HomeMy WebLinkAbout1993-10-11 Committee of the Whole MinutesTUKWILA CITY COUNCIL
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October 11, 1993 Tukwila City Hall
7:00 p.m. Council Chambers
COMMI'H EE OF THE WHOLE
MINUTES
CALL TO ORDER
Council President Lawrence called the Committee of The Whole
Meeting of the Tukwila City Council to order and led the audience in the
Pledge of Allegiance.
COUNCILMEMBERS STEVE LAWRENCE, Council President; JOE DUFFIE, JOAN
PRESENT HERNANDEZ, DENNIS ROBERTSON, CHARLIE SIMPSON,
ALLAN EKBERG AND STEVE MULLET.
OFFICIALS
Council President Lawrence: We've just returned from Executive Session on an unrelated matter in case
anyone was wondering. It was totally unrelated to tonight's agenda. First off, are there any citizens who'd
like to comment on something that is not on the agenda? Ok, seeing none I'll go through the order of
events tonight and then we will hear from our City Attorney. This is a little bit missed named on the
agenda. It's not a public hearing, it's an Appeal. The only people that will be allowed to testify are the
applicants, the appellants, members of staff and witnesses if they are called. The City Attorney will
explain certain elements of the proceeding then staff will give a presentation on the basic issues. The
appellants will present their appeal and call any others they wish to speak. Staff then will present the
defense of their decision. The applicant or representative will present their evidence. The appellants will
offer rebuttal arguments. The staff will offer rebuttal arguments then the applicant will offer rebuttal
arguments. Then it will be optional for closing arguments for any of the parties. Following that the
Council will debate the issue if there's time. We probably will not come to any decision this evening.
During the testimony by the applicant, the appellant or the staff, any of the other parties may ask
questions when they are finished. I'd ask that they do not interrupt and that they remain civil at all times.
Are there any questions on this so far? Ok, I'll turn it over to the City Attorney and she'll go over some
basic concepts of this proceeding.
City Attorney Cohen: Thank you. As Steve Lawrence has already said, this is a quasi-judicial proceeding.
It's different than a regular public hearing in that the issue is not City -wide but it deals with certain
affected and interested parties. This appeal is an appeal which is de novo which means that it should be
heard as the matter has never been heard before and the councilmenbers are permitted to consider all
relevant evidence. At this time I'll ask, since this is a quasi-judicial hearing, whether or not there has been
any exparte communications by councilmembers or the Mayor. If there have been they should be
disclosed at this time.
Lawrence: Dennis?
JOHN MCFARLAND, City Administrator; LINDA COHEN, City
Attorney; LUCY LAUTERBACH, Council Analyst; ROSS
EARNST/RON CAMERON, Public Works; RICK BEELER/DENNI
SHEFRIN, DCD.
Councilmember Dennis Robertson: I'd like to report that a week ago in my packet of material for this, for
the weekend, there was a copy of a fax that was apparently sent from the applicant's attorney to our
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Planning Department when I reviewed it on Saturday morning in my packet of material, I saw the Xerox
of the fax, I saw the title of who it was from. I got curious because we had been warned not to look at
material dealing with the subject. I looked to see who had signed it and it was not signed but it said draft
and confidential. So I called the Legislative Analyst Lucy Lauterbach right away. She told me that that
was a mistake so I did not read it any further. I put it in a folder and returned it to her on the next
Monday.
Cohen: So this was a fax that came to the City and not to your home?
Robertson: It came to the City and it was put in my box.
Cohen: And you said that you did not review the contents of it.
Robertson: No, only the title and the signature block.
Cohen: And I would assume that the receipt of that document without reading it would not affect your
ability to be fair and impartial in considering the evidence, all of the evidence that you hear tonight.
Robertson: No, it would not.
Cohen: I would also just say that anyone in the audience may challenge anything that is put on the record.
Lawrence: Any other disclosures?
Lawrence: I would like to state for the record that I received a phone call about ten (10) days ago by one
of the appellants confirming the date of this proceeding and also reminding me of the great amount of
material to be reviewed in requesting the Council get that material in adequate time. That was the extent
of the conversation.
Cohen: And who was that?
Lawrence: That was Mrs. Lamb.
Cohen: And was there anything else that occurred during the course of that conversation?
Lawrence: No, that was the extent of the whole conversation.
Cohen: And do you believe that you'll still be able to be fair and impartial during the course of this
proceeding?
Lawrence: Yes.
Lawrence: Any other disclosures. Do you have anything further, Linda?
Cohen: Yes, I do. The standard that should be used during the course of this Appeal is not clear. There
are two standards that have been used, either the arbitrary or capricious standard or the clearly erroneous
standard. I believe that since the clearly erroneous standard is the broader standard, it's the safer and
more cautious standard. I also believe it is the more correct standard to judge by. I'll read you a portion
from the West Main Associates in Bellevue vs. Bellevue Case which states: "The clearly erroneous
standard provides a broader review than the arbitrary or capricious standard, because it mandates a
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review of the entire record and all the evidence rather than just a search for substantial evidence to
support the administrative finding or decision. This standard also requires consideration of the public
policy contained in the act." This language is largely sited in a number of different cases. In a nutshell,
what the clearly erroneous standard means is whether or not you need to ask yourself whether or not
you're left with a definite and firm conviction that a mistake has been made. The issue tonight is whether
or not....it's not whether or not you agree with the project per se. There's a very narrow focus and there's
a two part decision. One, whether or not you feel that there....that the responsible SEPA official clearly
errored in failing to require an EIS. The second part of your decision is whether or not you feel that the
responsible official clearly errored in imposing mitigation conditions to address the specific articulated
adverse environmental impacts. With respect to those impacts, I'll briefly reference the TMC Section
21.04.250. It states that: "The City may attach conditions to a license or approval for a proposal so long as
1) Such conditions are necessary to mitigate specific adverse environmental impacts clearly identified in
an environmental document prepared pursuant to this chapter; 2) That such conditions are in writing; 3)
Such conditions are reasonable and capable of being accomplished; and, 4) The City has considered
whether other local state or federal mitigation measures apply to the proposal are sufficient to mitigate
the identified impacts; and, 5) Such conditions are based on one or more policies in Sections 21.04.270 and
cited in the permit approval license or other decision document. It's also important to keep in mind that
both the RCW and the TMC mandate that the City's responsible official shall carry substantial weight in
the appeal process. That is found specifically in RCW 43.21.(c)075, and in the TMC 21.04.280, Section
(D). The TMC further mandates three things that are provided for in the appeal record: 1) That there
are findings and conclusions; 2) That the testimony be provided under oath; and, 3) That this hearing be
either taped or that there be a written transcript of this hearing. The final matter that I would like to
address at this time is that the Council has sixty (60) days from the date the appeal is filed to render its
decision. Since the amended MDNS was issued on August 13 and there was no formal letter by the a he
appellants at that time, we will assume that the earliest date is applicable. The 60 days expire tomorrow,
October 12. So I would ask that the Council President ask each of the appellants whether or not....and the
applicant whether or not they are prepared....whether or not they would be willing to waive that
requirement and extend this process for another week. If not, a Special Meeting has been set for
tomorrow so that we can comply with the TMC and make a decision and enter the Findings of Fact and
Conclusions of Law by the 60th day.
Lawrence: Do you want them to state that affirmatively or shall I just ask if anyone is unwilling?
Cohen: I would ask them each and every one state to that affirmatively on the record.
Lawrence: Can we do that during testimony or should they come forward at this point?
Cohen: However you would like to proceed.
Robertson: I prefer at this point....I would like to know if I have to make a decision tonight based upon
the information. If so, the staff is going to be scurrying.
Lawrence: Linda has scheduled a meeting for tomorrow if they do not weigh the 60 day, so we will have
over night.
Cohen: And it's a COW so a decision cannot be made tonight, but there may be a discussion.
Lawrence: Linda, I did not pound the gavel to formally open this. Is that ok or shall I do it now? Does it
matter?
Thhen: I think it's appropriate to do that now.
Lawrence: I'll formally open this hearing.
Robertson: Steve.
Lawrence: Yes.
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Robertson: Before....I have a couple of questions that I'd like to ask, I guess of staff, before we start. One
Iuestion is, I want to have it clear in my mind what basically a decision I'm to make tonight. It seems to
ne there's really two decisions: 1) Should an EIS be required. Did the responsible official error in not
-equiring a full EIS. I think that's one question.
Cohen: Did they clear the error in not issuing, and....that is giving the responsible official substantial
weight in deference in making that decision. That's part one.
Robertson: The second part is if that's not true then is the MDNS as referenced in the appeals based
upon the points referenced in the appeals is there indeed an error, a factual error there in the MDNS in
my mind? It should be MDNS itself have either more or less stringent or different requirements. It that....
Cohen: Did they clearly error in issuing the conditions which affected the specific and written adverse
environmental impacts? And then I read the different conditions under 24.04.250 that are necessary. So
it's a more narrow focus, I believe, than the one that you articulated.
Robertson: Would you read those once more, please?
Cohen: Yes, 1) That such conditions are necessary to mitigate specific adverse environmental impacts
clearly identified in an environmental document prepared pursuant to this chapter; 2) That these
conditions be in writing; 3) That they are reasonable and capable of being accomplished; 4) that the City
has considered whether other local state or federal mitigation measures apply to the proposal are
sufficient to mitigate the identified impacts; and, 5) Such conditions are based on one or more policies in
Section 21.04.270 incited in the permit approval, license, or other decision documents.
Robertson: Second thing is, Steve, in reviewing the packet presented to us, I found that there is some
materials that are referenced in this packet that are not there. There are also some things that are
illegible in the packet that I was given. So basically, before I'm willing to make a decision, I would like to
have the material presented to me and presented in enough time to study. So I made copies of what I
want for the Council and the administration.
Cohen: I would just ask what....if you could state what it is that you're passing out and whether or not the
appellants and the applicants have a copy and if not, they should be provided a copy.
Robertson: Sure, I have copies for them. It just says date: October 11, 1993; To: Tukwila Planning
Department and Council; From: Councilmember Dennis Robertson; Subject: Items referenced are
illegible in Fosterview Estates packet of materials. And then I want to go on to say "I require the
following materials for study prior to being able to render a decision on the appeals being considered
tonight: Current copies of TMC 21.04.270, current copy of RCW 43.21, current copies of WAC
197.11.350, 197.11.402, 197.11.448, offsite drainage analysis for Fosterview Estates dated May 12, 1993;
drainage basis maps of existing and future drainage, August 10, 1993; peer review of Geotechnical by
AGI; legible copies of figure 1, figure 2 in the proposal section of this packet; copies of exhibits a, b, c
listed in the proposal section; copies of wetland study; revised wetland study; outline of wetland buffer and
Annellants /Applicants /members of staff /and other witnesses: "I do."
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enhancement plan; and tree survey listed on page two of the applicants' response to letter of appeal and
copies of guide book for agencies and SEPA handbook described in last paragraph of page 3 of
applicants' response to letters of appeal. The material that I listed is all referenced in the packet and used
to illustrate a point and without having the material to review, I find it difficult to come to any conclusion.
Lawrence: Thank you. Alright, before we proceed, I'd like to propose that each witness be limited to ten
(10) minutes since we have quite a number. Is there an agreement with Council to limit the testimony to
ten minutes of each witness. Ok. (The Council agreed by nodding heads.)
Robertson: Steve, could I add one other point. You requested that....you suggested they be able to
question each other afterwards. I would suggest that they have to pose the questions to you not to each
other and then you would in turn....
Lawrence: I believe they are allowed, by law, to pose the questions to the witness.
Robertson: Usually the procedure is to ask you to do it. That way....
Lawrence: I was informed by the City Attorney they are allowed, by law, to pose questions to the witness.
Ok...
Duffie: Shouldn't we give copies to them, or did we agree.
Lawrence: I think some went out that will be passed on. Alright, all individuals who wish to testify tonight:
appellants, applicants, members of staff and other witnesses, I need you all to stand now and to raise your
right hand, and to respond "I do" after I read this affirmation. "Do you affirm the facts you are about give
in this matter to be the truth
Lawrence: Please be seated. Ok, first off are the appellants. I have a list before me that starts with Nancy
and Ron Lamb. I'm not aware of any other order that's come up. Has any other staff member have a
different order? Ok, we'll just go with this then. Nancy and Ron Lamb, please state your name and
address for the record.
Good evening, my name is Ron Lamb. 4251 South 139th Street. I'm one of the appellants to the mitigated
determination of non significance. I've been selected by the other appellants to begin the presentation. A
number of other appellants will also speak. The order of the appellants speaking on our appeal is: Tim
Thompson, Elizabeth Springer, and Pam Carter. Note that the appellants live not on one side of the site,
not just adjacent to the site, but throughout the affected neighborhood. Let me make it clear that many
other residents support this appeal, but we were not able to gather additional names because of the short
deadline for the appeal. We had only five business days to read and analyze the initial determination,
formulate our appeal, and gather signatures. We did not have months and a law firm on retainer to
prepare our appeal. Also note that this was during the summer when many people are on vacation. The
deadline eventually was extended but what we didn't know as the deadline approached that it would be
extended. We decided to play it safe and file our appeal so that there would be an appeal on record. The
deadline was eventually extended....ah, sorry. The Scarber appeal was filed independently sometime later
and I understand is being considered by the staff as an amendment to our appeal. We do not consider it
such. We consider it a separate appeal. But these are procedural matters. The technical question before
you tonight is did the Planning Director error in issuing a mitigated determination of non significance on
Fosterview estates. We say yes he did and for one overriding reason -it was bad public policy because it
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made public input an afterthought in the process. So the basic question before you tonight is a public
policy question that you as the public policy makers in the City are obligated to answer. Where is the
public in the public process? So far, the process has been staff -driven and developer driven. That is the
nature of an MDNS. Opportunity for public input has been belated and negligible. Only at the end of the
process of developing the proposal were two public meeting held. Again, they were during the summer.
They were not advertised as public hearings, they were advertised as informational meetings conducted by
the City staff, giving the developer an opportunity to present the proposal to the public. The fact that
residents voiced serious concerns about the proposal was not an intended aspect of those meetings. Some
residents said they were not notified by the City. They learn of the meetings from a leaflet distributed by
other residents. Fosterview Estates is a project that cries out for an environmental impact statement.
This is the first time that the Sensitive Area Ordinance is being combined with a planned residential
development. The issue surrounding Fosterview Estates are very serious and have far reaching impacts.
The record clearly shows that there are grave concerns about springs, slides, surface water drainage and
traffic Make no mistake, this proposal is precedence setting. If the City faces another SAO PRD, will the
developer of that proposal point to Fosterview Estates to avoid doing an EIS? Many residents are
watching this issue carefully to see how the City treats Sensitive Areas and hillside development. On
several important issues, we're being asked to wait until later for answers. In particular, on the design of
the drainage system and the method for containing and directing ground water from the, as yet,
unidentified springs, is that adequate mitigation? No. If the construction season occurs during dry
weather, as construction generally does, how will the effects of intermittent, unidentified springs be
determined. If these springs pop up a year later or ten years later or 20 years later, who will repair the
damage, and how will those homeowners of the future feel about the present day decision makers? Flaws
and inadequacies exist in what was produced by this non public process. For example, in the MDNS,
under slopes stability, mitigation 4, 6, and 7, there are references to the geotechnical engineer. Which
geotechnical engineer? The independent one hired by the City or the one hired by the developer? This
doesn't say. Although, I would hope it means the independent one. Referring to the inadequate list in the
original environmental checklist, our appeal points to....out some of the additional species of birds present
in the area. The City staff only now acknowledges the presence of Robins, Chickadees, Stellars, Jays, wild
pigeons, Hawks, woodpeckers, flickers, small owls, Gold Finches, Quail and other species. If the process
defined by the developer and the staff has been so complete, why was this impact on wildlife overlooked
until now and recognized only because it was pointed out by the public. The lengthy list of documents
spun by the MDNS is a likely source of continuing confusion. Questions very well may surface later. What
did the developer agree to, and not agree to? It may be true that everything the City staff did was allowed
under the law, but what is allowed and what is best are two different things. SEPA might allow for this
confusing array of documents as part of an incremental process, but the process excludes the public
relying on City staff to adequately represent the concerns of citizens. In other words, father knows best,
and citizens stay away. I don't know about you, but I resent that attitude about local government. Our
motivations are varied. We all live in this community Many of us have for decades. We've seen change
and we've learned to live with it. What we object to is unregulated change change that is not in the best
interest of our community's future. We do not have consultants and lawyers to say for us what we want
them to say, but our observation and concerns cannot be so easily dismissed. We can't quote chapter and
verse of SEPA and case law as a developer's attorney can, but then that's what she's paid to do. We can
only tell you from our experience and from what we've been able to read from the record how concern we
are at the lace of an EIS for Fosterview Estates. The next speaker, please.
Lawrence: Mr. Lamb,
Lamb: Yes,
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Lawrence: Are you willing to waive the 60 day limitation to allow this meeting to be continued on the
18th?
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Lamb: I am, but I would like to point out that there are other appellants who are not present tonight who
could not be here, I cannot speak for them.
Lawrence: Linda, the information I was given here reference questions from Council during the rebuttal
session, is it appropriate to wait until then or should we have questions now?
Cohen: You can do whatever is logical. If it's more logical while Mr. Lamb is up to ask the questions now
perhaps it'll....
Lawrence: Mr. Lamb, could you come back up so we can see if there are questions from the Council?
Would anybody like to have any question for Mr. Lamb on this issue?
Councilmember Hernandez: When were you first made aware of this proposed development?
Lamb: Me, personally?
Lamb: Probably two years ago.
Councilmember Ekberg: If I can follow along with that, how were you made aware of that?
Lamb: Contact with staff.
Ekberg:. City staff?
Lamb: Yes.
Robertson: The public hearings that you mentioned that were not public hearings, they were
informational hearings, would you....
Lamb: Informational meetings.
Robertson: Was there an advertisement or a bulletin put out or anything?
Lamb: Yes. Not everyone received one, however, according to what was said at those meetings.
Robertson: Were they mailed, or do you know?
Lamb: I believe we received ours by mail.
Hernandez: Were you ever given the opportunity to testify at a Planning Commission hearing or
anything?
