment on October 15, 2003; and WHEREAS, on November 24, 2003, the City Council adopted a Planning and Development Committee report concerning the request and amended the City's Comprehensive Plan Land Use Map to designate the Property Residential Options (RO); and WHEREAS, in view of the already -passed annexation election proposition concerning the territory initially having an R-8 zoning classification when the annexation occurs, the Property is to be initially annexed into the City with that zoning classification but, immediately thereafter, the zoning is to be changed to R-10 in order to be consistent with the Property's Residential Options (RO) Comprehensive Plan Land Use Map designation and the provisions of this Development Agreement; and WHEREAS, on November 17, 2003, this Development Agreement was presented at a public hearing before the City Council; and WHEREAS, the City Council has taken into account the public comment presented at DEVELOPMENT AGREEMENT --Page 3 that public hearing; and WHEREAS, this Development Agreement is premised on the Property being annexed to the City of Renton and will be of no force or effect if that annexation is not realized within six (6) months following the date that this Agreement is executed by both parties; and WHEREAS, this Development Agreement has been reviewed and approved by the City Council of the City of Renton, Washington; and WHEREAS, this Development Agreement appears to be in the best interests of the citizens of the City of Renton, Washington; NOW, THEREFORE, the parties do agree as follows: SECTION 1. AUTHORITY Pursuant to RCW 3 6.7013. 170(l), the City and persons with ownership or control of real property are authorized to enter into a development agreement setting forth development standards and any other provisions that shall apply to, govern, and vest the development, use, and mitigation of the development of the real property for the duration of such development agreement. SECTION 2. SUBJECT PROPERTIES A. Illustrative Map: The drawing attached hereto as Exhibit A graphically depicts the Property. B. King County Property Identification Numbers: The following list indicates the King County Property Identification Numbers applicable at the time of this Development Agreement: 5182100049, 5182100050 and 5182100051. SECTION 3. ZONING SUBJECT TO SITE -SPECIFIC CONDITIONS: A. Site -Specific Restrictions. The parties hereby agree that the following site -specific conditions (the "Site -Specific Restrictions") shall apply to the Property in conjunction with the R-10 Zoning Classification described in subsection B, below: (1) All residential buildings shall be detached single-family residential buildings (i.e., contain only one residential unit per building); (2) All future residential lots within the Property that directly abut the Property's south boundary shall have a minimum width of 50 feet; and DEVELOPMENT AGREEMENT --Page 4 (3) The net residential density of any development of the Property shall not exceed 10 dwelling units per acre. B. Zoning Classification: The parties agree that the Property is to be reclassified to the Residential-10 Dwelling Units Per Acre (R-10) zoning classification as soon as possible, subject to the Site -Specific Restrictions set forth above. SECTION 4. RELINQUISHMENT OF NONCONFORMING USE RIGHTS; CESSATION OF TYDICO'S BUSINESS OPERATIONS ON THE PROPERTY A. Relinquishment of Nonconforming Use Rights: Effective the day before the effective date of the annexation of the Property into the City, the Owner hereby relinquishes its right to continue the Nonconforming Uses of the Property. B. Cessation of Tydico's Construction Operations on the Property: Not later than the day before the effective date of the annexation of the Property into the City, Owner shall cause (1) Tydico to cease its construction operations on the site and (2) the removal of all remaining storage of construction related equipment and stockpiled materials (such as ecology blocks, traffic cones, barriers and construction related signs) that are now stored on the northern half of the site. SECTION 5. EFFECT OF DEVELOPMENT AGREEMENT Unless amended or terminated, this Development Agreement is enforceable during its term by a party to this Development Agreement; provided, however, only the City may enforce the Site -Specific Restrictions. Development of the Property shall not be subject to a new zoning ordinance or an amendment to a zoning ordinance or to a development regulation or standard adopted by the City after the effective date of this