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HomeMy WebLinkAbout1993-10-18 Regular MinutesOctober 18, 1993 7:00 p.m. CALL TO ORDER ROLL CALL OFFICIALS AND STAFF CITIZENS COMMENTS CONSENT AGENDA PUBLIC HEARINGS Proposed 1994 -1999 Financial Planning Model and General Gov't. CIP Public Comment TUKWILA CITY COUNCIL MINUTES 1 Mayor Pro Tem Lawrence called the Regular Meeting of the Tukwila City Council to order and led the audience in the Pledge of Allegiance JOE DUFFIE; JOAN HERNANDEZ; DENNIS ROBERTSON; CHARLES SIMPSON; ALLAN EKBERG; STEVE MULLET. U Tukwila City Hall Council Chambers LINDA COHEN, City Attorney; JOHN McFARLAND, City Administrator; RICK BEELER, RON CAMERON, City Engineer; DCD Director; ALAN DOERSCHEL, Finance Director; ROSS EARNST, Public Works Director; LUCY LAUTERBACH, Council Analyst; GARY SCHULZ, Urban Environmentalist; DENNI SHEFRIN, Associate Planner; ANN SIEGENTHALER, Associate Planner; DON WILLIAMS, Parks Recreation Director. Pam Carter invited the audience to participate in the Haunted House at the Southcenter Pavilion Mall. a. Approval of Minutes: 9/20/93 b. Approval of Vouchers: Nos. 67327 through 67553 in the amount of $424,303.59 MOVED BY HERNANDEZ, SECONDED BY DUFFIE, TO APPROVE THE CONSENT AGENDA AS SUBMITTED. MOTION CARRIED. Finance Director Alan Doerschel reported that at the present time there are no anticipated changes to the 1994 Proposed General Government CIP and Planning Model as submitted to Council three weeks ago for review. The proposed 1994 budget reflects the proposed CIP at this point in time. Following the public hearing, Council will continue their debate of the CIP at next week's COW. Council President Steve Lawrence opened the public hearing at 7:10 p.m. Nadine Morgan, 5190 So. 166th St., Tukwila, commented that the Duwamish Valley Neighborhood Preservation Coalition had addressed the Planning Commission, Parks Commission, and the City Council and requested that the Beaver Bend Park be placed on the budget. At the last public hearing, the Council approved $150,000 budget line item for the project. Morgan noted that the project is currently listed in the 1994 Proposed Budget in the amount of $50,000. Tukwila City Council Regular Meeting October 18, 1993 Page 2 Public Hearing (con't1 Proposed 1994 -1999 Financial Planning Model and General Gov't. CIP OLD BUSINESS Appeal of MDNS for Foster View Estates REPORTS: 2 She stated that several members of the community had given the Council compelling reasons to purchase the property. Morgan noted that a bike trail is the major consideration for the site, but it is also very important for habitat value. The property is also extremely important as a buffer to the Allentown neighborhood and has a very good habitat value for wildlife. Morgan stated that there are some community members that feel if the City does not buy the Beaver Bend site for a proposed park, that that is the beginning to the end for Allentown- -that sewers and improvements in Allentown will beckon industry beginning with the commercial manufacturing facility on this property since it's zoned Commercial Manufacturing. According to Morgan, other citizens feel the current City Council, who they consider to be pro- housing, pro- neighborhood and visionary, will purchase the land and provide a fantastic buffer to the north flank of the City. The trail system would be an asset to the City for residents and the business community alike The original asking price for the property three years ago was $330,000. Morgan said the whole parcel could be purchased for $250,000. The Duwamish Valley Neighborhood Preservation Coalition could buy the balance of the property for $100,000. They could not buy the balance of the property at $200,000. Morgan stated that the City's $50,000 allotment for the property would kill the entire project. Morgan concluded that it would be to the City's advantage to purchase the property now for $150,000 before the improvements go in and the cost of property doubles or triples in the next few years. Francis Piper, 345 Meadow Ave. No., Renton, a representative of the Renton Parks Department with the Bicycle Advisory Board encouraged Council to build the Beaver Bend Park as it will meet in with the planned trails from Renton north to Seattle. Council President Lawrence Council President Lawrence closed the hearing at 7:18 p.m. He suggested discussion on this item be postponed until the October 28th COW. Council concurred. Continuation of the Appeal of the Mitigated Determination of Non Significance (MDNS) Foster View Estates. Verbatim transcript attached. Cpa_,eA) ,/7 Following testimony (attached verbatim) Council moved to extend their discussions and processing of the appeal to November 1st. MOVED BY SIMPSON, SECONDED BY ROBERTSON TO DISPENSE WITH REPORTS. MOTION CARRIED. Tukwila City Council Regular Meeting October 18, 1993 Page 3 3 ADJOURNMENT THE MOVED BE ADJOURNED. MOTIONnCARRIE THAT D. 11:40 p.m. #d% W. Rants, Mayor lane E. Cantu, City Clerk Tukwila City Council Regular Meeting !October 18, 1993 CONTINUATION OF THE APPEAL OF THE MITIGATED DETERMINATION OF NON SIGNIFICANCE FOSTER VIEW ESTATES VERBATIM TRANSCRIPT 4 Council President Lawrence: Next on the agenda we have a continuation of the SEPA mitigated, Mitigated Determination of Non Significance. We have an appeal on that that we are continuing. We don't need to formally open that do we? Ok, alright, we will formally continue it at this time. And before we start I think anyone that is going to be testifying, this is for rebuttal only now. Anybody that's going to be testifying in rebuttal? I need you to stand, to affirm that you're going to be telling the truth. So after I state this, will you please say I do. Raise your right hand please. Do you affirm the facts that you are about to give in this matter to be the truth? Thank you, be seated. It's always that way anyway right? Ok, we left off with the rebuttal coming from the appellants. Linda Cohen. City Attorney: If I might interject, I'd ask at this time if Council has had an opportunity to review the site? Lawrence: Oh, I am sorry, I was supposed to disclose that. Yes it was requested during the last meeting that the Council members actually go to the site and look around at the physical premises. And that was done last Thursday between five and six o'clock. And I believe every member of Council was there. We had no discussions at all regarding the appeal or the site itself. We did walk around and we had maps and we looked at some of the proposals. Tried to figure out where roads were, etc. Cohen: And were you accompanied with anyone, by anyone else? Lawrence: Lucy Lauterbach was there and that's it. No other people. Cohen: And during the course of the past week has anyone had any exparte communications that they'd like to disclose at this time? Before we get started, once again I just want to remind Council that the standard is the clearly erroneous standard by which you will hear the evidence. That in brief is, are you left with a definite and firm conviction that Mr. Beeler, as a responsible SEPA official, made a mistake in deciding, 1) that EIS was not required, and 2) that the conditions adequately or didn't adequately mitigate significant environmental impacts set out specifically in an environmental document. And I would refer you again to the different conditions that are outlined under TMC 2104250. And that Mr. Beeler's decision does get substantial deference both under the RCW and the TMC. And before we start, if either Ms. Kosterlitz or Ms. Shefrin could update the exhibit list before we begin so that we know which exhibit to start with. (talking away from microphones that I could not hear) Amy Kosterlitz. Attorney for the Analicant: At this time I'd like to move the admission of exhibit 14 which is a summary list of the exhibits that were presented last week. There was some confusion about numbering, and this will be helpful in clarifying the record at some future time if necessary, as to what all of the exhibit numbers were. And to be sure that they are all correctly entered, in the record. Thank you. Lawrence: For the record, could you identify yourself? Kosterlitz: Yes, I am sorry, Amy Kosterlitz, the attorney for the applicant. Lawrence: Ok, thank you. Council, is there anything else before we get started? Yes there is. 5 Denni Shefrin. Staff: Thank you, I'm Denni Shefrin, I wanted to enter additional exhibits presented by Staff. Exhibit 15 would be the test chart pack which is behind you posted on the board, Exhibit 16 these are items, by the way ,that were provided to you late last week as part of the packet. TMC 21.04.270 SEPA policies, Exhibit 17 the SEPA handbook which includes SEPA rules, Exhibit 18 colored drainage maps existing in the future, again that which were distributed to the October 11th hearing, Exhibit 19 TMC 21.04.080 the SEPA policies, the appeals section, Exhibit 20 the Sensitive Areas Ordinance, Exhibit 21- outline of the wetlands buffer enhancement plan., Exhibit 22 the tree survey and landscape plan, Exhibit 23 the October 5th, 1993 packet to City Council from Rick Beeler, and Exhibit 24 the memorandum of October 11, 1993 from Rick Beeler to Mayor Rants. Thank you. Lawrence: Anything else before we get started? Alright this should be the rebuttal for the appellants. If you could limit yourself to 10 minutes each we would appreciate it. And, I suppose you have your own idea who is going to come forward. Go ahead and come in order. Ron Lamb. Appellant: My name is Ron Lamb. I will be the first speaker for the appellants. Other appellants speaking tonight will be in this order, Elizabeth Springer, Pam Carter, Janelle Scarber, and Nancy Lamb. All of who, all of whom have been sworn in. Does that meet with your approval? Ok. Last week at our hearing I felt a little bit like a victim of a tag team mugging. Here we have the City staff defending the developer and the developer defending the City staff, both in opposition to the citizens. In fact it was a little difficult at times to tell who's speaking, whether it was developer or Staff. And I would like to point out for the record that the little play that went on here, that the appellants are not part of the approval of the exhibits. For the record. It's clear that Staff has lost objectivity on this issue. The appellants were at a disadvantage last week in being under the understanding that we had only 15 minutes for all appellants to comment, not 10 minutes each, as the developer apparently came prepared for, and as Council said. We could have prepared and presented far more comments but felt constrained. We ask you now to allow us to make a complete presentation and that you accord us the same leniency you allowed many of the developer's witnesses last week, in exceeding the stated time limit if necessary to present all pertinent information. We intend to prove not only that the director of the department of community development erred in issuing the mitigated determination of non significance based on faulty information and studies, but that the information and studies were so faulty that the application itself should be withdrawn. Not merely amended. And that it not be resubmitted without substantial alteration. First, I would reiterate our primary objection to the entire process so far that it locked out the public. State law clearly supports the public nature of the process. Washington administrative code, 197 -11 -030, says, in sub paragraph two, agencies shall to the fullest extend possible, b) find ways to make the SEPA process more useful to decision makers and the public, promote certainty regarding requirements of the act, reduce paper work and the accumulation of extraneous background data and emphasize environmental impacts and alternatives. It further states under f) encourage public involvement in decisions that significantly effect environmental quality. First I'd like to address slope instability. Let's walk through the evidence that we have, and that the director of the department of community development had, when he made his mitigated the determination of non significance. Because, as the SEPA appeal hearing packet says on page 8, mitigation measures were then developed to avoid potentially significant environmental impacts which were based upon the adequacies of the study. Before the Foster View Estates proposal was submitted, the City approved the geological hazards evaluation report by geoengineers in May 1990. Page two of that report says, "land slides are a significant geological hazard throughout the Puget Sound lowland, resulting in considerable property damage each year. Most of the land slides in the Tukwila area involve a few feet of relatively loose surfiscual soil, situated on slopes underlined by denser and typically less permeable soil or bedrock." And this is what the developer's geotech engineer told you last week? This also relates to springs incidentally. Some of the, to continue on with the report, some of the land slides also involve failure of the deeper soil or bedrock. The surfiscual soils can originate by weathering of the underlining soil or bedrock, by accumulation of material transported from upslope, or as a result of site grading activities. The City's geological hazards evaluation report divides land slide hazards into three classes: class one being the lowest, class four the highest. Class three areas include, and this is quoting from the report, areas sloping between 15 and 40% that are underlaying by relatively impermeable soils or by bedrock, and also include all areas of sloping more steeply than 40 Landslide hazard is high. Class four areas include areas steeper than 15% with mappable zones of emergent ground water and also include areas of known mappable landslide deposits, regardless of slope, landslide hazard is very high. And I would point out that class three describes virtually all the site according to applied geotech and Terra. And some of the site may even be in class four. But we have some disagreement apparently among the developers own consultants on the presence of groundwater. Specific to the Foster View Estates proposal, Phil Fraser of the City Public Works department, sent a memorandum to Moira Bradshaw, of the City department of community development on October 29, 1991. And I have copies of that memo, if we could enter that as an exhibit. How shall I do that? Cohen: What exhibit number are we on? City Clerk: We are at 25. 6 I3 Cohen: Can you identify the date of the memorandum, for the record, the tape recorder can't see that. Do you have copies that you can provide to the applicants as well? Mr. Lamb: There are extra copies there. For the record this is memorandum to Moira Bradshaw, from Phil Fraser, date October 29, 1991. And I won't read the whole thing, but I wanted to point out a couple of pertinent paragraphs. To quote, on page two, under the heading Geotechnical and Hydrological Report. Public works has reviewed the geotechnical engineering study done by Terra Associates Inc., and has significant concerns with regards to this report. "First the report is limited to on -site soil investigation. Those soil investigations are limited in terms of the work effort that has gone into substantiating potential geologic instability and soils bearing capacity for individual lots." And the paragraph after that says, the paragraph after the next one says, 'Terra Associates, Inc., August 11, 1990, geotechnical engineering study does not address steep hillside or bluff, even though some of their property lies along that bluff. Noted in the soils report, is cuts and fills up to 15 feet will be necessary." This is direct quotes, "There is not adequate information to know what this means relative to destabilizing this hillside or the need for retaining structures. So, further test pits, test pits 11 through 20 were dug December 3, 1991, and Terra submitted further reports, including these. December 22, 1992, although it is stamped as received by the Department of Community Development as May 3, 1993, this addendum to the geotech report contains results of the additional test pits 11 through 20. Another report, February 23, 1993 stamped as received by the city Department of Community Development, March 15, 1993. June 30, 1993, stamped as received by the Department of Public Works, June 30, 1993. This letter from Anil Butail to Bill Fowler and forwarded to Ron Cameron, of city of public works, provides quote, "a discussion of conceptual means of erosion and sedimentation control during construction of the project. It does not talk about land slide potential. Applied geotechnology the peer review, geotechnology firm, selected by the City, made its recommendations on May 17, 1993. AGI recommended that further studies by Terra be done. And that was one of the reports that you received in the additional packet of materials this week. AGI notes first that based, quote, "based on their stability evaluations, Terra concluded that the site slopes, in their present condition appear to be generally stable." However, AGI includes, quote, "however we judge that these slopes have a high potential for land slides because of the extensive site grading plan for proposed development. We believe this opinion is supported by the instability of 44th Avenue south, adjacent to the site. Accordingly, we judge that more detailed stability analysis and design details should be provided to the City to demonstrate that the development, can be safely constructed as planned." Remember that phrase, they're asking for more detailed stability analysis and design details. I would point out too, that applied geotechnology report was based on Terra, the developers hired consultants, field tests. Therefore it was not a truly independent study. An independent study would have utilized its own field tests or at least have been present during the applicants test digging. A truly independent study could have found even greater cause for concern and recommended even more stringent requirements. Were the more 7 detailed stability analysis and design details done? No. They will be done later, according to condition one under slope stability and the MDNS. Condition one states, "to avoid future slope instability, both during and after site development, and to insure proper construction of cuts and fills, the applicant shall provide a slope stability analysis which demonstrates that the proposed fills on slopes to be designed are stable. The analysis shall accompany applications for land altering permits and shall be evaluated by peer review prior to permit issuance. Should the results of the stability analysis require significant design changes to the preliminary plat, the preliminary plat must be revised, new hearing shall be required. Does that action, taken by the Director of the Department of Community Development, to mitigate the proven slope instability, meet the definition of mitigation? Let's look at the definition of mitigation, as spelled out in WAC197 -11 -768. And I quote, "1) avoiding the impact altogether by not taking a certain action or parts of an action." Does the action meet this condition? Clearly not. "Minimizing impacts, by eliminating the degree or magnitude of the action and its implementation by using appropriate technology by taking affirmative steps to avoid or reduce impacts." Does the action meet this test? No, postponing a key study is not the same as taking affirmative action. "3) rectifying the impact by repairing, rehabilitation or restoring the affected environment." Surely the action doesn't meet this test. "4) reducing or eliminating the impact over time by preservation maintenance operations during the life of the action." Again, the action doesn't meet this test. "5) compensating for the impact by replacing, enhancing or substituting resources or environments." Again, clearly the action failed. There is only one other test left. "6) monitoring the impact and taking appropriate corrective measures." Monitor, hum, what does that mean? Could it mean waiting until later to do a key study? Let's look at Websters Ninth New Collegiate dictionary for the definition of monitor. It says, "Monitor: to watch, observe, or check, especially for a special purpose." That doesn't sound at all like waiting until later to do a key study. So the action proposed by the Director of Department of Community Development fails, clearly fails, every test set out by the statute. Further more, it fails the test set out by WAC 197 -11 -030, subparagraph two, which says I that agencies must, to the fullest extent possible. And under item c), prepare environmental documents that have concise, clear and to the point, and are supported by the evidence that the necessary environmental analysis have been made. Also related to the issue of geotechnology, I note again, that l other conditions in the MDNS refer to review by the geotechnical engineer, conditions 2, 4, 6 and 7. Which geotech engineer? The developers or peer review? The developers geotech engineer, Terra, said the site was generally stable. But the city public works and the AGI said there was high level slide potential. Terra also said there was no evidence of springs, but HC, Hammond Collier Wade Livingston said there was. Are we going to let Terra have the final word on springs and slope stability on the site during construction? Note that we the appellants and the Council had to ask, ask Staff for the applied geotechnology report. And hence began our investigations of this issue. Some of the appellants did finally receive it but others did not. Some of the appellants did not receive the packet of materials that you and I received this week. Those appellants, in fact, did not receive any of the requested documents. Other issues, I would note again as the developers engineer off handedly commented last week, that "all the documents gets confusing." I am glad that he agrees with us. The specific bit of confusion that has persisted throughout the process is the question of who will maintain the sensitive area. There seems to be disagreement between staff and the developer. I would like to ask the Council to ask each that question. I would also point out that the developers representatives were wrong when they said, we will build a sidewalk on 137th to Macadam. The City and the developer will split the costs of the ped path. And that is all I have for now, if you have any questions? Lawrence: First off Mr. Lamb you're correct, that a there was a mix -up evidently in identifying how much time each group would have and it is appropriate that you be given some additional time, which you did take. That is fine. Are there some questions? Could you tell us specifically which appellants did not received the packet that was passed out? Mr. Lamb: It might be more appropriate to ask each of them as they, as they come up. Lawrence: Ok, that is fine. Councilmember Dennis Robertson: Mr. Lamb, was your material, it appeared that you read some of it. I try to take fast notes but I'm not, I can't always read them. 8 (3 l Mr. Lamb: I always try to read fast too. Robertson: Could we have a copy of your written material? Mr. Lamb: Sure. Robertson: Is that a reasonable thing to request? Mr. Lamb: It has my notes written in the margin, if you don't mind. Cohen: As long as everyone is provided a copy and it is made an exhibit. Robertson: Could I request that you provide that to the legislative analyst and she copy it for the Council and the applicant? Lawrence: Is that Exhibit 26 then? Cohen: Yes. Lawrence: Alright, thank you. Ok, next up for the appellants. Elizabeth Springer, Appellant: As far as I know I am Elizabeth Springer. 