Lamb: Yes. That's a separate process, however. We're talking about the EIS process here.
Lawrence: Anybody else? Alright, thank you. Ok, next, I believe you list it as Tim Thompson. I think I'll
ask you the question first so I don't forget. Are you willing to waive the 60 day limitation to continue this
hearing on the 18th?
Elizabeth Springer, 13325 42nd Macadam Road South. How about that, I made it.
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Tim Thompson: Yes. My name is Tim Thompson, I live at 13633 42nd Avenue South. I primarily
disagree with the mitigated determination of non significance that was issued primarily because of the
PRD- -the planned residential development -that determined the density of the proposed plan. I feel that
this particular piece of property with its steep slopes, wetlands and other problems that a PRD would not
be appropriate. One of the issues that appears in the City's Municipal Code as far as density standards
(Chapter 18.46.070) it states in R -1 Single Family Residential districts on sites containing sensitive areas or
their buffers, the City may authorize a minimum lot size less than the yard requirements for R-1 7.2
districts following the findings, amenities or design features listed or substantially provided. One of the
features....design features in sub paragraph "b" is advantage is taken or enhancement is achieved of
unusual or significant site features such as views, water courses or other natural characteristics. This site
does not contain unusual views, or unusual water courses or any special natural characteristics. Another
issue in the PRD is a matter of open space. In 18.46.080 it states that: "Each planned residential
development shall provide not less than 20% of the gross site area for the common open space which shall
1) Provide either passive or active recreation concentration in large areas; 2) Network with the trail and
open space system of the City and provide a connection in expansion, if possible. This site does not have
these open areas as a part of it. My final concern is the relationship to adjacent areas. Defined in
Chapter 18.46.090, it states: "The design and layout of the PRD shall take into account the integration
and compatibility of the site to the surrounding area. The perimeter of the PRD shall be designed as to
minimize the undesirable impact on adjacent properties." I feel a higher density of the PRD does not fit
into the surrounding area which contains lots that are at least 10,000 sq. ft. in closely nested houses that
are proposed with the PRD would be an undesirable impact on the surrounding properties and do not
reflect the rest of the neighborhood. For these reasons I request that you closely review the ruling that
will determine if this determination is annexed as the best....in the best interest of our neighborhood.
Thank you.
Lawrence: Are there any questions of Mr. Thompson? Thank you. Next for the appellants we have
Elizabeth Springer.
Lawrence: Mrs. Springer, are you willing to waive the 60 day limitation and have this meeting continued
on the 18th?
Springer: So long as all the testimony is given tonight. If I understand what you are saying, you could put
off the decision until the 18th....
Lawrence: We will try to have all the testimony tonight, but I can't guarantee that will happen.
ginger: Well, we were informed that we each side would have 15 minutes and you're....from the look
of the number of people on the other side, they're going to get 40 minutes and we've targeted ourselves
into that slot. Yes, if they testify tonight so they can't change their testimony in two week, yes, I'd waive
almost anything.
Lawrence: I'm sorry about the misunderstanding about the timing. The thing that gets out of control from
my perspective is the amount of questioning that comes from Council back that may delay some
testimony. I think it'll all get in tonight, honestly, but I....I think all the testimony will get in tonight but I
can't guarantee it. So, my question is are you willing to allow us to extend this until next week as opposed
to tomorrow?
Springer With the proviso I stated, that's the only reason I would say extend it. Councilman Robertson
has to have some, ah, I presume you're not going to make a decision tonight because he has some extra
siformation that he needs.
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Lawrence: We can't make a decision tonight anyway. But the way it stands right now the 60 days expires
tomorrow. So unless everyone involved is willing to waive that 60 day limit, we will have another meeting
tomorrow night.
9:7 S'
Springer: Oh, well, I misunderstood that. The hearing possibilities in the front row aren't any better than
eve can expect, I guess. Yes, I will waive it. I was looking at 60 days down the road from today.
Lawrence: No. Thank you.
Springer: When we were in unincorporated King County, Ex -Mayor Todd wanted to build high density
housing in the area now under consideration from micro lot sizes. In protest, some went to a hearing in
the Council Chambers and others complained by letters and telephone that the area was not adaptable to
such building, and that -a was that -a. We heard no more of it. Last year I was worrying aloud about the
use of the property as it was assured by someone in the know that I could quit worrying because it was in
the part of an extensive trail and park system. I wasn't the only one who heard this because I've heard it
from several people since. During this period, the staff whose wages my taxes help pay were working
closely with a speculator to develop the present fairy tale. Fosterview is not adaptable to steep hillsides.
The earth is in constant motion as can be observed by examining the paving on closed 43rd. This road was
built by the county many years ago but did have a tendency to crack from ground movement. The county
carefully rebuilt it three times and on the last reconstruction, at some time prior to 1968, declared that if it
shifted again the road would be closed. It did, and they did. They closed it. Today the cracks run every
which way and up to 14 inches deep. Inasmuch as Fosterview is being built on this same hillside, is this not
a poor building site? These objections were waved aside by both staff and the speculator. To authenticate
the trauma to birds and animal life, the speculators and staff seem to feel that we should have some sort of
listing of the birds we see. Hawks were circling overhead last week, but where am I to register this
occurrence? Why did we spend so much time and effort to work out zoning and minimum lot size (I think
something around 7900 sq. ft.) and really struggle for larger lot sizes at the drainage basin at the bottom of
this hill, and this plan considers 3400.8 sq. ft. as a lot size. You might think of it as a living room or a house
size, but a lot size? Yet the ground in this area is already squishy after just one good rain. The plan also
discusses what to do with excess water and it is suggested that some of it be re- routed to a neighboring
property. Have the neighbors given their permission, or are they even aware of plans to use this property.
It seems strange that it's up to us to substantiate any and all claims me make that this land is unsuitable for
such an intense building and even for any building at all. We are to produce such authentication within a
few days, yet our employee may spend weeks and months assisting the speculators. As councilmembers,
there should be no more acceptance of lot sizes less than 7900 sq. ft. and if you accept that the wetlands
sensitive area is less than one acre, then you also believe in the tooth fairy.
Lawrence: Thank you. Are there any questions of Mrs. Springer?
Hernandez: Elizabeth, did you live where you currently live now when that street (43rd) was open?
Springer: Yes.
Hernandez: Oh, you did.
Springer: It was....I was married in 68 and my husband told me at that time that the county has repaired
this three times and if it slides again they're just going to close it. And we laughed over it and it was some
time (I think) after he died in 76. Now, I'm vague about that...these....Ah, ah, I mean sometimes I'm even
vague about ah, ah, how old I am.
Hernandez: Did that use to come out in back of your house where you live now?
&ringer: Well, no. The thing is that the back of my yard goes way out 500 ft., it's the drainage basin for
the hillside. So, ah...we use to, before the sewer went in, have ground water atop the ground surface. Now
it's a half to an inch sometimes. In the summer it's down a good two inches. The whole basin there is
drained by the....so there's a lot of water coming out of there and if you look at the maps, it shows a water
course. And I understand that if that water course is wet five percent of the year, of something, I've
forgotten the terms now, then that is also a sensitive area and a wetland. And the neighbor up there, I
went up and looked at her yard, it's adjacent to the northend of this project, and she has the most lush,
green grass you ever saw because the water courses are just watering it down, in the middle of August
when everything is dry and our lawns are all burned, if we're up on the hill.
Hernandez: Thank you.
Lawrence: Any other questions?
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Robertson: Pardon me, Elizabeth, you mentioned at the start that you were told that you were told that
you would be allowed 15 minutes in total. Is that for the entire group of people?
Springer: Yea, so we tried to plan it out so that we wouldn't have....
Robertson: Who told you that?
Springr: The Planning Department, Mr. ah, what his name? Mr. ah...
Lawrence: Beeler?
Springer: Beeler. But it was printed someplace, only I can't guarantee where I saw it.
Lawrence: They may have referenced a normal public hearing.
Springer: huh?
Lawrence: He may have referenced a normal public hearing rather than a hearing of this sort. Any other
questions of Mrs. Springer? Alright, thank you. Next up is Pam Carter.
Pam Carter: My name is Pam Carter, and I live at 4115 South 139th Street.
Lawrence: Are you willing to waive the 60 day limitation and allow this hearing to be extended to next
week, the 18th?
Carter: Yes, I'd be willing.
Lawrence: Thank you.
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Carter: Before I started, I wanted to point out that figure 1 shown here following page 8 in the packet.
The representation of Southgate Park on that map is not the scale. Southgate Park is actually smaller
than shown on this map here. It is not quite five acres. And the area that's proposed for Fosterview
Estates is nine point something acres, just under 10 acres, in here it appears Southgate Park is as large,
and it isn't. Some of that area, especially on the east side there, is private residences. That isn't all park
property. So I wanted to make sure you understood the scale was off in that map. I wanted to talk a little
bit about the springs. That's something that's really worrisome to me. I don't think it's adequately
addressed in the MDNS. I note that Dujardin's response to our appeal, they're still negating the possibility
of springs. They begrudgingly say that there is any lack of definitive evidence that these springs exist, but
they do note the MDNS does require an updating of the drainage plan to deal with the springs. This is in
spite of the peer review of 6/28/93 that says that there are a large number of springs can be expected on
this site, that numerous and yet unidentified springs are throughout site and if large springs are found
under building sites, you may not be able to build the house right where you plan to build it. The Terra
Associates evaluation of stability consideration of....let me see....it mentions that if the work is done during
the periods of heavy precipitation, seepage is likely in areas where cuts are of more than three to four feet.
So you have to have adequate measures for surface and subsurface drainage and under wet weather and
the rainy season, perched ground water table are likely to develop. So it seems that experts that have
been hired for peer review and by the City to look at this are saying that there are springs there. So it's not
just the testimony of residents, the MDNS does say that when they come across them they will have to be
addressed and it's talking mostly about road construction. What about as they are constructing the houses,
I understand that there are requirements for French drains around the perimeters of the foundation. I
share Ron's concern about what happens as you build the roads, does blocking a spring here mean that it
will pop up somewhere else. This hasn't been addressed. And I would be a very angry home owner if I
bought a home there and I bought it in the dry season and during the rainy season I have a spring develop
under my driveway or under the crawl space in my house. I'd wonder why they can build there if there
were so many springs. And once again, if this is constructed during dry weather, we don't have a timeline
on when this would start and I know part of that is because all of the permits haven't been acquired yet so
that they don't have a starting date, but if they build during the dry weather, how will they know where the
springs are. I just don't feel it's adequately addressed. Traffic is another real big concern since I live right
off of 42nd. I do drive up and down that hill. And I understand that the access onto 42nd meets
engineering safety standards for traffic traveling 30 MPH. I'm sure most of you have driven that road at
one time or another. Everytime have you driven at 30 MPH? Do you know how often people go up and
down that hill at 30 MPH, it's not very often. I think to predicate whether this is a intersection that will be
safe or not at a speed that is a posted speed limit, but it's not the actual speed that's traveled by vehicles,
just doesn't quite make sense. And if you look at the figures given, especially the access for the lots 1, 2,
3, I'm assuming that's the same access on the chart....they have a separate access for lots 2 3 on his
chart, the traffic consultant and apparently the drive was consolidated so one drive serves lots 1, 2, 3 on
the northwest corner of the property. So I'm assuming that access is the same because there were no
different figures given. So for the access at lot 1, that wouldn't meet, as I can figure it, that wouldn't meet
the standards at 40 MPH. It's like pulling out onto the highway, pull out onto Pacific Hwy, assume traffic
is traveling 45 MPH and you should have enough room. Well that traffic isn't traveling at 45 MPH, you're
gonna have a car right in the middle of your car if you make that assumption. You better assume that the
cars are traveling much faster than that before you pull out in front of them. So I understand that it meets
the technicalities but I think we have to look at the real world here. I know the City is going to be
improving 42nd putting in curbs and sidewalks- -but I honestly don't thing that will make people travel
more slowly. Especially, down that curve which ices AMBER up very quickly in the winter weather.
Thank you.
Janelle Scarber. 13716 41st Avenue South. We do not feel....
Lawrence: Ah, excuse me, I need to ask you if you'll waive that 60 day limitation?
Scarber: Yes.
Lawrence: Ok, thank you.
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Lawrence: Are there any questions for Mrs. Carter? Ok, thank you. Are there any other appellants who
would like to speak? Ok, seeing none, then staff....I'm sorry, please come forward and state your name
and address.
Scarber: We do not feel that the Department of Community Development planning has followed the
interim tree ordinance and the SAO as adopted by the City Council. The flavor of Tukwila will be at the
crossroads if the Fosterview Estates developer is allowed to clear cut the entire building site areas as
proposed. Stuffing over four homes per acres on a wet hillside is not an image we care to support. Our
citizens and the elected leaders are the guardians of our community. Making difficult decision on this sort
of proposal is not easy, but failure to assess the overall impact that allowing a density such as this is to be
built will set a precedent for
additional developers. If anything, the property should dictate very low density of home sites due to the
acknowledged fragile ecology it contains. We find that anyone can quickly an accredited wetlands expert.
Any wetlands or sensitive areas determination is highly subjective. Vegetation and soil can be reviewed by
several wetlands experts and you can get several different opinions as to the degree and extent of that
same property. We ask that the Council visit the site and tramp through the area with the preliminary
plat maps and get a first -hand exposure to better understand the appellants' position. We would ask that
the Council do this prior to rendering a decision of any sort. As permanent home owners in the close
proximity of this site, we must live with your decision. Please weigh our appeals and comments, equally,
with all other input. Thank you. And I just wanted to add that we did not find out about this proposal
until mid July of this year.
Lawrence: Thank you. Any questions? Joe.
Duffie: Ok, you made a suggestion just a while ago that we go to the site. I'd like to ask the attorney at
this time can we go to the site. If we do, do we be....
Cohen: I believe it can be....I'd like to double check, my gut reaction is that as a Council you can.... It
would be relevant evidence if everyone went together and reviewed the site. You are not limited to what
anyone provides. And you are allowed to review all the relevant evidence. I would suggest that you go as
a body as opposed to individually, but I'd also like an opportunity to double check to make sure that I'm
advising you properly.
Lawrence: Did the audience hear that? I'm a little concern about the mike (microphones) issue.
Duffie: My next question is that, ah, are we allowed to talk to any of the opponents?
Cohen: No. This is an opportunity to ask your questions.
Duffie: I just want to make sure so they don't call us. I just want to make sure they don't call us, cause if
they do we will be in contempt.
Cohen: That would be improper.
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Councilmember Ekberg: City Attorney, will you be able to find out that information before the close of
business tonight?
Cohen: Yes.
Lawrence: Any other questions of Ms. Scarber?
Hernandez: I didn't get her address. I would like to know where she lives in relation to the property.
Scarber: We live on 41st, which is....we look down on this property in question. Could I give you each a
copy of our letter? Is that ok?
Lawrence: Do we already have it. What's the date on it?
Scarber: The one I read tonight.
Cohen: It's already a part of the record and there will be a written transcript, there's no problem with
giving that to the Council in written form, additionally, as long as the applicants are also provided a copy
of that.
Lawrence: Could you give that to the clerk and she will make copies available to all parties?
Scarber: Yes.
Lawrence: Any other questions of Ms. Scarber? Ok, thank you. Are there any other appellants who
would like to speak at this time? Ok, seeing none, it's time for staff to present the defense of their
decision.
Rick Beeler. Director. Denartment of Community Develonment: Staff would like to break their
presentation up into two parts. I'd just like to just briefly, if I could, talk about SEPA in general and also
in specific, just how that law works, or doesn't, as some of you may have some experience certainly
Councilman Robertson has more experience with SEPA than most people have, especially in an appeal
process. The other thing I would like to do is just to address the process that we went through in reaching
the decision that we made and Denni Shefrin will bear clean up if you will in some of the more technical
issues. I'd like to pass around and entered into the record an exhibit. You already have Exhibit #1 from
the City which is the notebook or the green packet that was approximately an inch thick and distributed to
the appellants as well as yourselves. This next exhibit is a memorandum from myself (Denni, could you
please distribute that, it's on the chair in front of you, I forgot to bring it up) as Exhibit #2, this is a
memorandum that I'm going to only review in brief. This memorandum only addresses the SEPA. It
actually includes some of the those sections of SEPA that Councilman Robertson referred to. And,
I...ah...what I'm trying to do with this piece is simply to kind a put in perspective the sequence that SEPA
requires and only to add one (unclear).. in itself is not a very comfortable document to work with because
if you've had a chance to read what's called the green book, WAC 197.11, the SEPA rules (excerpts of
which you have now) that does not flow sequentially, and it is often difficult to get a clear understanding of
what SEPA does and doesn't do. I will try to do that very quickly tonight just to start, just kind a set the
stage. SEPA is commonly....consists of three different ordinances. The RCW 43.21(c) that we talked
about which is a state law which also ask that WAC 197.11 be prepared which has been called the SEPA
rules, and then we have our local ordinance which is TMC 21.04. Collectively, those three laws, if you will,
14
:onstitute SEPA. Those are the laws that I am constrained to use as the City's responsible official in
naking threshold determinations. Now, the threshold determinations is a process that is not a science, it's
somewhat of an art depending on a case by case evaluation. But what it does do is it requires that at the
.arliest possible moment the impacts be identified that can reasonably be accomplished, it doesn't require
...and it talks about....it doesn't require detailed information at that point. But the purpose was to identify
:he impacts as reasonably as could be done at the early stages of a proposal, make that determination and
;et on with business of making the fundamental land use decision or permit that is subject to....is the
subject of the environmental checklist. The threshold determination process requires that I do certain
things and WAC 197.11.330 is the....I have to evaluate the checklist and supplemental information. I have
to determine one thing and that is per that same section of the WAC if the proposal is likely to have a
probable significant adverse environmental impact based upon the proposed action, the information in
the checklist, and any additional information furnished, and that's what I'm to do. I'm also to consider
mitigation measures under the limitation of WAC 197.11.60....660 which basically have been
:an....summarized as, you know, reasonably able to be accomplished and also directly related to the
impacts of the proposed development. At this point, the threshold....I'm asked to make two, ah,....the
lecision becomes only one of two things. If there are probable significant adverse environmental impacts,
move to two proc....two....fork in the road and that is do I require an EIS or do I require....move to the
mitigated determination of non significance process. Before making that final decision, the applicant, per
the WAC, has the rights to ask me whether or not I'm considering requiring an EIS, and if so, that I
withhold that until additional information can be supplied. Once that information is supplied, if the
:onditions mitigate the significant adverse environmental impacts, the WAC states that I'm to move to a
mitigated determination of non significance. If the additional information and the conditions, the
mitigation measures do not mitigate the significant adverse environmental impacts, I'm required to move
to requiring an environmental impact statement. The mitigation measures are controlled and one of the
things that I mentioned is not only they reasonably be accomplished but also they must be based on our
SEPA policies in the TMC. Those SEPA policies are very specific and was required by the Act to not be
my these are the what....exclusively must use, I cannot bring anything else into this process and those
are listed among other things. Those are our normal codes and ordinances like the Zoning Codes,
Subdivision Code, Sensitive Areas Ordinance and the Tree Ordinance, interim Tree Ordinance. Those
are the only ordinances I can use in mitigating the proposal. WAC also says that in 197.11.055.2(a,i) that I
:an, as part of the mitigation measures, require further additional environmental studies. WAC
197.11.680 talks about the appeals of SEPA. And as the City Attorney has summarized, those....ah....that's
probably the most troubling part of SEPA and the courts have had to step in and provide the clarity that
the legislature did not. And I think that basically the test could be summarized, as near as I could put it
into terms that I can understand, is that on the board there: "Does the appellants evidence lead to a clear
:onviction, firm conviction, but definitely clearly that a mistake was made by the responsible official. That
;eems to be....that's the test. Now I'd like to move from discussion of that to discussion more of this
particular proposal. What we have is an application which included probably more things, more
ordinances than any other application before. We have now a Sensitive Areas Ordinance and this is the
5rst real acid test of the Sensitive Areas Ordinance. The Sensitive Areas Ordinance required the planned
residential development process, set no minimum lot size, and required us to go through that process that
s now culminating with the Planning Commission and will be coming to you later. One of the things in
:here was a plat, a preliminary plat, which we have not had very many here in Tukwila, but that is a two
;tep process. It goes to the Planning Commission as it has, and then the developer, if that's approved by
:he Council, constructs the roads and utilities and then it comes back to the Planning Commission and
2ouncil as the final plat. Then that has to be approved before building permits can be let for any of the
ots. So that two step process of the preliminary and the final plat which are oftentimes separated by
several months, was part of the decision making that I went through. That's why some of the conditions
7equire some additional studies further on is because at this point the PRD and the preliminary plat are
preliminary and that the only construction that will be approved (as a result of that process is through the
15
Lawrence: Mr. Beeler?
