HomeMy WebLinkAboutPlanning 2019-04-11 Item 4 - Comments Letter - Critical Areas Code UpdateTo:
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RE: Planning CommidonComments
From: donaNscanlon<dsDs or��
Sent: Wednesday, April 10,ZO19Z:57PKA
To: Tukwila City Clerk 0Subject: Planning Commision Comments
I plan to attend the planning commission meeting Thursday night. In case I can't make it please enter these comments,
Myconcern kswith the deletion ofitem 8under section 18.45.11O.This states culverts shall beupgraded when being re-
developed orvvhennewdeve|opmentoccuro./don'tneeanything|ikethisinthonemeectnn18.45.110.Thenewd[aftis
only focused on piping streams. |tdoesn't address when and vvheva streams should be opened up or improved. | would
like hnsee the old item eight be retained.
Don Scanlon
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CIIECT�
1
52, 2nd Ave_ 500
WA 9810rnssc
April 10, 2019
VIA HAND DELIVERY
office 206%387.0700
rax 206.587.2308
City of Tukwila Planning Commission
City of Tukwila
6300 Southcenter Blvd., #100
Tukwila, WA 98188
Re: Comments on Proposed Critical Areas Code Update L18-0056
Dear Planning Commissioners:
This firm represents Segale Properties LLC ("Segale"). As you are likely aware, Segale controls the
large Tukwila South property, abutting the Green River. In 2009, Segale and the City entered into a long-
term Development Agreement governing the future building on the Tukwila South property. After years of
construction to install all necessary infrastructure and re -grade the property for development, the Tukwila
South lands are finally ready to be marketed and are being actively reviewed for ground lease and/or sale for
commercial and residential buildings and development.
In addition to the Development Agreement, on June 8, 2009, the City Council approved the entire
Tukwila South property as a Sensitive Area Master Plan Overlay District. Segale implemented a Sensitive
Areas Master Plan ("SAMP") that addressed the entire 512-acre Tukwila South site, authorizing alterations
and mitigation of sensitive areas, in a comprehensive plan that overall improved water quality, fish and
wildlife habitat and hydrology beyond what would have occurred through the strict application of the
provisions of the Sensitive Areas Ordinance. The SAMP assured protection of the Tukwila South lands'
sensitive areas arid buffers by locating them in Native Growth Protection Areas ("NGPAs"), and SAMP
Condition 18 required that the NGPA protections be assured via recorded instruments on the real property
title. Tukwila South also is in the process of being subdivided with final plats being recorded on a phased
basis, and each final plat locates NGPA areas in a protected tract.
The NGPAs are mapped on Exhibit 3 to the Development Agreement. Exhibit 3 plainly labels the
NGPAs as "Non -Development areas," in contrast to the remainder of the Tukwila South lands which are
the "Development Areas," and Section 3.2 of the Development Agreement authorizes 100% of the
Development Areas to be cleared and graded, and up to 85% of the Development Areas served by each
stormwater facility to be covered with impervious surfaces. Likewise, Section 5.1 of the Development
ruogets@ccrirncr6.F.s.con
direcl: (206) 254-4417
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City of Tukwila Planning Commission
April 10, 2019
Page 2
Agreement confirms protection of the NGPAs. The Development Agreement also vested the build out of
the Tukwila South project to the 2009 Tukwila Municipal Code, including all of Title 18, which included the
City's Sensitive Areas Ordinance,
What this means is that during the term of the Development Agreement the City's proposed
amendment to the Critical Areas Code will not apply to the Tukwila South lands. In addition, the SAMP
is a standalone approval that has no term, and the recorded and set boundaries for protected NGPA
versus developable lands will continue to apply even after the Development Agreement term expires.
Nonetheless, Segale is keenly interested in the Critical Areas Ordinance ("CAO") update, as well as the CAO
interplay with the also pending SMP updates. Below, we provided comments on the CAO update.
We ask that you carefully review the following provisions of the CAO update, respond to our
questions, and we recommend that you include our requested revisions.
1 Assurance that created and enhanced miti ation areas are not penalized with new larger
buffers.
The SAMP for Tukwila South lands authorized the construction of a significant new off -channel
habitat area in the Green River, including the creation of new wetland areas, and the rehabilitation and
enhancement of other existing wetlands. Those areas and their associated buffers are protected by NGPAs.
Segale seeks clear assurance from the City that the NGPA boundaries applied to these newly created
mitigation areas will not be later expanded due to increases in the CAO regulatory buffer widths. We believe
that is the City's intent, we believe the SAMP precludes the City from expanding those buffers but it is not
clearly stated in the new CAO update that increased buffer widths will not be imposed on those previously
set NGPAs. One option to provide this clarification would be to add a subsection to SMC 18.45.160,
Critical Area Master Plan Overlay, to read: "The boundaries of critical areas and associated buffers, which
critical areas were created or enhanced pursuant to an approved Critical Area Master Plan or Sensitive Area
Master Plan are not subject to expansion due to the later adoption of increased buffer widths into this Critical
Areas Ordinance, the Shoreline Overlay regulations or any updates thereto."