13325 Macadam Road South. This has been a very upsetting interlude. We were given to understand at the last Council meeting, that all to be considered was whether Rick Beeler, planning director, erred. Did he? The answer is yes. He failed or refused to consider that the State environmental policy act, SEPA Chapter 43.21c RCW, is duly elected legislation. But more than that, he ignored, and failed to comply with the reasons for establishing the SEPA process. Beeler would have us believe that we should have been looking for hard evidence when the onus is not on us, but on the planning director to establish an open and successful process. I quote from SEPA, "the goal of SEPA is much more than simply procedural. Projects are modified and the public is made to feel more comfortable in a successful SEPA process. The later function cannot be achieved by performing the process in a, quote, unquote, "black box." Indeed public involvement has been found to be the key to preventing suspicion of the process. Repeated efforts should be made to involve the public whenever the form, an open, and open and fluid public involvement process is the key to avoiding polarized positions which can lead to needless and unpleasant conflict End of quote. Beeler takes great pride in the fact that 100 people turned up to the first information meeting. These people were there because we distributed leaflets and telephoned our neighbors. The uselessness of the informational meetings became apparent to the residents and many failed to return to the subsequent meetings. We have continued to get to, Tukwila planning department to comply with SEPA, but this process has been in the dark for three years before we found out about it. Whatever mitigation that might be possible, as presented to us, appears to be too little too late, and doesn't cure the serious flaws in this project. Such as micro lot size, lack of play space, poor protection for the wetlands. Have you noticed the alignment, in the planners and speculators set on one side of the chambers and we sit on the other? Are we the poor relatives at the wedding or funeral? Janelle and I went to planning and had a long session with Beeler. We wanted to understand the process better. He explained that the Council could make changes to the presentations, however he was going to suggest the 15 minutes limit for each group. He stressed the 15 minutes limit, over and over and over, until nothing else seemed possible. But the first speaker, used eleven minutes, and the blond speculator 15. The attorney representing the specs repeatedly rescued supporting speakers and helped them extract foot from mouth. Granted that the Council President did establish 10 minutes per speaker, but we had carefully allotted our time and it was too late to change. Please read what Mr., what Beeler refers to as notes and comments in the pink packet. Um, these are appeals, for whatever reason, and I think he errors in this, because some of them state that they are appeals, these are duly received and stamped. Sometimes they so state, sometimes not. I think I referred to mine as a response to the appeal or something like that. None of us quite knew the technical things of this procedure. Mine was in a response to the mitigation proceedings. At the last meeting we Springer: The one that is closed off. 9 discovered that this plan intends to run piping to the east although nothing indicates that this doesn't violate SEPA. Further that it is intended to vacate, to the homeowners association, 43rd. This is our only method of getting up the hill or down, on foot without an additional quarter to half mile applauding No, Beeler is not to give away our land, absolutely not. And one last mention, if you want to see what happens when you cut through the side of a hill, go down and look at the 137 hundred block on Macadam. They have only cut away about that much and we've got a nice water path across, in a dry season, across Macadam. Think what that will be come January and freezing. Cars with all four wheels on the, on the, on Macadam. It will be dangerous to walk there. Thank you. Lawrence: Any questions for Ms. Springer? I have one. You currently use the abandoned 43rd Avenue there for pedestrian transportation? springer: Yea, the kids walk up and down, people do I presume, but I think it is mostly used by the kids, although we use it mostly in winter because it's, if we have wheels it is easier to drive up to the top of the hill, but if you don't want to be out and driving in bad weather, you plod up the hill. I was surprised, when I went up there to look at the, the property, the Foster View Estates, is that there was a well worn path there. It is doesn't, it's not a wagon track, but it shows that it is being well used by the public. Granted its a sort of a, be careful where you walk because when they close the road, the difference in the land was about that, and it was after my husband died, so I'd say, it was in the early 80's, but I don't, I can't, I don't remember. Now there's differences like this in some places and they don't just run north and south or east and west, they're just, its like a crossword puzzle. Lawrence: Any other questions? Councilmember Steve Mullet: It's a highly technical question. I get a little confused, I guess as to which street is really 43rd. There is a section of 43rd which kind of deadends and then it kind of curves and goes into 44th. Now which are we talking about when we are talking about abandoning? Mullet: Yes, I understand which one is closed, but that is not technically 43rd, is it? Ok. So the one that goes up a little ways and stops, is also 43rd? Springer: I think that they are calling that, yes the one that goes up a little ways and stops is 43rd. And as it continued on it was 43rd, as far as we knew. Lawrence: I think it changed names when it reached that.... Mullet: So we are calling the abandoned part that curves, that is also being officially called 43rd in this? Lawrence: Yea, I think it when it reaches 137th it changes names. Springer: I think that I noticed that they called from the curb up to Lambs, 44th. I'm not sure, but it didn't make much sense to me til I worried about it for awhile and finally decided that's what it was? Lawrence: Any other questions? Alright, thank you. Next up for the appellants in rebuttal. Cohen: I would just like to just make a procedural point at this time. I noticed that Ms. Lamb hadn't testified at the earlier hearing and technically this is just a rebuttal. I would suggest since appellants didn't have as much time, that Ms. Lamb be given an opportunity to address Council. Lawrence: Ok, Council, do we all agree with that suggestion since there was a misunderstanding about the total time allotted. That perhaps she yielded her time at that point and it be allowed now? Do you guys agree with that? Ok. 10 Pam Carter, Appellant: Ok, Pam Carter, 4115 S. 139th. First I'd like to mention, I feel very frustrated. Ron and Elizabeth have both mentioned the lack of public input. And I wanted to point out that the neighborhood meeting was not publicized in order for us to give input on this proposal, but for the developer and the City to provide us with information about the proposal. What was planned for the property. It wasn't a hearing. And, well the 15 minute problem has been covered. And we were also told that we should only comment on the original proposal and the elements of the MDNS however, the developer's people, when they were presenting information, were talking about the proposal as it had been altered by the planning commissions recommendations. That doesn't seem quite level. And I was one of those people who did not receive any of the materials requested by Councilman Robertson. As far as the traffic, I'd like to point out that a comment by the Tukwila Police department was that due to the traffic volume on 42nd Avenue South, and the fact that the entrance to the new street is in the middle of a curve, it's suggested that a left turn lane be provided from 42nd Avenue South. That was the police department's suggestion. They also said a bus stop should be provided off the traveled portion of the roadway on 42nd, that needed to be provided. And I still have concerns about those access points. I'd like to point out that the traffic report on site distances had never been amended to show a common driveway for lots one, two and three. It is shown as driveway for lot one, another driveway for lot two and three. So I am not sure exactly where, if its the same place as it originally been for lot one. And looking at, on the back side of that sheet with the chart on it, it still looks to me that all the site distances for drive one as its shown are not adequate. Onto another thing. One item that bothered us was how steep the slopes were and how the access road coming off of 42nd was so close to the stream and even crossed it, using 175 yards of materials, according to estimates of the geotech engineer. We noted that the wetlands, which flanked the stream all the way through the course are class two. Class two wetlands, according to SAO 18.45.040.C.1.B require a 50 foot buffer. That doesn't seem to be the case in track B. Especially at the southern most curve there, of the wetland, where it comes near 137th. Now I understand the roadways needed to serve those houses there because they couldn't be accessed through very steep backyards, but why was the road cutting out so much of the wetlands buffer and what it was designed to do? SAO 18.45.040.C.4.A states, quote, "the DCD director may reduce the standard wetland /water course buffers on a case -by -case basis.' End quote. Ok, so that's how he can reduce it. But then you read the rest of the sentence, quote, "provided the buffer does not contain slopes 15% or greater." End quote. So we thought, that's interesting, aren't the slopes steeper than 15 We could have measured and figured but those lines were pretty faint on the contour lines on the grading maps so it was hard to tell. Maybe you could tell better than we could, but we found a couple of statements in the revised environmental checklist. On page three of that it says, quote, "combination of rolling hilly and steep slopes." End quote. And quote, "some of the slopes along the creek are about 30 End quote. So then we looked for something more specific. Terra Associates letter to Dujardin on August 11, 1990 described, quote, "the larger stream in the central portion of the side is flanked by moderately steep ravine slopes." Another quote from the same letter, "the site generally slopes down in a northeasterly direction with the exception of a ravine in the south central portion of the site. The site slopes range between inclinations of approximately 25 -30 End quote. In fact no where did we find any information that the slope on any portion of the property was less than 15 Clearly then Mr. Beeler didn't mitigate this in line with Tukwila 's own SAO when he allowed the 50 foot buffer to be reduced at the road edge. And how does this protect a stream so significant that there has to be a hydraulics permit issued by the fisheries department? I have a change of topic here. I am starting out with three givens in this argument. That Mr. Beeler is the director of the DCD/Planning Department, Tukwila SEPA ordinance section 4.1, quote, "for those proposals which the City's the lead agency, the responsible official shall be the planning director or other such person as the Mayor may designate in writing. And on July 22, 1993, SEPA MDNS was issued by the responsible official, Rick Beeler. The comment period to end August 9, 1993. So the comment period is either opened or closed. So then if it was closed, a new comment period must have begun when the amended MDNS was issued on August 13th. That's when the amended MDNS was filed. With a comment period to end August 23rd. So it appears to be treated as a separate MDNS. On August 19th, a wetlands buffer enhancement plan was submitted by Gerald K. Bill, landscape architect for the developer. On the Staff report, page 29 of your notebook there, "a conceptual wetlands mitigation plan has been agreed to by the City's urban environmentalist." The only date he could have agreed to this was August 19th because that's the point it was submitted as evidence among the materials contained in the Staff report for the planning commission hearing on the preliminary plan. The report itself is dated as being prepared August 19th. 11 And in that report the Staff's findings on page 5 state, quote, "a conceptual wetlands buffer enhancement plan has been conceptually approved by the City's urban environmentalist." End quote. Now agreeing to and approving a newly introduced plan is part of the overall proposal amounts to a decision. So an important decision was made on August 19th. One which changed the proposal. This indicates that the SEPA lead agency, under the director Mr. Beeler, acted upon the proposal. And this violates Tukwila's SEPA ordinance, section 14.5, "The City shall not act upon a proposal for which a mitigated DNS has been issued for 15 days after the date of issuance." Also, the responsible official in the amended MDNS note is stated, "comments must be submitted by August 23, 1993." So this is only a ten day comment period. And clearly the officials order is not in compliance with the SEPA handbook guidelines page, G -1 relating to WAC 197- 11- 3402A. "A DNS must be issued with a 15 day comment period if one or more of the following criteria are met." And it appears that three of the four criteria are met. So, assume that the SEPA's time frame of 15 days is the standard. And the comment period ended August 28th. Again, the developer's wetland buffer enhancement plan was submitted on August 19th. It was agreed to and approved of by the urban environmentalist on August 19th. As noted in scenario one, 'agreeing to and approving of a newly introduced plan, as part of the overall proposal, amounts to a decision." And this indicates that the SEPA lead agency, under the direction of Mr. Beeler. This change in the proposal violates the SEPA ordinance 14.5, 'the City shall not act upon a proposal for which a designated DNS has been issued for 15 days after the date of issuance. And as part of the lead agencies materials, in accordance with the standard methods of processing the developers proposal, the wetlands plan was submitted at the planning commission hearing of the preliminary plat. It's therefore to be considered part of the testimony given by the developer and the planning staff, and indeed was a portion of the evidence on which the Staff made a recommendation for approval by the commission. By recommending approval of the proposal and beginning this hearing potion of the SEPA process, on August 26th, the lead agency again apparently violated its own SEPA ordinance 14.5. And these all together apparently violate SEPA WAC 197- 11- 3402A.I., "An agency shall not act upon a proposal for 15 days after the date of issuance of the DNS, if the proposal involves another agency with a jurisdiction." Ok, so we have the argument, if it was closed a new comment period must have begun. Well, if it is not closed, then it's still open. So assume that a responsible official wouldn't have erred in allowing the proceeding actions to happen during the comment period beginning August 13th. Because maybe the original comment period beginning July 22nd is still open because of our appeals. On August 26th the planning commission opened its hearing on the preliminary plat. They acted on the proposal. On September 14th the hearing continued. On September 23 the hearing continued. Mr. Knudsen called the meeting to order, the members present were Messrs.. Knudsen, Melina, Hagerton and Flesher. Excused was Mrs. Craft for personal reasons and Mr. Meryhew, owing to the fact that he has rental property and a previous residence near the site. Mr. Clark was absent as he had been at the previous portions of the hearing. The hearing was concluded with a motion by Mr. Melina to approve Foster View Estates based on the Staff's findings and conclusions in the Staff report. Certain changes were made. Mr. Flesher seconded the motion and the motion passed with a vote of three to one, with Mr. Hagerton opposed. The planning commission procedure clearly violates SEPA WAC 197- 11- 3402A.1., "an agency shall not act upon a proposal for 15 days after the date of issuance of the DNS if the proposal involves another agency with jurisdiction." It also violates Tukwila's 14.5. So under any of these scenarios, Mr. Beeler erred in his administration of the SEPA process and these procedural errors did affect or may affect the outcome of the SEPA decision making process. Lawrence: Any questions? Dennis. Robertson: Do you have that written down? Carter: No, it was memorized off the top of my head. Robertson: Do you have it written, and may we have a copy please? Carter: Sure. Lawrence: Ok, that will be exhibit 27, ok. Carter: Let me erase a few notes then I will. 12 33 Lawrence: Ok, thank you. Let's see, next up I believe is it Nancy Lamb now? No, I am wrong. janelle Scarber. Appellant: Janelle Scarber, 13716 41st Avenue South. I'll just go ahead and say this even though a couple of the other people have said it. Last week Elizabeth Springer made the comment that we were advised by Rick Beeler that the appellants would have 15 minutes to present their side. Staff remarked that Rick had been making remarks about hearings in general and not specifically this one. That is not true. Elizabeth and I were together when Rick was giving us a run down on how this hearing was going to be handled. And he said, quote, "he had advised the Council that we would have 15 minutes for all the appellants." This is why not everyone who signed the appeal spoke, and also why we gave such brief statements. We felt we were very much under the time gun. It has also been mentioned by Staff and the developer, that the residents of the area had chances at the three community meetings to state their concerns. That is stretching the facts. The meetings were labeled "informational community meetings." At none of them was the public asked for their opinions. We were to listen to Staff and the developer described the development, not to voice our concerns. It was stated by Denni, that I said, "clear cutting the entire 9.7 acres." I said, "clear cutting the entire building site areas." Please look at the plat drawings very carefully. It was stated last Monday night by Staff and the developer, that the average lot size is 6,400 square feet. If you add up all the lots and divide by 41, it comes out to 5,827 square feet. Lot seven is 3,814 square feet and lot eight is only 3,804 square feet. The color renderings that you were shown, show mature fir trees on the lots. The only fir trees to be retained by the developer, are three along the north side of the water course. It would take 30 or 40 years for any plantings to attain the size on the developers renderings. We were advised that only SEPA MDNS issues be addressed at this appeal hearing. Staff and the developers group have elaborated on the entire development. It was stated by the developer that the children living in these houses would not have a play area specifically set aside, but they would have Southgate Park. Why should we, the citizens, pay for and set aside Southgate Park because this developer was allowed to build on extremely small lots without space for children to play? At this time Southgate Park is a passive undeveloped site. And the City doesn't have plans to develop it until 1997 or later. The sensitive areas will continue to be used as a playground which defeats the purpose of having a dedicated sensitive area. There have been several discrepancies between lot sizes and retaining wall heights and positions, on different site plan drawings. The figures I am quoting are on the drawing by Charles Morgan and Associates, dated July 20th, 1993, accepted by Tukwila, July 26, 1993. And we understand that there have not been any later site plans submitted to Staff. I'd like to request this exhibit be admitted. It's another version to more appropriately indicate the steepness of the slopes. Is that ok? Lawrence: Ok, that is number 28. Cohen: Did you prepare that, or? Scarber: Yes. What this shows is the extremely dark area is above 40% slope. The other orange is 15 to 40% and the white is under 15. You can see that most of the site is orange. So it's just to give you another look, a different idea of how it.. Ron Lamb: Pardon me, this is the site as it is now, not after the filling and grading. Scarber: Yes, this is as now. We suggested that the Council go to the site with the preliminary plat maps and walk the area and the adjacent streets. We trust this was done, and hope that each of you traversed far enough into the property to get a first hand view of the wetlands in both the watercourse areas as well as steep slopes. The slopes are not at this time eroded, due to substratum tree and vegetation root structures. It is obvious that as soon as bulldozing starts, erosion will begin the process of furthering significant damage to any and all downhill hydrodynamic systems. We would like to question the reasons why the appellants were not made aware earlier of the documents on the list prepared by Dennis Robertson? Specifically the AGI peer review of the Terra geologic study. The reference to AGI on page eight F of the amended MDNS, and page four of the MDNS indicate serious concerns about present and future propensity of site area land slides. In the AGI report dated May 17, 1993, page four, the areas 13 3 3 shown range from class two to class four landslide probability. Quoting the AGI report, it states, "class three landslide hazard areas are areas that, due to topographic and subsurface conditions have a high potential for slope instability." They also say, "accordingly, we judge there is a high potential for future slope instability both during and after site development." The test holes alleged to have be escalated by All Seasons Construction along the abandoned roadway, adjacent to the east margin of that roadway, show depths of 14 to 15 feet. We are curious as to how or when the applicant received the approval to dig test holes on property they do not appear to own? Or can anyone do as they please on abandoned or vacated right -of -ways? It is a matter of record that by testimony and documentation that has been presented to you, we feel that the responsible official made an error when he did not recognize a significant environmental impact when the applicant submitted the preliminary plat plan. The existing topographic features of the proposed site show a natural drainage. The drain topography shows a large amount of building area site would be cut to a depth of up to 15 feet. A large amount of fill would be imported to satisfy a correct base for siting the proposed 41 homes. If this does not constitute a significant environmental impact, we would not care to see what would be a significant environmental impact. AGI further states on page five of their May 17th report, "substantial earth work operations will be required for the proposed development, and will include significant cuts that may increase the extent of the site where lack of stream soils will be at or near final grade. The developer has also stated that they will deed the west 16 to 18 feet of land along 44th Avenue south, south of 137th to the City of Tukwila. If you look at any of these maps, excuse me, of the area, you will see that the stretch, that stretch of 44th Avenue already has a 60 foot wide right -of -way. So there is nothing to need to be given to the City for any kind of pedestrian path or sidewalk We would like to question the protocol of the SEPA appeal hearing. It states in the packet you were all given, that the appellants alone bear the burden of proof. Why were the applicants if as stated the appellants alone bear the burden, seems to indicate a dialogue isolated to the appellants comments, and /or investigative efforts. So the appellants the record and the Council. If any legalities need to be explored, the City Attorney is undoubtedly capable to handle any specifics in that while, they have every right to be present at an appeals hearing, they do not show listed as an adversary on the first lead in to the hearing process as noted in the packet. It is solely the appellants position to present their testimony. Our belief is that the applicant not only shouldn't have been an interested on- looker but definitely not have been to walk the Council through the entire development with their presenters. The issue was, and is, SEPA MDNS appeal hearing, regarding Foster View Estates. We feel that with an aggressive applicant attorney, continually correcting or explaining the testimony, by applicant or directly to the council, she is attempting to lead you into Hobson's choice. An example of the appellants not receiving all current copies of documents regarding this development is, today we were down at City Hall and I asked for a second copy of the environmental checklist. The one I had was dated October 3, 1991. We were told that there was also a revised environmental checklist, so this is what we were given a copy of. But nobody had ever mentioned that there was another copy, nor had we received one until I asked for a second copy today. And I just have one more thing I'd like to read. This is by another resident, that is directly across the street from the development. I'll just try and quickly read his letter. He says, he believes that an environmental impact statement should have been required before the planning on this project was allowed to start. His reasons are as follows: he says, 1) I have lived directly across the street from this proposed project, on 42nd street for over 18 years. I was not interviewed regarding the subject of water runoff in this area by the Department of Community Development nor were any of the other residents to my knowledge. Observations from those of us who live in the area, would have been beneficial, why wasn't this done? 2) in periods of extended steady rainfall, three to four weeks for example, this areas soil becomes saturated all the way down to the hard pan or underlying clay. On my property this is a depth that ranges from 12 to 18 inches under the lawn and garden areas, to 14 inches under graded areas. This excess water has saturated my property on three occasions to the point that my basement has flooded. I have a full basement with concrete walls and floor. The floor has a slight taper to a drain on one side. The drain connects to a drain field. The first time it happened I was presented with a mess to clean up. The second and third times I was prepared. I hooked up a portable submersible pump with automatic floating switch to protect against the rising ground water. The ground all around my property was totally saturated with rain water, all the way down through the drain field and even under the basement which is deep set in the ground. 