Beeler: Yea.
Lawrence: You're at ten minutes. Ah, are you....you're only having two staff members present?
Beeler: Yes.
Lawrence: I think it would be appropriate then to allow some additional time.
Beeler: Thank you.
L
and altering ordinance administered by Public Works) would be for construction of the roads and the
itilities. And with those the....ah....a lot of the soils analysis and drainage that we thought would be finally
nut to rest with cross sections and additional soil tests would occur. The conditions that we imposed in
:onsidering the two step process also did another thing. We looked....while we were looking at the
equirement in SEPA that as early as possible we move to a decision, we also early on considered that this
iad some probable significance adverse environmental impacts. And therefore we've gone through
almost two years of review and peer review and revisions and definitely not to do anything but to find, per
he MDNS process, the....ah....what conditions could be imposed. Could those conditions mitigate the
significant adverse environmental impacts or could they not. And it was from that....
Beeler: I thank that in conclusion, the conditions, the mitigation measures and the MDNS plus the MDNS
tself satisfy TMC 21.04.250, it's an extensive document backed by and includes, by reference, all those
■tudies that were done, which is a packet in and of itself that rivals what you have before you tonight. With
:hat, I'll ask Denni to come.
Lawrence: Before you leave, are there any questions from Council on the elements Mr. Beeler presented.
Steve,
Steve Mullet: Rick, I want to make clear the point at which you decide to go EIS or the mitigated issue,
Ind it sounded to me like what you were saying is if the builder is willing to work with you to begin with,
,ou'd look toward a MDNS, is that....
Beeler: The MDNS process was the....ah....when SEPA was created in 1971, there were some problems
with it, and in the revisions to SEPA a few years ago, the MDNS process was created. And as I
inderstand it, per what the WAC says, and I'm not trying to go around the bend to get to your answer, is
:hat to cut down on the paper work, get to the same point, but cut down the paper work. And the normal
process that's used in all jurisdictions by SEPA responsible officials is to look at an MDNS process unless
:he mitigation conditions will not mitigate the significant adverse environmental impacts. The other part
)f that is, as I've mentioned in the packet, Exhibit #1 that somewhat of a peculiarity of SEPA is that an
VIDNS requires....the conditions imposed on an MDNS are firm. The Council and the Planning
Thmmission cannot modify those. With an environmental impact statement, the ...while there is a public
process for that, definitely more public than a MDNS, at least what SEPA requires, those conditions are
idvisory to the decision makers which would be yourselves and the Planning Commission so that you add
:o, you could possibly even subtract, from the conditions, mitigation conditions in the EIS. Peculiarity of
3EPA, I don't know why they did that but they....it's amazing to me that that's the case but that was one of
:he things that I considered -would I achieve more documents, documentation, would I achieve more
nitigation conditions to mitigate the significant adverse environmental impacts through an EIS or through
�n MDNS. In this case I thought I would do it better through an MDNS.
vlullet: If I could follow up on that then, if just picking one out of the blue we felt that the density was to
nuch for that area, we don't have a choice to change that, we have to throw the whole thing out, is that...
leeler: Correct, because in order say, based on SEPA, in order to say based on SEPA that there's too
nuch density there, you would have to have a SEPA policy, and we do not have in the SAO any
equirement for density, in fact, we have the density transfer potential there. You do not have any
ninimum lot size requirements in the SAO either so based on SEPA, you could not touch those two
ssues. You don't have a SEPA policy adopted to do it. Same for wildlife, same for other issues that you
nay want to get into through SEPA, but unless they are in the SEPA policies adopted in our TMC 21.04,
'ou can't use SEPA to get there.
;awrence: Dennis.
16
tobertson: Rick, if an MDNS conditions are mandatory, does that mean that the developer cannot
:ontest them either?
feeler: Only through the appeal process if they,.... and has not.... so therefore he has not contested those
o those conditions move verbatim through the permit process.
tobertson: The conditions in an MDNS are appealable and in fact are being appealed tonight, is that
:orrect? That the second part of this thing that I asked earlier, Linda.
:ohen: With ah, numerous proviso....in the limited sense that I set out earlier.
Mullet: I want to make very sure of this, Dennis, we really can't change any thing, one part of this issue.
We can throw it all out or accept it as it's presented.
:ohen: I believe that's correct. It can be remanded back to the responsible SEPA official, that would be
Zick for further action but I do not believe that Council has authority to modify the conditions to add,
:hange, subtract. There's one case that addresses a similar issue Levine vs. Jefferson County- -but it's
actual distinguishable from our procedure here.
tobertson: So we're not....in previous times where there was an EIS it was my understanding the Council
et in place of the Planning Commission in reviewing an EIS. In this case you're saying we're not sitting in
)lace of the responsible official to review the MDNS?
:ohen: In that particular case, and the WAC gives authority to the responsible SEPA official to,....after
is remanded to,....well,....to issue new conditions, but that authority is granted only to the responsible
;EPA official. It is my interpretation of the Levine case. In the Levine case, it was....both the Board of
L'ommissioners acted as the responsible SEPA official plus as a Council. This is not the case in Tukwila
ve have a responsible SEPA official and then we have the next layer which is the Council. So I do not
>elieve the Council has authority to do that.
leeler: As I understand it....ah, the way I've come to understand it, the only way I can lock it in up here
ometimes is to think of it that the Council doesn't have the power, I'm not defending that right or wrong
)ut according to SEPA, to substitute your judgement for mine, the only authority that the Council has is
o look at the evidence presented by the appellants, in other words, the evidence not which....ah, the
)urden is for them to bring the evidence. Now, again, that's what SEPA requires and the case law
equires, does it lead you to this conviction.
Robertson: Ok. In this situation tonight, I look at the staff and Mr. Beeler and perhaps yourself, Linda,
wearing two hats. I believe that it would be normal process for you to review the MDNS and the different
activities that have gone on in this, is that correct?
Cohen: No, I received the pink packet after you did.
Robertson: Ok, so you haven't reviewed any of the ah you haven't received any of the material from the
applicants' attorney and reviewed that that was given to the Council or anything else?
Cohen: I basically have had the same information that you have had. I may have received one memo
earlier, but I'm here to assist in the procedure and substance is left to Mr. Beeler as the expert.
Robertson: And Mr. Beeler, in making your determination you didn't review that with the City Attorney
as to whether or not, prior to the appeal, as to whether or not it was appropriate, right, wrong, or anything,
you did it on your own, is that correct?
Beeler: I don't think we reviewed this prior to the neighborhood meetings that we had. By that time, of
course, the MDNS was already issued.
Robertson: Ok, then back to....in your case, you're wearing two hats -in one hand you're representing the
staff and its opinion as the staff to the Council since we certainly are not experts in this matter; on the
other hat....then you switch hats and you're wearing the hat defending your own position, is that correct?
Beeler: Exactly.
Cohen: And that's exactly what the law anticipates and the law does give the SEPA responsible official, in
this case Rick Beeler, substantial weight in deference. It anticipated just a situation and it's more often
than not that the Planning Director is the responsible SEPA official, so that's not unusual.
Lawrence: Any other questions of Mr. Beeler? Joe.
Duffie: We don't need the a definite figure, just an estimate.
Lawrence: One hundred total, cumulative?
17
Duffie: Yea, Mr. Beeler, I'd like to ask you when you had these public hearings, or these meetings,
approximately how many citizens attended?
Beeler: There were three meetings that were held, information meeting, I held two, Public Works held
another, Public Works held one on....I think the discussion was principally on the drainage system for
42nd. I wasn't at that one. The other two were public information meetings which we discussed the
proposal. We also discussed the SEPA process and the Planning Commission process so that everyone
would understand what was going to occur and didn't get confused until the....waste a lot of time. Also
based on that, yea, there were two of those meeting....how many people attended that, I'd say one
hundred, was there a hundred of us there, a hundred?
Beeler: The first one there were less than at the second one I had. I don't know how many attended the
42nd.
18
Beeler: No, at the first meeting I think we had close to a hundred people at the first one.
Lawrence: Joe, do you have a follow up on that?
Duffie: Yea, well, yea, you said you have three, I counted six meetings that we had.
Beeler: No, we only had three neighborhood meetings, yes.
Duffie: So you're saying at those three meetings we had approximately a hundred people.
Beeler: At the first one we did. At the second one that I held, there were fewer but I think there were
close to 50, were there 50 of us? I don't remember. Was it about 50 of us...
Duffie: Just give a rough estimate, I know you can't be sure. How many you had at the third meeting?
Beeler: 42nd was held by Public Works, I don't know how many they had. You can ask Ron, he's telling a
fish story right now, I think.
Ron Cameron: 30 or 40.
Duffie: Ok. Thank you. That's it.
Lawrence: Anymore questions? Allan.
Ekberg: To follow up to Joe's question, what physical proximity was notified of these hearing?
Beeler: I think we notified used the mailing list that was provided and required of the applicant which is
300 ft. We also ....did we put that in the Hazelnut....I don't....know (....Beeler is communicating with
someone in the audience, the person is without a microphone therefore comments are not recorded
clearly.)
Beeler continues: We created a sign up sheet at that first meeting and the second meeting so the notice
for those people who came would continue even for Planning Commission, action.
Ekberg: Two more.
Lawrence: Ok, go ahead.
Ekberg: The second appeal has been identified by Ron Lamb not as an addendum but as a separate
appeal. What's your interpretation of that?
Beeler: Of Janelle Scarber?
Ekberg: That's right.
Beeler: It was a separate appeal. The ah....I'm not sure of the point with....I know there were several
people who sign up on the petition for the if you call it the first appeal or the earliest appeal and then the
second appeal by Janelle Scarber was just by herself.
Ekberg: This maybe a question to our lawyer -at this point and time, are we reviewing both appeals or
does it merge into one?
r1
Beeler: The WAC does require that we consolidate the appeals.
19
Cohen: I'm not sure what you are referring to as two separate appeals. Are you referring to the original
MDNS and then the amended MDNS?
Ekberg: No, in our letter the appellants had requested this process. There's been two separate letters
requesting that we have this process. One letter from....headed off by Nancy and Ron Lamb plus a series
of signatures, a second letter headed off by Janelle and Bob Scarber -two separate documents requesting
this appeal process. My question is are we considering both those appeals at this one point and time?
Cohen: Yes, I believe it's been....it's....for all (unclear) purposes consolidated into....and we're
considering all the issues that are addressed in the letters.
Ekberg: That's my questions, ok. As a follow up, if an EIS is conducted and SEPA provides through an
EIS advisory information, how is the advisory information put into potential mitigation.
Beeler: Through the Planning Commission and your, in this case, it would be through the Planning
Commission and your review of the PRD Plat, those land use applications part of it. In other words,
hypothetically, if this was a proposal for a steel mill, let's say, on this piece of property and some of the
mitigation measures were, you know, they have to construct a street down to Macadam Road,
hypothetically, and the Planning Commission and yourselves said that's nice that's it in the environmental
impact statement, but it doesn't seem that this is a reasonable mitigation measure and that you can delete
it. You'd have to have some findings and conclusions but you could basically do that. I mean that's a, I
understand that's kind of a really radical case, but in the early years of SEPA, that sometimes happened.
The only thing I used that for is to point out that you as the decision makers and the Council as the
ultimate decision makers on the land use applications coming before you later, if then an EIS had been
required, then you would also before you to make a decision on the mitigation measures that you feel are
appropriate from that EIS.
Ekberg: Then to follow up on that, an MDNS does not require Council review, is that correct? Just
Planning Commission?
Beeler: Correct. When it comes to you those conditions are part of the proposal and ah, that's just part of
the package you get as a fact.
Lawrence: Any other questions? Joan.
Hernandez: I just want to clarify a couple of things to be sure I heard this right. Now, as I understand it,
then if the applicant proposes certain conditions that mitigate the impacts, then you don't have any choice,
then you are required to move to an MDNS. Is that correct?
Beeler: The SEPA provides for that to happen. It would be very tough to defend and appeal that I had
required an EIS when the applicant couldn't move to mitigation measures that mitigated those impacts. I
hope I helped to clarify that for you. SEPA is not one of the most easiest laws to administer. There are
some judgement all along the way.
Hernandez: And did I understand you to say the preliminary and final plat approval are separate issues?
Beeler: Yes. Separate hearings, separated by months of time.
Hernandez: And last question then, were density credits transferred, was that a requirement in this case,
did that come into play as far as the SAO goes or anything like that?
Beeler: That was part of the application which used the PRD required by SAO because of Sensitive Areas
on the property.
Robertson: Were we given....nowhere in my packet do I remember reading anything, Rick, that dealt with
the density, calculations, transfers, any part of that. Did I miss something or is that not included.
Beeler: The reason it's not included is that the proposal in and of itself met the requirements of density
transfer for SAO purposes. So I did not have to put a condition on it. It complied already.
Mullet: If I have a couple more questions on density, would you rather they be asked now or later?
Beeler: You could ask now. Maybe Denni might even....I'm kind a getting toward the fringe of....
Robertson: Rick, if we were to go back and look at this matter de novo, over again from the beginning,
wouldn't the information that you used to determine that there was indeed no density problems and that
the SAO provisions were met. Wouldn't that be part of the consideration? I'm trying to ask a reasonable
question.
Beeler: Yes, that is. The burden of proof here on the appellants is to provide you with evidence, a record
that shows you that I clearly made a mistake, opinions....
Robertson: Let me....
20
3
Beeler: I'm trying to answer your question. What I'm saying is, there is no evidence submitted to this
point that shows that I have done something contrary to the Sensitive Areas Ordinance. I'm not defending
in the terms of its density credits or its omission of the minimum lot size, that's a separate issue.
Robertson: Yes, I agree. So you're saying since the appellants have to provide the analysis of your, of the
density credits, for instance, they have to provide your original work and the analysis of that to show where
it was near for us to be able to consider it. Is that true? Because they raised that as an issue, for instance.
Cohen: The appellants have the burden of showing that the SEPA official clearly errored. However, you
are free to ask each one of the parties involved for the information including Mr. Beeler and Denni
Shefrin what information they considered in reaching their determination. It may be helpful too if Mr.
Beeler explains the difference between the matter before you tonight and then the matter that's before
the board which will eventually come to you which I believe deals with PRD's and densities and you'll be
able to answer that much more aptly than I.
Beeler: The issue you have now is environmental issues -did I error or did I not. You're not substituting
your judgement for mine. When the Planning Commission's recommendation on the PRD, preliminary
plat and the other issues come to you, you will be hearing that and you can substitute your judgement for
the Planning Commission's, theirs is a recommendation to you. In this case, what you have is a final
decision, you're sitting as an appeal body and your restraint is much more narrower. The question is, did I
error in the mitigation measures, and I think your question is did I error in the calculations of the Sensitive
Areas Ordinance.
tobertson: That was an issue raised in one of the letters by the appellants.
Lawrence: Any other questions of Mr. Beeler?
21
3eeler: Yes, and I think I'll refer to Denni Shefrin who's much more knowledgeable on the specifics than I
tm about how that works.
tobertson: But you're saying that's basically out of scope because that's not an environmental issue.
3eeler: I think it is out of the scope. It's certainly information that we can disclose tonight. In the SEPA
tppeals, we always run a precarious balance between getting into the application and then getting into the
;EPA issues, and it's a tight line we both walk, and my concern is that we have, as I said, the burden of
roof, and I'm not defending this requirement, it's just the way the law is, is that the appellants bear the
)urden of proof of showing you that I've errored. In other words, I am, for right or wrong, SEPA says
)asically I'm presumed correct, and that unless it can be substantially proven that I was not.
