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HomeMy WebLinkAbout1987-02-04 Special Minutes - Valley View Estates Appeal Public Hearing (Continued)February 4, 1987 7:00 p.m. Councilman McKenna is excused from the meeting to comply with the Appearance of Fairness Doctrine. Appellant's Rebuttal TUKWILA CITY COUNCIL PUBLIC HEARING CONTINUED M I N U T E S THIS IS NOT A VERBATIM TRANSCRIPT Tukwila City Hall Council Chambers Mayor Van Dusen reopened the public hearing on the appeal of the adequacy of the EIS for the Valley View Estates Development. Both sides will be allotted the same undeter- mined amount of time for rebuttals and then each side will be allowed 15 minutes to make closing statements. Dick Goe, speaking for the appellants, said they agree the FEIS discussed and identified the significant environmental impacts and some of the mitigations. They contend that cer- tain environmental impacts were inadequately disclosed and that the mitigations to these significant environmental impacts were only casually discussed. From their appeal let- ters, the Planning Director prepared an outline of some 27 items that they identified as their concerns. They reduced their number of items to the six most important major impacts that were inadequately disclosed and /or discussed for the mitigation. They are still concerned about all 27 items. When the City gave their first presentation, they homed in on the specific issues of the engineer's concern. Mr. Goe reviewed the subject discussed by the City's consultants and explained where he felt each of their testimonies lacked information on the issues brought before them by the appellants. By dealing with one issue, they have omitted the others, and that is the point; there are items that are omitted. They will use the same format as they did in their first presentation and show Council how the issues raised were not answered. Dennis Robertson, speaking on the engineering aspects, reminded Council that they did not ask Council to take their word for the problems in this area but that the City hire a consultant. He, again, had contacted a seismology expert from the University of Washington. The professor told him it was worthwhile to be concerned about the earthquake analysis, and it would be worthwhile to hire a consultant to analyze this further. He mentioned the shallow- seated drain system and storm retention and quoted from a study done by the U.S. Geological Service. Why didn't GeoEngineers do a sensitivity study? The studies were done to derive the original safety factor. There is no indication that they ran more than one analysis on earthquakes. Mr. Robertson explained his chart on the Safety Factor and Horizontal Ground Acceleration and recorded it as Exhibit 29. His point was that Council needs to hire an independent consultant. The maintenance plan for the surface drain system was discussed. He raised this as a problem. In the EIS other systems were felt to be critical and possible mitigation was to require a prefunded maintenance monitoring and remedial fixing plant. The EIS did not mention this for the shallow drain system. This has to be mitigated. It is an important system. About land use, Mr. Robertson read a quote from the old zoning code on use regulations in the R -1 District. The EIS shows the play area in the R -1; this is illegal. The road between the two halves of the parking lot is in the R -1 area. This road is not essential for normal use of an R -1 area. TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL February 4, 1987 Page 2 _1767.5 THIS IS NOT A VERBATIM TRANSCRIPT Multi- family precedent -the EIS is incorrect; it says the area is developed. The whole area is undeveloped. This development is precedent setting. There are mitigations, usually you use buffer zones. A dense buffer around this development is a possible reasonable and appropriate mitiga- tion. This is not in the EIS. We want the EIS to provide guidance; there are mitigations that are appropriate; they are not here. Bob Crain talked about air pollution. It is their feeling that it is an unacceptable risk to the health and welfare of future residents to assume that air quality in this area is still at acceptable levels. He quoted from page 65 of the FEIS. Pollution levels are not expected to increase appre- ciably over present levels given existing traffic volumes in the vicinity of I -5 and 405. This is talking about traffic in about 5 years. In their opinion the growth in traffic makes the FEIS inadequate. Mr. Goe pointed out that the air pollution data comes from the nearest site approximately 4 miles away. This is not a reasonable disclosure of the environmental impact of pollu- tion on this site. Any mitigations discussed could not have been discussed adequately. David Morgan presented updated traffic information and com- pared it with that on page 104. The projected traffic figures are low; why are they in the EIS? Exhibit 