3) all the water which collects under the homes uphill from this proposed project, has to go somewhere. It goes downhill into this property. Did anybody at the Department of Community Development think about this? I doubt it. And his last remark is, 4) the property was not evaluated regarding these water concerns during a serious wet period. That, in my opinion, is a big mistake. This could be a big problem later on for the residents of the area and the City if not carefully dealt with before approving any project go- ahead. It appears fewer homes might lessen the problem. Please rethink this water issue very carefully. And it is signed, yours very truly, Fred Sherman. Lawrence: We thank you. Can you turn in that letter and your written statement as exhibits please? Councilmember Allan Ekberg: How were your contra lines developed? Scarber: They were, the one underneath is one of the drawings we were given by the City, by the planning department. Ekberg: For that purpose you did tracing, you did.... Scarber: We did a tracing of their Exhibit 7 showing the slopes. Councilmember Joe Duffie: I would like to ask you a question, you said you all had three meetings, is that correct? Scarber: The City had three meetings yes. Duffle: Ok now, you also say that all those three meetings you all were not allowed to ask any questions, is that correct? Scarber: I didn't say we weren't allowed to ask questions, I said 14 Duffie: Ok, were you allowed to ask any questions. Scarber: We were supposed to be allowed to ask questions, yes, Duffie: Were you? Scarber: they had a very short time frame of the building and time ran out and we did not get to ask questions we wanted to ask. Duffie: At any of the meetings? Scarber: Pardon? Duffie: At any of the three meetings? Scarber: No. Duffie: How long did these meetings last, approximately? Scarber: I think they had the community set up for two hours at each one. I am not sure. Lawrence: Any other questions? Robertson: Again, are you remarks prepared and can we have a copy? Scarber: Yes. Robertson: Thank you. We'll call the same process, thank you Lucy. 15 f 133 Nancy Lamb: My name is Nancy Lamb, I live at 4251 S. 139th St. I prepared the rather lengthy argument that Pam passed out to you. She read it on my behalf, I have been sick for a couple weeks, especially the last few days when I have lost a great deal of sleep about the situation. The argument is based on some information that was given to me by the City Attorney at my request. Not being an attorney, I don't know what all is allowed in a jurisdictional matter such as this. But according to city attorney on Friday, if a word is not specifically defined in SEPA related ordinances, a definition from a standard dictionary will suffice. Websters Encyclopedic Unabridged Dictionary in 1989 states the definition for act upon is to act in accordance with, to follow, or to bring about a change and or to affect. And so I would ask that you apply that definition to the phrase, shall not act upon in that argument. Also, I was able to talk today with Barbara Richie of the SEPA environmental section in Olympia. She advised me that the original MDNS comment period ended at the 15 day point or August 9 therefore either scenario one or scenario two is correct in that argument. Now for my presentation. It's very frustrating and painful to be in a position of adversary to people in the planning department, especially since at other times they would be helpful partners in helping Tukwila fulfill its mission for its citizens. But SEPA procedures must be followed and that's why I am speaking from the adversarial role. Perhaps that's why I rankle so much when I hear conflicting remarks from Staff too. In the first public information meeting a Staff member presenting the plan indicated originally that 58 homes would have been allowed without a PRD density transfer, and at the hearing last Monday, the statement is that 43 would be allowed. The public in the first informational meeting was therefore given the indication that the density had potentially been 58 and now it was reduced to 41. I am arguing in rebuttal to our opponents contention that all the rules have been followed, that they have done everything they have to. Furthermore in my rebuttal, I will prove that an error has been made in the MDNS decision and the administration of the SEPA process. The decision makers seem to have been too occupied with getting the project built to seriously take notice that the people who Jive in the Foster View neighborhood care about the natural environment. Among other arguments, the people in the neighborhood appeal to the decision makers to pay some attention to the animals. And they sited numerous birds and mammals and referred to the fish downstream that would be effected by all the changed to the hillside that feeds a fair sized drainage system. Even the majestic red tailed hawks that roost in the Foster View site were left out of the picture by the decision makers. Well, a mom who sometimes wear tennis shoes, felt like speaking on behalf of the hawks and their compatriots. And now I offer this rebuttal to the developer and to the SEPA official to let them know how important elements of our environment are to some people and not just the Foster View neighborhood. The red tail hawks we see roosting in the trees at this site are rafters. That seems pretty significant so I set about finding out what in SEPA guidelines would help me prove that an error was made in the MDNS decision by perhaps not protecting enough of their environment. However, in looking through the SEPA WAC and other duly (unclear) documents, some of which didn't come to light until the past week, many pieces began to fit together. Unfortunately I have only had this past week to get most of the following evidence. I ask you to please bear with me, because even the SEPA definitions are lengthy. Although some of this may appear to be newly presented evidence, I present them as rebuttal to applicants assertions in their prior testimony and to quote Tukwila SEPA 25.4, "all relevant evidence shall be received during the hearing of the appeal.' As mentioned, our appeals called for recognition of hawks, small owls, finches etc., and several small mammals as well as the plan for salmon and hansman downstream. On page eight of the environmental checklist form, I am not sure if you have a copy. I don't have one that I can pass to you. Perhaps you could specifically ask Staff for it as we have had to in so many instances. However, on page eight, only quote, "robins, crows, starlings and sparrows," unquote are listed as having been observed on or near the site, or known to be on or near the site. Hawks, and songbirds, though listed by the agency, in its form, and though readily apparent to anyone who lives near Foster View were excluded. Mammals were unobserved, fish were unknown, the applicant failed to observe and report the rafters etc. which were finally recognized by planning staff on, or just prior to October 11 as stated on page 29 of your hearing handbook. Quote, "identification of robins, chickadees, stellers jays, wild pigeons, hawks, woodpeckers, flickers, small owls, gold finches, quail and others are hereby acknowledged." Unquote. However this implies that the applicant failed to complete the environmental checklist with proper identification of the readily apparent wildlife in and around the site. In other words, the environmental checklist prepared by the applicant was incomplete or inaccurate or misleading. This checklist was submitted for comment 16 under 197- 11- 3402B, quote, "the responsible official shall send the DNS and environmental checklist to agencies with jurisdiction, the department of ecology, and effected tribes, and each local agency or political subdivision who's public services would be changed as a result of implementation of the proposal and shall give notice under 197 11510," unquote. Tukwila SEPA 5.5 states, quote, "a responsible official shall require sufficient information from the applicant to identify other agencies under jurisdiction," unquote. I ask planning staff for proof of the agencies of jurisdiction to which they had mailed the MDNS and checklist. I submit this to evidence and pass out the affidavit of distribution signed apparently by a Dorothy Giving, and in that it lists several agencies and states that they were notified on July 23, 1993. Lawrence: Jane, what number is this one? 29? ok. Ms. Lamb: An affidavit of the list includes of course the department of ecology, which is the overall SEPA authority. According to this the following errors were made, 1) the department of wildlife is one in the same as the department of game. Furthermore the department of wildlife would likely have found it useful, if not vital to their work, if the environmental checklist had included all the birds that have now finally been recognized by planning. Upon my inquiry, the area biologist, Phil Snider, said he couldn't specifically remember this proposal, however, but he would have, in any case, recommended that the development leave as much open space as possible for wildlife, and that he would have paid particular attention to areas with steep slopes and unstable geography. 2) Puget Power, not City Light was contacted. A service area map, readily available, demonstrates that City Light is the agency of jurisdiction. I obtained this map quite easily from Puget Power and is well known by anybody in our neighborhood that City Light is the electrical agency. I have but one copy. 3) local agencies, namely Valvue, sewer and water district 125 state that they do not recall receiving checklist, only the notice of the MDNS. 4) Metro was sited as another agency of jurisdiction by Ron Dewitt, water quality program office of the department of this that effects his downstream work. And he stressed the need to identify all the potential problems that are likely to occur. By the way, I got this experts name as a result of asking for comments that the City had received, in response to the issue of the MDNS. Barbara Richie of DOE had been the only agency official to respond. She had written, "extreme measures may be necessary to prevent violation of the water quality standards during construction." Minimal further information was given to SEPA, to the SEPA agency about specifics. It's noted at the bottom of this letter by Denni Shefrin, that she contacted Mr. Dewitt, she stated that things would be happening, and that seemed to satisfy him. However, I submit he was not presented with all the information. Lawrence: Is that exhibit 31 now or 30? There was a map showing the service area for City Light. Cohen: Have there been two exhibits? However you'd would like to mark them. However they're marked they need to be passed out to the applicant as well. Applicant as well needs to receive a copy. Robertson: Did you decide this was 30? Lawrence: I don't know, Jane? Ms. Lamb: You should have the department of ecology letter and you should have the affidavit of distribution. And I am sorry I have only the one copy of the map. May I continue? Lawrence: Yea, go ahead. Ms. Lamb: By means of using a flood checklist like this for mailing purposes, several agencies of jurisdiction were given inaccurate, misleading or incomplete information in the environmental checklist sent with the MDNS. This information, or lack thereof did not give the agencies appropriate opportunity to review all the facts in the matter and to respond to the proposal as SEPA suggests. The information in question includes wildlife. It includes slopes data on page three and response to quote, "what is the steepest slope on that side quote. The applicants response to that question is, quote, "some of the slopes along the creek are about 30 unquote. It does not indicate that there are many springs on the 17 3 t(' site. The amended MDNS of August 13 finally addresses springs, but that is not the issue here. However during the original comment period, we were advised by DCD that our original appeal covers both determinations. I will note one final fatal flaw in the mailing list required under Tukwila's 5.5 That is this, the Department of Fisheries has been left off the mailing list. WAC 197 -11 -714 section 5 states, quote, "for those proposals requiring a hydrologic project approval under RCW 75.20.100 both the Department of Game and the Department of Fisheries shall be considered agencies with jurisdiction. I contacted Fisheries on October 15 and again today to question their having been omitted and spoke with habitat management division superintendent Joe Robels as well as two other agents They have no record of Fishers, Fisheries ever having received an MDNS or checklist on Foster View Estates. They said that, quote "anytime a stream is involved we certainly want to see the SEPA checklist," unquote. And reiterated that the responsible official is required to send the determination and environmental checklist to agencies with jurisdiction. For a hydraulic permit stream, submitting the documents to the Department of Ecology and the Department of Wildlife does not fulfill the SEPA requirement to notify all agencies of jurisdiction, I was told. Therefore, they did not have the required opportunity to comment on the environmental impacts of the proposal. We can only imagine what their comments might be. I asked Superintendent Robels how serious a matter is it if the documents aren't filed at the time of the MDNS being issued by a lead agency. Superintendent Robels stated, these are not my words, he volunteered this information, that it was serious to the point of leaving the situation open to litigation which could result in calling a halt to the proposed project and having to start all over again, the entire SEPA process. Lawrence: ok, questions, Dennis. Robertson: Two questions, first again, since I don't take notes very well, were your remarks written down and could you Ms. Lamb: Yes I do have a copy however I have made some changes in the margins and so forth. I will give you a clean copy, the ones I have in the margins aren't terribly significant to the argument, they're more asides. Robertson: When would you have that clean copy prepared? Ms. Lamb: I have a clean copy with me. Robertson: Good, if you could provide that to Lucy. Lawrence: Jane, is that number 30 then or is that 29D? You better move a copy machine in here Lucy. Robertson: I have a, Nancy? I got your opening remarks you talked about what we have I believe is Exhibit 27. And I think the relevant point there, tell me if I am wrong, but what I think I heard was that the actual amended MDNS did not extend the period so that the conclusion that is drawn here is not correct. Is that correct? Ms. Lamb: Correct, of the three arguments, only argument one or argument two can be the case. But both of them demonstrate that they administration of the process contain some errors, based upon the definition of act -upon. Lawrence: Alright, thank you very much. Next up for rebuttal, you guys are finished for rebuttal? The appellants? And you are satisfied that you have had adequate time now? I am really sorry about the mix up, ok? Ok, next up for rebuttals comes from Staff. Robertson: Is it possible to have a five minute recess? Lawrence: It is still early in the evening. Ok, I think we need a motion. Robertson: I make the motion that we recess for five minutes. 18 Councilmember Charles Simuson: Second Lawrence: It's been moved and seconded to have a five minute recess, all those in favor say I, any opposed? The motion passes. Lawrence: Ok, Mr. Beeler. Rick Beeler, Staff: Rick Beeler, the responsible official. I am going to try to condense a lot of rebuttal for, several you know, minutes of testimony into some very brief comments. And also try to put into perspective the SEPA process. And that SEPA is not one of the easiest laws to administer, but however it does require at the onset, in the purpose of WAC 19711020, which bears some usefulness here. It says, the purpose of these rules, referring to the WAC 19711, is to establish uniform requirements for compliance with SEPA. Each agency must have its own SEPA procedures consistent with these state wide rules. The effective date of these rules stated and marked, etc. etc. The rules place the previous guidelines in chapter 19710 but in section three it says, and very importantly, the provisions of these rules and the act, must be read together as a whole in order to comply with the spirit and intent of the law. SEPA therefore requires that you take the whole thing in its entirety when you official, officiate it. And I am going to try to therefore see why relating all of the sections that are required that I administer, lead to the decision that I did make. First before I do that, a couple of clarifications, one of which is that there is a lot of testimony that based on my advice to the appellants that there would be a 15 minute comment period that we would be limited. And just for clarity, what I said was that's the usual procedure that the City Council follows but that it's at your discretion to extend that. I couldn't predict what you would do that night. But that you would have the sole discretion of determining how many minutes each speaker would have, whether that limited the City side to 15, the appellant side to 15, or the applicant to 15. But in public hearing. Which you did do, and you established 10 minutes. I did recommend that they come prepared for anything less than that or more than that, as we all did I think. The, one of the things in SEPA that is important to recognize is the public comment. And when you take SEPA and the purpose of trying to provide enough wide public comment, you also are constrained by the specific provisions. Which when you look at those, the notice requirement in 19711 510 and 502, as well as in our Tukwila Municipal Code 2104, specify specific notice requirements. And in this case, you know, you have a 10 day appeal period of your, the decision you make, whether it's a DNS, MDNS or DS. But also for a MDNS it gave you a 15 day comment period as specified in the WAC, to do. In the context of that 15 day comment period, we held in the middle, approximately in the middle of that the community meetings to make people aware of this, trying to get the word out. We did the normal newspaper notice, but we also did the mailings, the address labels that we have, the normal 300 feet of the property, obviously we did find out at the community meetings that some people received that notice earlier than others. Some did not. That is somewhat typical. We are only required to do one thing, and that's to put it in the newspaper. But obviously, that's not adequate. Mailing it to the people alone, we didn't feel was adequate. And then take, going the extra mile and having the community meetings where we did explain to people, what the proposal was, and took a considerable amount of questions from people especially explaining the drainage system and the water issues. Public Works have their own meeting on 42nd, and what the City was going to do there. But most importantly a lot of the comments that were expressed in those committee meetings were also brought in some of the comment letters. You only have two appeal letters that were timely filed. Other comment letters came in but they missed the deadlines. And those letters were however included in the packet because those were letters I used in making the final mitigated determination of non significance. And in the community meetings it was very clear that people had some concerns and that I needed to extend the comment period, which I did do for the, in order to receive some additional comments. SEPA does not require, as is alleged tonight, SEPA does not require that the second, the final MDNS be given another 15 day comment period. There is no mandatory comment period for that second MDNS per SEPA WAC19711, or our ordinance. What I did however, is I extended it, I granted a 10 day comment period simply because it happened to coincide with the appeal period. And that's the reason why that comment period was there, it's not mandatory, but I recommended it, or I did it. The MDNS conditions are alleged to be inadequate. They are alleged to be inadequate but not 19 necessarily on some adequate grounds. In other words, there is no substantiation that the mitigation measures that were imposed in this MDNS, do not significantly, or do not mitigate significant adverse environmental impacts. That's what one WAC 19711 350, the process for a mitigated DNS is to do. It says in there specifically, that if a proposal continues to have a probable significant adverse environmental impact, even with mitigation measures, then EIS shall be prepared. And the common reading of that, and the common practice of that is that with an MDNS, and this is really the reason as I mentioned before in my testimony, this is the reason why the MDNS process was created. As I mentioned for, its to reduce paper work, SEPA requires, again reading it in its context, that you reach a decision in SEPA early. Its not looked at, and the legislator did not want to create what's