Lawrence: Rick, I have a couple of questions. You indicated when you went through the overall process
hat the developer would propose mitigation after it became apparent that you would consider an EIS. At
vhat point did you let the developer know you were considering requiring an EIS?
3eeler: Early on when the application first came in, I think we would have to go back through, but when
he first, when we had the pre- application on this, I think I may have at that time indicated to the applicant
hat the this is not going to be a DNS, or determination of non significance, but it very likely could go to an
7 LIS or an MDNS and that we would be looking at not a standard environmental checklist, that there is
;oing to be a lot of information.
Lawrence: So it was prior to any detailed plan being put forward by the applicant?
3eeler: I think so. I'd have to go back and refer to my notes but it was way back there. It's been almost,
is I've said, almost two years.
tobertson: I have a questions of the City Attorney. I guess in the narrowest sense, what does the word
nitigated, if an environmental impact can be mitigated? Does that mean eliminated? or lessened? To
vhat....
L'ohen: I believe that Rick can actually answer the substance of that more clearly and there's a specific
WAC provision which defines that term.
3eeler: Basically, as I mentioned before, it states that the MDNS process is when the proposal can be
;onditioned such that the probable significant environmental impacts are not significant anymore. I guess
hat's the way I would look at it in terms of how it works this way. It means lessening to the point they are
lot significant. When you read through SEPA one of the things that come clear to you is that it not to
preclude all impacts. In fact, in an EIS process, you can identify significant, unavoidable adverse
nvironmental impacts. You could still do the project and those impacts will occur significant, yes, but
hey are unavoidable, but they've been identified and moved through. That kind of thing is not necessarily
n an MDNS. They have to mitigate all impacts.
:ohen: I might interject, if it would be helpful, I can read the WAC definition of mitigation. Under WAC
.97.11.768, mitigation means 1) avoiding the impact altogether by not taking a certain action or parts of an
tction; 2) minimizing impacts by limiting the degree or magnitude of the action and its implementation by
22
`1 I
using appropriate technology, or by taking affirmative steps to avoid or reduce impacts; 3) rectifying the
impacts by repairing, rehabilitating or restoring the affected environment; 4) reducing or eliminating the
impact over time by preservation and maintenance operations during the life of the action; 5)
compensating for the impact by replacing and enhancing or providing substitute resources of
environment; and or 6) monitoring the impact and taking appropriate corrective measures.
Robertson: What was the last one?
Cohen: Monitoring the impact and taking appropriate corrective measures.
Lawrence: Any other question?
Ekberg, Could I get a copy of that for our next deliberation?
Robertson: I would also like to get a copy.
Mullet: Make it for all of us.
Lawrence: Make it for the appellants and the applicants too.
Beeler: We can get that.
Lawrence: Alright, thank you Mr. Beeler. Denni.
My name is Denni Shefrin and I'm an Associate Planner and I've been the Project Manager for the
Project for, as stated earlier, little over a two year period. What I want to do is essentially set the state and
describe to you what the project entails and some of its features. The applicant is also present to attempt
to address some of the more detailed aspects of the project. So if I may, I might approach the dais and
kind a move forward on describing the project. I hope everyone is able to hear me. I've left out a few
maps for you to take a look at them. The project site is essentially 9.7 acres. The zoning R -1 -7.2 is
surrounded chiefly by single family residential development with the exception of Southgate Park, located
directly northwest of the project. I was pointing out earlier some questions in terms of delineation of the
park boundary and I know one of the maps is a bit misleading. On the slopes grade map, there is a park
boundary that's shown here that's almost at the mid point on the north edge of the property. This is the
park boundary on this side (Denni is pointing at map behind the dais), this is private property to the east.
I think this map is fairly clear in terms of outlining the project. Again, it's in the particular format. The
project proposes 41 single family lots. As Rick indicated, there are several different ordinances that work
in conjunction with one another which it causes to arrive at this particular lot layout. Again, I'll just
repeat, the Sensitive Areas Ordinance has been triggered, the Tree Preservation Ordinance, I guess
interim, has been triggered with the process, again, SEPA. Some of the interesting factors with respect to
how the PRD process and SAO interrelate, SAO calls out delineation again of sensitive areas. In this case
we've got a wetland which is located on the south edge, a water course and there are slopes in excess of
15% which is located in the slopes grade map. Again, SAO requires that for single family development
that the project undergo a planned residential development review. Under the PRD provisions it allows
for deviations to the typical zoning standards, again reduced lots sizes as well reduced setbacks. The
purposes of allowing that, again, is to allow a clustering of the single family residences to push further
from intrusion into the sensitive areas. The PRD also requires that the sensitive areas be, ah, I guess I said
delineated, but counted in sensitive areas tracts and remain separate from developable areas. These areas
would be the sensitive areas tracts and I think they're probably better shown on the map behind me.
(Pointing to the map)- -Tract A, the wetland, there are also associated buffers which are required; and
Tract B is the water course, again, with the buffers on either side. As you can see, there's a road that goes
through which, in essence, is an extension of South 137th Street. There is a cul de sac and this is a one way
loop road. Again, there is also deviations that are permissible in terms of road dimensions. Again, the
overall effect is to try to pull away the lots, the individual lots from those areas. On this map to, you'll also
23
Hernandez: Can you show us where the detention ponds would be located?
Shefrin: You know, I think what I'd prefer to do is have their engineer point out some of those details.
They've got some maps that they'd like to get entered into the record as well.
notice that there are some shaded areas and they are also shown on the color drawing. These areas
include vegetation which is existing, which would remain after the project is developed. Again, there was a
comment earlier about entire clearing of the project site and that not the case. The Tree Preservation
Ordinance requires that at least 20% of the existing vegetation be retained, that's been exceeded based
upon this proposal. Also, landscaping would be installed on each of the lots as you can see. Ah, I'm trying
to think of some other specific questions that's just the gist of the project as it stands. Again, the thing to
keep in mind is how the ordinances are interrelated to one another. I can go back and give you the figures
with respect to how the density calculation works, but I don't want to call it out as density boldness, it's
more of a density transfer allowance, and I understand that when the SAO was being discussed, before it
was formally adopted, this was a calculation that was arrived at to allow areas to be developed to
recognize sensitive areas, and to attempt to retain and preserve those sensitive areas. With respect to the
density calculation, if this site was able to be developed under the R.1 -7.2 standards, the density would be
more significant than what's being proposed. And again, they're proposing 41 lots. I do want to point out
that the project has already gone before the Planning Commission and a recommendation would, in turn,
go to you folks. Again, that would be the preliminary plat. I'll also point out part of the proposal includes
vacations of two locations street vacations. This is a portion here which is proposed to be vacated. And
there's another location -or section- -along 44th Ave. which would also be vacated. There's a sidewalk as
you can see that's proposed. A couple of other features include a pedestrian walkway from the cul de sac
bulb to Southgate Park. This is another amenity that we felt was real important to the neighbors, not only
residents of this project site, but also individuals who don't live on the property. One other feature -again
we're talking about issues related to traffic and to concerns that people have expressed with respect to
42nd Ave., the curvature of the road, speeds, etc. One of the things that we looked at was an attempt to
consolidate driveways and access points. As you can see, there's four lots to the south that in essence
could, typically, have driveway accesses. We've asked that those areas be consolidated, so we're talking
about two driveways for four lots. And on the north edge, there's three lots with a single access way.
These accesses, etc., have been approved by our fire department. So I want to make that clear that
they're real comfortable with safety factors and turnaround radiuses, etc. And for the most part, that
concludes my presentation unless there's some questions.
Hernandez: O.K. Then you mentioned the zoning as R1.7200, but now in our packet of material it tells us
that the average size of lots would be approximately 6,400 square feet.
Shefrin: That's correct.
Hernandez: So that means that some lots are actually smaller than that.
Shefrin: That's correct. Again, under the PRD provisions it allows for this sort of deviation. The SAO
-equires that a PRD be done when there are sensitive areas. A Planned Residential Development allows
or in essence a waiver to those standards. Again, that would be lot areas as well as setbacks. So they are
entitled to make those lots smaller than 7200 square feet. And as you can see, it's probably most reflective
m these lots to the north. They're a little closer together. Some of the things in turn we had also look at
were zero lot line development patterns. And I don't know if that's something you're familiar with, but in
,ssence that would mean that the buildings abut. Another thing I do want to point out in the zoning code
:hat buildings wouldn't even need to be necessarily separate, but duplexes could be constructed because
:hey're sensitive areas and because the PRD allows for that sort of configuration.
VIu11et: I have a couple of just general questions. But without the SAO under the old system where a
ieveloper just basically came in, bulldozed whatever he wanted and built wherever he wanted, fill up the
;reeks an whatnot, how many homes could they have put on that 10 acres?
Shefrin: I'll have to go get my calculator. In essence you would take 9.7 and divide it by 7200. And I
mow I have that in a staff report, but it's not coming to mind right now.
Lawrence: You have the streets taken out also.
Simpson: The water that's being piped -does that go down to the creek down below?
Shefrin: Again, that's a question I prefer having their drainage engineer respond to.
24
Shefrin: Yes. Exactly. And what we typically do is we omit about 25 percent. We call that out for streets
and....
Mullet: Could you give me a guess without....oh, somebody's doing it over there. While we're waiting for
that answer then the other question I had is when you've got some lots, looking at that property there, 48,
we've got the sensitive area, and I don't see the lot lines going down into it. So, who ends up owning that
area now?
Shefrin: Those would be -the PRD requires covenants and restrictions. The homeowner's association
would administer themselves.. So, in essence, maintenance of those areas is up to the homeowner's
association. We have and this would be something that you would also look at as part of the packet that
would go before you that the Planning Commission has also looked at -with respect to what those
covenants and restrictions, in essence, require in terms of responsibilities placed upon the residents. We
talk about maintenance; we talk about -I think one of the requirements is actually to fence off or to create
some type of visual barrier in terms of a low fence.
Mullet: So there's taxes that are still charged on that property, and what is there a homeowner's
association that divvies that up to everybody or how do they do it?
Shefrin: As I understand it, yes. That's held in common.
Lawrence: Any other questions of Denni? I have a few questions. Is any of this watercourse piped?
Shefrin: This currently, right here?
Lawrence: Does that space that's set aside for the watercourse, does that follow where the watercourse is
today?
Shefrin: I believe it does.
Lawrence: So none of it's piped?
Shefrin: That's correct. It's natural and it would be kept in its natural state.
Lawrence: Part of the PRD requires a certain amount of open space set aside for passive and active
recreation. Is the sensitive area being utilized for that open space requirement?
Shefrin: Yes, we can include sensitive areas in that open space calculation.
Lawrence: In your opinion, are all the proposed mitigations adequate to the point that they render the
potential impacts as being insignificant.
Shefrin: Yes.
Lawrence: The Tree Preservation Ordinance -it was passed -the interim one was passed after these
proposals came to you. Do they fall underneath that Tree Preservation Ordinance?
Shefrin: Yes, it does. What we allowed to occur was the PRD to be submitted -I'm sorry, the sub division
to be submitted at a later date. At the time that was submitted, the interim TPO was in effect. So, that's
why the project fell under those provisions.
BREAK
25
Hernandez: Could you identify 42nd Ave. So. that was closed in relation to the project?
Shefrin: Sure. This is probably a better map to use. 44th turns into 43rd as it continues northward. The
closure occurs just a little bit north of 137th. So the closure portion is all along this area.
Mullet: To follow up on that, I got from reading the material that there was no intention of opening that
:dosed road again. Is that correct?
Shefrin: That's correct.
Robertson: But you talked about dedicating some right of way?
Shefrin: The right -of -way dedication would occur to the south of the closed portion.
Robertson: So it would be a dedicated part of the right -of -way that's next to the open street?
Shefrin: This area right here we're looking at gaining access for sidewalk purposes as well as, I believe,
the full width right -of -way width that's required and is set out in our street plan. So, it would be only this
portion that is proposed to be dedicated.
Robertson: Dedicated to the street or dedicated -I'm sorry, I'm not following it. That street doesn't exist
now? 44th Ave.?
Shefrin: This street -there is a portion here. The original drawing showed a property line at this location
just abutting. And what's being proposed is this area, actually it's a vacation -this area being vacated and
used to gain that full width street width. I wasn't being clear, I apologize. And one other thing I'll point
nut, too, which oftentimes I don't bring up- -there is a proposed boundary line adjustment. There's a lot to
the south where there's an existing garage which encroaches into the property. So this is going to be,
ultimately, part of the project--just a last element.
Lawrence: The sight distance on the intersection of So. 137th and 42nd Ave. So. -the appellant brought
up that people actually do exceed the speed limit What speed what that distance allow there?
Shefrin: That's something that Ron Cameron is here and he would be able to answer that for you.
Lawrence: Alright. Thank you.
Hernandez: Well I do want to more about the drainage basins, but you would prefer that I ask the
applicant- -their specialist?
Shefrin: Yes, I would. Both -staff can answer some of those questions. The applicant is also able to.
Lawrence: The City Administrator with his calculator re- calculated this and its possible only 44 units
would fit if there were no areas set aside.
McFarland: That was the assumption that 75 percent of the area would be buildable and 25 percent that
was set aside would be utilities and roads and whatnot. Using that calculation.
Robertson: Then 41 is what's proposed here?
Lawrence: Yes. It's been suggested we take a short break before the applicant presents their evidence. Is
.veryone on Council agreeable to a five minute break. Please do not have any substantive conversation
with anyone involved in this. Five minutes.
26
Cohen: (Unclear)
Lawrence: O.K. you can give me that name later. Who's going to testify first? Alright, would you come
forward then.
I lo
Lawrence: Time now for the applicant. Are all six of the people Kosterlitz, Fowler, Bates, Tietse, Butail
and Gibson. Are all of those going to testify?
Kosterlitz: Good evening. My name is Amy Kosterlitz. I'm the land use attorney who assisted Dujardin
in the SEPA approval process. My address is 1011 Western Avenue. I agree with the planning director
and the staff that the MDNS should be upheld here. I've given my written response in more detail. It
starts on page 16 in your packet. I would just like to summarize some important points tonight. First of
all, the MDNS meets all the requirements of SEPA. Further, as mitigated, the project does not present
likely significant environmental impacts. In fact, your staff has done one of the most thorough SEPA
reviews that I have ever seen. Tukwila also has very detailed and stringent set of ordinances to rely on for
SEPA mitigation including standards for wetlands, steep slopes, tree preservation and the like. And this
project meets all of them. You've heard allegations tonight that some of those requirements have not
been met; however, there has been no evidence, whatsoever, that these requirements have not been met.
You need to make your decision based on the evidence. This project, as you've heard, was in the
environmental and PRD sub division review for over two years. In that time very detailed studies were
required in all impact areas. You have most of them in your packet, and it sounds like from the list that
Mr. Robertson has presented, you will have everything studies of geotechnical issues, drainage, wetlands,
traffic, and tree preservation. In addition, the City had independent experts conduct peer review of these
studies, and the City adopted mitigation measures recommended by the peer review consultants. These
peer review reports are also a part of the record. Not only are there detailed mitigation requirements in
the MDNS, but the project underwent significant modifications throughout the review process in response
to impact concerns. These modifications included identification and characterization of wetlands and
their buffers and of steep slope areas, both under your newly passed SAO; a survey of significant trees and
vegetation under your Tree Preservation Ordinance; movement of planned homesites and roads out of
these areas with a reduction in planned home sites which will be addressed in a moment; modification of
grading and retaining wall concepts; and numerous conceptual redesigns of the drainage system to deal
with drainage, slope stability, water quality, and other considerations. There were also modifications of
the road layout and consolidation of the access points to deal with traffic safety and circulation issues.
Appellants have presented no valid arguments under SEPA that an EIS should have been required here.
The appellants have presented four reasons that they claim that an EIS should have been required. None
of them is valid under SEPA. The first claim is that the MDNS results in a confusing array of documents.
And while it's true that an EIS typically has less documents, SEPA does allow for the MDNS which is an
incremental process of study and project modification which by its nature involves multiple documents.
There are advantages that counterweigh this multiplicity of documents, and those were intended by SEPA
in modifying SEPA to come up with this process which are early communication between agencies and
applicants, and the ability that Rick spoke of to enforce modifications and mitigation contrary to an EIS
where sometimes the measures are enforced or applied and sometimes not. Second, the appellants claim
that lack of detailed design studies means that we need an EIS. But even with an EIS, SEPA does not
contemplate detailed design studies before and environmental determination. SEPA requires an
environmental determination at the earliest point in the process and typically the design studies follow.
Thirdly, the appellants claim that there are problems because the MDNS requires further study.
However, SEPA itself and the case law interpreting it makes it clear than an MDNS can contain
mitigation requiring additional study. It's very typical in both a DNS and in an EIS to require further study
and more detailed plans because, again, at the SEPA stage there's generally not enough design detail to
make all the decisions that need to be made. Some by nature get postponed until the final design stage
and often until during construction which is typical of geotechnical review. Here, the MDNS has very
conservative provisions regarding what needs to be done for soils stability and drainage review. The fact
that later studies are required should be seen as more of a protection by the City than a problem because
no land altering permits can issue unless all of these measures -very conservative measures regarding
study and monitoring- -are taken. Finally, the appellants claim that there was insufficient public input.
However, again this argument must fail. The City followed the MDNS process as allowed by SEPA.