2. 18,45 190. Time Limitation. Anneals and Vesting
Because of the SAMP overlay, and the implemented SAMP actions and mitigation, the City's
addition of a vesting regulation to the new CAO is not relevant to Tukwila South. However, as a matter
of public policy, we reviewed the proposed language. The addition of the vesting regulation at TMC
18.45.190.0 is characterized in the Summary of Key Revisions as merely a "housekeeping" amendment.
With a few clarifying revisions, we would agree. However, without these revisions, this regulation
might be read as a sea change in vesting doctrine that could severely punish landowners in the City of
Tukwila.
By way of background, it is important to recognize that subdivisions, binding site plans, and
similar development proposals are designed to create lots and development sites for future buildings. It
is at the preliminary subdivision and site plan stage of permit review, that critical area impacts are
03707 1 02.DOCX; 1 }
City of Tukwila Planning Commission
April 10, 2019
Page 3
assessed and evaluated, and sensitive areas are generally set aside in protected tracts. In fact, TMC
18.45.170, Critical Areas Tracts and Easements, requires that critical areas on a development site be
protected in a tract or easement that must remain undeveloped in perpetuity. Importantly, applications
for building permits cannot be made until after a subdivision or binding site plan is approved, because
under RCW 19.27 095(2)(a), one cannot apply for a building permit without a legal parcel. This means
that one cannot file and vest a building permit application for a new home or commercial building in a
new subdivision, until after the final plat has been recorded. It is also generally the case that buildings
in a subdivision are not all constructed immediately or all at once, but rather over the course of at least
five years.
As drafted, it is not clear that the new vesting provision assures a landowner who applies for and
designs a preliminary plat to protect critical areas in tracts, can apply for later building permits relying
on those tract boundaries. This is a problem because a new, larger buffer width could easily eliminate
the building area on one or more of the new lots and destroy the landowner's investment value. We
recommend the City amend the vesting policy to clarify that future building permits in a subdivision or
binding site plan are vested to the critical area provisions in effect at the time of application for the
preliminary subdivision or preliminary binding site plan was made, and that vesting remains in effect for
a period of five years following the recording of the final plat or final binding site plan. Suggested
revisions to TMC 18.45.190.0 are:
C. Vesting: Projects are vested to the critical area ordinance in effect at the time a
complete building permit is submitted except for short plats, subdivisions, binding site
plans, and shoreline permits. Short plats or subdivisions or binding siteplans are vested
to the critical area ordinance in effect at the time complete application is submitted for
preliminary plats or for the binding site plan. The final plat final site planand all future
building permits on the lots remain vested to that same critical areas ordinance in effect
for the preliminary plat or preliminary bindin site plan application, so long as building
permits are applied for within five years of the final plat or site plan approval. For short
plats and subdivisions which received preliminary plat approval prior to the adoption of
this ordinance, building permits on the lots shall be considered under the critical areas
ordinance in effect on the date of the preliminary plat : : . application provided
complete building or construction permits are submitted within one five years of the final
plat approval. Vesting provision for shoreline permits are provided in TMC 18,44.
Again, while this vesting regulation does not affect Segale's Tukwila South lands, we highly
recommend these clarifying amendments to ensure protection of Tukwila landowners.
(03707102.DOCX;1
City of Tukwila Planning Commission
April 10, 2019
Page 4
We appreciate your attention to this matter and would be happy to answer any questions.
Very truly yours,
Nancy BainbridgeRogers
NBR:jcs
cc: Ann Marie Soto
Minnie Dhaliwhal
Mark Segale
Mike Pruett
{03707102.DOCX;1
Minnie Dha|kma|
RE: Tukwila's Critical Areas Code amendments, Chapter 18.45, Public Notice
From: Minnie Dha|kwa/<MinnieDha/kma/@TukmitaVVA.Xov>
Sent: Thursday, April 11,J0193:44PK4
To: VVynettaBivens<VVynetta.8kens@TukmUaVVA.gov>
Cc: Jack Pace <Jack.Pace @Tukwi|aVVA.gov>
Subject: Fw: Tukwila's Critical Areas Code amendments, Chapter 18.45, Public Notice
From: Karen Walter <KWalteNDnmckkesh�t�mus>
=-
Sent: Wednesday, April 1U,ZO198:17AK4
To:Chtica|Areas
Subject: FW: Tukwila's Critical Areas Code amendments, Chapter 18.45, Public Notice
Kar2nW/��er
Muckleshoot'Indian Tribe nsherlesoIvision
*ubitorpmgom
3e015-417211dAw,ss
4vbum, mwsxoez
253'87(5'3116
From: Karen Walter
Sent: Tuesday, April 09/2019 12:29 PM
To: '[,[itiC8!8[88@TUkVVil8WA.gOV'
Cc; 'Minnie [)h8liVV8[
Subject: TUkmi|G'sCritical Areas Code amendments, Chapter 18.45.Public Notice
To Tukwila staff,
^
We have reviewed the propose amendments to the City of Tukwila's Critical Areas Code and have I
ouestions/comnrnun+�a�nn�p�'
`-_--__--'-'-_
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_ Watercourse designation/classification ~_, ~~~
Currently, there is nothing in the City's code to require that watercourses be classified using current
information and field data like there isfor wetlands. The City should amend the code torequire that all
available information be used along with field data toverify watercourse classification. This is an important
r�
issue, particularly for streams that have artificial barriers on them as they will likely be considered non-
fishbearing due to a lack of fish presence. Instead they should beevaluated for fish habitat potential using the
WAC 222-16-031 (which is cited in the code already but not as an explicit method).