commonly called green mail. A slow attrition on an applicant and spreading him out over a period of years to get environmental analysis. SEPA also does not require, when you look at it, that you look at every proposal in detail, finite detail, but you look at the, at the proposal in the (unclear), when you look at, make a threshold determination per WAC 19711, that you look at the proposal to the point where you can reasonably assess what the impacts will be. They don't have to be in detail, but you also can, per the WAC, look at what the, what potential mitigation measures there are, and you can make your decision on that. Some of those mitigation measures can be used subject to further review. It doesn't necessarily have to be, what's called phase review in SEPA, but it allows the jurisdiction to move a proposal to a step to where other mitigation conditions can be assessed. Namely the additional studies that we recommended in the MDNS be performed. But the bottom line in our, the conditions imposed in the EI, m the MDNS that I requested, and the bottom line to the peer review, staff and the consultants, was whether or not those would mitigate the significant adverse environmental impacts. And the collective wisdom of all of us was that it would. The additional studies may show some additional things that need to be done, but however, there, we had at least a satisfactory comfort level that there was not a probable likelihood of significant environmental impacts after this MDNS was issued. There are some soil issues both at the drains that need to be addressed, and that the of which are may involve other conditions on the proposal before it moves to the final plat stage. This is the preliminary plat, you still have the final plat stage to go through. But remember, we are only talking about SEPA tonight, we are not talking some of the, about the proposal itself. The PRD, SAO, minimum lot size, density transfer, all those issues are really irrelevant. The only issue you have before you tonight is SEPA. The other issues are code requirements that are in place now, and the applicant is bound to perform. One of those in SAO was that the applicant was required to provide a wetland mitigation enhancement program. And particular, the concern we had was as was noted was where 137th crosses the ravine. And the SAO requires that, or stipulates that essential roads which is this is, a through road, is exempt. And therefore a lot of the quoted SAO requirements do not apply here. However the applicant and consultant, with Gary Schulz, the urban environmentalist, prepared a mitigation plan to mitigate a lot of those impacts. So the wetland boundaries were flagged, surveyed, the mitigation plan prepared, all pursuant to SAO and ordinance was compliance, was considered as a given. If you will, I am moving in through the mitigated DNS. The proposal has not been altered by the planning commission, at this, what you see is what the applicant has proposed. And what you see is what was in consideration in the mitigated determination of non significance. The planning commissions action is different, separate and I don't think it needs to be brought in here. The bottom line is of a deciding whether to do a EIS or not, is the remaining likely potential probable, excuse me, likely, probably, significant and adverse environmental impacts based upon the proposed action, the information in the checklist and any other additional information that has been furnished to you. Our contention is as no, we've not adopted a wildlife mitigation ordinance as part of our SEPA policies. Those are the list of ordinances that you and I are constrained to use in making a threshold determination. We can use no other. SEPA, WAC 19711 requires that we adopt these things, these ordinances, these policies, in order to make any decisions on SEPA. We cannot go outside those and bring in other ones. We have no documentation, Gary Schulz has been on the property, and other biologists, at least two other biologists have been on the property. There has been no documentation that we have any endangered, threatened, or special protection class of wildlife, birds on this property. There have been birds seen all over in the area. And this is very common impact if you will in an urban environment, of having some birds seen. We've seen hawks all over the 20 place, every once in awhile we will see a eagle, but there is no nesting or rearing habitat here evidence on the property, which is the key factor in determining whether or not we need to do this, any more wildlife. Lawrence: Excuse me, no nesting of eagles or all species or... Beeler: I'm sorry? Lawrence: You commented there was no evidence of nesting, was that just of eagles or all the species mentioned? Beeler: All the species. We don't have a, of the endangered, threatened, or special protection class of, listed by the State as being on the property. The peer review done by AGI of the environmental, of the conditions led us to put in on page eight F, on the slope stability, some of the text. The text in the MDNS is as important as the conditions themselves. MDNS is a document, that is its entirety. We recognized and we reference the AGI. Saying in the paragraph above the word mitigation conditions, AGI concluded that these slopes have potential for landslides due to the extensive site grading planned for the proposed development. Nothing was hidden, these were all issues that were talked about by the consultants as well as the peer review, and led to these mitigation conditions that we have. Slope stability is one of those that requires some additional investigation but at least it, right now it gave us the comfort level that the proposed road could go through. And that there, based on what was found, there was springs and the cross sections that will be prepared with this proposal will be able to modify, or mitigate those significant adverse environmental impacts. As I, when this project started out, we were in agreement that this was not going to receive a DNS. There was not way this property, the developer would have no significant environmental impacts. This was either going to be a EIS or it was going to be a very lengthy MDNS. And what we have is a lengthy MDNS. The other issue that was identified as an agency with jurisdiction, an by all the responsible officials, as a source, not necessarily the sole source obviously, but one of the sources for what is what SEPA means. Sometimes you get good guidance, sometimes you don't. But the WAC 19711 714 talks about an agency with jurisdiction in sub paragraph three. meaning an agency with authority to approve, veto, or finance all or part of a non exempt proposal. The term does not include an agency authorized without rules or standards or general applicable to comply to a proposal when no license or approval is required by that agency. One of those that we had on our list, is the Department of Game which includes, Fisheries and Wildlife, they merged. We had Joe Robels sitting in on the meetings with the applicant and Staff in the early stages of this proposal. And that Joe Robels told Staff that his concerns would be addressed in his hydraulic permit that we would see. And that he has been on the site, and had looked at what the stream and what we were doing, and that all was acceptable to him, except he needed to look at the hydraulics permits, which we recognize as being a required permit and therefore was sent to him, the Department of Game. Again, Joe Robels is a biologist, he is not one of the superintendents, State is not always great about sifting things down through the process. To give you an example of that, even with Growth Management Act requirements now, the State can't even agree with how many copies of that our comprehensive plan has to be submitted to them. So they are not great at coordinating internally. And so I would understand some of the frustration the State has and certainly why some of the comments were given to the appellants. In conclusion, you may have some specific comments that you want to ask of Staff regarding the very technical nature of the thing that we're seeing here tonight. I don't pretend to be an expert in all of these areas, I relied on them and our collective wisdom. We used Ron Cameron as the peer review for the City, since it persists, he is qualified to do that. We used Gary Schulz, our urban environmentalist to review, as peer reviewer on the wetlands. We used HWL and we used also AGI to help us with the other drainage, and the geotechnical issues. In conclusion, we don't see, here and again the burden of proof is on the appellants to show that for document, that there is a probable, likely significant adverse environmental impact that we have not mitigated or reduced to a level of non significance. And therefore the SEPA and the MDNS was appropriately issued and I did not error. To not require an EIS, to issue an EIS, I mean a MDNS instead of a EIS, or to require more than the specific mitigation measures that I had required. No substantial proof is offered to you to the contrary. Therefore the tests in exhibit, I forgot the exhibit number now, did this lead you to a clear conviction th' I mistake was made by me. Not necessarily that you disagree with the decision I made, because quite honestly there are, SEPA is an act that requires that someone make a decision. I am not going to defend why the State did it that way but they vested that decision in someone that you would appoint, the Mayor would appoint. He chose me, I made the decision. I don't think you have enough evidence to lead to a clear conviction that I made a mistake in doing that. Are there any detailed questions that you want to ask? if Beeler: Correct. 21 Duffie: I don't have a detailed question, but as far as I'm concerned it is. I want to actually set the course of this. I understand that you had three meetings, is that correct? Duffie: Why wasn't the citizen given the opportunity to express themselves after they heard your comments? Beeler: We, I, I don't recall Joe the amount of time for presentations and the amount of time for questions. The first meeting I recall we tried to explain the procedure that this whole thing was going to go through. Our goal was to try to explain the procedures so that the, those in attendance would could understand the difference between the SEPA process and what the Planning Commission was going to do. And how the appeals, by that time, I think the appeals were filed by that time I could be mistaken, but how does the appeal process then work relative to the Planning Commission's decision. And also the difference between an EIS and a MDNS, it seemed to me thaf s a very fundamental issue that people need to understand. And the common misperception of the two. EIS doesn't require mandatory conditions, MDNS they are mandatory conditions on the applicant. We did take a lot of questions, I know the 'applicant's staff spend a lot of time on drainage and water issues, traffic. Public Works had their own night started at 7:00, we didn't get out of there til 10:30, something like that. Then Public Works had their meeting, then we had another meeting. And I think we we're out of there, started at 7:00 we're out 9:30 maybe a little before 10:00. There were a lot of questions. Lawrence: I have some but I will go on to these first, Dennis. Oh Joan I'm sorry I didn't see your hand, go ahead Joan. Councilmember Joan Hernandez: First of all I would like to say I have a great deal of respect for your professional opinion. And after reading all this material and listening to some of the testimony I still have some concerns that as a lay person I guess I need you to help me walk through. I just feel like there's some inconsistency when I read things that I read which that I probably need some clarification on. Specifically in our packet of material, the letter from Phil Fraser and Ron Cameron from Bob Bergstrom, the professional engineering consulting firm. That is June 28, 93 letter. Beeler: I don't recall that one off the top of my head, I haven't got that one in front of me. Hernandez: Ok. Well some of the issues raised referred to some of the, it says there are numerous and yet unidentified springs throughout the project site, and if large springs are encountered under future building sites this may preclude construction of homes in the precise location shown on the preliminary development maps. That particular phrase and then their recommendation that the project should be constructed in phases with the initial phase limited to the north margin of their property. And then also reference to the considerable potential for slope instability problems that could occur during and after construction. I guess I have a hard time when I read things like that, and then reading in the SEPA rules, that if a proposal continues to have a probable significant adverse environmental impact, even with the mitigation measures recommended, that an EIS shall be prepared. Beeler: Let me see if I can put that in perspective for you a little bit. The, we're going to do additional studies. The springs issue is a key one to us as well. And that's where we have the additional mitigation of what kind of spring problem we've got. And additional stability analysis that the applicant is going to perform, we feel confident is going to document, but again, we have the ability to exercise peer review, very likely we will of that. But that will be able to then set up what kind of phasing plan is going to be necessary for this proposal because the AGI as well as Staff recognized that very likely not all those lots are going to be open up at one time. This is not going to be a typical subdivision. In other words it didn't start out that way and it certainly isn't going to remain that way. Behind all of that, is if during this process of the additional review, there appears, this additional study and peer review, there appears to be significant impact associated with that, we could move onto an EIS. The likelihood of that I don't think is much at all. I'm not, as a SEPA responsible official I'm not really anxious to do that. The reason why, I want, is I take SEPA in this whole context. One of the pitfalls of an EIS that I've always been very frustrated with professionally, is that an EIS you can identify significant unavoidable adverse impacts and still do the project. And if it's, say you your going to do something that is going to destroy part of the environment you could still. Again, that's an advisory document to the Council in this case, as it ultimately comes to you, that you could proceed with the project knowing that there's enough, an adverse environmental impact that's unavoidable. There really isn't a way to mitigate. Again the mitigation measures must be reasonable and capable per SEPA. Reasonable and capable of being accomplished. Hernandez: So you're saying that even though at this time you've determined that an EIS is not necessary, that you could change your determination in the process after its begun? Beeler: Yea, I think you could, but I don't think I would right now based on what I've got and what I and what I heard from the experts and Staff. That there's a lot ?(847) happening here, but there are ways in of handling it. Through the footing drains of the foundations. I live on a hillside and I had to do the 'same problem even though my house is 45 years old. But you have footing drains that collapsed over time l and you have to mitigate those by, you know you have to redo them. What this, as I think last Monday night the geotechnical engineer said, footing drains are going to be obviously mandatory. That's a normal thing to do and it's a normal way to handle springs and that sort of thing. So I, the likelihood of going to an EIS is minimal. Robertson: Joan, you referenced a memo from an engineer firm? Do you have, what page are you, where were you at? What section? Lawrence: Right before the second blue page, is that drainage? Hernandez: It's under drainage studies. And the pages are not numbered, but its on the letterhead of Hamin Collier Wade Livingston Associates, dated June 28, 1993. Yea, it would probably would be easier to find if you just went three pages before traffic studies. On the drainage section. Lawrence: While we are finding that, any other questions of Rick? Robertson: I just want to know which one that was. I'm still not sure. Hernandez: Go to traffic studies then just go in three pages. Beeler: Its right after this drainage map, right after this black and white drainage map that's like, yea right here, I think that's it isn't it? Lawrence: I think they weren't put together identically. Robertson: What? Yea. I've got three questions, the first one I guess I'm not sure, it's a processing issue, but is it normal to have a, I guess the question is the Planning Commission action is continuing on in the PRD I realize that's not material to this. So I want to be real careful and see if I can ask this question. I it just seems, is it normal to do that with an appeal pending on the EIS? I want to ask if I can ask the question? Cohen: Is it normal to have a fabricated process, to have, just to have a split between the appeal process and the PRD? Is that what your question is? Different cities do it differently. There are a number of cities that consider it all together, we just happen to consider them separately. Beeler: One of the, if I could add to that. is the reason for that, is that the Planning Commission's decision is a recommendation to you, the Council. And therefore it comes to you and is argued basically de novo anyway, so its the same thing as an appeal. Quite, my, from my standpoint professionally, I like that idea as opposed to an appeal for obviously we don't appear to be in bed with the developer as reported tonight is not the case. Obviously our history has shown, it's taken us a long time to get to this point. We were satisfied. Robertson: Ok, the second question is, you said that there was internal peer review performed by Ron and Gary? We those documented? Beeler: Those were documented, those were done in a combination of ways. I think Ron Cameron had, theres some, a couple of memorandums most of that was done on direct advice. Robertson: Could I have copies of those, of the documents? Beeler: I think we've got, I think there's a couple of those in there. I know Ron Cameron for one, at one time had on the Robertson: Ok, could we have that prepared tomorrow. I guess that becomes exhibit 147. No, I'm sorry, exhibit, ok. Beeler: Some of it was oral. Beeler: Correct. 23 Robertson: Oral, ok, but the written material we can have copies made and prepared tomorrow and I guess given then to everybody concerned. Three of the, I'm puzzled for a second, and I guess I want to ask a question. I want to ask if something is correct. The difference between the MDNS and an EIS will according to what I read, they both would portend to require the same kinds of study and analysis. The MDNS can result in mitigations that pending court decisions you can, one is not arbitrary but you can enforce upon the developer. In the EIS any mitigations that are said there cannot be enforced in the quite the same way but they can be, and are normally applied to permitting process. What I am getting at is, I don't, from what I read, as far as identifying mitigations there is no reason to believe that an EIS or a MDNS would identify different environmental impacts or mitigations. Is that correct? Robertson: And then the difference is that in an EIS its all in one package done later, it's a much slower process. And what you have is a draft EIS and then a final EIS, but there's a longer more prolonged review process and a single document with all of the attachments. Is that correct? Beeler: I think I would put it this way. SEPA requires you prepare the draft. You have a thirty day public comment period at the end of which you take their comments and you intercorporate them into the final EIS. After that there is an appeal period so the appeal will come to you as, in its adequacy. Robertson: In the EIS would include also all of the, I mean it has a definite point where it ends and includes all of the analysis, is that correct? 24 Beeler: Yes, it includes all analysis. Basically, just I just, to go back to the first thing you said I think you have a fairly good grasp of it except for one thing and that is that the EIS, the mitigation measures can be exactly word for word the same in both documents. Robertson: Yes. Beeler: But the EIS comes with the Planning Commission's recommendation to you. Robertson: Ok. X1/7 Beeler: And those mitigation measures, the potential is there for where you can tweak those, you can drop some, you can modify some or add to them. In your approval of the land use action. The MDNS comes, is already settled. Those conditions are mandatory on the applicant through all the permit processes. Those are the base, it actually becomes like it is the application it comes to you. Robertson: Yes, but as the response of all of the responsible officials of this City that deal with the different parts of the permitting process, would they not normally use an EIS to create the conditions for the permit processes. What I'm getting at I guess is, it seems to me the end product is much the same either way. You can, the City can take the mitigations identified in an EIS and condition the building permit, PRD's whatever with those the same as you can do in the MDNS, is that correct? Beeler: Only to a, only to the extent that the public process, a review by the Planning Commission and yourself, has modified, has not modified. Robertson: Yes, ok. So the difference is that the Planning Commission and the Council. Do all EIS's come to the Council for review? Or just ones that are appealed? Beeler: The only time you get an EIS is just itself is on an appeal of its adequacy. And normally when you get an EIS adequacy appeal you also at the same time have the Planning Commissions decision to decide. Robertson: So to get back to my, again trying to understand the difference between the two, in a M, in the final outcome the City officials would, as long as they're reasonable and possible to do would take, would apply the same mitigations that identified both ways. Beeler: Here that's true, I think there's a possibility however, in other cities I've seen it where that's not necessarily true. Robertson: Ok, I think I understand for the moment anyway. Lawrence: Ok, other questions, Charlie. Councilmember Charles Simpson: On the tree ordinance there was a statement made that they were going to strip the property? And according to our tree ordinance it's not allowable. Beeler: The tree ordinance allows for clearing, for the building sites. There is a minimum 20% tree cover protection requirement, and I think there's, Denni do you recall what the figure is here, what the retention, or what the canopy cover is? Shefrin: (unclear) Beeler: There's a figure here, I don't have off the top of my head of how much canopy retention is actually here in either the sensitive area or the open space areas. Beeler: Yes. Ekberg: Why would public hearings not be required in this situation? 