Further, there's been all the input required and then some. There have been three public meetings,
27
xtended opportunity for written comments, more than I have seen typically done for an EIS. The City
listened to this and reissued its MDNS with additional conditions to deal with citizens concerns. Certainly,
ivith the appeal tonight, they have had that opportunity. An EIS would not afford more. It's interesting
because in projects where I've had an EIS involved, the complaints are that with the EIS, they only get to
:omment at the early stage when the project's being scoped out, and that once the EIS comes out and the
developer goes into negotiations with the staff over permit approval, they're left out of the process. So, in
a sense, while perhaps public input was delayed until a later point in the process here, the appellants got
the advantage of looking at a more mature concept that had been through review and study with staff and
peer review and consultants. So there are advantages and disadvantages to the public input provisions of
MDNS and EIS. SEPA was followed here. Finally, the appellants have failed to meet their burden of
proof in showing that the DNS mitigation is inadequate. Appellants have alleged inadequate attention to
traffic impacts; however, as the testimony of our traffic expert Terry Gibson will demonstrate, the project
meets all accepted traffic standards for good operations, for safety, for sight distance, and even accepted
measures of livability. In fact, testimony will demonstrate that the project actually improves both
vehicular and pedestrian circulation in the area. In addition, the project has agreed to provide a guardrail
and to pay for half of a sidewalk to Macadam with linkages to the Metro and school bus stops. Measures
that go beyond the City's SEPA authority to require. There's no basis in impacts or any City SEPA
authority imposing additional traffic conditions. With regard to slopes stability and drainage issues, these
too have been adequately addressed. As the testimony of our drainage engineer, Erich Tietse, and our
geotechnical consultant, Anil Butail will demonstrate, there has been a more than adequate study of these
issues and very conservative measures imposed to ensure there will not be slopes stability or drainage
impacts. The studies of these areas looked at both on and off -site impacts and the project modifications
and MDNS measures imposed requirements for re- evaluation at every stage of the process from final
design through construction. In fact, testimony will demonstrate that the project actually improves the
drainage situation in the area and ameliorates some existing flood problems. Our experts will also address
the issue of the springs and even conceding that springs are there, show how this issue can be dealt with.
On other areas such as wildlife, there is no evidence whatsoever of significant impacts on wildlife in this
urban area which is zoned for residential development. It is not part of any wildlife corridor or not an
unusual habitat. The City has chosen to regulate wildlife habitat through its Sensitive Areas Ordinance
which requires buffers for wetlands. There are no other wildlife habitat provisions. In fact, here we have
nearly a third of the site preserved in open space and natural habitat. Finally, what the opponents seem
opposed to here is your PRD ordinance and the ability of the City to vary lot sizes and to allow the density
that's been allowed. However, this is an ordinance that has been adopted by the City; it is in effect and it
has been followed to the letter as will be explained more specifically when we go to hearing on the PRD
and sub division in a few weeks. There is no basis under SEPA, whatsoever, for reducing density or lot
size based on your PRD ordinance or sub division. It may be that the citizens and it may be that some of
the councilmembers don't like the PRD ordinance and don't like the density that is allowed by it.
However, that is not something you are at liberty to change here through this SEPA process. In
conclusion, the SEPA ordinance requires the Council to give substantial deference to the SEPA official's
decision. The appellants have not carried their burden of proof with evidence in showing that the MDNS
is erroneous. The appellants seem to think that an EIS would require study of additional impacts, result in
additional design studies or mitigation. But this is not the case. Even an EIS is not required to look at
every impact nor does an EIS provide detailed design plans. There's no basis under SEPA to conclude
that there are significant unmitigated impacts here. In addition, the appellants have not shown that the
MDNS does not adequately mitigate the impacts that have been identified. There is no impact basis or
City SEPA policy authority to acquire additional mitigation of the types the appellants would like. I'm not
even sure what that mitigation is because the only thing I have heard is that they don't like the number of
lots and they're worried there has not been enough study. I have not heard any specific proposal of what
element is missing in any study or what additional mitigation should be required. In addition, the City
must recognize under SEPA your comprehensive plan policies, listed as a basis for SEPA decisions which
encourage the provision of adequate housing in your City. SEPA also explicitly recognizes that public
officials must balance environmental impacts with other social needs such as your housing policies in
making their decisions on projects which will face you as you go through this process. For all of these
reasons, we urge you to deny the SEPA appeal. I would now like to introduce Bill Fowler of Dujardin
Development to give some background on the project and then have our experts address the specific
issues. Those will be Jean Bates, the project designer; Erich Tietse, the civic engineer who did the
drainage and grading plans; and Anil Butail, our geotechnical consultant; Terry Gibson, our traffic
28
engineer; and Garret Munger, the wetland biologist. Jerry Bell, the landscape designer, is here to answer
questions. And I'd be happy to answer any questions you might have.
Lawrence: Miss Kosterlitz, would you be willing to waive the 60 day limit to allow these proceedings to
conclude on the 18th?
Kosterlitz: Yes, I would on behalf of my client.
Lawrence: Thank you. Any questions? (no answer) O.K., thank you very much.
Fowler: Good evening. I'm Bill Fowler. My address is 7908 206th Street S.E. in Snohomish,
Washington. I'm the vice president of Dujardin Development Company. We're based in Everett, and
we've been building housing in the Puget Sound area for well over 25 years. I've been with the company
for 20 years.
Lawrence: Excuse me. Before you start in your testimony, would you be willing to waive the 60 day?
Fowler: Yes, I would.
Lawrence: Thank you.
Fowler: We've constructed and completed numerous housing complexes similar to this one over the past
several years. We're committed to building quality housing which can be attested to by the fact that we're
still in business. We consider ourselves local builders that stand behind our product. We've been involved
with this property since February, 1990, during which time the sensitive areas moratorium was in effect.
During that time we initiated our survey and geotech studies. We met with staff during 1991, and on July
18, 1991, a pre- application checklist was performed. Subsequently, we've made numerous road
configuration layouts, additional geotechnical and wetland studies, four traffic studies and follow -up
reports. Landscape designs have been prepared to conform to the Tree Preservation Ordinance and
numerous house plans have been produced to have housing that could conform to the final site layout and
staff recommendations. In four months from now we will have been involved with this project for four
years. What you have before you is the culmination of several years of work at a very substantial cost,
more than we've ever experienced on any other project. Mitigation measures proposed by staff have been
agreed to. The staff has been more than diligent in their review and should be congratulated for their
effort. Next, I'd like to introduce Jean Bates, our architectural designer, who will get into a little more
specific detail.
Lawrence: Any questions of Mr. Fowler? (no answer) Thank you, sir.
Fowler: Thank you.
Bates: My name is Jean Bates. My address is 11207 Fremont Avenue North, Seattle, and yes, I'll waive.
Lawrence: Thank you.
Bates: I'm representing Charles Morgan and Associates, the architects. I've been working in residential
design for the past 12 years and I've been working on this project for the past 2 -1/2 years. My roll in this
project has been to work with the other consultants, the planning department and public works on the site
layout and the house designs. This has been a very lengthy and detailed process from the first concepts for
a site plan to the plan we have today. During the course of hundreds of hours of meetings involving the
planning department, public works, the fire department, parks department, and urban environmentalist
we have come up with a site plan which meets the requirements of the PRD, Sensitive Areas Ordinance,
Tree Preservation Ordinance and the preliminary plat requirements. I would like to step up to the
drawings up here to talk about specifics with the drawings. This drawing here shows the areas and how
they will be used. The orange areas are the areas of the right -of -way that will be dedicated to the City and
maintained by the City. The grey areas are the sidewalks and driveways. The blue area here is the
pedestrian pathway that will link to Southgate Park. The red areas are the areas to be dedicated to the
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City. The light green areas are the lawn and landscaped areas; the dark green areas are excuse me, back
up -I want to talk about the medium green areas first, which is here. This is the sensitive areas tracts A
B which represent 25 percent of the site. And then the dark green areas, here, are additional land that will
be held in open space easements to preserve the existing trees. Both the sensitive areas and the additional
land will have a three foot high split rail fence between it and the adjacent properties. This plan has 41
lots with the average size being 6400 square feet. It has better circulation and less impervious surfaces
with the extension of So. 137th Street throughout. We have provided pedestrian access to Southgate Park
for both the residents of this project and the surrounding neighbors. We will also be putting in a paved
pedestrian walkway from here down 137th to Macadam for access to the school buses and the City buses.
I've also brought along some renderings of typical house plans to give you an idea of how the individual
houses will look. There are a total of 8 different floor plans. Each floor plan has three different elevation
and roof types. This, with the many different paint choices that area available and the option of brick,
allows for each of the houses to be different. I have redesigned the front of the houses at the request of
the planning department by pulling a covered walkway out past the front of the garage to soften the
impact of the garages and also to create a focal point. I have two renderings of what the finished project
would look like. This rendering here is as if you were standing right here looking down the cul de sac, and
the second rendering over here would be if you were looking here back at these houses. The landscape
plan -the Tree Preservation Ordinance requires that 20 percent of the site must have tree canopy. We are
proposing to have 24.6. This 24.6 coverage of the total site represents 45 percent of the existing canopy
plus additional trees. The species and plants and trees are on the plan and if you have any particular
questions, you need to refer to Jerry Bell.
Duffle: I'd like to ask you a question. Is that the way the houses are going to look when they're finished?
Bates: Yes. This is just a typical representation of some of the houses.
Duffle: Are those three bedroom or two?
Bates: Three bedroom.
Robertson: The ones that are closest together what's the average distance between them?
Bates: There's a minimum of 10 feet between houses.
Robertson: Essentially, there's no front yard in a lot of the houses. Is that correct?
Bates: There's a small front yard there. On some of the narrower lots, there is a small landscaped area
between the driveways.
Duffie: I had one other question. Where's the play area for the kids?
Bates: Each lot is responsible for providing their own. There isn't one set aside because of the park right
here. And if at some point- -that right now is undeveloped.
Duffie: So, in the meantime, where do the kids have to play at?
Bates: In their back yards.
Lawrence: Any other questions?
Hernandez: What's the minimum and maximum square footage of the houses.
Bates: They range between 1500 to a little over 2000 square foot.
Robertson: Does that include the garage?
Bates: No, that does not include the garage.
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Hernandez: 1500 square feet on a 6200 square foot
Bates: All of them are more that one story.
Hernandez: Oh, I see.
Bates: So, we're building into the hillside or sloping down the hillside to reduce the amount of cut and fill.
Duffle: One other question. Could you put that complete picture back up -that development.
Robertson: Is that a picture of this development or is that just a representative one?
Bates: No, this is a picture of this development.
Robertson: Which portion of this development would it represent on the lot plan here?
Bates: The first one here is if you were standing here looking down this way. And this one over here is as
if you were standing here and looking back up this way.
Lawrence: Anymore questions? (no answer) O.k., thank you very much. Next?
Erich Tietze: Hello, my name is Erich Tietze. I'm president of Erich Tietze and Associates. The address
is 121 Fifth Avenue North, Suite 205, Edmonds. There's been a question as to whether you were aware of
what the actual number of sites could be developed on this project. If we were under the old procedures
where we went in and bulldozed everything, I think that number is 48. I don't know whether that was
clarified before or not.
Lawrence: Yes, we heard 48 and 44.
Tietze: 48 and it's based on the initial size of the piece of property which is 9.96 acres prior to dedication
of any right -of -way to the City and presumes 20 percent right -of -way.
Lawrence: Do you waive the 60 day requirement?
Tietze: Yes.
Lawrence: O.K., thank you.
Tietze: My particular responsibility for this project was civil engineering, but due to the time constraints,
what I would like to do is concentrate on the issues of drainage and springs. I think the issue before the
Council tonight is whether we have identified the impacts with regard to drainage and springs and whether
through the mitigations, conditions that are part of the package, or through revisions in our site plan, we
have dealt with these issues in a way to mitigate the impacts vis -a -vis going through the EIS process. I'd
like to also point out mitigation measures that have been proposed are not necessarily those that have
been proposed by just the proponent. They've also been proposed by the staff or through peer review.
And as a matter of fact, as a result of the peer review with regard to the drainage issues, we've either
incorporated everything that was recommended in the peer review or those conditions that were
recommended in the peer review have been included in the conditions of the application. I'd like to point
out that there is one issue in the peer review, and that is Item 2 with regard to drainage to property to the
north. It is no longer valid because we changed our design concept on that. I'll get into that issue in a
minute. Due to the limited time I've got here, I'll try to go over this as quickly as I can. Please bear with
me. I don't know what your levels of expertise are. If I've gone over your head or if you have any
questions, please feel free to ask. What I'd like to do is indicate- -let me back up. I've done three analysis
for this project so far. The first one was to identify the existing quantity of runoff from the site as it exists
now in the undeveloped state. Then I made an estimate of what the runoff quantity would be from the
developed site. That was the first report. The second report came up with the drainage concept that
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indicated how we were going to control runoff, limit the runoff rate, and where we were going to discharge
it. Part of that proposal was to continue to discharge runoff to the northern property which would include
Southgate Park and other areas that I'll get into in a minute. That has since been revised as a result of the
peer review and the request of the City so that we are no longer discharging any water to the north that
isn't already going there through normal sheet flow. In other words, yard runoff and things like this will
continue to discharge to the north. All the impervious areas that we're picking up will be discharged in an
area that is not to the north. What I'd like to do is concentrate right now on the third report that I did and
that was an evaluation of off-site drainage conditions and on -site drainage conditions to determine what
impact our site has on off -site conditions, or what off -site conditions have an impact on our project. What
I'd like to do is handout one of the items that you indicated was missing from your packet. If you wouldn't
mind -if you can just pass these down. I'd also like to come up to the platform here to go through these
handouts in more detail. This first exhibit, I guess we can call it 7, identifies the existing drainage patterns.
Do you all know what a drainage basin is? In other words water that lands within a particular drainage
basin stays within that basin, it won't cross over and divide. We have identified on this five areas. Let me
just quickly point out where the site is. The site is right here. Let me orient you. This is Pacific Highway
South, Highway 99, 133rd, this is an industrial /commercial area, 135th and Macadam Road, 137th, 44th,
this is the closed portion of 43rd, this becomes 43rd in here. Half the people that have shown up for the
committee meetings and that have filed the appeals, including Mr. Thompson, Miss Springer, and Miss
Scarber lie in drainage area 1. This area is separated from Highway 99 and the project by 42nd Avenue.
As you can see, it does not impact the site. The site does not impact it.
Lawrence: You'd better check with Ms. Springer where she lives.
Tietze: This area has been identified in the Fostoria drainage basin as having significant problems with
drainage. We do not deny that. In the appeal they identify springs as being located west of Highway 99,
which is here, and north of the site. The area west of 99 like I said is bounded by 42nd and 40th. This area
does not fit into the site. This item area 2 does have lowland areas right now that do experience some
flooding problems. These are the bottom lands. The houses themselves are located approximately 40 -50
feet up above the grading along 43rd and Macadam. Part of our site discharges at the present to this area,
through Southgate Park and private property. This area, Area 4, presently is collected through a drainage
ditch on the abandoned right -of -way on 43rd. (unclear) approximately 200 feet down 43rd Avenue to the
north and enters a catch basin. And there's a 12 inch culvert that then heads east under 43rd to the
Borden( property. This culvert presently is completely plugged. The only way water gets out of it is to
boil (can't decipher) and then sheet flows across the Borden property. So this area on the existing site,
prior to development, presently floods this Borden property. Area 3 is the area that's on 43rd Avenue.
There is no drainage system from this culvert that discharges to Borden down to approximately here.
There is just sheet flow down the gutter. If there's a depression in a driveway or if this culvert is plugged
up like the Borden roperty and can't carry the runoff from the site, sheetflow's going to occur down the
street, the driveways in a low area -runs on the property. Right now there's a little eight inch section. The
rest of the system's 12 inch, and then as it gets down onto Macadam it becomes 18 inches, goes over to the
overpass, crosses under -that actually is the overpass, 133rd continues on over this stretch. So what we've
identified so far drainage problems in the Capital Improvement Program for the City is going to deal with
these issues: Drainage Area 1 is not impacted by the site and does not impact the site; lowland flooding
down here. Flooding of the Borden property here. There has been some indication that there's been
some surcharging of this culvert system on 43rd. My hydraulic analysis, my notebooks over there are two
inches thick. It shows this capacity is there to carry the flow. I suspect it's a maintenance problem. I
suspect also that when this pipe is plugged up, the sheetflow runs down and hits the low (unclear) onto the
property. Area 5, the purple area, is divided into two pieces. The first piece is upstream of the property
and drains through the property. The second area is upstream of the property but actually does not dram
on the property. There's a ravine right here that the City has identified as having corrosion control
problems. Area 5a drains through the property. The runoff that comes through here is handled through
the wetland and the drainage course. We're not denying the fact that there's spring and wet areas in these
areas. They wouldn't be wetlands if they weren't. The question now becomes what do we do? How are
we going to deal this? This is a utility plan. We've got three detention systems that are proposed. One is
to handle this area over here, a third one is to handle this area that's upland of 137th -south of 137th, and
a lower detention system to handle the cul de sac area and the lots that are over to the north. Do you
understand what detention does? O.K. Discharge of these systems: this one will discharge through a pipe
located in the existing drainage ditch here; it will be a tight lined pipe -no water will get out of that pipe to
worsen the stability of this slope. The City requested that we put in a biofiltration swale in here which we
have done, and frankly, it's not any wider than that ditch that's there now. The upper system will
discharge through this pink line to this point. The green system, which is the lower system will be
discharged through the green line to this point. This point did become a common system and then they
will head on down 43rd. On 43rd what we would do is we're going to extend a 12 inch pipe down to the
existing 12 inch pipe. We're going to plug the pipe that goes to the Borden property so if you notice
there's no longer any pink area. The pink area is gone. It now goes to the green area. So there's no more
flooding of the Borden property. And as we've indicated before, as you can see Area 2 is smaller -the only
reason there's any area in here that's going to Area 2 now is this is just the backyards of these houses -a
few landscaped areas and natural vegetation that won't be (unclear). The rest of it's going to be icked up
through the detention system and run through a controlled pipe system over to 133rd with a few unclear).
The springs that we find on the site, if there are any, and this is just a normal construction project and it's a
normal construction problem -we run into this all the time- -all houses will have footing areas. Those
footing areas will be tied into the detention system. If we run into springs, and frankly, the geotech reports
that Anil will get into, have done ground water tests, seepage pits, test (unclear), have not run into any
ground water in any of the tests. Now, granted, we did not go out and do borings in the drainage course
with the wetlands. We don't need to- -we're not going to be constructing on there.
Cohen: If I may interject for one moment. This is a proceeding on the record. Unfortunately, the tape
recorder doesn't pick up which exhibits you are referring to. Its my understanding that all of these
exhibits are going to be entered into the record. If they're marked, if you can refer to them by #1 -if not, if
you can describe them so at least we can make some sense of them later.
Teitze: Sure
32
Lawrence: Also, you're past the time that I'm going to allow you to continue. We'll give additional time to
the appellants to compensate.