30 updated traffic information and was presented for the record. Mr. Goe noted that when talking about pollution from vehicu- lar traffic, the numbers Mr. Morgan just presented represent considerable increases from the time the TRANSPO study was done. This makes us wonder about the formulas used by TRANSPO when they explain that in dealing with traffic flow projections, they used a percentage they considered excessive. If the freeways are clogged now, there will be more traffic through the 2 lane neighborhood streets of McMicken Heights. Mr. Goe discussed the poor conditions for pedestrians on South 160th Street. The issue was not dealt with adequately in the EIS. Dharlene West discussed the effect of noise on human health. The information is changing rapidly. She read from a letter on page 235 of the FEIS. She discussed the location of the children's play area. In the FEIS no mention is made of a safety factor that would be caused by the southwest placement of the play area. Since other mitigations are mentioned in the FEIS, it is clearly lacking in adequacy on this matter. Dick Goe pointed out that if the FEIS is inadequate, it needs further study. This is the point they have been trying to make. He called attention to items that had been presented by the Planning Director. The BAR hearings happened after publication of the FEIS. The BAR hearings are being used as proof that the FEIS is adequate. However, the FEIS must be adequate before the BAR makes a decision. It is inappro- priate for Council to consider any evidence presented by anyone that deals with anything that has happened subsequent to the publication of the FEIS. We have been told that the EIS is only a tool, a guideline, but to get the job done right, you must have an adequate EIS. They have presented their concerns about land use and air pollution, parking and transportation issues, the necessity of safe pedestrian TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL February 4, 1987 Page 3 RECESS: 8:30 -8:50 p.m. City's Rebuttal Mayor Van Dusen called the public hearing back to order. THIS IS NOT A VERBATIM TRANSCRIPT walkway along So. 160th, noise, various engineering issues, and concluded that the FEIS did not adequately disclose or adequately discuss the mitigation of the environmental impacts. Council should ask the Planning Director for the studies necessary to compile adequately the FEIS. Mr. Beeler presented Mr. Tuttle's resume to explain his qualifications, for the record Exhibit 31. Mr. Beeler commented that, in listening to the rebuttal, the issue is not so much the adequacy of the EIS; the appellants are focusing on the mitigation measures. Part of the EIS process is for reasonable alternatives to be discussed. Mitigation measures are not all inclusive so the City can make more after reasonable discussion. The EIS continues on through the permit review process. When the building permit is being reviewed, additional conditions can be imposed. Monitoring on air pollution continues, with improvements to cars; observation is that air quality is improving. The num- bers presented in the EIS on traffic counts were the ones that were available at the time. This was disclosed. The issue is what is the impact of this project on neighborhood streets. The City can impose additional mitigation measures for traffic at the building permit stage. Pedestrian safety on So. 160th was discussed. Attention was called to pages 18 and 107 and 108. The EIS does include mitigation measures. The EIS does not need to be redone; there may need to be more information generated. Another issue is that of the zoning code. Nobody is claiming that the EIS supercedes the zoning code. Staff made an admini- strative interpretation of the old zoning code, and that is what is in the EIS. Buffering is a difficult issue; the Supreme Court vested the rights of this property to the zoning it has. Landscaping and topography were considered in the EIS in several sections. The BAR review sets the stan- dards of buffering by approving or disapproving the land- scaping plans. The City depended on many experts to provide the technical information in the EIS. Staff does not have it. The GeoEngineers firm has the liability for many things, not only now, but in the future with the building permit. The EIS provides staff with the tools needed to chart the decisions from there on. It is a good, adequate document that reasonably discusses, reasonably discloses all of the impacts. Council President Morgan commented that Council has a signi- ficant role to play in its appraisal of the adequacy of the EIS. Mr. Beeler explained that the Council's responsibility under this appeal is to determine whether or not the appellants have overcome, in their arguments, the substantial weight that the W.A.C. requires you give to the Responsible Official. Mr. Beeler offered Attorney Haggard time for questioning his experts. Attorney Haggard called on