25 0 Shefrin: As I recall the calculation is the following. That 24% canopy cover would remain, but overall there would be a total of 45% of existing canopy after the project is completed. That would include the areas within the tracts A and B which is the proposed sensitive areas. Lawrence: Other questions? Allen. Councilmember Allan Ekberg: I want to understand a little bit more about the process we're going through here. One of the things you mentioned that we should be looking for is the probable likelihood of a significant impact to the environment. And a potential inappropriate issue of the MDNS. Another thing I'm wondering about, are we also to look at or insure that the process of SEPA itself, proceduralized aspects of it are followed? Beeler: If the procedural, I think the, give Linda a shot at this too, but I would think if the procedural issue is flawed in the MDNS, in other words it wasn't issued correctly, then I think that would be an adequacy issue. Cohen: I think there's a question as to the remedy, if in fact the procedure was violated, it appears as if some of the procedure for the PRD and the SEPA appeal have been confused and I would allow all the appellants or all of the participants an opportunity in their rebuttal to address that. And if its, it raises some interesting questions. I'm not at all sure that the remedy is that Rick clearly erred. It also raises some interesting questions if procedure is specific, there's just a number of, there's a lot of confusion so I would allow, if it's not addressed in rebuttal then I guess I will proceed from there. Ekberg: We've got a lot of issues addressed in rebuttal about the procedural aspects of this whole process. That's why I kind of asked that question. Cohen: Well I believe some of them are going to be resolved, if not it raises yet more issues. So rather than open up a number of more cans of worms, lets just see if its resolved. And then if not then I'll. Ekberg: Let me try to get an understanding of WAC 19711 535, the public hearings and meeting process. Beeler: 535? Thank you. Ekberg: In the first item one, it mentions a public hearing. Such hearing shall be opened in consideration of environmental impact and the hearing on the proposal is held under some other requirements of law. Was the public hearing notification in this item one taken care of with the public hearing process before the Planning Commission? Beeler: The public hearing process before the Planning Commission is a different process. It's not controlled by SEPA. This public hearing process in the WAC you site is a public hearing process if the responsible official selects to hold one. It is not a requirement to do that. It's not required to hold one on EIS or an MDNS. We didn't hold a public hearing on the MDNS or when I either issued it or afterwards. What we held was some community meetings to explain to people what the proposal was, to get information out if you will, and we answered questions. We presented the application and all aspects of it. So that people would hopefully understand it more and decide whether or not they wanted to either 1) keep on appealing it or add other issues. Consequently that was the second appeal period. Ekberg: On item six, it mentions that the lead agency may have public meetings or workshops to gather further input. And it seemed like you fulfilled that requirement. 26 0 `i 1 Beeler: SEPA is controlling as I said, SEPA doesn't require public hearings. In this case we knew that public hearings were going to the planning commission on the merits of the land use proposals. We didn't feel that a public hearing on the SEPA aspect, a public hearing per say, was necessary in this case. Community meetings did a lot of that. And in some ways I think did more. Because it allowed some direct dialogue between myself and the attendants, as well as the applicants and the attendants, and the Public Work staff and the attendants. So its much more free discourse of information at the end of which we as Staff talked about what were the results of this committee meeting. What did we hear all people telling us? Ekberg: There appear to be three requirements that mandate the need for public hearing within that same WAC ordinance. And it doesn't appear that that occurred in this process. Let me follow up with a different angle of question. Apparently you mentioned a DS would be forthcoming for this type of construction. And why would an EIS not be pursued over a MDNS? Beeler: The major reason we chose the MDNS process, again SEPA in its context allows that once you determine you feel that there are significant adverse environmental, likely significant adverse environmental impacts, you are automatically moved to an EIS process. However, the MDNS inter, stops that process. When I say a MDNS, its a chapter on that that says look, you can, the applicant can submit additional information. To mitigate the significant, the likely significant adverse environmental impacts and if the applicant can do that, we used peer review and staff expertise to judge this, mitigate the significant, likely significant adverse environmental impacts, a MDNS can be issued in lieu of an EIS. That process required of SEPA. My experience is an EIS process is, doesn't allow for as much exchange, direct exchange with the community, direct exchange with the, and sometimes even peer review as in the MDS process. And the other thing is that, in my experience the MDNS conditions are much, are firmer are Ekberg: Would you repeat that last statement? Beeler: That the MDNS conditions are not, are firm, they are non negotiable by Council or Staff. Or the permits that are required in this proposal. And there is a host of them, the land altering permits that the Public Works has to issue, and that's so they can even bring the bulldozer in there and start doing anything. That permit has to be issued by public works. And then there's the other ones. The street access and I don't know what all Public Works gots a host of them, then you have utility permits. Before you even get the final plat and then the building permits for the individual lots. Lawrence: Any other questions Steve? Ekberg: So to follow up on that, then the SEPA process is not negotiable by the Council per say, but all the permit processes are, can still have an impact on the builder, on the developer yet? It seems to me to be a highly risky system for a developer to take. He effectively could put in a road and end up with far less homes than he thought he was going to have in the first place. I'm having a little hard time understanding why you would want to take this risk I guess. Beeler: I think the, Mr. Fowler's assessment of a risk is based on what our assessment is, is similar to what our is, that is what the experts. He's satisfied with his experts, we weren't necessarily so we used our own peer review, especially on the geotechnical issues of the water issues. Because we don't have necessarily all that expertise. So we weren't satisfied til we saw peer review. And once we were satisfied with that, then we felt comfortable with the risk of having to do the EIS on this, or having significant adverse environmental impacts was very minimal. And that we were comfortable with the move to continue on with the additional studies which may impose some additional conditions, but that we could mitigate all the effects. 27 wrence: I've got a couple questions. The Applied Geotechnology Incorporated peer review document, his was referenced in this material, but it wasn't provided. Was this just a simple oversite that it wasn't provided? Beeler: The AGI report referenced a document that was not provided to you? Lawrence: May 17th peer review, it wasn't provided initially yet it was referenced in there. I am kind of curious what happened there because it has some interesting information. Beeler: Oh, I see on page three of AGI's letter they referenced toward the bottom? Lawrence: No, I mean within the original packet that we received there was reference to this peer review, but we never received the document. Beeler: That wasn't, it wasn't my intent to, I'm sorry I think I lost track of your question. Lawrence: That's alright. A couple points that they brought up, one was that to limit earth work to the dryer summer months is strongly recommended. I don't recall under the MDNS as its now amended, does require that the earth work movement is all done during the summer months? Beeler: You're right. And the reason for that is, Lawrence: And why it does not? issue of having to do development in the dryer parts of the year is also in there. And that there is likelihood that with the geotechnical engineer on -site, monitoring the construction activity, all construction activity, including the placement of the foundations and the drainage system for those. That there may be a condition that geotechnical studies would impose of the phasing being only a certain times a year and only certain parts, certain sequence of order of those houses being built. Certain times of the year. Lawrence: Ok, for my perspective we're to determine whether or not the mitigation in the MDNS is adequate to render these impacts as non significant. Yet it seems as though something as basic as when the work will be done would be included up front as in mitigation, and not something that evolves down the road. Am I in error there in considering that? Beeler: I think I understand where you are coming from. Our deal was that until we had the additional studies that were referenced in here of occurring the springs issue settled. And the, that incorporated into the slope stability analysis cross sections drawn, that the final phasing plan couldn't be put down on paper. But that phasing plan, in concept as was outlined by the geotechnical engineers, would include, could include limited construction of homes, number of homes, in certain places and in certain times of the year. And that just seemed to be an obvious thing to what happened here in this. It may be that the number of home sites that can be constructed in a certain period of time are to be minimal. Lawrence: So, basically you felt that even though the MDNS was issued, because it required further reports or further investigation that that would probably occur and didn't have to be in the MDNS up front? Beeler: Yea. But that per SEPA that I was allowed to do that, that was one of those options that I had. Lawrence: Ok, one of the main points of the appeal I think Mr. Lamb presented, was that he felt the SEPA process was designated by the State to involve more public input, in fact as much as possible basically. Is it always done in all jurisdictions that there's no public input until there is a MDNS basically 28 issued? Until the draft has been issued? Or is there ever an occasion where the public meetings occur at Ian earlier, more meaningful time in the process? Beeler: It varies. Most jurisdictions will issue the MDNS, publish it in the newspaper and move on. Lawrence: Within this jurisdiction, have we ever done it in a different fashion than we're doing it now? Have we required earlier meetings prior to a draft being issued on something remotely similar? Beeler: No, we haven't got anything remotely similar. But I don't, no I don't think so. We have done both ways of this, this is one of the paradox, I thought I addressed them all, but this is one of the issues that I've always had professionally with the SEPA. And the legislator and its infinite wisdom chose to put the language in here and that was to have a public comment period, a public notice period that was relatively short. In some cases if someone wasn't reading the newspaper legal section every week, which isn't the greatest bedtime reading, you wouldn't know about that. And it seems to be, that's why the City steadily, as long as I have been here, gone beyond that and used the mailing notice labels that's required for public hearings before the Planning Commission and yourselves. Gone beyond that. Most cases, and almost all the cases I can remember, we've not had, we've not gone to a public hearing before. Lawrence: But the actual timing of when the public meeting was? Coming basically when the process was nearing completion, a draft was presented. In your opinion then, that doesn't fly in the face of what the basic SEPA spirit is to involve the public? Beeler: As I, no it doesn't I think. And the reason I say that is not for personal opinion, its just that when you look at the wording of the RCW, excuse me WAC is for public notice, it gives you that notice And a scoping notice on an EIS does give you the flexibility of having a hearing. It's not required. Lawrence: Ok, one more then I will pass onto other people. I think you indicated that in response to the applicants contention of having the road cross the sensitive area, in the reduction of sensitive area buffers as a result, the road was exempt because it was an essential roadway to service that. Now, who indicated, or who made the determination that that was an essential roadway. Since it, I think one of the original proposals was that the road did not have to go clear through the property. Or they proposed it not go through. And then I think that it was modified. Beeler: It was there, I think there was a series of cul -de -sac's that were proposed and the collective wisdom of public works and Gary Schulz and the planning staff was working on it, is that in the overall neighborhood there it didn't make sense. It was not important, it made more sense from an overall circulation plan for that neighborhood to put 137th through and as a result of that we would have more open space. And that, less impact on the site on an overall basis. Lawrence: Ok, so part was for circulation and part was to create more open space by limiting cul -de -sacs within that? Could those have been built in the sensitive areas anyway, the cul -de -sacs? Beeler: Arguably, under necessary essential roads to get to a portion of the, the developable portion of the site. And again, the steep hillsides are the only obstacle to the relevant is a geotechnical analysis which supports the stability. Lawrence: I am thinking less about the steep hillside and more about the wetland water course area. Beeler: Yea, it is interpreted as an essential road. You have to get to those homesites. Lawrence: Alright, Joan did you have some more? 29 Hernandez: Just one of the questions that was raised that I didn't think was answered was, who was going Ito maintain the sensitive areas? Beeler: This is one of the issues that the SAO didn't address. As to who was to maintain those. They were going to be designated as tracks of land, our opinion was that the developer would maintain those. This was not a condition that the City, the City was going to step in and maintain. The burden was on the, in this case the homeowners association to maintain those. Lawrence: Anybody else? Were you finished Joan? Hernandez: Ok, I will yield the chair. Mr. (1994): In the definition of assessory utilities for roads for wetlands, it says 3A in the SAO? "Essentially utilities must be constructed to minimize, or where possible, award wetland disturbances. Is that the only possible location for that road? Or cross street? Beeler: Well Ron Cameron would be the one to address that. My brief recollection is that if you start moving the curvature of that road in order to connect 137th through to, I think its 137th to the right hand side? That there's some track engineering constraints that you have to meet in order to do that. Minimum curvatures and all that sort of thing. If you want to pursue that more technically, Ron would probably be the better one to be up here. Robertson: I have three other questions for you, but I would like to ask Ron that question and continue that point. Basically, if I, not looking at no engineering issues, if I look at where the, Gary you are welcome to come up with him because the question involves of you actually, ok? If I just look at where the wetlands and the watercourses are located they appear to be over here and the road was to the north you would avoid them. So the question I am asking is, is there a reason that a road north of this location here which wouldn't require the crossing of the water course was not chosen? Ron Cameron: Yes, 44th is pointed out in the Terra and the AGI and the Hamin, Collier, Wade soils work is unstable. That's where the sliding has occurred. So if it went to the north you'd have to come in on 44th. Robertson: But the engineer report, or at least one of them, also pointed out that that road by Terra that 44th itself could be stabilized if things were done to it. There was at least reference in there to that. Cameron: Oh yes, certainly we can do that it just costs a lot of money in this case it would cost a significant amount of money and it would not align as directly with 137th, which is what we were looking at doing. And I think in Phil's memo it addresses that work from back in 1991. That was the time we had several decisions going parallel. Robertson: Phil's memo is the one we were given tonight as, just given, by one of the appellants? Cameron: And it addresses that? It addresses the wetland and it addresses the alignment and those comments reflect our reviews back in that six month period. Robertson: Ok, thank you. That's the end of my questions there. Next question, in the proposal you identified the fact that a series of documents are included in this including the PRD. So is it on page, the first page, page five, what's numbered as five of the proposal, that says the City has adopted a special ordinance which regulate development in an environmentally sensitive areas. These ordinances include the following. Am I right in assuming then, its at the bottom, that all of these ordinances have to be followed as part of the, what I am trying to do is, I realize that we are not evaluating the PRD at this point, so I have not focused and understanding things on the PR. However in the second appeal, I am trying to clarify my question ok, in the second appeal it says with removal of over 70% of the existing canopy a mixed variety of native and non native trees and vegetation. The proposed Foster View Estates Cameron: Yea. Robertson: Ok. 30 1 construction will forever impact the environment of Tukwila residents both above, adjacent to, and below the site. Now I'm assuming when they said that, that they were referring to PRD 1846060F1, where it talks about land, minimum landscape coverage? And in the proposals and the stuff I have seen it talks about canopy coverage for the top, but nowhere have I seen anything that deals with the fact that minimum landscape coverage of 25% of the structure at time of project completion was anticipated 40% coverage within 15 years. That's for buffer, elevations and off -site perspectives. That means lateral views, not just bird's -eye view. So I have two questions, 1) does this have to be covered as part of the MDNS, or is that comment in the appeal appropriate for the PRD and not for the MDNS? My puzzlement is it's really part of the PRD that its referencing and I didn't see that covered. Since you listed all of these in your proposal, I don't know if they have to be included or not. Beeler: The listing on page five is, at the bottom, is the listing of the, well the PRD is part of our SEPA policies which is part of the zoning code. Those, I don't know why they are called, SEPA requires them to be called policies but actually they are ordinances. Those are the ones that you can use to condition a proposal, mitigation measures are used in your decision. The specific PRD proposal in terms of its compliance with the PRD requirements, again, you also have got SAO in here to complicate things a little bit. And the requirements of those individual ones in terms of compliance with those is, with the land use action coming from the Planning Commission to you next month. Robertson: Ok, so that, if that is an issue it is not part of this, in your, of the appeal to the MDNS as far as your concerned. Beeler: Yea, categorically I wouldn't say that that necessarily is true other then if you find that there's a part of the PRD section that would say, we need the condition the proposal in order to mitigate an adverse environmental impact. Robertson: It doesn't say that. Ok, next question, if the Council were to support the apeal, uphold the appeal, would the analysis and studies performed to date become part of a future EIS? Cameron: I don't know what other information we would prepare for you. There maybe some additional recap of the testimony here this evening but that would be about it. Robertson: Ok, Rick on page six and seven of the MDNS, under mitigation conditions, there's a couple words that I don't know what they mean. Under mitigation conditions, item one, four lines down is the word stable. The way I read that, it says that you've got to demonstrate the proposed fills and slopes to be designed are stable. Stable means they will not move, period. Now I doubt, now who defines what stable is? The way I would read this literally, is they cannot move. Now that's, and no possibility of ever moving. On a slope that's probably not a reasonable assumption. So, what is meant by that word and who gets to define what stable means? Does it mean stable over the next 200 years for 99.9 of anything that might happen, or what? Beeler: Our definition of that would be the same that was applied I think to the Valley View estate appeal years ago. And that is that there's some common geotechnical knowledge that applies, that defines this in terms of the stability coefficients based on the soil layering and the depth and that sort of thing. That knowledge that was applied through the existing studies may not have been, I don't recall if we had actual calculations included here, I don't think we did but when we do the cross sections that definitely comes to bear. Robertson: Ok, the same question appears over on the next page, page seven under item three, the last sentence reads, calculations supporting adequate safety factors against open stability, shall be provided for you by the City. It doesn't say when, but in any case the word adequate is still, it requires the same definition that stable does. In trying to understand if this is, if the mitigations listed here are appropriate, I guess what I would want to know personally, as a policy maker is, what's the definition of stable and adequate? If they reference a engineering standard, or document, or book, I would like to see that referenced and understand what that means. Because what I might assume to be adequate, the same as what I might assume to be stable, may not be what you assume, or what you intended. So, or what somebody else. Without a definition I have no way of knowing. So could I also have tomorrow the references to those two that you would use including copies of them? Beeler: You may in fact have them tonight if the applicants geotechnical engineer testifies. And maybe he will as to what the commonly excepted engineering practice is for the definition of those. We were assuming that we would use that. Again, for the testimony that we had, last Monday night, he is liable for a long period of time for those calculations. And again, the uniform building code were the ultimate destination of this project for compliance is not looking for things to move. There is a certain amount of settling that occurs in a normal single family home or any other construction, but its got to be fairly minimal. Although I have heard of, in some places settling may be what I look at as significant, but that its not, it is a normal practice. They are just designed to let that happen without interfering with the structural integrity of the house. Robertson: I guess I would like a definition provided. And to elaborate on another, to understand something further, you said that the geotechnical engineer of record is liable. What I think you mean is that the firm, the corporation that he has assigned, is liable to the extent that that corporation is in business and has access to cover liability at the time, since lawsuit might take place. Is that correct? Beeler: That is a legal question. Robertson: I mean to say that somebody is liable, and really the person isn't liable, I believe isn't it the corporation that, I mean the, I believe they are incorporated so the corporation is liable if the corporation is in business at the time that some future lawsuit might take place. Is that correct? Cohen: We're specifically talking of, I'm sorry. Robertson: Like Terra, any the geotechnical firm of record in this, to say they are liable for a mistake means that the corporation that