Teitze: Exhibits 8 (the first one on existing drainage ditches) 9 (the existing utility plan) 10 (future
drainage basin). As you can see from this, this has slopes, depths, everything. This is really the equivalent
of a final design for a drainage system. This is not some conceptual thing that we've come up with. These
pipes have been sized. Let me show you my computer notebook that shows it all. It's about two inches
thick. We have gone through more analysis than I've ever done on any project to this point. Now, the
question then becomes: what are the issues? If we run into springs, and frankly, we don't think there's
going to be many, but if we do, we're going to deal with them as we come to them during the inspections.
We do this all the time in normal construction practice. Quite frankly, the areas that do have springs,
which is primarily in this area, it's a low area. You're expecting that. As we put more impervious area
here, if anything we're going to be reducing the amount of spring water, not increasing it because there's
less chance of the water to get into the ground. So in summary, what I'd like to do is present this. And this
is the last page of this handout, Exhibit 11. What this shows is the existing conditions and the runoffs. The
two year, ten year, 25 year and 100 year storms. From our site, it's not the (unclear), but it's for Area 2,
which is the blue area, and compares the existing with the development. And as you can see, this to the
Southgate Park area and to the low land resident here. The runoff from the developed conditions are
actually equal to or less than what we've got right now. Area 3, which is the Borden property, under the
existing conditions doesn't even go down 43rd. It goes to the Borden property- -is that right? No, I've got
it backwards, I'm sorry. Area 3 right now will wind up in developed conditions to include runoff in the
whole site. Area 4's the Borden property, and you can see in the picture it's going to be zero. Area 5 is
also left 1.04 and in the future and 1.18 for the 100 year storm. The benefits to the City is that being out of
water ..(unclear ..is less erosion..(unclear). In summarizing what have we got? Let's total peak runoff
..(unclear)..or its equal to or in this case, it's essentially the same. Two, it's reduced flow to the ravine as
indicated before, eliminates the flooding on the Borden property, it eliminates the present flooding in
Basin #2, reduces the flow to Southgate Park. As I indicated in the second report, we were going to try to
continue to discharge flow to the north; controls runoff by piping it through a controlled pipe system. And
number 7 has no adverse impact whatsoever on Area 1. Drainage is obviously a concern. If it wasn't, King
County wouldn't have put together extensive drainage control measures which the City follows.
Everything that you see here is in conformance with that standard and those guidelines. And we have
33
gone to the point that we have actually gone to (unclear). We feel that we've addressed all the issues with
regard to drainage and not only mitigated them, but actually improved the situation.
Lawrence: Any questions?
Duffle: I heard everything you said. Some of it I believe and some of it I don't...(unclear).. I have seen
this thing happen before, in fact, we've got a problem now up by our school. I guess 20 or 40 years ago
when they built it, they built it over a pond. No one knew about it. Same thing here. You're going to tell
me that you can get up there, stop all these underground springs, and we won't have any. It may be true,
but I don't believe it. Because I don't believe that you can stop nature and nature won't come again. So
you're telling me that you're going to put all this up there and we're not going to have any worry about
underground springs, corrosion, or anything like that.
Tietze: It's a valid question. Think about what we've got going here. Here's our site. We're basically
sitting on the top of a hill except -the only area that's contributing off -site
Duffle: I'm not worried about that. I'm worried about the water coming over the hill.
T'ietze: That's what I'm saying. Area 5a is the only area that's coming onto our site from anywhere else.
And Area 5a, where does it go? It goes through the wetland, it discharges over this way and to a drainage
course, and turns this way over to a ravine. Where could the water be coming from? The only areas that
contribute to the site is Area 5a and it already has a natural drainage...
Robertson: Let's talk about the pink and the green there, the drainage systems. Are those swales or are
they....
Tietze: No, these are actually pipes. They're like 10 feet in diameter. They're huge. We've got -don't
hold me to this, but I think we've got about 30,000 cubic feet of storage.
Mullet: Is that what you call a wet vault?
Tietze: No. In addition to that we have a wet vault for oil/water separation. Those are downstream,
located in various places. There's one there, one there, one there. The exhibit that I just pointed to is the
3ne that shows the existing of the proposed utility plan. And the number, I'm totally confused as to what it
is.
Robertson: Well, whatever that number is come over this way and there's a trail and it's proposed to be
xi top of that tank in one case.
l'ietze: The trail is going to do two things. It's going to be used as a trail, but it's also an access road for
the City maintenance. And just as a point of information, all the utilities have been coordinated. For
xample, sewer and water. Drainage ...(unclear). But sewer and water we've coordinated with the water
and sewer district.
Robertson: In one of the memo dated June 20, 1993 from Camon, Collier and Wade, Livingstone
Associates, on page 3 of it -not page 3, page 5, it says "the proposed swale" at the bottom, Item 4, it says
'the proposed swale along the north side of the property is not of concern. Can it be relocated into the
Netlands buffer Can you show me the swale that they're discussing in your drainage plan?
fietze: It's been eliminated. That's why I'm saying in my report that that whole issue has been taken out.
We used to have a swale that's proposed along here, actually all the runoff from this detention system and
:his detention system is all going to wind up going over here and then come all the way back over here.
['hey expressed some concerns about the impact on stability of the slopes. So, they said get rid of it. The
2ity concurred. What we were frankly going to do is take some of the water this way and run some of it
hrough a level spreader on the south side of the park. That whole thing is gone. This is the thing that gets
a little confusing to everybody here. This has been a (unclear) thing and, frankly, even my reports, they've
Deen changed based on what we've done with the design concept in changes. And the last one, the Offsite
34
Analysis, frankly, incorporates the fact that we are no longer discharging anything to the north side at all
through the swale. And the City is considering the swale that's located along 133rd to be the biofiltration
swale for the bulk of the site.
Cohen: I would like to have reflected the witness has been pointing to the drainage exhibit. This is very
important for the record since no one can see what it is that you are referring to and it will be impossible
to sort out later.
Robertson: If I go back to the original SEPA MDS, part of the problem I have now is this lists some
problems, some drainage and some mitigations to it. And then -and this was published quite a while back.
Since then you've been working on designing and the different- -and then there's been analysis what you've
designed and you've redesigned and more analysis. Correct?
(Woman): Not since the original MDNS.
Tietze: Not since- -well I don't know the date on that, but you're right. It hasn't been since then. Well,
that's not quite true. Let me clarify something. It is true -it is in the sense that I've done some
recalculation of these numbers and the size of the design system, and so on. That has been done after the
first community meeting. I know that. So I presume the MDS was done at that point in time. So there
have been some.
Robertson: O.K.
Mullet: Where do your figures come for the existing conditions? Do you have a chart? Obviously, you
haven't been out there with a hose to make sure you have water or whatever.
Tietze: The procedures that are used are developed by King County. The City has adopted that -I don't
know officially or what -but the City has followed the King County requirements. This gets to this handout
here. This is the handout that I gave you that has on the back page the (unclear) for the existing
conditions and the future conditions.
Lawrence: Figure 3.5.1a
Tietze: It is a typical designs form. It's something that was developed by the soil conservation service
years ago and it has been accepted by engineers as a typical -a storm O.K.? Any storm. The only thing
that's different is for the two year storm, the amount of area underneath that that represents total rainfall
is going to be smaller than if it is a 100 year storm. The two year storm might have two inches of rain fall
in 24 hours. The 100 year storm might have four inches. And so the "x" scale or the "y" scale rather would
be twice as big for the 100 year storm. I don't want to get into too much technical stuff here. But at any
rate, this is the model in a model system that King County Building and Land Development has put
together. And we use that. What we do is we go out and we look at the existing site conditions. Is it
covered with trees? Is it grass? What is it? With that information, we have runoff parameters that we
then apply to the computer and the area that's associated with it. And then we say here's the design for
the two year storm, 10 year storm, whatever it may be. Punch the button and the computer spits out the
number. That's how we generate this. And then when we do the existing conditions, then we go in and we
say, o.k. now we've got a whole bunch of different things. We've got housing that are impervious, we've
got pavement that's impervious, sidewalks, and so on. And that has a different runoff coefficient. And a
different area associated with it. We run- -and frankly, the big thing is the time of concentration. What the
time of concentration means is how long does it take the raindrop that lands here to get down to this point
here. In a natural condition where it's flowing through grass and brush and stuff like that, that time of
concentration isn't very long. As you get into a developed condition, it could be very small because it's
running across the (unclear) gutter where the flow is faster. And so you have two things that happen. Not
only do you have more area that's now impervious, but the time of concentration is smaller so you get a
larger flow. If you turn to the second page of this same handout we've been discussing, this is sort of the
representative example of what happened. The triangular portion of this represents runoff from the
developed site. The horizontal line represents the allowable runoff. And that is calculated for the existing
conditions. In other words if the existing site allows one cubic foot per second, the maximum discharge
35
rate, then that's where that horizontal line would be. The little circular line represents the actual outflow
of that storm as it comes out of the detention system. The shaded area represents the amount of storage
that's required in the detention system. The example I use is it's like a bathtub. If you start filling up a
bathtub faster than the water can go out of it, what happens is the bathtub fills up. That's the way a
detention is designed. You have an orifice that limits the rate of discharge. It's your outflow from the
bathtub. The storm (unclear), turn on your water. In the beginning, based on our little curve here, it's not
a whole lot as it gets warm, toward the middle it gets faster and faster. This bathtub fills up until it reaches
a point where it starts to slow down. At that maximum level of fullness, that's our design volume in the
detention system. At that point now the runoff into the system is less than the speed throughout the
orifice and so this starts to go back down.
Lawrence: In this system that you utilize from King County, does it assume then that when prior to the
storm, there's no seepage or water in the ditches that are downstream or coming off of the property
before there's any runoff from the storm.
Tietze: Yes. Now what I think what you're dealing with is the spring issue. Right?
Lawrence: Yea. I'm wondering how much ground water is coming out constantly during the winter. Each
site is different isn't it?
Tietze: Here's the thing. The surface runoff and how quickly it gets to the system in comparison to how
long it takes for ground water to get to -is minutes versus hours or maybe even days. These storms will
have long gone by the time that ground water gets into the detention system.
Lawrence: Do you know then if those pipes that are in existence now, if they are carrying water all the
time during the winter even between storms.
Tietze: They shouldn't be. There's no way they should be. Now when you say these pipes, we're talking
about this culvert system right here. Is that what you're talking about? Yes. Now some people say that
there's water all the time, but you start asking these people where they live, and what we're talking about,
we're talking about these natural areas where there is going to be that's why streams are there. Streams
by nature intercept the ground water table, and there's a base flow. And so the lowland areas are going to
(unclear) with the biggest flow and that you'll be intercepting the ground water.
Lawrence: The thing that concerns me
Tietze: These are up on the hill. These are 60 -100 feet higher than the lowland areas.
Lawrence: Yea. The thing that concerns me though is the slippage of the road. Isn't slippage almost
always related to a ground water problem.
Tietze: I'm going to let Anil deal with that. No. The answer is no. Like I said by collecting all this water,
and you've got more impervious and there's going to be less water going into the ground water system and
it's going to be controlled.
Lawrence: Any other questions? Yes, Dennis.
Robertson: I want to go back to the SEPA KIDS. On page 2 of it the bottom paragraph talks about what
is a memorandum that I mentioned before from Hammond, Collier, and Wade, etc. It talks in two points
about things that are apparently no longer pertinent. The last paragraph for instance, on page 2 says that
the HCW -L was requested to evaluate whether there would be increased runoff on the property to the
north, to provide recommendation for sequencing in phasing for project construction relocation the north
property swale, and to recommend erosion control measures to control clearing and erosion potential.
Recommendations of the June 28, 1993 review shall be adhered to in the design and construction of the
project unless otherwise agreed to and approved by the Department of Public Works and Community
Development. Does that mean that that exhibit has been approved to by the Department of Public Works
and Community Development? They've reviewed it and approved it?
fietze: That's correct.
36
Robertson: Then I'm not so sure what I want to do with that fact. But I'm puzzled....
Kosterlitz: They're relevant in that when the final site plans for the drainage get approved, they have to
;omply with everything Hammond, Collier and Wade said. The fact that Erich has anticipated some of it
and gone ahead and done some of the work in advance to be able to give people extra assurance that
things will work is like a bonus.
Lletze: We were getting to the point that we just weren't being believed, so we just did it.
Robertson: Next question: On page 3 of this, the next paragraph talks about a bio -swale sis and removal
Nn 43rd Ave. A bio -swale is what I think is a ditch with grass in it?
Fietze: Peek over your shoulder here.
Cohen: Let the record reflect that Councilmember Robertson is pointing to the drainage exhibit.
Robertson: Yes. The one with pink and green on it.
1'ietze: O.K. With regard to increased runoff to property to the north, that's no longer valid because
we're not going to empty discharge in anything to the north.
Robertson: Yes, I know. But what it says here -what the MDS says and that's what we're dealing with says
you have to-- you've changed the design. If you change the design from what was reviewed by the HCWL
Folks-
Kosterlitz: Right. To help clarify it
Fietze: We changed the design per their recommendations.
Kosterlitz: Right. In other words, some of the measures that they recommended be imposed through the
MDNS have already been reflected in the design drawings that were submitted. Some of them were made
to be implemented through construction. So, you're correct. Some of the things that they recommended
were picked up as part of the revised design when the final plans were submitted for the sub division of
the PRD.
Lawrence: Then I'm back to my question -the (unclear) says that if you do that, then they've been agreed
to and approved by the Department of Public Works and Community Development. So that exhibit and
all of the materials behind it, you're two inch notebook, has been reviewed by Public Works and
approved?
Fietze: No, not necessarily. The reason being is that would be something they would review as part of the
Final design. What I was telling you was that what I have gone through what is equivalent to final design in
locating and sizing these pipes and to eliminate that swale that was to the north and to eliminate the
spreader that was on the north side of Southgate Park. They will need to review all of my two inch thick
notebook numbers. What I'm saying to you folks is that I have already gone through that analysis.
Typically, that is not done until the site plan has been approved. This isn't the first one of these that I've
lone for this project. But I felt it was important to do it because Hammond, Colie, Wade and Livingston
made that recommendation. This is a significant change from my previous report so I went through the
analysis to come up with the numbers that you see here.
Robertson: O.K., Erich. I find -and I'm not challenging that point at all or your engineering. In fact, I
find it commendable- -the effort you've gone to. The question on my mind, though, is I'm still over here I
think, reviewing the MDS and whether it was significant and what I'm finding out I think is that some of
the issues it dealt with are not -are no longer relevant.
37
Tietze: Yes it is and it's right here.
Robertson: And that still is in this design here?
Tietze: Yes.
Robertson: I thought you said that was tight -lined or did I misunderstand?
Tietze: No. It's tight lined- -the yellow portion is tight lined. Once it becomes orange, it's swale and then
when it turns yellow, it's back into the tight -line again.
Lawrence: O.K., and it's located on the 43rd Ave. So. right -of- way? That means it's the ditch along the
side of it?
Tietze: Yes. Right.
Robertson: And you're proposing to build that including the ditches as part of the project?
Tietze: Yes.
Robertson: Even though it's outside of the project itself, isn't it?
Tietze: It's adjacent to this project. The right -of -way is adjacent to the project.
Lawrence: Along with that the swale that you're project will utilize on 133rd, you said the majority of
water I think will actually go through that?
Tietze: That's correct.
Lawrence: Is that swale adequate for the purpose intended for it?
Tietze: I believe it's one of the recommended mitigations. We will have to enlarge that if necessary.
Hernandez: Could you identify where this sub -basin 15d is that is referenced?
Tietze: This goes back to my old report. If I could..(unclear). It's right there. This happens to be my
report that was dated May 12th. And it's figure 2 in the report dated May 12th. That would be the
equivalent to what we're showing here as Basin 4.
Hernandez: I was concerned about the comments made here that says that the althogh there is onsite
detention there will be an increased volume and that this increased volume could have impacts on the
property receiving the runoff and flooding could occur and the site would become wetter than.it presently
is.
Tietze: Right. And that's why we -this is the site, the Borden property. And now I'm referring to the
existing drainage exhibit. And that's why we're proposing to plug this line so it will not go to the Borden
property, and then extend the system and connect up (unclear). Part of our final design, the City will
review our calculations and, in fact, make a determination as to whether this culvert systems has to be
increased in size. In other words, part of this is existing 12, part of it is existing 18. We will then determine
whether the 12 needs to go to a 15. If it does, then we'll increase it.
Robertson: Linda, the problem I have right now is that we're dealing with the -two issues. One, should
there have been an EIS or not. And the second one is the MDS adequate? Adequate, no, -did Rick
Beeler, the responsible official make an error in the mitigations and what is in the MDS I believe with
tight constraints. However, what's being shown here as a design is not part of what was totally
::ontemplated. I think in the MDS where I'm missing something here.
38
Kosterlitz: Let me try to address that again. All of what Erich has shown here is based on the
requirements in the MDNS. Everything that he has illustrated is a recommendation either of his report or
of the Hammond, Collier, Wade reports. There's absolutely nothing that you're seeing that is not a
requirement of the MDNS.
Tietze: And I think the other issue is -I think the question is would an EIS come up with any more
information than what we've already done?
Robertson: Yes. I think that's..
Cohen: It's not the question being considered.
Robertson: Yea. When we don't get to evaluate I think whether the MDS and MDNS is a good system
versus and EIS approach or whatever at least I don't think I get the right state laws.
Duffie: Has this plan been bought by the City?
Tietze: It is and it meets, in my opinion, the Sensitive Areas Ordinance.
Lawrence: One last question. In drainage area 2, one of the initial plans showed that a wetland there
would be recharged and now it's not going to be recharged. Correct?
Tietze: Yes
Lawrence: Is there going to be any problem with lack of recharging if less water is sheet flowing over to
that area?
Tietze: I should let the City answer that because they're the ones that really directed us that way. But they
felt, if I can speak for them and correct me if I'm wrong, that they were more concerned about potential
flooding in that property that they were about liability in the "wetland And I don't know if this in fact has
been designated as an official "wetland It's an area that's subject to periodic flooding.
Lawrence: O.K. Thank you. Joan.