Mr. Tuttle, GoeEngineers, and asked him if there were any significant impacts, based on the discussion of the last three nights, that was not discussed in the EIS. Mr. Tuttle said not within the areas he has been concerned with. TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL February 4, 1987 Page 4 RECESS: 9:55 10:07 p.m. Closing Statements THIS IS NOT A VERBATIM TRANSCRIPT Mr. Haggard questioned Mr. Tuttle about earthquakes and his evaluation of an earthquake upon structures and the hillside as a result of this development. Mr. Tuttle read into the record information from Pages C -1 and C -2 of Appendix C. He noted that there is considerable more technical data available that is not in the FEIS. The worst case analysis was included in the FEIS. Mr. Haggard asked Mr. Tuttle if he has, after reviewing the appellant's testimony, any reason to change his opinion as to whether or not the analysis contained in the FEIS is adequate. Mr. Tuttle said he has no reason to change the parameters used in the analysis. Mr. Tuttle, referring to the WSDOT drainage system, said the plan for the system was designed to replace the mass of earth that was removed to form Klickitat Drive. In conjunction with the installation of the wall, extensive drainage of the lower hydrostatic artesian aquifer was installed that was not present in 1965; thereby, further improving the stability of the hillside. Mr. Haggard called on Mr. James Mac Isaac and questioned him concerning the 1985 and 1986 traffic counts presented by the appellants. He asked Mr. Mac Isaac several questions about traffic counts and effect of the increase of traffic in the area. He asked him if there has been any information pro- vided by the appellants that would indicate that there is a significant adverse impact in the area of traffic that wasn't adequately analyzed in his report. Mr. Mac Isaac replied, no. After some discussion on W.A.C. rules, concerning mitigation measures, Mr. Beeler reminded Council that the Supreme Court vested this property in a multi family development on the location. Mr. Haggard called on Mr. Richards to answer the questions on how much the traffic must increase to result in some changes in noise level. Mr. Richards reported that if traffic volume doubles the level goes up by 3 dBA. This is a relatively small increase. Mayor Van Dusen called the Public Hearing back to order. Dennis Robertson, for the appellants, pointed out that the community desires the process to proceed quickly. They con- sulted with experts but did not bring them to testify. It is the City's responsibility to decide which expert is right. They attempted only to raise legitimate questions on whether the impacts were adequately disclosed and whether they were adequately and fully mitigated. They feel they raised a lot of mitigations that are crucial that weren't addressed fully. Mr. Robertson pointed out several areas they had previously addressed and recommended the City retain an independent con- sultant to review some of the critical areas in the EIS, such as the earthquake analysis and shallow drainage system. The City did not deal at all with the improper use of the R -1 Zone District and that the EIS is incorrect. We want to see this document legally correct. Multi- family precedents can be mitigated. They have the right to use the zoning there, however, the City regularly has required mitigations of use. It has required all kinds of buffers. We are sure we had some points worth talking about during these hearings. He again recommended the City have an independent consultant look at the analysis. TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL February 4, 1987 Page 5 THIS IS NOT A VERBATIM TRANSCRIPT Dick Goe, for the appellants, noted they had introduced 27 issues in their appeals for Council consideration. Time has only allowed them to explore 6 of them. They feel the evi- dence they have presented from their consultants holds as much weight in testimony as does that of the consultants that appeared at the hearings. He asked that Council take all of the information into consideration. Remember, it is a matter of disclosure and discussion, not one or the other. Consider what is the reality of the situation either these issues were adequately discussed and adequately disclosed in the FEIS or they were not. It is all in the FEIS as published. If they are there, vote with the Planning Director; if they are not there, choose in favor of the community and direct the Planning Director to make the additional studies that are necessary to complete an adequate FEIS. Rick Beeler, for the City, noted the disagreements offered in testimony deal with the mitigation measures. There have not been any new, significant adverse environmental impacts iden- tified. He has taken many notes the past few days and these concerns will be considered in the future decisions the City has to make. The issues that have been raised can