signed is liable if that corporation is still in business at such time a future lawsuit might occur. Is that correct? Cohen: Sure. There's also an opportunity to go after the individuals. You can sue a number of people whether or not you'll be successful on that suit is another question. But certainly. Lawrence: Any other questions? Rick I have one last one, it was also brought up in the appeal that this site might have some historic or cultural archaeological sites yet I haven't heard that addressed at all. Beeler: Our conversations Robertson: Thank you. 31 Cohen: Excuse me, if I can interject, perhaps Mr. Earnst can also shed some more specific light on the question that you have. Ross Earnst, Staff: Professional engineering items, the person that seals the document and the professional engineer is required to seal his document is generally held to be liable for that work. For the work of those people under him, in that under that. What the usual thing that happens is that the corporation provides the professional liability insurance which then protects him in the future. There are limits of course to what they'll provide. It is usually the person that seals, corporations occasionally will use a seal, but an individual is required to do the seal. 32 Schulz: I'm not sure about the screen and what reference, where did you see that written down? Hernandez: Oh that came up in some of the testimony this evening and I wasn't familiar with that particular term so. Lawrence: Ok, possible archaeological sites. Were there any located, was the search made? Beeler: Our discussion with the State on this was that there was none identified for this site. None known archaeological significance or historical significance. I suppose that like any site anywhere if there, if excavation is occurring and you stumble onto something like that surprises everyone, that the State has to be notified as normal process and they come in and investigate and say whether or not that is really significant or not, what to do about it anyway. Lawrence: Alright, any last questions before we go on? Is there any further rebuttal by Staff or is that it? Was there any further rebuttal planned by Staff? Why don't you come up just in case there are some questions specifically for our environmentalist. Robertson: I have a question then while your at it Gary Schulz: Should I record, I have never spoke yet at this hearing. I'm Gary Schulz generally referred at the City's Urban Environmentalist. Robertson: Gary, when the buffer calculations were done for the wetland and the watercourse, according to the SAO those buffer calculations can't be reduced in half by the responsible official if a steep slope above a certain grade, 15% I think is there, were any of those buffers reduced? Schulz: The buffer that was reduced for the road as it swings around is far and above adjustment to that road design where initially it was crossing the stream at an angle. And my recommendation was that it cross perpendicular to the stream, not like going along and then just angling through it. Robertson: So what you are saying is that if the buffer was reduced it wasn't because of that allowance in the SAO. It was reduced because, that you can reduce it by 50 it was reduced because it was necessary for the road? Minimize the impact? Schulz: The road is constrained by slope on one side and in order to get it to align with the existing 137th Avenue, that's where it starts and it swings around as much as it can to avoid the watercourse buffer, but there is a certain amount of curvature that you can't, you can't make it sharper than probably what it is right now. I mean that is a guess on my part I'm not sure about that but I made efforts to adjust the road so it would cross the watercourse perpendicular and that would limit impacts. Robertson: Thank you. Hernandez: There was some testimony about a hydraulics screen issued by the Department of Fisheries. I thought I had read this material pretty carefully, but I didn't recall reading that. Could you explain to me a little bit more about that and how that protects the wildlife and the fish? Schulz: Right, the Department of Fisheries or Game I think it's commonly referred to now as Wildlife, grouped together, but they will review the crossing as part of a hydraulic permit. And they need to see that its being minimized and they'll make their own conditions for that crossing, and send it back to us, and in other words the developer cannot do anything there until that permit is sent back to us. Hernandez: Did they actually install the hydraulic screen then? Does the Department of Fisheries install the screen? 33 Lawrence: Joe. Duffle: Yes Mr. President before we go on with another discussion if we've proven Mr. Beeler, I would like to interject a little break here for about two or three minutes here if that would be possible please. Lawrence: Ok, how about if we finish with Gary first, then we will break. Duffle: Alright sounds good. Lawrence: Allen. Lawrence: Who does Robels work for? Schulz: He works for fisheries. Schulz: I think it just means that they are going to review the crossing of the stream. That's their review, HPA is what they use to review any work in a high water, an ordinary high water mark, within the high water mark. The stream or river or anything that has moving water just about. And those streams that they do review are not permanent either. They can be seasonable and still require the HPA. Ekberg: The different water courses, specifically the wetland area on the south of the property, it appears to me that the homes that would abut that wetland area would need to have side slope cuts. Is that correct? Schulz: Yea you are talking about the... Lawrence: You are referring to these? Ekberg: The ones to your right, yea those there. Lawrence: These. 36 through 41 on exhibit what ever that is, it is covered up. Ekberg: I think exhibit two is what I am referring to. Earth and damn structure restricts water behind it. If you were to cut the toe to the earth and damn structure the water could seep out from the toe cut. In this situation I'm seeing drain tiles put around the homes there. Which in my little brain here is thinking won't that drain the wetland, and what would prevent the wetland from draining to those tiles and therefore no longer being a wetland? Schulz: Without having really a lot of information about ground water it is hard to answer that question. But I'm sure Terra, the geologist here can answer that too, but the only thing I can say is that the water drains to the east, out of that wetland through a small channel. Then it hits and road and goes down the roadway. I'm not saying it can't come out of the slope when cut down there, it's quite a distance away. But I won't know, nobody will know that for sure I don't think unless there's a test pit performed there. It's not something that can be easily, I can't answer it myself. Ekberg: I'll save that for the hydrologist. Thanks Gary. Lawrence: One last question, there was something brought up by the appellants that fisheries was not notified. And whenever you comment about fisheries I'm seeing heads shaking. What is the situation between fisheries and the other organizations? Have they been merged or what, did they receive notice? Schulz: I'm not sure whether Joe Robels himself received this MDNS, but I would assume that the Department of Wildlife is on our list and I think I've even added fisheries onto the list one time, our mailing list. So if that department did not receive the MDNS, I mean they should have received it, Wildlife, it sounds like Wildlife got it. I wasn't in charge of sending out the MDNS, so I am kind of talking. Lawrence: Alright, thank you. Joe, you wanted to take a break? You want to make a motion. Duffle: Let's take a short break. 3 4 Lawrence: I think it was mentioned earlier that there was contact and discussion with Robels, so he works for fisheries? Schulz: He met with us and the applicants. Lawrence: Ok. Alright, any other questions? Alright thank you. Schulz: I just wanted to just add a couple comments since I haven't really spoke at this hearing at all. some of the comments that I'm saying now were as a result of what I have heard mentioned already. I've been performing and working with wetland management planning and assessments for seven years. When a biologists goes out and determines a boundary, generally the perimeters he uses are pretty well set. They can go a little bit in different direction, but on an undisturbed site or a site that hasn't been disturbed for quite awhile, usually everybody is going to agree pretty close to where a boundary should be. I just wanted to kind of touch on that. I also spent quite a bit of time on this site and just wanted to say that the boundaries were verified and agreed to long before the SEPA review. Lawrence: Its been moved and seconded to take a five minute break. Those in favor say aye, opposed. Ok, lets make it a true five minutes. Applicant Rebuttal Amv Kosterlitz: Once again this is Amy Kosterlitz, an attorney for the applicant, and I'm going to, in summary fashion, run through responses to the various issues that have been raised, but I'm going to refer the more technical responses to the geotechnical and stability issues that have been raise, the drainage issues that have been raised, to the technical consultants. So you will be hearing from them as well. I will try to go roughly in order the issues came up, but if I don't, I'll go back to some issues..(unclear)..at various points throughout these proceedings. To respond first on the geotechnical issue and we'll have Anil Butail get up and speak to this you've still heard no evidence here that the official errored in his SEPA determination. Just reviewing the points made by Mr. Lamb, he first says the SEPA official errored because a letter from public works two years ago stating public works' concerns and asking for further study. And I think that demonstrates something that we've said all along here which is the public works department has had some concerns about this project throughout, and has required study and more study and then more study and then peer review. Yes, it's no secret that public works department has had concerns about this site. It is a steep slope. There's evidence of prior instability off -site and the geotechnical consultant went back for further study and AGI did further study. The public works department took a good look at this and decided they were satisfied. The same Phil Fraser that wrote that letter concurred in this decision and made this recommendation to Mr. Beeler. In addition, the AGI report did not conclude that this development is hazardous and should not be built. In fact, it set forth the mitigation measures that should be imposed in order for this to be developed safely. And all of those mitigation measures and the ones from the HCWL report have been incorporated as mitigation measures in this project. It sounds like the crux of the problem seems to be is that some of the study has been put off until a further point in the process. And by the way, not much of the study there's some additional confirming stability analysis and then the normal review that happens during construction- -and here, there has been some very good reasons, and Anil will go into this further, for why that review was put off until later. As I understand it from Anil, the type of stability analysis -the additional analysis that's been required which can involve computer modeling- cannot be accurately done until the final design plans for the project have been done; and, therefore, it would be meaningless to do that at this stage. That's why that has been deferred, and that's why some of 35 the other things like the phasing plan, erosion control plan, and the monitoring have been put off and are typically put off in this process whether it be through an MDNS or and EIS because they're not meaningfully done at this stage of a process. If a developer had to go into final design plans before he even knew he had a conceptual approval under SEPA to go ahead with his process, no one in their right mind would invest that kind of money and that level of study prior to the process. In fact, in this situation, I will say again, this applicant has done more study, invested more resources and gotten much closer to final design than almost any project I've ever seen because of the level of concern of your City and the Public Works Department. But the way that this has been structured, it's absolutely typical, it's permitted under SEPA, it's even envisioned under SEPA, and the case law, the Levine case in particular, which was cited by your city attorney and other cases specifically indicate and the West 514 Mall case, which we can give you copies of or your city attorney copies of, allows SEPA review be conditioned on further study. In fact, what's being pointed out as a significant disadvantage here is really a protection to the City. The only person that's really at risk here is the developer because he will not get any land altering permits if these studies don't check out. And that is a typical situation and one that comes from the fact that people do not engage in the final design of their project at the SEPA review stage. So, again, on the geotechnology issue, and you'll have the expert backup here to resubstantiate his studies, talk about what the definition of stability is in the industry, talk about what studies occurred and what study will occur in the process. This is absolutely typical. The City has all the protections afforded by his initial studies and the peer review, and frankly, I think what's being asked for is a level of guarantee that is not envisioned by SEPA and not available through the SEPA process that no one has had on any other project in the City of Tukwila or any other project anywhere. So you need to go back and look at what the purpose of SEPA is, what SEPA does, and what it is possible for SEPA to do and evaluate whether things happened appropriately here under those instances. So that's the geotechnology issue. On the issue of public input, basically, what I think we're hearing here is that the appellants, and maybe the Council as well, don't like the MDNS procedure or might not prefer the MDNS procedure. On the other hand, the MDNS procedure, which doesn't give public notice or comment until the end, is provided for by SEPA and the specific procedures of the MDNS modify and specifically address how the public input requirements that are a general goal of SEPA get implemented in this specific instance. And as a matter of fact, what Mr. Beeler said is true, in most projects and MDNS is issued and a notice goes into a paper somewhere and that's it, and then there's public comments and appeal if you find out about it. Some jurisdictions go to the extend that Tukwila did and mailed notices. Very few jurisdictions go to the extent that Tukwila did and held three public meetings at which there was not only significant information provided but significant opportunity for questioning and comment. There have been significant amounts of comments both written and oral received throughout the process, and in fact, at this hearing tonight. So I think that there is no reason to feel that SEPA's public input requirements haven't been followed. In fact, they've been exceeded. The EIS, which has been referred to as the "holy Grail" here does not make the situation much better. In many instances the only thing you have in SEPA is a public scoping hearing at which time people give generalized comments about certain areas that will be looked at in the EIS, often not even enough is known about the project at that stage to get to an appropriate level of detail. The comments in an EIS are often bound into the EIS. The Final EIS doesn't change the EIS. They put the comments in the back and say "comment noted I don't know how many of you have seen an EIS; the EIS procedure doesn't afford you any more, in terms of meaningful comment, in typical situation in what has happened here. In fact, often an EIS is done so early on a project that changes in a project have occurred or mitigation- -this project has mitigation upon mitigation changes and then reviewed mitigation to changes. Often an EIS looks at a project in such a nascent state that it isn't even able to get to the level of detail of mitigation measures you have here. So I caution you in thinking that an EIS is the "holy Grail" here that affords significantly more public input or significantly better study because that is not the case. In fact, I can't imagine what further and EIS would do in this project with this information but bind it all under one cover. I would also like to say that it does appear from the appellant's own testimony that significant appellants knew about this project as early as two years ago, and I think they bear some responsibility if they have concerns to try and find out what's going on as well. With regard to the accesses and not having appropriate site distances, I think this issue was addressed by our traffic consultant through his testimony and exhibits last time, and he isn't here tonight to repeat this, but he did demonstrate what the appropriate site distances were supposed to be and that all of them were met. And I believe the City's 36 L351 traffic engineer is here who could substantiate this and answer any questions in regard to site distances and accesses. With regard to the wetlands and the Sensitive Areas Ordinance, that ordinance has been followed. We've met the buffer requirements for that ordinance. In all the areas where the buffer to be modified, the slopes needed to be less than 15 percent. This was actually checked by Gary Schulz and he had us re -check it so that the buffer modifications meet those requirements. And if there are any further questions about the wetlands ordinance, again we didn't bring back our wetlands consultant tonight, but Gary Schulz can answer that. As far as we know, all the requirements of your Sensitive Areas Ordinance have been met. With regard to the procedural issue and the question about whether SEPA was appropriately followed, I think there's some confusion here. The problem as expressed seems to be that nobody was supposed to act on the proposal until a certain period of time ran after the DNS appeal period. No one has acted on the proposal yet. The only person -or body -that can act on this proposal is you, the City Council. Your staff gives you a report; your Planning Commission gives you a recommendation. There's only one body, as I understand it, in the City of Tukwila that can approve this PRD or sub division, and that is the City Council. And the City Council is not allowed to act within a certain period after the DNS being prepared and the City Council has not acted. You do have a bifurcated process whereby they go ahead and let your planning commission make a recommendation on the PRD and plat simultaneous with this hearing on the DNS issues so that by the time the project comes to you, you have a recommendation on the sub division and PRD standards as well as your own feeling as to whether the SEPA issues have been resolved or not. But I see no violation of SEPA in that nobody has acted on this proposal inconsistently with SEPA. Someone mentioned that we were to hand in a list of the vegetation that would be used in the wetlands mitigation plan and your DNS itself provided that we would submit that prior to the preliminary plat hearing, and we did so. Again, no action has been taken on that. Nobody has decided whether that is sufficient. And that, by the way, was only the vegetation that will be required in those small buffer areas that area being modified next to the houses. The mitigation plan for just a misunderstanding about what the action of the agency is in approving the proposal. With regard to the slope map, we haven't had time to examine that but our brief perusal seems to reflect that it's the same map that we gave you but colored differently. I don't think it changes the conclusions about the amount of areas that are covered by various slope grades that was recited by our geotechnical consultant, but we can run back through that for you again if that becomes an issue. With regard to the wildlife issue, as I said before, there's no reason to believe that there are significant impacts in the areas of wildlife that would require further study. As we've said this is in an urban area, zoned for residential development, which has no recognized habitat value. In fact, despite comments of the appellants, there's been no documentation anywhere in any of the SEPA documents that the significant species of wildlife live there. And for example, even if a hawk were observed on the property, the City and the state have no authority whatsoever, and you have no authority whatsoever under your existing ordinances to require that mitigation be imposed for that. The City of Tukwila, despite the opportunity to do so under the GMA, has not adopted a wildlife protection ordinance, and the state only regulates wildlife when threatened and endangered species are found. Rather, as I understand it, the choice that you have made is to regulate sensitive areas by requiring an open space and here have amply provided a third, I guess about, of the site in open space for wildlife. That is more than most sites would typically provide in an urban area particularly where there's no SEPA authority to regulate wildlife. So even if it had revealed on a checklist that there was a hawk on the site, assuming that that is even true, there would be nothing that a state agency comment could do absent of a threatened or endangered species should that have gone to wildlife or any other organization. And if they say they would have tried to make sure that a significant portion of the site is left in open area, they have no jurisdiction to do that. The City ha no jurisdiction to do that except under its existing ordinances like the Sensitive Areas Ordinance. And in fact, a significant portion of the site has been reserved in open space despite the fact that there's no regulatory authority specifically to do so for wildlife. With regards to the issue of the Department of Fisheries, the Department of Fisheries is aware of this project, has been involved in this project. As Mr. Beeler testified and as our drainage expert will testify, Mr. Roble has held meetings on this project. Typically, when the Department of Fisheries gets a DNS or a notice of a SEPA decision from a jurisdiction, if a hydraulics project approval is required, their comment is "a hydraulics project approval is required" and then they review the project 37 and impose the conditions they believe are necessary through the hydraulic project approval review process. That, in fact, will happen here and there may be additional conditions if Fisheries doesn't feel that water quality impacts have been significantly mitigated. So there is that additions layer of review that will happen after the City issues their decision. In some ways that's a protection for you; in some ways it's like double jeopardy for the applicant because not only do they have to run your gauntlet, but then they've got to run his gauntlet, too. With regards to comments on drainage and the HCWL or LW -I forget the company's name -we have been required in your DNS to follow all of their recommendations. So to the extent that there is concern about issues that have been raised, they have also not said the impacts of this project cannot be mitigated, don't do this project. They've said with appropriate measures and appropriate review and appropriate phasing, this project can happen. And the City adopted all of their measures as part of DNS. One of those measures, as I understand it, involves developing a detailed phasing plan where they recommended that only a certain portion of the site number of homesites -be disturbed at any time during