Hernandez: Could you identify where this particular parcel is on the property where it's referring to this
500 foot channel between So. 133rd and So. 132nd that requires enlargement and riprap due to the
erosion potential?
Tietze: That's over in Area 1. In this area right here. It's got nothing to do with our (unclear) whatsoever.
Hernandez: It's totally offsite then?
Tietze: But it is recommended as a capital improvement project in the Fostoria drainage basin.
Hernandez: But it's totally offsite of your project?
Tietze: Totally offsite.
Lawrence: O.K. Thank you.
Kosterlitz: At this time it might be appropriate for us to enter some of the exhibits that have been
referred to or we could wait and enter all of the exhibits at the end. I apologize: Most of them were
marked. We had to give these exhibits up because they were submitted to the Planning Commission at
their hearing and we ve just gotten them back tonight. So however you'd like to proceed in that regard.
We can either mark and enter them now or wait until all the witnesses have testified.
39
Lawrence: Can we do this afterwards so we can get as much testimony as possible. O.K., next up for the
applicant.
Butail: Good evening. My name is Anil Butail. I'm with Terra Associates. We're the geotechnical
5ngineers for this project. Just a quick description of my background. I have a bachelors degree in civil
5ngineering, a master's degree in geotechnical engineering, and I've been working in the geotechnical
profession for 26 years and that's all I know. I've worked on probably over 5,000 projects of every single
type ranging from small residences to very large subdivisions. And I've been working in the Seattle area
For over 20 years. I'd like to briefly talk about my involvement in this project. When Dujardin
Development decided they wanted to look into developing this property, they came to me and asked me,
Anil, I'm looking at this piece of property. Go look at it and tell me what do I need to do, or is it even
feasible for me to develop this property. At that time I looked at the property and we told Bill Fowler,
Bill, this property has certain geotechnical features that you should be aware of and that you should work
into your planning process. And among these geotechnical features was the existence of the road
movements along 44th Avenue as well as the somewhat steep sloes along the north and east sides of the
property. And I indicated to Bill, Bill, don't touch that road--don't go anywhere near that road and stay
away from these slopes. Well, based on that recommendation, Dujardin went to the architect and gave
them my instructions and the architect developed a conceptual site plan. When the architect developed
the conceptual site plan, we went in and did test pits on the property to address that particular site plan.
Based on our findings, we gave the architects additional information. They took that information, refined
that site plan, came back to us, and we went and did more test pits to address that particular site plan.
Since that time, we've had continuous dialogue with other members of the design team including the
architect and the engineer. And we have given them several supplementary recommendations and most
of those have been incorporated into the plans. I expect continued involvement throughout the design
phase and during the construction phase to make sure that our recommendations have been followed in
construction. I might also mention that I've worked with Dujardin Development on probably 25 or 30
projects over the last 15 to 20 years and they may moan and groan over what I may cost them in my
recommendations, but they have always followed them. I want to discuss somewhat about what I consider
to be the critical geotechnical characteristics of this project. My biggest concern since day one has been
the potential instability of slopes and the existing instabilities that we have noted. All along throughout my
involvement in this project I have stressed that condition and all of my recommendations have been aimed
at minimizing the potential for future instability and improving stability conditions as far as possible to a
point where I as a responsible geotechnical engineer can convince myself that yes, every precaution has
been taken and everything has been done in accordance with current geotechnical practices and as far as
possible in accordance with the current state of the art of geotechnical engineering practice. The City has
hired a geotechnical review consultant to conduct and independent peer review and basically their
recommendations have been the same as ours that the stability is the prime consideration in assessing the
Feasibility in developing the site and in determining appropriate recommendations for design and
construction. The review consultant has also made recommendations regarding additional studies and
these are contained in the City's findings of which you all have a copy of. I'd like to walk up to the map for
just a minute and briefly summarize some of the areas where I had some concerns. The map I'm going to
use has Exhibit 7 on it and it is entitled Existing Slope Grades. This is a map that shows the slopes on
Efferent parts of the site and in looking at these slopes there are three categories: slopes less than 15
percent which are the yellow areas on the site; slopes 15 -40 percent which are the uncolored areas on the
;ite; and the slopes greater than 40 percent which are the blue areas on the site. The City's Sensitive
Areas Ordinance indicates that anything less than 15 percent shall be classified under Class A landslide
hazards, so slope stability hazards. You can see a very large percentage of the site is in that category. The
uncolored parts of the site are inclinations of 15 -40 percent and these are classified as Class II hazards
which are in the low to moderate landslide category. The Class III, called slopes greater than 40 percent
are the Class III landslide hazards which are the blue areas. You can see that constitutes a very small
portion of the site. One area that's not shown over here is the Class IV landslide hazards which are areas
where existing instability has occurred which is along an approximate 300 foot stretch of 44th Ave. which is
)ff the site. There is no development proposed in this area. We have certain recommendations on the
;ite. Normally, in geotechnical engineering practice we recommend that no artificial slope be constructed
steeper than 2 to 1 which is approximately 50 percent. On this site, I was a little more concerned than I
normally am, and have recommended that no slopes be constructed any steeper than 2 -1/2 to 1 or 40
percent, which is what all these new slopes have been shown as. Also, when final grading plans are
40
established, I will work with the architect in determining actual grading on individual lots to make sure
that the stability is not jeopardized at any location.
Robertson: I have a couple of questions. I'm a little puzzled. Those are contour lines on the chart....on
the map there.
Butail: Which lines?
Robertson: All of the curvy lines. What contour intervals do they represent? Do they represent 5', 10', 2'
Butail: 2.
Robertson: 2 foot? I find....I'm a little puzzled because, for instance, Seattle is less that 15 yet some of
the spaces you have yellowed show closer contour lines that are closer and more numerous that the areas
that are wide, that are 15 to 20
Butail: I think you're reading....there are two set of contours if you will look on this map real carefully.
One set of contours is the real light lines. Those represent the contours at the existing time. At this time
which this map is based on. The darker contours that you're pointing to me just now, those represent the
contours after construction is complete.
Robertson: Is their a map somewhere here that would show the existing contour lines that the yellow, blue
white....the yellow blue and white, does that represent existing....
Butail: That represents the existing conditions.
Robertson: Is there a map that would show just the contour lines going with that before you do the
construction, the site grading? I find it....
Shefrin: Excuse me. I can speak to that. There is a tree survey map, if that would satisfy you, that is up
on the wall. I'll be right there to point it out (Denni goes to the dais area and points out the areas on the
survey map.)
Butail: What you're looking at is the drawing entitled Tree Survey and this shows the existing contours.
These contours on this map are the same as the lighter colored contours on Exhibit 7.
Robertson: There will be a great deal of earth work in this project, I'm just asking, I don't know what a
great deal means, but if I look at this area here, for instance, the contour lines are quite close, the same
area here is fairly far apart, so what you're doing is making the slopes steeper here, for instance, when
you're done, than what it was originally, is that a correct
Butail: There are some portions that will be steeper, there are some portions that will be flatter after
grading is completed.
Robertson: Ok, thank you.
Robertson: I guess I have a quick question, the
Lawrence: He's not quite finished yet. Will you go ahead and finish first and then we will question.
41
Butail: There are few questions that have been raised and the questions relate primarily with regard to
the issue of the springs not having been address and I would like to answer that as best that I can. To
understand the issue of springs, we need to understand what causes springs to occur. Springs occur when
rainfall penetrates the ground surface, hits an impervious barrier between two different types of soils and
when it can't penetrate that barrier anymore, it is force to come out of the ground. The potential for
springs is greatest when there is a very large upgradiant recharge area, an area that is a potential source
for feeding the ground with water; and second, when you have materials with very different permeability
or characteristics below the ground surface such as a layer of sand, overlying clay or gravel overlying clay.
All of the explorations we have done on the site first indicated no significant ground water whatever.
Some of the explorations were done in December, some of them were done during a dryer time of the
year, but none of the tests encountered free ground water and to me that's not surprising at all, because
almost all of the soils that we encountered in our explorations consist of relatively imperviable clay soils
which hold water but don't release it at a very rapid rate, and water doesn't penetrate into these clay soils
at a very rapid rate. Now, these soils when they get wet, they will give the appearance of being spongy and
when the rain stops, they will hold that water on the surface for quite some time, but they will not release
water at a very rapid rate, they will not give the indication of seeping out of the ground at a sustained rate
that it might be called a significant spring. There are no doubt springs in the area immediately around the
wetlands, and that's what's causing the wetlands to occur, but there is no evidence of any springs in any of
the areas to be developed. Now, that is not to say that springs may not occur on the property. There is a
possibility that springs may occur but this can be dealt with very easily during construction, and although a
lot of people have talked about not being able to deal with something without knowing where it is, this is
something that we face almost every single project that we do. When excavation is being made for
construction, we don't necessarily look for water, we look for the features in the soils that may cause water
to occur, that may cause springs to occur. We will look for conditions where we have two different soil
types. We will look for indications that there are granular soils, overlying impermeable soils. Wherever
we find conditions like that, we will recommend that subsurface drains be installed. There is concern that
there will be water in crawl spaces, that should not be a concern, every single house will be provided with
drains, foundation drains that go below the levels of the crawl spaces. I don't believe that is a concern at
this time, and it should not be because the houses will be provided with proper drainage. One last item I'd
like to just point out briefly, I heard tonight that there are indications of a continuous state of movement
an the site. That is not true. We have made a thorough reconnaissance of the entire property, I have not
seen any indication of a continuous state of movement on the site, neither has the City's reviewed
geotechnical consultant. There's no question, there is movement along 44th Avenue, that is not on the
site, and the movement along 44th Avenue should not effect development on the site, and with that, if
there are any questions, I will be happy to them.
Robertson: Is the movement on 44th Avenue away from or toward the site?
Butail: It's away from the site, Sir.
Robertson: Downhill.
Butail: Yessir.
Robertson: If it was to threaten any of the property, it would be the lots, basically up along here
Robertson pointing to map), the northeast corner lots number 15, 16, 17, 18, 19.
Butail: The movement on the site is ah I'm looking at Exhibit 7, is in approximately 300 feet of the
southern portion of 44th Avenue. The movement is also restricted to approximately the downhill one-
f
42
third to one -half of the street. The upper portion of the street or the western portion of the street does
not show signs of movement.
Robertson: Are there any plans to stabilize the street? Is that part of the design? I'm trying to remember
what I read in here.
Butail: No, Sir.
Robertson: There was some discussion of doing something to stabilize the street at one time.
Butail: We were requested to evaluate different procedures, we provided Dujardin with general
procedures that might be used possibly with all those procedures, it was very tough.
Robertson: So then nothing is being done to stabilize the street.
Butail: At this point, nothing is being done to stabilize the street. One positive feature that will result is
that the drainage along the ditch along 44th will now be opened up. There will be free drainage along
there. So that should improve conditions. It will not stabilize it. I will be improved as a result of the
improved drainage.
Robertson: In previous analysis, years ago, I've seen discussions of core fission or friction, that basically
the tendency of something the slide on the hillside, dependent upon the underlying soil and how much of a
cut you're putting into the type of fill, I've seen no reference or analysis of that for the building site for all
of the different sites here. Is there a reason that that type of analysis hasn't been done for models?
Butail: Well, one of the conditions is that additional stability analysis, which is what I believe you're
talking about, be conducted at the time actual designs are being performed.
Robertson: Designs for individual lots and houses?
Butail: For overall site grading as well as houses has been designed.
Lawrence: Joan.
Hernandez: You say that springs can possibly occur during excavation, and how do you address protecting
properties that this water may flow to below the development?
Butail: All of the springs are, when they are collected in drains, the drains will be discharged into the
storm drain system.
Hernandez: If a spring occurs during excavation and you don't have the drains in place yet, how do you
protect the downhill property?
Butail: There will be an erosion and sedimentation control plan that picks up all storm water from the site
and temporarily detains it. Erich, I'm sure, will be able to answer any of those questions regarding surface
water movement, but if there is water that comes out the springs, all of that water will go into the
detention facility.
Duffle: After you all complete the design, how long are ya'll responsible for it. If you complete this
levelopment and next year, let's say for example, next year you complete the whole development, after
(ou get your money and gone, how long are you all held responsible?
Butail: I think that's not for me to decide.
Duffle: I mean, you building it, someone is building it.
Butail: It's not for me to decide how long I'm responsible. I think
Duffle: My questions, the reason I asked you is not trying to be smart, but ok, we're talking about these
springs. Ok, you finished the site, development and all, get your money, you leave. Two years later,
;prings come back. Poor person down below, now they've got a first rate problem because you all caused
:he problem, you should be held responsible for two years.
Iletze: If I might respond to that. We as responsible professionals, we provide our services and our
udgment in the way that we best see fit as determined by our experience and background in certain
situations. We cannot guarantee that we will pick up every single drop of water that is going to come out
)f the ground, but we will exercise all reasonable judgment within our profession to prevent that kind of
situation from occurring.
Kosterlitz: Another answer, legally, is that as with any situation, if problems occur and people take you to
:ourt, you're liable forever, and if somebody wants to say that the design is negligent and can prove it, then
(ou're liable, just like in any other situation and in any other location throughout the City.
Duffle: Thank you.
Lawrence: Any other questions?
43
Lawrence: I have one regarding the roadway that has slipped, you said that you were requested to come
1p with a preliminary plan on how that could be stabilized, so you must have addressed the root cause for
hat slippage, what is the basic cause is it the ravine below?
iawrence: You don't feel, though, any slippage on the road is going to cause any instability upland from
hat?
lutail: I don't believe so, Sir, because you can see there is no evidence of any movement further up the
lope at this time.
3utail: Well, not having been there when the road was built, not seeing the procedures that were followed
when the road was built, to a certain extent my conclusions have to be somewhat speculative in nature, but
t is my judgement that there were several things that happened when the road was built: 1) we had clay
oil conditions to start off with; 2) we did have water flowing in that direction; 3) it is my interpretation
when the road was built there was a cut made into the uphill side of the road and the material that came
Yom the cut was placed on the downhill side of the road. So as a result of all these factors, 1) the material
hat was moved placed on the downhill side of the road caused additional load on the hillside; 2) when the
:ut was made some of the water was basically forced to go into the cut at the part where the fill was placed
end a combination of these factors caused the movements to occur.
Lawrence: Any other question? Ok, then, on to our last witness for the applicant, I believe. We have one
more? Oh, two more? Ok.
My name is Terry Gibson, I'm the President of Gibson Traffic Consultant, 1712 Pacific Avenue, Ste. 100,
Everett 98201. My firm was retained by Dujardin Development to do all the traffic and safety analysis
and studies that are required to make sure that this is safe from a level service standpoint, capacity
standpoint, but most of all, in this case, I think safety and livability which is sort of a new concept. I'll have
some view foils on that in a minutes, livability which looks at the residents in the area and will their
livability be jeopardized or impacted by the proposed development. I have about 20 years experience in
civil and transportation traffic engineering. I have a Bachelors Degree in Civil Engineering and a Masters
Degree in Traffic Transportation. One experience note, I was the Department of Transportation's roving
traffic consultant in 85 to 87, went around throughout the state to help especially the small cities and
counties with their traffic and safety problems providing guidance on operation as well as education in the
traffic safety area. I have done considerable work before I moved to Everett in the King County area,
including Tukwila; worked on the Comprehensive Transportation Plan years ago and help planned the
transportation network both down in the commercial /industrial valley where you have a lot of traffic
problems and traffic flow as well as up in the residential hill. I did several projects up there also before
this one. There have been four traffic studies or follow ups that my firm has done and I've been personally
responsible for all four.
CONTINUED ON PAGE 45.
44
45
The original traffic study and all four of these I believe are in your packet for tonight's
hearing. The original traffic study was done in September 30, 1991 is the date of the study.
We did a site distance evaluation of specific follow -up evaluation on 42nd Avenue which was
April of 92 and part of the conclusions of that study in working with City staff, specifically,
Ron Cameron, your City Engineer, who I might point out, is a very qualify traffic engineer
and a leader in the transportation field. No peer review outside was required because Ron
is very qualified, and I work directly with Ron and coordinated all of my reports and
findings, talked them over with him and discussed those with him and some of the mitigating
conditions evolved out of those discussions after my reports was submitted. The third was
submitted December of 1992 and resolved some of the traffic issues won. The thing
that came out of that was the guardrail analysis to put a guardrail next to the north of the
plat road to protect in case errant vehicles came around the curve a little too fast and would
protect the houses below, sort a speak, for the curve, so we added in a little extra effect for
safety, added with that, mitigation feature Wren required. We also looked at signal
warrants, stop signs, canalization warrants, looking at the driveway themselves and the side
visibility was quite a bit of our analysis. We also looked at the 137th through connector
issue. When the original site plan, possibly the second site plan was done, there's been quite
a few, there wasn't a continuous road with the meandering alignment the South 137th Street
connector we're talking about. City staff, Public Works staff were a key part in requiring a
through connection. We supported this. This will improve your vehicular and pedestrian
circulation in the area. Also, it will be great for emergency fire /police vehicles to get to the
site as well as through the site to the houses along existing 137th down to Macadam Road.