Development Agreement unless (a) otherwise provided in this Development Agreement or (b) agreed to by the owner(s) of any of the portion(s) of the Property to which such new zoning ordinance or an amendment to a zoning ordinance or development regulation or standard shall apply or (c) in the case of a new or amended development regulation the regulation is one that the City was required to adopt or amend because of requirements of state or federal law. Any development permit or approval issued by the City for the Property during this Development Agreement's term must be consistent with this Development Agreement. SECTION 6. AUTHORITY RESERVED Pursuant to RCW 36.70B.170(4), the City reserves its authority to impose new or different regulations to the extent required by a serious threat to public health and safety. DEVELOPMENT AGREEMENT --Page 5 SECTION 7. RECORDING Pursuant to RCW 36.70B.190, this Development Agreement shall be recorded with the real property records of King County. During the term of the Development Agreement, the agreement shall be binding on the parties and their successors and assigns. SECTION 8. TERM This Development Agreement shall run with the Property until amended or rescinded by the City Council in accordance with Section 8, below. With respect to any portion(s) of the Property that are not developed, the parties to this Development Agreement agree to evaluate the Agreement periodically, but not less than every ten (10) years. Where appropriate, periodic review of the Development Agreement shall generally coincide with the City's evaluation of its entire Comprehensive Plan. SECTION 9. AMENDMENT The provisions of this Development Agreement, before the expiration of ten (10) years from the date of execution of this Agreement by all of the parties, may only be amended with the mutual written consent of the parties; provided, however, that the owner(s) of portion(s) of the Property shall be entitled to amend the Development Agreement from time -to -time (with the consent of the City) as it relates to their particular portion(s) of the Property. After ten (10) years, the City may change the zoning and development regulations pertinent to the Property as part of its normal process of alteration to its Comprehensive Plan, Zoning and Development Regulations. SECTION 10. TERMINATION IF ANNEXATION NOT REALIZED The Property is currently in the process of being annexed into the City of Renton. This Development Agreement will terminate and be of no force or effect if that annexation is not realized within six (6) months following the date that this Agreement is executed by both parties. CITY OF RENTON IN Kathy Keolker-Wheeler, Mayor Attest: DEVELOPMENT AGREEMENT --Page 6 City Clerk Approved as to Form: Lawrence J. Warren, City Attorney LIBERTY RIDGE L.L.C., a Washington limited liability company By: Donald J. Me i , Manager STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that on the day of , 2004 KATHY KEOLKER-WHEELER appeared before me and acknowledged that she signed the instrument, on oath stated that she was authorized to execute the instrument and acknowledged it as the Mayor of the City of Renton, the Washington municipal corporation that executed the within and foregoing instrument and acknowledged the said instrument to be the free and voluntary act and deed of said City for the uses and purposes therein mentioned, and on oath stated that the seal affixed, if any, is the corporate seal of said City. Dated: Signature Print Name NotM Public Title My Appointment Expires DEVELOPMENT AGREEMENT --Page 7 STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) I certify that I know or have satisfactory evidence that DONALD J. MERLINO is the person who appeared before me and acknowledged that he signed the instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as a manager of LIBERTY RIDGE L.L.C., a Washington limited liability company, to be the free and voluntary act of such company for the uses and purposes mentioned in the instrument. 