construction and was mentioned previously, this will also in all likelihood include measures that construction do not occur during times of the year that would be dangerous to do so. And I will have Erich Tietse also respond more specifically to the particular drainage issues that have arisen including the issue of springs which apparently still is troubling and how we would handle that issue and some insights he has into why there's some discrepancies, or apparent discrepancies, in the findings of whether there are springs or not. I guess the bottom line on springs as he will testify to is even if there are springs, we have a way of handling that issue without causing a problem, and he can explain how that happens. He can also explain why there's some perceived discrepancy in the findings with regard to springs. Someone has asked who would maintain the sensitive areas tract. The way the City has it structured the homeowners association that will be required through covenants on this property, and actually your subdivision and PRD ordinance requires the city attorney approve those covenants prior to issuance of a final subdivision on this property, will provide for how that will be done. In this situation, and that will be ensured by your city attorney before the subdivision. However, we are and have stood ready at any point, to dedicate these open areas to the City if the City doesn't feel that there's adequate assurance that the homeowners association will appropriately maintain these. These tracts can be dedicated to the City, and that's something that you may want to require in your PRD and subdivision review. That was a choice that your staff made. We're happy to see it go whatever way you feel more ensured that these areas will be appropriately protected. Again, we've demonstrated and our landscape biologist has demonstrated to the City that we meet all the requirements of the Tree Preservation Ordinance. We have not only the appropriate percentage of the site in coverage, but we have an additional amount of tree coverage that we're preserving both through the TPO requirements, in addition to the TPO requirements and those will be done through easements, it's the dark colored green area on Exhibit 2. So, I don't think there's a question about the Tree Preservation Ordinance. We can run through those calculations in more detail if anybody wants to see it. Or, I'm sure that the City staff who reviewed it and approved it can do that as well. I think the question was answered about the historical and archaeological resources by the Planning Director. At this point, I think I will let the geotechnical expert and drainage expert answer their questions. I'd be happy to answer any questions you may have and I will address the generalized SEPA process issues and limits on authority more in my closing argument. Lawrence: Joe, you have a question? Duffle: Yes, well I have I guess it's not a question, it's a comment. But I would like to say one thing addressing the wildlife. We do have an eagle here in this City and I'm quite sure that whatever it is, he or she, do fly occasionally up there. There is one that stays right out here behind the city hall here and also up there by the school. It's a family of hawks that live up there, too. So, I'm not saying that that area up there doesn't have them, but I've never seen one up there. But I'm quite sure it must the same ones `because I think they only have a certain area that they stay in. Kosterlitz: Right. And the standards are just strict in that there needs to be documented evidence in the SEPA documents of a presence of a threatened or endangered species. In the situation of eagles, actually 38 j 5 1; i the regulations apply to eagle nesting documented nesting. And then an eagle nest management plan needs to be observed. There's not that kind of evidence of any eagle use of the site here documented in any fashion. And so, there's no ability to impose that condition. If the fact that an eagle flying over and around various developments were enough to kick those regulations into play, almost no development anywhere would be allowed to proceed. So, not trying to denigrate what you're saying, I'm sure that's true. The regulations have just developed in a way that I guess reflects a balance between the policies of wildlife preservation and the policies of development. Lawrence: Any other questions? O.K. Erich Tietse: My name is Erich Tietse and I'm the civil engineer on this project. With regard to the appellant's comment that they did not have an opportunity to present questions or ask questions at the community meetings, I can testify that at that first meeting when it was over, I thought that I had been raked over the coals. There was a lot of comment, a lot of questions, a lot of dialogue back and forth between myself with regard to the drainage issues and the people that were there. We had probably 100 people there at that meeting. As a result of those comments and questions, several of the exhibits that we've now shown were prepared for the next meeting. And those consisted of the colored drainage maps, the existing drainage map and the future drainage map that's Exhibit 8 and Exhibit 10. As I indicated before went through actual final design effort to prepare that utility plan that you see behind your where the detention systems are colored. That's Exhibit 9. And that slope map was put together also as a result of the comments that we received from that first community meeting. So, there was plenty of opportunity for the people to comment and question us not only at that meeting but at the subsequent meetings that we had with them. With regard to the topo map that the appellant's have provided, we have looked at it. It's essentially the same map that we've got. Like Amy indicated, it's just a different color. The advantage of our drawing is that it shows where the future development will be going with regard to the existing Islopes as they occur right now. The yellow area represents the same as what they have on theirs as the white area. Those are the flatter slopes. That's where the road is going to be located. That's the most stable portion of the site in terms of slopes. The flattest portion of the site in terms of slopes. The question of the impact of the road and why it's where it is -the City, at the beginning of this project, really intended on opening up that closed portion of 43rd. And they directed Anil, and I'm sure he can get into this, to look at the possibility of what it would take to stabilize that road. And he did an analysis on that and found that it would be economically infeasible to open that road. So the City concurred with this. All the geotech people have concurred with this. Hammond, Collier, and Wade report has concurred with this. Consequently, we couldn't have moved the road to the north to avoid the drainage course. We had to tie it into the intersection with the existing 137th and 44th. On the west side where it intersects 42nd, that location was selected as a result of site distance requirements. So that set the end points and then we had to then come up with a configuration within the site. We had a different location that transversed the drainage course differently than what it does right now. And Gary Schulz, your urban environmentalist, raised some concerns with regard to that, and he recommended as was indicated before that we cross that wetland or the drainage course in a perpendicular manner and, therefore, reduce the impacts on the wetland. That's why you see the orientation that you've got right now. There was some comment that the fisheries was left out of the loop, that the utility districts were left out of the loop. We met with Joe Roble and the staff on January 20, 1993 to get his input with regard to this project, so he was involved with this. You have to also realize that fisheries and wildlife share jurisdiction over review of these, and it's very possible according to the submittals, fisheries and wildlife both received the checklist. But it's possible that wildlife was the one that was the lead agency on this, I don't know. But Joe did have input on this project back in January 1993. We met with the sewer district and the water district on February 22, 1992. I had correspondence with Terry Matlick which is the manager of the sewer district and presented to him various sewer options. He reviewed those and gave us his recommendations. Those were incorporated into what you see in the plan right now. With regard to the water district, we contacted their consultant, Pan Helligan Associates, and paid for a computer analysis of the water system to determine what sort of water system improvements would be required for this project. So once again we've contacted and had input from both the utility districts that are involved with this particular project. We've heard a lot about springs. Let me just say that so far we've got anecdotal type of information from the appellants. We have no scientific, no engineering information if there's springs on the site other than what we've already agreed to that there are in the drainage course and in the wetlands area. The geotech report shows that there are no springs in the areas where we will be providing construction. The Hammond, Collier, Wade, Livingston report refers to springs, a prevalence of springs. I called the author of that report and I said where did you see the springs. He said he saw them in the area that was on the intersection of 137th and 44th. On his site reconnaissance, Ron Cameron and Phil Fraser of the Public Works Department were with him. They were basically in the wetlands area where the springs were found. They then traversed the north side of the site, did not see any springs, saw wet land, mushy, soggy land, no springs. They went down into the flat area that's over north of the site in the park and then they got in the car and went over to the west side and came in on that side of the site. No springs were found at that point. I said were you aware of the fact that the geotech reports have done soils tests and found no ground water. And he said no, and he said I would defer to them. I'm not a geotech. I reviewed this from a drainage standpoint only. Even with that, we are prepared to follow the recommendations that Hammond, Collier, Wade, and Livingston report suggests to deal with if springs are found. And that is we will put in french drains on each site, pick up the ground water, and we will put in footing drains around the foundations of every house. Now a lot of you will say big deal. Foundation drains don't work. There's been a big difference in what foundations do now as what happened 20 years ago. You dig up a foundation drain around a house that's 20 years old, I can guarantee you it's full of silt and it doesn't work. Typically, they were just either clay or concrete tiles separated by a 1/2 inch or so that would pick up the ground water. Well, what happened is they silted up. Now when you put in a foundation drain, it's perforated plastic pipe, it's set in pea gravel, and it has a filter fabric around it -a geotech style filter fabric that keeps the silt out so it will physically pick up water, any water, that gets near the foundations of these homes. This water will then either run into the detention system or the drainage system, or, if your concerned about wetland problems, etc., we can dump water that's picked up on those houses that are up on that east side of the site and just continue to discharge them down into the wetlands that are down below. This is nothing more than ground water. It's not like we're dealing with contaminated water. Water from the surface, drainage from the pavement, garages, driveways, roofs, etc., those will go through the detention system and would continue through the drainage system down stream. I think what we need to point out is we are willing to deal with any potential springs that may show up on the site as we've indicated. More importantly, I think we should refer to Exhibit 11 which is the summary of the drainage system. We've identified some problems that exist off -site. Drainage basin #2 has some lowland areas that are subject to flooding. Drainage area #3, or I think it's #4, the pink area shown on Exhibit #8, right now floods the Borden property. What we're proposing is that the Borden property will no longer be flooded. Area #2 that's now subject to inundation during surface runoff- -that water will be diverted from that area and discharged through a controlled piping system. So in my opinion, we've dealt with all the issues. We have no scientific evidence that there are springs on the site. Your urban hydraulogist- -urban environmentalist has walked this site. He has not found any springs in the area where we will be doing our construction. Public Works- -Ron Cameron, you city engineer, Phil Fraser, we have all walked these sites and have found no springs. The springs that exist on the site are in the wetlands or in the drainage course. We can see that. There's no evidence that there are other springs. If we find any ground water, we will deal with them through either french drains or the footing drains as we've suggested, as the Hammond, Collier, Wade and Livingston report has suggested. I would like to point out the benefits that this drainage plan is going to have to the surrounding area. And that's shown on Exhibit #11. And that concludes my comments. Lawrence: Joe 39 Duffle: O.K., I have one question I'd like to ask. I no there are springs that run underground and some of them run on top. My concern is -how did you actually test for springs? Tietze: I think Anil can address this, but what they do is they typically get in and they dig a hole "x" number of feet deep -10, 12 feet deep, whatever it is. And they do soil logs. They'll evaluate what types of soils they'll have from the top down to the bottom of the hole. At the base of that hole, they will make an observation. Ground water was observed two feet down from the surface, three feet down from the surface, the bottom of the pit where no ground water was found. If you look at those reports, everyone of them indicates that there was no ground water found. None of the geotech peer review reports say anything about ground water problems. The only report that says anything about potential springs is the 40 Hammond, Collier, Wade, and Livingston report. And when I questioned him about that, he said he would have to defer to the ground water report- -the geotech reports because he's not a geotech engineer. He's reviewing the drainage reports that we prepared. Duffle: My concern is that -I know we walked the area the other day, and up there behind the nursery it's very moist. Now is that all spring water or is that ground water or what is it? Tietze: I have to be honest with you. I'm not familiar with what water that is. But let's say that that is part of Drainage Area 5a, Exhibit #7. It drains to the wetlands on our site and to the drainage course. So that water that's coming from up above is going to be in the protected tracts, you know, the buffer areas that we have designated. They would just continue to travel through the site like they do right now. Lawrence: Joan? Hernandez: The Terra report dated May 17, 1993 indicates that the majority of the site soils will be extremely difficult to work in wet weather, and they recommend limiting north work to the drier summer months. Do you see that as a problem or a recommendation also? Tietze: This is the Terra report? Hernandez: I believe it is. It's the applied technology. Tietze: I'd like to defer to Anil on that other than to state that as part of the Hammond, Collier, Wade Livingston report they go into specific emphasis on making sure that we deal with erosion problems during construction. And I can tell you flat out that it's just a requirement of all projects that an erosion control, Isediment and erosion control plan be developed as part of any construction project. I don't know whether you've seen them. You'll see silt fences. They're usually black fabric that you see staked along the edge of property where construction's going on. That's part of an erosion control. It traps any silt that may be trying to get off site. Oftentimes you will put in a temporary sedimentation pond and temporary interceptor ditches so that any runoff that's coming from the cleared portion of the site we've picked up through these temporary ditches and directed to a sedimentation pond. The water just sits in that pond, the silt settles out, and the clear water is then discharged through a suitable location. Hammond, Collier, Wade and Livingston has proposed a sequencing of events as to how this site should be developed. That's all part and has been included as part of the mitigation and part of the application requirements. So we feel that we will have to address this issue, but it's part of the whole construction design process that is done with all projects and will be reviewed by the City and if they feel necessary, through peer review. And it's just an ongoing thing and like I said, it's part of every ongoing construction project. Erosion control is a very important thing. Lawrence: Any other questions? (no response) O.K., thank you. Anil Butail: My name is Anil Butail and I'm the geotechnical engineer for the applicant. I've heard several comments regarding the geotechnical aspects of the project, and I'll try to answer each one of them. If I do forget, please bring them up to me. I'm going to try to go over these chronologically. The first comment I heard referred to a memorandum from Phil Fraser going back to October 29, 1991, and the quote was "the Terra Associate's August, 11, 1990 report does not address the steep hillside or bluff even though some of the property lies along that bluff'. Noted in the (unclear) report is cuts and fills up to 15 feet will be necessary. There is not adequate information to know what this means relative to de- stabilizing the hillside or the need for retaining structures. This was addressed early in our report and this was addressed from the standpoint, please stay away from these areas as far as possible. After this memorandum was prepared, additional studies were performed. There were specific recommendations made in the report in regard to making cuts and fills at stable inclinations. There is a comment here there will be cuts and fills up to 15 feet. The most recent grading plans show maximum cuts on the order of approximately 11 feet along 137th. The drawings also showed that most of those cuts will be supported by retaining walls. The next comment I heard, and I guess this was the primary comment, the primary word I 41 /364 different tonight than I said last Monday. I am convinced that other than the portion of the street, 44th Avenue, that has moved and primarily as a result of proper design and construction practices not being taken into consideration. There is no other evidence of instability on site. There have been comments with quotes from Applied Geotechnologies report that indicate otherwise. Perhaps, some of those comments only read portions of the report and I'd like to read the portion of the paragraph that deals with their assessment of slopes stability also. This is on Page 4 of Applied Geotechnologies May 17 report, and if you would look at the second to last paragraph that starts with Class III. And I'm going to read that. It says, "Class III landslide hazard areas are areas that due to topographic and subsurface conditions, have a high potential for slope instability This does not say that the slopes are unstable -the slopes on the site. Based on our site reconnaissance, we generally concur with Terra's opinion regarding existing slope stability conditions on the site. And our conclusions were that the existing slopes on the site are stable. However, it goes on to say, "previous cutting and filling on the slope adjacent to the site for construction of 44th Avenue apparently resulted in landsliding We all know that, and it is our opinion and obviously Applied Geotechnologies opinion that this was done by inappropriate design and construction practices. Accordingly, the report continues, "we judge there is a high potential for future slope instability both during and after site development if cuts and fills are not properly constructed I don't believe that this report is telling us anything that we as professional, responsible geotechnical engineers would not provide for on any project, not just this project, on any project. It is our professional responsibility to recognize conditions that are inherent on the site, realize which of those conditions could give us potential problems, and provide for those conditions. And this is what I believe we have done. In our December 1992 report we provided for procedures for appropriate cutting, filling, and sub surface drainage. There are recommendations in Applied Geotechnologies report regarding other certain site specific measures, site specific studies that need to be incorporated into future design and future construction procedures. Most of those recommendations had already been incorporated in our December 1992 report. In our 1992 report the one exception is their recommendation that additional detailed slope stability analyses be conducted. We did not believe those were necessary. Based on our interpretation of the soil conditions on the site, we felt the slope conditions were stable now and would remain stable in the future provided proper design and construction practices were followed. I indicated that in a memorandum of -my memorandum dated June 23 in which I explained why I believed additional analyses were not necessary. I went over the slope inclinations. I went over the soil conditions. However, I also indicated that if absolutely necessary, we would perform these analyses and we would perform these in accordance with currently accepted geotechnical engineering procedures. Lawrence: I hate to interrupt you, but our meeting comes to an end at 11 o'clock unless we have a formal motion to extend. And we need to have a motion at this time. Robertson: I move that we extend the meeting for 30 minutes -not to exceed 30 minutes. Lawrence: Is there a second for that? Simpson: Second. Lawrence: All those in favor of extending the meeting not to exceed 30 minutes say "Aye" (unanimous response); Those opposed: (none) Motion passes. Butail: I was talking about stability analyses. We will conduct appropriate stability analyses when needed. And the question is when are they needed and are they appropriate. I could conduct all kinds of analyses today, but we do not have a final project configuration. And without a final project configuration, without a final grading plan, without knowing precisely what cuts and what fills are going to be made at what points on the property, any analyses I do today would be meaningless, because those results could change (very quickly. There was a question about what defines "stable In our geotechnical engineering profession, stability is defined by a safety factor. A safety factor, to simplify the definition, is the ratio between forces that tend to cause movement and the forces that tend to resist that movement. And basically, it's a ratio of the pushing forces against the strength of the soil. The safety factor, as considered 42 acceptable by our profession as a whole, is 1.5. If a slope is found to have a safety factor greater than 1.5, la slope is considered stable. And in my opinion, all of the slopes on the site that are within the area that is to be developed, will have safety factors -do have safety factors greater than 1.5 at this time and after construction will continue to have safety factors of 1.5, again, provided all of my recommendations are incorporated into the design and into the construction. And I will work with the engineers and the designers on this project to make sure that happens. There were questions