So there's been continued input and part of the mitigation conditions reflect that. I might
point out either at the public meetings or a series of hearings with the Planning Commission,
there were some comments from the public that have been added as mitigation conditions,
specifically, Ellen Roan had a very detailed letter about where are you going to put this
pedestrian walkway over to Macadam which the client is going to share 50% of the cost, but
are you going to connect to the bus stop, to the school bus stops on the east side of
Macadam. So we did an extra condition ourselves to reflect the comments from the public,
which is a good comments, what good is a walkway unless you tie it in to the bus stops that
are there. So we got some good local input from one of the residents and we agreed to
make sure those crosswalks and pedestrian connections made it to the bus stops so we get
our children and our people that ride the bus safely to and from those points. Since
questions tend to eat up a lot of the time, I'd like to sort a dray my conclusions on the traffic
and safety issues before I go to my view foils and starting the questions. From my findings,
there really isn't a level service capacity problem even with 42nd Avenue, I'll show you some
figure here in a little bit. There is adequate capacity the level service will be very desirable
level service A's we call it, and that's one reason I looked at the livability.... what is the
highest those volumes should be to still make the propose street system as well as the street
system to the east still livable in terms of people being able to back out of their driveways,
park in the street, etc. The livability still will be good per the standards that we have to
apply. The access points and internal roads meet both the City and the national standards
which the American Association of Standard Highway and Transportation Officials and that
is the standard that the City does and apply and meets both those design and safety
standards. As I said, the proposal layout would improve the circulation vehicular and
pedestrian throughout the area and buy meandering the alignment, it will tend to reduce any
potential speeding that might occur for traffic cutting through this particular neighborhood
looking for a shortcut to 42nd Avenue and down the hillside. In one of the public's
comments, there was a blind corner at 44th Avenue and 139th to the south. I did look at
this. It's got a good super elevation, but it is on the narrow side. By putting this connector in
through the site, we would actually reduce traffic on 44th and 139th that heads to the west
toward Pacific Highway and 42nd. We'd actually be taking traffic away, existing traffic away
from that blind corner through the project, which is unusual to actually decrease traffic at an
existing hazard. At this time I'd like to give everybody a handout and go through a few of
the view foils on the technical issues. In according with what Amy said, I believe this is
Exhibit 12, so I'll refer to these view foils, I think there's about 8 or 10, as Exhibit 12. The
project itself, with 41 lots, this is a trip distribution map out of several of the reports that I
talked about. The project itself will generate about 390 daily trips, and what you see here in
the circles are trip distribution figures, if you get 65% to project then you go up 42nd to 40th
Avenue and 34% to the south, then 12% heading this way (Gibson pointing to view foils).
There's about 400 daily trips, there's approximately 40 houses to the east that we also
looked at in the follow up analysis, the August 1993, because we wanted to see how many of
the existing homes would possibly use the new through connector through the site to travel
between 42nd and Macadam. Because there's 40 existing homes, 41 proposed homes, that's
really how the City came up with the fair share of the 50/50 split on this proposed pedestrian
walkway over to Macadam from 44th, which would continue pedestrian system as part of the
internal plat system. I do have some exhibits that you can ignore here on my view foils that
were the exhibits in the Planning Commission hearing. The ones that I've circled here are
the ones that would basically have rerouted some of the existing traffic that's heading up this
way or heading over toward 99, that's why I circled those in red. Some of those destination
are the ones that the existing residents would, as I recall, cut through on the 137th
connector. This here is a, what we call, a turning movement diagram and I'm not going to
spend a lot of time on this, but these are peak hours volumes that are estimated with the
project total volumes, and for 42nd Avenue north of the proposed site driveway over the
plat road would carry about 547, that's estimated, with full occupancy of the plat plus
existing residents using this as a cut through to the west. Just as a rule of thumb, peak hours
is about 10% of daily traffic, so you'd have about 5500 average daily traffic (ADT). On a
road like 42nd Avenue two lanes with paved shoulders can carry approximately 8,000 cars
per day. So that would be operating about 65 to 70% capacity, which is still in the level
service "B" range, which is very good. We have 43 peak hour trips projected counting cut
through traffic, which would equate to about 425 daily cars at 430. This is a table out of the
original traffic report, Table 2, which will summarize the existing as well as the future level
service with the project. I have updated this. The original plan was 93 would be constructed
and sorted out by homes. I updated that to 1994, and I also added for the plat entrance road
at 42nd Avenue with the through street connector I updated this. The number has dropped
a little bit where you still stay in level service "A."
The next view foil will show you what level service "A" "B" is, maybe you already know
that from other hearings or other traffic consultants. This is a handy -dandy chart that is also
in the first traffic report. Level service "E" is considered capacity, "F' is forest flow, and you
have some of those conditions down in the valley, industrial valley, you're going to be at level
service "A" or "B" which is blue on the overlays (Gibson is referring to the view foils) or short
delays at your stop signs, or in this case, you are going to need signals, but you'll have
minimum delays and reserve capacities would be over 400 for local service "B."
Cohen: For the record, the witness was referring to Table 1 of Exhibit 12.
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Gibson: Yes, thank you. You can see the only intersection you'll have level service "B" is
144th at 42nd Avenue South which is a 4 -way stop down by Foster High School. We did
look at that particular location at Ron Cameron's request to see if signal warrants were met
with this project and they were not so the 4 -way stop continues at that location. Ok, site
visibility- -this is sort of a handy dandy chart that shows that shows a car parked, let just say at
the plat road in this case, let's call this the plat road of 137th connector coming out onto
42nd Avenue. You'd look for a car approaching from this way and a similar analysis coming
from the right that you basically go out and you assimilate the height of the driver's eye,
which is 3.5 feet off the ground, and you are siting a vehicle windshield which is about 4.25
feet off the ground, and in this case on 42nd Avenue, it's basically a horizontal curve
situation -a series of curves in both directions. This is how you measure it per astro
standards.
Cohen: For the record, the witness was referring to Chart entitled "How To Measure Sight
Distance
Gibson: Thank you. Ok, this is Figure (Roman Numeral) 9 -40, out of what we call the astro
green book, which is our Bible for measuring site distance, and this particular figure is in the
original traffic report as of September 1991. What this shows at 30 MPH, which is the
posted speed on 42nd Avenue, minimum stopping distance would be 200 feet, which comes
off of this number 1 here for the stopping site distance range. We usually take the higher
range to be conservative and then the distance for the left turn looking left would be the
"B'1" line which is about 310 feet, and then for either looking left or looking right, with a
vehicle approaching for either way, 375 which is the highest distance required. Just for your
information, there was some testimony tonight that everybody's traveling or most people are
traveling 40 miles an hour. If you look at 40 MPH you'd have approximately 325 feet for a
minimum and if you look at the worse case over here for 40 MPH it would be 570. The City
has directed us to use 30 MPH speed limit but I just wanted you to remember those
numbers until we get to the next exhibit here. This is out of the second study we did in April
1992. This is Table 1--"Site Distance Evaluation," and I'd like you to focus on the plat road,
and this is where all the traffic will come out. We also looked at lots 1, 2, 3, and this time
1 was by itself and 2 3 were joint, and also lot 32 35 which were some accesses to the
south that had some potential site problems. We measured over 500 feet for the left turn,
the right turn looking left in each case and 575 for the left turn looking right. So each of
those distances not only satisfied the 310 and 375 but also satisfied the other figure that I
gave you -570. So 40 MPH would be just about what this one would be right here, so cars
would have to be going 10 MPH over the speed limit or 15 or 20 MPH over the posted
speed for those curves which are sharps. They'd really be sailing and probably would began
to leave the road if they were going that fast. I might point out, we have combined these
into one access as the site plan shows. You have access to 1, 2, or 3 lots. You typically will
require the minimum stopping site distance not desirable stopping site distance like
we have for the plat roads. In that particular case, you have three, number 1 is the worse
case, you have 350 and you have 360. That's the only case that we didn't satisfy the desirable
distance of 375. When you look back to the chart even for 40 MPH, it would be 325 so we
have about 25 or 35 feet more than the minimum stop, even if someone is going 40 MPH.
Even at 40 MPH we can assure that there will be a safe ingress and egress at the plat roads
as well as the driveways based on the City's and astro's standards. Ok, this is a chart that I
came up with to analyze the through connector issue and there is a series of small numbers
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here like "0" for existing homes, the one below the arrow is project traffic, in this case 292
and this is the maximum volume segment right here which would be right at 42nd. The
existing rerouted traffic from the neighborhood to the east would add 133, which gives you a
total of 425 daily traffic at this particular which would be the highest traffic Over
here to the east side, I estimated 250 would be just west of Macadam on 137th through the
existing neighborhood. There was one comment that Gibson hasn't looked at a short cut
down I -5, the 133rd interchange to Interurban. Even though I don't believe the number
would be as high as 20 I added 20% just in case people go that way, and there is
testimony, there are narrow roads and it's very confusing. I don't think it would be one that
a new resident would find. But if they did find it and we did take 20% and assigned them
that way, this number would increase by 78 to 325 ADT. The number down to Macadam
worse case would be 325 it takes the narrow, shortcut route. 425 would be the daily
volume on the west side. Now I'd like to discuss the This was in my August 93
memorandum on the 137 through connector. This is just to tell you what the source is out of
the western ITE which is a publication that comes out every other month and it is an
acceptable IT publication and that's where these livability standards were printed in
November/December issue of 1990. I've used these standards for a high school and middle
school project over in Everett. We had access to a high school that came right through a
residential neighborhood similar to what you have here up in the hill by Fosterview Estates.
There wasn't a capacity problem, there wasn't a level service problem, but I felt in doing the
EIS, this was the best way to let those people know whether the high school kids which drive
very aggressively, whether they would really have a problem backing out of their driveway,
kids could chase balls, you know, stuff like that would be livability, that's why I applied these
standards. If you look right here, for a 28 foot street which is what we proposed for 137
connector, with parking 600 ADT; without parking 850. Technically, in this case, I'm not
sure there'll be parking on the street because we have enough parking at each facility, but if
you assume they park on one side, which 28 foot would accommodate, so I average these
and came up with 725 ADT. If you had 725 or more ATD on 137th connector street, the
livability would degrade and not be acceptable per these standards. As you will remember,
the number ranged from 325 to 425 (425 in the west; 325 in the east) so we're about half of
the acceptable livability volume based on these standards, so livability still will be very
desirable on the existing 137th street and the proposed meandering alignment through
connector through Fosterview Estates which is very good. We didn't get the same answers
for the high school, that's a different story that I won't go over now. That's about the extent
of my testimony and I'd be happy to answer any questions at this time.
Lawrence: Any questions? Alright, thank you. May I have your last witness, then.
Robertson: Steve, It's seven minutes to eleven. Do we want to extend the meeting time?
Lawrence: Let's see if we can get this one in.
Mullet: Steve, did you waive him?
Lawrence: The Attorney waived for the applicant in general.
Garet Munger: I'm Garet Munger, Wetland Biologist with the firm of Terra Associates.
Our firm did the wetland evaluation on the property. I just want to take a few moments
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tonight to clarify a potential area of confusion as you go over the documents. If you read
our wetland evaluation report, actually, there are two -a letter and a report that we
prepared. The delineation report was dated December 3, 1990 and then after we completed
that report, the ordinance changed somewhat and we evaluated our observations with
regards to the new ordinance in a letter dated July 1, 1991. If you refer to our delineation
report and the drawings which are submitted with as the development plans, there is a
discrepancy between the two wetlands maps. Our work originally was done by Mr. Tom
Strong who doesn't happen to be with our firm anymore. He identified some additional
wetland area on the property and his work. Gary Schulz, the City's Wetland Biologist, and I
met on the site to review the delineation and between the two of us, we concluded that one
section should not be considered as wetland and also there were some additional areas that
were added after that review. Now if I go up to the drawings, I'll show where the additional
changes are. (Munger proceeds to the dais to point to drawings.) Referring to the existing
slope grade map which also shows the wetlands areas, the originally report showed a
of wetland that extended off in this direction. This was determined not to have all of
the characteristics required for a definition as wetland, and the cooperation between Gary
schulz and myself, we decided that that does not qualify as wetland. There also were some
changes in an additional area added between the two reports on the eastern edge of the
stream corridor and also added to the very eastern extent of the wetland where it drains
down toward 44th Avenue South. I would like to introduce, if these are not already part of
the record, the two reports which we presented, and I guess they would be #13.
Robertson: We don't have those in our packets, is that's probably the material I requested?
Would it be possible to have the....those and the other materials I requested in our boxes by
the end of the day tomorrow?
Cohen: Celia, if you want to mark it, as one of those exhibits, #13.
Lawrence: Were there any questions for this man?
Robertson: Without reading the material, no.
Lawrence: Ok, with that I think we've come to the end of the initial testimony.
Cohen: The exhibits need to be numbered and described. Exhibit #1 should be the
comments submitted by Janelle Scarber. That should be Exhibit #1, and so if you have one
that's marked #1, you might want to make that "la"
for clarification.
Lawrence: Can you two work on that while we discuss where we're going to go from here. Is
that possible?
Cohen: Yes. And if you want an answer with respect to viewing the site, I'm prepared to do
that whenever you're ready as well.
Lawrence: Ok, with your indulgent, let's call it a night and have the rebuttals at the next
meeting, which will be in one week, and we will get all the information that Dennis has
requested and all the information that's been brought forward as exhibits. Copies will be
given to all of us, copies will go to the appellants, and for a site visitation.
Cohen: I believe it's fine as long as the Council goes as a group and as long as they are not
accompanied by any of the appellants or applicants or their representatives.
Robertson: That means staff too?
Lawrence: It seems appropriate if our Urban Environmentalist would accompany us. That
would be no problem, would it?
Cohen: Are there any objections from either the appellants or the applicants?
Appellant: Yes
Lawrence: We'll go with our Legislative Analyst.
Cohen: Could you state why you are objecting, and if you would come forward and state
who you are and why you are objecting.
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Janelle Scarber, Appellant: I'm Janelle Scarber and we object because we feel that you
people should go out there without any bias people with you, look at it for yourself and then
you can go back and read all the packets and make a decision. If you go out with anybody
from staff or from the applicants, it's not going to be an unbiased visit.
Lawrence: Ok, that's reasonable. Would you protest if we took along our legislative
Assistant, Lucy Lauterbach, who has not been part of the staff report.
Scarber: No, I have no objections to that.
Lawrence: She can arrange, then, a time for all of us, which is going to be about impossible
to get seven (7) of us together. In fact, I thing we need a motion to extend this meeting so
we can wrap up on the details.
Robertson: I moved that we extend this meeting by about 10 minutes.
Duffie: Second.
Lawrence: It's been moved and seconded to extend the meeting, all in favor say "I."
Council: "I."
Lawrence: Oppose?
Council: "0."
Lawrence: Motion carried.
J1`
Ekberg: Let me ask a question, as far as all of us getting together, would it be impossible for
Friday at 4:00.
Lawrence: Let's go through the days.
Hernandez: I have to go to Mount Vernon on Friday.
Lawrence: Friday is not available, How about Thursday?
Simpson: Thursday, when? Because I have a meeting at 6:00 p.m.
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Lawrence: 5:00 p.m. I think it will be fairly quick. Ok, Thursday at 5:00. How about if we
all meet in our parking lot here and we can car pool to the site. Wear your clothes that are
appropriate, it may be damp. Alright, do we have any other business at this time? Just
reports I guess.
Celia Square, Deputy City Clerk: Excuse me, Mr. Lawrence, is the appeal going to continue
to the next Regular Council?
Lawrence: It will continue next Monday, and since we will have a quorum at this Thursday's
tour, we'll not going to be there to discuss, just to observe. I don't know if that needs to be
publish or not for this Thursday at 5:00 meeting.
Sic uare: No, publication not necessary.
Lawrence: Ok, we will not be discussing issues, we'll just be observing and basically, not even
discussing among ourselves.
Robertson: We're just going on a field trip without talking, right?
Lawrence: Maybe sports, or something else, ok?
Cohen: Before this portion closes, Amy needs to Move to have the exhibits made part of the
record.
Lawrence: Ok, go ahead.
Kosterlitz: I would like to Move the admission of all of the applicants exhibits, which I
believe followed in the range of 1 thru 13 and will have numbers affixed to them by the end
of this meeting tonight.
Cohen: I'd also let the record reflect that I have passed out the copies o the WAC provision
197.11.768 per Councilman Robertson's request, and I also have these available for the
appellants and applicants rebuttal.
Lawrence: And the appellants' letters also entered as an exhibit?
Cohen: And that will be Exhibit #1.
1
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Lawrence: Alright, for the public's benefit, when we continue again, we will here the
rebuttal from the appellants first, followed by staff rebuttal, followed by applicants' rebuttal,
and then closing arguments that are optional for all parties.
Ekberg: Are the time allotted the same?
Lawrence: We'll try to keep within the same time frame as this evening. Hopefully, that
should be easier since, ah
Mullet: Do we have another public hearing scheduled for next week?
Lawrence: I'll be scheduled for next week, to continue this meeting.
Ekberg: No, was there one already scheduled for next week?
Hernandez: The one on Maule Avenue, the vacation of Maule Avenue?
Duffle: "Maule" Avenue.
Lawrence: Yes, It'll be brief, two people. Ok, I guess we need a Motion to continue this. Is
that correct?
Robertson: I move that we continue the Appeal of the SEPA Mitigated Determination of
Non Significance Fosterview Estates, notebook dated 10/5/93 until next week.
Lawrence: It's been moved and seconded to continue this hearing until next week. All those
in favor say "I."
Council: "I."
Lawrence: Any opposed?
Council: None.
Lawrence: Motion carried.
Robertson: I have a real quick question, Rick? Are you here?
Beeler: Yes.
Robertson: The MDS, the original SEPA MDS, what does original mean? Is that the same
thing apparently there were two of them according to the thing here, ah....of July 22nd and
then on August 13. The one you have in the book has no date on it. Is it the July 22 or the
August 13 or what?
Beeler: You're right. The original MDNS in the packet is Appendix "E" would be the prior
date of one, and I think that we have the current one as referenced as the MDNS.
1.3 I
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Robertson: Where is the current one at, then? Is it in our packet?
Beeler: Yea. It is. I'm looking.
Robertson: Where? Isn't this called the current one?
Beeler: On page 8a of your packet, it the amended Mitigated Determination of Non
Significance. It says amended at the top.
Robertson: Where is it at now?
Beeler: Page 8a. It's the handwritten page 8a.
Robertson: It's under the proposal?
Beeler: It's towards the beginning, very beginning.
Lawrence: It follows the first set of maps.
Beeler: It's at the very beginning of the notebook.
Robertson: Ok.
Lawrence: Alright, can we dispense with Reports tonight. Is there a consensus to do that?
Duffie: I make a Motion
Lawrence: We don't need a Motion.
Duffie: Oh, ok, I make a Motion that we adjourn.
Robertson: Second.
Lawrence: It's been Moved and Seconded to adjourn, all in favor say "I."
Council: "I."
Lawrence: Opposed?
Council: None.
Lawrence: Motion carried.
Committee of The Whole Meeting Minutes
October 11, 1993
ADJOURNMENT: 11:15 P.M.
Steve Lawrence, Council President
'eta Square, If e ity City Clerk
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