10 CACR2418\02MComprehensive Plan Amendment\Dev-Agmt.F3.doc DEVELOPMENT AGREEMENT --Page 8 EXHIBIT A (2003-M- Economic Development, NeighWhoods & S,trategic Planning Alex Pietsoh, Administrator G. Del Rosario 19 November 2003 1TeVI'Sed 9- 93-a00y CITY OF RENTON, WASHINGTON ORDINANCE NO. 6-0 _ Set affac% med showJn9 chati9c-7) 9i3a�� AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, AMENDING SECTION 4-1-210, WAIVED FEES, OF CHAPTER 1, ADMINISTRATION AND ENFORCEMENT, OF TITLE IV (DEVELOPMENT REGULATIONS) OF ORDINANCE NO. 4260 ENTITLED "CODE OF GENERAL ORDINANCES OF THE CITY OF RENTON, WASHINGTON" BY EXTENDING AND MODIFYING THE WAIVER OF CERTAIN DEVELOPMENT AND MITIGATION FEES. WHEREAS, the Renton City Council approved Ordinance No. 4913 on August 27, 2001, to allow certain development and mitigation fees for "For Sale" housing to be waived to encourage owner -occupied housing in the CD and RM-U zones; and WHEREAS, these development and mitigation fees waivers are effective for building permits issued after August 13, 2001, and will sunset on October 1, 2004, unless extended by City Council action; and WHEREAS, the provisions of Section 4-1-210, Waived Fees, were useful in helping to establish the 37-unit 55 Williams project as the first significant owner -occupied housing development in downtown Renton in many years; and WHEREAS, the Renton City Council desires to continue to encourage additional owner - occupied housing in the CD and RM-U zones and thereby extend the development and mitigation fee waivers for an additional three years unless further extended by Renton City Council action; and WHEREAS, the Renton City Council desires to modify the eligibility for the development and mitigation fee waivers to clarify that the waivers apply to multi -family housing projects with a minimum of four dwelling units; and ORDINANCE NO. WHEREAS, the Renton City Council desires to modify the process for approving development and mitigation fee waivers for eligible projects; and WHEREAS, the Renton City Council desires to clarify that the waived impact mitigation fees for eligible projects will be replenished from tax revenues from the projects over time; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I. Section 4-1-210, Waived Fees, of Chapter 1, Administration and Enforcement, of Title IV (Development Regulations) of Ordinance No. 4260 entitled "Code of General Ordinances of the City of Renton, Washington" is hereby amended to read as follows: WAIVED FEES: To encourage owner -occupied housing in the CD and RM-U zones, certain development and mitigation fees for "For Sale" housing may be waived for eligible projects, subject to City Council approval. Fees which may be waived include building permit fees, utility system development charges, Public Works plan review and inspection fees, and impact mitigation fees. Waived impact mitigation fees will be replenished from tax revenues from the projects over time. The fee waivers apply to multi -family housing projects with four (4) or more dwelling units each in the CD or RM-U zones. These fee waivers are effective for building permits issued after September 30, 2004, and will sunset on October 1, 2007, unless extended by City Council action. SECTION II. This ordinance shall be effective upon its passage, approval, and five (5) days after its publication. 2 ORDINANCE NO. PASSED BY THE CITY COUNCIL this day of 52004. Bonnie I. Walton, City Clerk APPROVED BY THE MAYOR this day of , 2004. Approved as to form: Lawrence J. Warren, City Attorney Date of Publication: ORD. 1129:8/20/04:ma Kathy Keolker-Wheeler, Mayor 3 CITY OF RENTON, WASHINGTON ORDINANCE NO. AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, AMENDING SECTION 4-1-210, WAIVED FEES, OF CHAPTER 1, ADMINISTRATION AND ENFORCEMENT, OF TITLE IV (DEVELOPMENT REGULATIONS) OF ORDINANCE NO. 4260 ENTITLED "CODE OF GENERAL ORDINANCES OF THE CITY OF RENTON, WASHINGTON" BY EXTENDING AND MODIFYING THE WAIVER OF CERTAIN DEVELOPMENT AND MITIGATION FEES. WHEREAS, the Renton City Council approved Ordinance No. 4913 on August 27, 2001, to allow certain development and mitigation fees for "For Sale" housing to be waived to encourage owner -occupied housing in the CD and RM-U zones; and WHEREAS, these development and mitigation fees waivers are effective for building permits issued after August 13, 2001, and will sunset on October 1, 2004, unless extended by City Council action; and WHEREAS, the provisions of Section 4-1-210, Waived Fees, were useful in helping to establish the 37-unit 55 Williams project as the first significant owner -occupied housing development in downtown Renton in many years; and WHEREAS, the Renton City Council desires to continue to encourage additional owner - occupied housing in the CD and RM-U zones and thereby extend the development and mitigation fee waivers for an additional three years unless further extended by Renton City Council action; and WHEREAS, the Renton City Council desires to modify the eligibility for the development and mitigation fee waivers to clarify that the waivers apply to multi -family housing projects