about stabilizing the roadway at one time. The question that was asked to me -is it o.k. to open the roadway as it is now? Has the roadway quit moving? And my response was, no, it is not safe to open the roadway for public use. I was also asked, is it feasible to stabilize the roadway? And I said, yes, but at what cost and at what environment impact. And I was asked what was the cheapest way to do it? And I said, the cheapest way to do it is fill the ravine and you will stabilize the roadway. At that point I was told that that is not a consideration. We cannot thing about doing that. There have been several comments numerous comments- -about springs. And I believe I gave some definition of what springs are and how they developed in my testimony last week. And I don't believe I need to repeat it again. We are responsible professionals. We report data as we see it. We dug numerous test holes on the property both in summer and in winter. Not a single one of our test holes in the building areas found any evidence of water seeping into the test holes. What do we learn from that? What we learn from that is soil conditions on the site are such that they are not conducive to large scale development of springs. We do not learn that springs are never going to occur on this property. No, sir. That is most certainly not a conclusion of our study. The conclusion is that in general if there are springs, and there certainly may be when construction starts, that they will be relatively minor and they can be easily controlled. In the past we have made recommendations for dealing with these springs in our reports and on other projects. And we will make observations during construction and provide recommendations to deal with these springs in what we believe is an appropriate engineering manner. There was -I believe there's one final comment I'd like to address and that was a comment by the civil engineering peer review consultant, Hammond- Collier. The `comment pertained to restricting construction to dry weather only. I had the same comment asked to me by the owner of the project, and I said -my response was -it most certainly- -the project will most certainly go easier if construction is restricted to dry weather; however, if you are willing to put more money into importing more materials, all weather types, all materials for fill, there's no reason you can't do this in winter. Obviously, it will be more economical to do this project in summer, but my opinion, again, as a professional is that provided appropriate construction practices are followed, this project can be built any time during the year. And I think I've answered all the comments that there were, but if I've missed any, I'd be happy to answer them. Lawrence: Thank you. Any questions from anyone? (no response) Alright, thank you very much. Is there anyone else who would like to testify for the applicants in rebuttal? (no response). Due to the late hour, I think it would be more appropriate to get a proper decision to extend this process until November 1st at our Regular meeting, and I would like to request at this time, if there are any of the parties who are involved in this who would have an objection to extending this to that date. We'll place it early on the agenda and we'll try to come up with our findings and conclusions during discussion at that time. Mrs. Lamb? Nancy Lamb: It would be very helpful to us if we could know a little bit more in detail what the procedures might be at that time. Are we going to be able to go to 10 minutes a piece, or is there going to be 15 minutes? It would be helpful for preparation so we can keep it as concise as we can. Lawrence: My understanding is that this is the end of public testimony this evening. Lamb: I believe there's a final comment period. Cohen: I think everyone was anticipating that there would be a comment period. Lawrence: That's correct. It's optional if you wish to have concluding statements. Nancy Lamb: Yes, we do. Do you? Kosterlitz: We should do those tonight. Lawrence: We have 20 minutes left of this meeting that we've allotted for. If we stick to the 10 minute format, we can bring in concluding statements from each party within that 20 minutes. Lamb: But essentially, there are three parties. Or is it our party versus both their parties. Scarber: We can split. Robertson: Steve, can I make a proposal? Lawrence: How about if we see which parties first want to have concluding statements if we did it tonight. I realize you may change your minds if we're extending. (Addressing audience) You would want to? Representing? Nancy Lamb: Well, I would like to confer. May we confer? Lawrence: Sure. Does staff wish to have any concluding statements if we did it tonight? Kosterlitz: We'd be happy to split our time. Lawrence: So you feel that 5 minutes, 5 minutes, etc. O.k. Mrs. Lamb, if the appellants can get in their conclusions in 10 minutes total, I think we'll have adequate time without a further extension. Lamb: We should be able to do that. I'm not very good off the cuff. I'm way better.... Lawrence: O.K., before we start, I want to make sure we have agreement here. Is it O.K. with you guys if we just go ahead and do conclusions now since I think everybody came prepared for conclusions this evening. It was optional. Duffle: Fine with me if that's what they want to do. As long as both parties agree, that's good. Lawrence: I think they've got agreement as to time out there. Duffle: Fine. We hold it to 10 minutes. At 23:30 we're out. Robertson: I'm tired. Lawrence: Well, I am too. Let's all perk up here and listen well. Duffle: O.K., I think we'd better go with it. We're burning time. Conclusions: 43 1 Nancy Lamb (Appellant)_ There was a lot of information which I personally felt I wanted to respond to and I'm sorry if I'm not going to be able to include my other compatriots' comments. And this is going to be in no particular order either. I noted in the argument that -the three part argument- -that some SEPA and some City regulations were violated, and the excuse me, I am at a loss because I'm not prepared to do this quite so quickly. I'm not polished and don't have several years of legal training. Anyway, my contention is that the proposal shall not be acted upon, and my interpretation of 19711784 proposal included that a proposal might be a number of different types of actions such as could include action by a body such as the Planning Commission. The argument has been put forth that the City process is one, the SEPA process is one, and then the application going through the Planning Commission is another. And that portion of it was the one that was acted on, so I'm saying they're two different things. I also noticed 44 with a certain degree of chuckle in here that the attorney has said that the public has had significant input in the meetings -the public meetings that were held down at the community center. I would guess that the public input was less than 25 percent of the time and was certainly less than 50 percent of the time. And also she stated that significant residents were notified two years ago. I believe the only residents who were made aware of this two years ago were Ron and myself. Also, Mr. Tietze uses the term "significant input" and I believe he's the engineer of record for a number of issues here. They've used significant in cases where less than 50 percent of the actions or the procedures or whatever were applying to the case, so I wonder if significant impact could also hold that argument. There was an argument that hawks aren't protected and so forth. The issue was that they were left off the list that was circulated to the agencies, and therefore, some vital information withheld. That material might have been quite pertinent to some of those agencies. Also, in my testimony I stated that the Department of Wildlife had been notified and that Fisheries had not. When I talked to the Department of Wildlife, they told me they were a separate agency, that at some point in the future the two agencies would be joined but they weren't now. When I talked with the Department of Ecology, they said that there definitely must be two in order to comply with that SEPA regulation. One for Fisheries, one for Wildlife. And the Department of Fisheries, in particular, Mr. Roble stated that the two needed to be received, one by each. Perhaps there has been some contact with him in the past, but he specifically said that he had not reviewed an MDNS on this and it had only been -it had not been logged anywhere in their department whatsoever. And they're the only department that actually will review such cases and that he hasn't reviewed any cases, any MDNS's for 9 months because he has such a pile on his desk. Anyway, we have a whole number of arguments here that we would love to refute, but on top of all the preceding ones, we find that something has popped up that must have been under our noses all the time. It was a plain, simple revelation. It had to wait for our discovery in the course of this long unpleasant hearing and it was revealed by citizens who until lately had not been allowed to actively participate in this massive project because there was not an EIS process. We were not invited to participate earlier, but we could have. It has been stated that the developer spent more money on this than on any other similar undertaking. The Planning Department has spent month after month working on the complex for the Foster View proposal. But none of these experts had put the pieces together accurately, and they lost their perspective in hastening to get this 41 home development off the ground. Only the neighbors have had a sense of the right perspective. For the most part, our greatest concern has been over the density of 41 homes on this particular site. The density has been the primary flaw of this proposal and basic facts, which we have brought to light about the slopes, will shatter it. SAO 18.06.695 states (quote) "Sensitive Areas means wetlands, watercourses, areas of potential geologic instability other than Class I areas SAO 18.45.020.(e) Areas of potential geologic activity establishes Class II, III, and possibly IV because in its present state, there's little, if any, land little, if any, land -that has less than 15 percent slope as originally described by Terra Associates all the way back in 1990 and as you can see on the drawings. SAO 18.46.070.(d) Density Transfer, Section 5, mandates (quote) "Development of transferred density shall be confined to buildable areas of the site and shall not intrude on the sensitive areas or their buffers." The regulation does not say sensitive area tracts. In other words, if density transfer is to be allowed it shall only apply if a density overlay, if you will, for development does not intrude on wetlands, watercourses, or areas of potential geologic stability, namely slopes of grade II, III, or IV. Density transfer apparently cannot be allowed in any significant percentage of Foster View, and therefore, virtually all lots will have to be 7200 square feet. It is clear that the PRD is still in effect for Foster View, however. How can such an oversight have cost us all so much time and worry? How can experts not fit the pieces together? Furthermore, this means the entire proposal, or at least the MDNS statement, has been filed with the Department of Ecology and other agencies of jurisdiction containing inaccurate, misleading, and /or incomplete information from both the SEPA agent and the applicant. And it's perfectly clear that under WAC 197 -11 -340, Section 3a, the lead agencies shall withdraw a DNS that was procured through the misrepresentation or lack of material disclosure. There was lack of material disclosure in their original application, or excuse me, in their second environmental checklist. I think I asked before if that could be distributed as part of the evidence. I don't know that it's been included in any of your materials, but I'd invite you to take a look at it. Thank you. Lawrence: Thank you. O. K., the applicants? Or staff. I guess staff is up first. O.K., you'll have five minutes. (someone from audience speaks, Lawrence responds) Oh, I though you guys had all conferred. (response from audience) You had not. You're a separate applicant and you wish to have a separate 45 conclusion? O.K. Separate appeal, I mean. We will have to allow 10 minutes each over here then and extend the meeting. Scarber (Appellant)_ I'll try and be real brief. In conclusion we would like to know why some key points we raised were not answered. One of those was regarding the playground and where the children would play in the development. Another one was about the test holes that were done along 43rd Avenue on property that the developer does not own. Another one is the 16 -18 feet along 44th Avenue that is shown in red on Exhibit 2 that the developer is contending he is going to give to the City because the 44th in that area is not wide enough when it is 60 foot wide. It's been -lots of questions have been asked about the informational meetings as was the public able to ask questions and that. There were able to ask questions, but the time ran out and not everyone got to ask their questions. The first meeting was not three hours long, but I can't tell you without checking if it was two hours like I quoted. Rick Beeler has talked about collective wisdom, that he has used collective wisdom from staff and the developer for his decisions. Why didn't he use our collective wisdom as the public, also. And my final remark is the remark -the statement about Hobson's choice. What that is, is part of it is an apparent choice in which there is no real freedom to choose. Thank you. Lawrence: Thank you very much. Mr. Beeler, are you presenting then for staff in conclusions. Beeler: Yes Lawrence: O.K. Rick Beeler (Staff): I'm going to try to stay within the original 5 minutes allotted to me. We have repeat of several of the arguments made earlier. And on the first things that's very obvious and causes me some discomfort as well as staff to the City, is that on an appeal, whether it's an appeal of a planning commission's decision to you, or an appeal of an applicant's decision to a board of adjustment or to the planning commission, or to yourselves as may be the case, is I'm bound to defend what that decision was. And in this case I happen to be making the decision, and I'm bound to defend my decisions. And this creates an adversarial process. And that's the way SEPA did in its requirements. And it's not a comfortable one to be in and I know some of you have been in this process on one side of the fence and now you're on the other. I think Councilman Robertson has, so he understands the agony on both sides and what that means. And it certainly does appear in this case if the applicant has been appealing the decision and the community had been appealing the decision, then we would have been appeared to be the double- teamed party. And I understand the frustrations that the community has. I think also they're to be commended on the amount of material they presented in the short time that they've had to present this. Our goal in doing the community meetings was to get to launch them into -with some information so they can get keyed up and as much information as we could possibly make available to them in anticipation of the Planning Commission's process and as well as the process here. We were not required to do that. But we felt obligated to do that because of this proposal and what we knew about it at that time in terms of its sensitivity in the community. But clearly we required, as a minimal we -the normal thing of doing a notice in the newspaper, we decided to do much more than that. And that the law required us, said you could do that, we chose mailing, we chose the community meetings. Obviously, we were constrained by time. We had three of them. But I think that the process, the overall goal of SEPA was better served by this. We got more information out; we got direct dialogue with people and that helped us a lot. I hope that the community does not feel that their input was minimized. In many cases -in most cases -it was always considered and resulted in some of the modifications to the MDNS and they're to be commended for that. The proposal that's before us is the underlying actions being processed by the Planning Commission, the PRD, subdivision, and other parts of this. And the action, the final action, rests with you as indicated before. So that's when the action per SEPA is to occur. It's not my action; it's not 'the Planning Commission's action. It's yours on the final disposition of this project. Notice again was by SEPA and we exceeded that. If the state agencies were to comment on what we had -my understanding I on the wildlife issue, if they were to comment, they're constrained by their regulations and rules that they've promulgated either through the WAC's or whatever about what is on their list for special conditions, special as endangered or threatened, and that's what they would use. But again, our collective 46 �n experience is that we haven't seen the nesting or the rearing of those species on this site and, so therefore, we felt confident that we could proceed with the MDNS. I understand Joe Roble's backlog. Nine months, that concerns me a little bit, and it's frustrated us oftentimes, and that has led us to, on many occasions, to bring Joe Roble out here -to get him out here. Maybe that -he prefers I think to handle things in the field. But even though he wanted nine -in takes nine months to get around the things, SEPA by law requires him to do that in 15 days. So even if we'd given him notice, it's doubtful that he would have responded in a timely manner. Simpson: I though you said you'd brought him on site. Beeler: We brought him on site early, but I said if we had mailed him -if he had -he says that he didn't get a direct copy put in his hands. And I don't understand that bureaucracy of theirs very well, but if he had- I'm sorry, O.K., -he meant when he met with staff and they discussed -and the applicant discussed the proposal, that even if he had gotten a copy of the checklist, it would have gone on into his in box and maybe he would have responded in 9 months, but he had by law only 15 days. That's the only reason I mentioned it. Did we lose perspective? I don't think we did. In fact, I'm firmly convinced of it. Our perspective is evident. In our peer review, we didn't take the applicant's consultants at their word for this because we knew the sensitivity of the site so we required the peer review. I think that's very evident of what our intent was and what we were trying to do. The bottom line is has the evidence you've been given tonight by the appellant led you to a clear conviction that a mistake was made when I did that MDNS. And I think that the evidence that you have tonight indicates that there's not a firm, clear presentation of facts presented to you that would indicate that I did do that, and therefore, that the appeal must be denied. Lawrence: Thank you. Robertson: Steve, I make a motion that we extend the meeting not to exceed 10 minutes. Ekbergj Second Lawrence: Moved and seconded to extend the meeting for another 10 minutes. Any discussion? (no response). All those in favor say aye. (unanimous response) Those opposed: (no response). O.K., it passes. Applicant, do you wish to have a final conclusion please? Amv Kosterlitz (Applicant)_ We do. I'll try and be brief here. You've heard the presentations of both sides and had an opportunity to review the evidence. We believe that a consideration of the evidence and the extent of your SEPA authority will lead you to conclude that the MDNS meets all of the requirements of SEPA and must be upheld. In reviewing the MDNS you must keep in mind that your decision is constrained by SEPA. The impacts must be documented and documents prepared pursuant to SEPA. The mitigation must be based upon your adopted SEPA policies and substantial deference must be given to the decision of your Responsible Official. There has been no credible documented evidence put forth in this appeal to demonstrate that there are any impacts which have not been appropriately mitigated through the MDNS. There's been a charge of a lack of material disclosure in the checklist. A SEPA checklist is not required to deal with every remote and speculative impact. There's been no evidence whatsoever that any material disclosure has not been made. In fact, the evidence demonstrates that your SEPA official did a very thorough job of having detailed expert studies prepared in every area of legitimate impact, concern and SEPA authority and in two key areas peer review of those studies. Further, your SEPA official used all the available SEPA authority to impose mitigation which either limited the impacts or used state of the art technological methods to reduce that impact to an acceptable (level as allowed under the definition of mitigation in SEPA. I might note here that in this regard the standards which the City has not adopted. However, in this case the applicant has agreed to mitigation above and beyond what your ordinances would allow and is not challenging that. It is not enough to deny a decision -or to reject an MDNS that the appellant's would like this area to be preserved as a park or Robertson: I move that we continue the appeal process to November 1st. Duffie: Second END OF VERBATIM TRANSCRIPT 47 'some of them do not like the density of this development. You have no SEPA policies that allow you to reduce the density of this development except is there's a legitimate impact basis which has not been shown here. There needs to be some credible evidence to overcome the opinion of experts that the impacts have been adequately addressed. The case law, for example the recent case of Levine vs. Jefferson County, showed that there needs to be a strict basis for imposition of additional mitigating conditions or these will be struck down by the court. In that case, a jurisdiction heard a lot of public testimony and was concerned about the political implications of a project, imposed a bunch of additional mitigation measures, and had no basis for them relying on SEPA, and the court struck down those additional mitigating measures. For all of these reasons, we ask you to follow the requirements of SEPA and uphold the MDNS. There will be an opportunity to review the PRD and subdivision issues at a later date. Thank you very much. Lawrence: O.K., at this time I need to ask them if they have any objections to extension. Robertson: I think you've already them that. Lawrence: I asked but I'm going to ask again and make absolutely certain. Is there anyone, any party to this who objects to us extending this process for another two weeks to November 1st? At that time we'll debate our findings and conclusions. Lawrence: It's been moved and seconded to extend the appeal process to November 1st. Is there any discussion? The first is a Monday, unless that's a holiday. Robertson: O.K., that's due to the lateness of the hour and the need obviously for time for Council discussion. Lawrence: O.K., all those Cohen: If you want to clarify that you're actually closing the public hearing, that you've received all evidence. Lawrence: So it's not part of it. Well this is O.K. Cohen: The deliberations. Lawrence: I'll close the public hearing and then I'll call for the questions. Cohen: Actually, it's a hearing. It's not actually a public hearing. I mis- spoke. Lawrence: That's what I was wondering, but -never mind It's been moved and seconded to extend our discussions and the process of this appeal to November 1st. All those in favor say aye: (unanimous response); any opposed: (no response). O.K., it passes. Robertson: I'm assuming it's still quasi-judicial. We cannot discuss it with anybody other than the city attorney. Is that correct on legal points. Lawrence: Absolutely. Only on process issues or legal points. /3 7