be found in the EIS document. The disagreement is on how they are addressed and to what extent. The decision makers can use these to decide this project. The EIS does not decide the project; it is to disclose the significant environmental impacts as well as reasonable mitigation measures. They used two experts on the soils, the most significant issue relative to this development. No where have they lost sight of the shallow drain system and how it would work. The deep- seated drain system of WSDOT is definitely highlighted in the EIS. The monitoring is a very important issue and how it is going to happen. This is left for the design part of the project. Air and noise have been discussed, but the issue hasn't shown that this project is going to cause a significant increase in those pollutants and noise levels. The safety of the children has been incorporated in the EIS and the issue is not closed. The EIS is the document we work from; it is not the end. The zoning is a legal issue and will be pursued. Buffering from the single family area will be done by landscaping, existing trees, topography of the ground and the situation of the buildings. We will take what we have heard and concede the concerns of the community. The building per- mit process is still to come. Now, you will look at what our experts have provided and weigh it against the testimony of the appellant. You are sitting as though you were a judge and looking at what has been presented to you, what is fac- tual. We have presented enough facts that you can substan- tiate that the EIS is adequate; there has been a reasonable disclosure and a reasonable discussion of the impacts and mitigation measures. Joel Haggard, attorney for the applicant, referred to Pages 28 and 29 of Appendix Instrumentation and Monitoring, of the EIS and on Page 11 it indicates that all of the recommen- dations contained within the Geotechnical Report will be complied with by the project sponsor. Long term monitoring has been recommended and the applicant has agreed to do it. He cited a 1978 case decided by the State Supreme Court which indicates that SEPA is not a tool to delay a project or kill a project. The EIS is not intended to be the decision; it is to be considered in the decision making process along with other relevant materials. The EIS is to discuss significant adverse impacts, not all impacts. It is to identify the impacts that result from the proposal. He referred to Section 440 of the SEPA Guidelines. The EIS does not contain TUKWILA CITY COUNCIL PUBLIC HEARING ON VALLEY VIEW ESTATES APPEAL February 4, 1987 Page 6 THIS IS NOT A VERBATIM TRANSCRIPT detail. The decision of the Responsible Official on this EIS is given substantial weight. In his opinion it is adequate for the purposes of SEPA. It is presumed adequate until the appellants satisfy the burden of proof and show that a signi- ficant adverse impact is not discussed. There is no evidence in this record as to any significant adverse impact that was not discussed. This EIS is good unless the appellants can show that there is new information indicating a significant adverse impact not adequately analyzed within the Rule of Reason. The decision in front of Council is, is the process that led to this document reasonably adequate. If it is, Council denies the appeal and we go forward. Mayor Van Dusen said the Public Hearing will be continued to (Thursday), February 12, 1987, at 7:00 p.m. for Council deliberation. Attorney Haney cautioned Council that they may not discuss this appeal with anyone and may not discuss it with each other. Council needs to do their deliberations in an open public meeting. Councilman Bauch asked Attorney Haney to answer the following questions in writing before the Thursday night meeting: 1. Is there any reason that the staff in the consideration of future steps in the permit process could not consider the material presented over the last three days? And a corollary to that is at the BAR -at our review at the Board of Architectural Review by the City Council -will the City Council be able to consider the record of this hearing? 2. What is the City's liability if a slide occurs after multiple real estate sales and if the property owners do not maintain the system to prevent soil movement? 3. What is the City's liability to uphill property owners if WSDOT fails to maintain its system? Using arguments such as you should have known that WSDOT would not maintain that system -any reasonable person would know that based on their record of maintaining roads," or "you should have known that the State Legislature could have changed the liability laws to relieve the State of liability in this matter," so what is the City's liability knowing that those are realities? 10:55 p.m. There being no further discussion, the meeting was continued Meeting Continued to Thursday, February 12, 1987, at 7:00 p.m. Gary/ Varl Dusen, Mayor 'Maxine Anderson, City Clerk