with a minimum of four dwelling unitsi that „ e new eenstruetion only, unless, , a ORDINANCE NO. WHEREAS, the Renton City Council desires to modify the process for approving development and mitigation fee waivers for eligible projects; and WHEREAS, the Renton. City Council desires to clarify that the waived impact mitigation fees for eligible projects will be replenished from tax revenues from the projects over- time; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I. Section 4-1-210, Waived Fees, of Chapter 1, Administration and Enforcement, of Title IV (Development Regulations) of Ordinance No. 4260 entitled "Code of General Ordinances of the City of Renton, Washington" is hereby amended to read as follows: WAIVED FEES: To encourage owner -occupied housing in the CD and RM-U zones, certain development and mitigation fees for "For Sale" housing may be waived for eligible projects, subject to City Council approval. Fees which may be waived include building permit fees, utility system development charges, Public Works plan review and inspection fees, and impact mitigation fees. Waived impact mitigation fees will be replenished from tax revenues from the projects over time. The fee waivers apply to multi -family housing projects with four (4) or more dwelling units each in the CD or RM-U zones that. , unless a reflovation of an des}giwe. These fee waivers are effective for building permits issued after September 30, 2004, and will sunset on October 1, 2007, unless extended by City Council action. 2 11 ORDINANCE NO. SECTION II. This ordinance shall be effective upon its passage, approval, and five (5) days after its publication. PASSED BY THE CITY COUNCIL this day of APPROVED BY THE MAYOR this Approved as to form: Lawrence J. Warren, City Attorney Date of Publication: ORD. 1 129:8/13/04:ma Bonnie I. Walton, City Clerk day of Kathy Keolker-Wheeler, Mayor 2004. N 3 From: Julie Brewer To: Council News Date: 9/9/2004 12:34:22 PM Subject: Fwd: Renton School District Good News Announcements FYI >>> "Randy Matheson" <randy.matheson@renton.wednet.edu> 9/9/2004 11:50:18 AM >>> Below are "Good News" announcements read by Board members at last night's meeting. Please share this information at a City Council meeting. Thank you for your continued support of teachers and children in the Renton School District. "GOOD NEWS" ANNOUNCEMENTS - September 8, 2004 - Mary Ford, principal at Hazelwood Elementary School, is the recipient of the 1 st annual Diamond Award for Education, presented by the Newcastle Chamber of Commerce. The award recognizes citizens in education, business and other categories who demonstrate dedication, integrity and passion in their community. Mary was recognized as an education leader who provides teachers and staff with the skills, behaviors and tools to help all students at Hazelwood achieve great success. - The district's summer school program was a big success. More than 500 students attended programs designed to improve reading, writing and mathematics skills. Middle and high school students reported a better than 90 percent passing rate in algebra, Language Arts and World and U.S. History. - High school students enrolled in LINK programs were instrumental in helping new freshman adapt to life at high school. LINK students dressed in special clothing on the first day of school to identify themselves to the new students. They also directed the new students to their home rooms and lockers and even sat in a special section at the Friday night football game to make certain the freshman didn't have to sit alone in the sea of experienced high schoolers. The new freshmen were thankful and relieved that the LINK students were there to help them through the first days of high school. - Staff at Campbell Hill Elementary School were honored for their participation in the "Kids in Need" program by World Vision. The Kids in Need program is a free service that allows teachers in schools that serve low-income families to shop for teaching aids, books and school supplies for children. Teachers also can select educational toys and games that can be used as student incentives for stellar schoolwork or good behavior. Campbell Hill staff has used the service more than any other school in the Puget Sound area. Kids in Need offer these supplies through a partnership with member manufacturers and retailers who donate their overstock and surplus goods to the center. Randy Matheson Executive Director, Community Relations Renton School District 425.204.2345 rmatheson @ renton.wednet.edu CC: Michele Neumann