We saw this incorrect classification for the various tributaries to Gilliam Creek that drain through the south
side of SR 518 and Klickitat Drive back in 2007 when we did the correct assessment and showed that most of
the streams in the project area met the physical criteria from \A/A[I2Z'l6'O3lfor Type F waters but were
blocked in part bybarriers culverts nnSIR S18. We provide this information tothe City ofTukwila in the
course ofthat project. |fanother copy isneeded, please let nneknow.
The City also needs to have regular updates to its critical areas maps for watercourses to include more recent
field data and after barrier culverts are removed, like those on SIR 518 and 1-405 should be per the Federal
Court injunction nyquiremoents under U.S.vWashington.
The City should be aware that WDFW is updating the State barrier data frequently and their map should be
consulted as part of critical areas reports as WDFW will have already assessed upstream areas on particular
streams to determine if physical criteria under WAC 222-16-031 for presumed fish habitat is met. The
interactive map can be found at https://.Reodataservices.wdfw.wa.gov/hp`/fishpassage/index.html
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Please note that some of the data on this map is not shown on the PHS or Salmonscape maps so it is another
tool that should be consulted regarding barriers, stream hydrography, and potential fish habitat.
watercourses should include those necessary to improve water temperatures
as desc i -, ed under any state/federal water quality improvement plans such as Total Maximum Daily Load
The City should allow in limited cases the opportunity for applicants to pay into an In Lieu fund to ensure that
projects are fully mitigated for additional piping or culvert work and for those instances when an applicant is
daylighting stream sections but cannot provide fully regulatory compliant stream buffers. An option to pay
irito an In Lieu should help ensure that there is no net loss of important stream functions such as shading and
'i6ture wood recruitment that might otherwise be lost if no mitigation is required.
2
\A/eappreciate the opportunity toreview these code amendments. Ifyou have any questions, please let rne
know.
Thankyou!
Karen Walter
Watersheds and Land Use Team Leader
xxvckleshmtIndian Tribe Fisheries Division
Habitat Program
39015*zrzndAve SE
Auburn, Nm98092
253'876'3116
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3
Comments to City of Tukwila Critical Area code update
Submitted at Public eeting on April 11, 2019, City of Tukwila
by Ion Manea, owner of 13407 48th Av S, Tukwila, WA., 98168 property
Re: Critical Areas
The proposed TMC 18.45.100 E replace "sensitive area" with "critical area".
However there is no definition of "critical area" in the TMC.
Please update definition accordingly.
APR 1 1 2019
(CITY or,
, u K
CITY CLTIIIRK
Re: Critical Area Map TMC 18.45.30 G. 1.
The current TMC 18.45.30 G. 4 states:
" Regardless of whether a sensitive area is shown on the sensitive areas map, the actual
presence or absence of the features defined in the code as sensitive areas shall govern. The
Director may require the applicant to submit technical information to indicate whether sensitive
areas actually exist on or adjacent to the applicant's site, based on the definitions of sensitive
areas in this code."
The proposed code change eliminates TMC 18.45. G. 1. provision and the following is inserted
in TMC 18.45.30. G 1:
"Not all critical area are shown on the map, it is the applicant responsibility to verify actual
presence or absence of critical area or critical area buffer based on the definition of this code."
There is no mechanism to require correct errors or make updates if circumstances change.
Please include a provision that if the actual presence or absence of critical area is
verified, that finding shall govern and shall be incorporated in all revisions, updates and
reprinting of sensitive areas maps, inventories, ratings and buffers.
Re: Watercourse buffers TMC 18.45.100 E
Pursuant to RCW 36.70A.172 in designating and protecting critical areas counties and cities
shall include the best available science (BAS) in developing policies and development
regulations to protect the functions and values of critical areas.
An update to TMC 18.45 is proposed based on planning department work augmented by public
inputs.
Substantial assistance was provided by BAS review and gap analysis report (Report)
prepared by The Water Shed Company (Consultant).
Although the BAS presented in the report or its references are not specific on watercourse
buffer reductions, the Consultant is recommending:
....reductions of up to 25 percent with enhancement are likely to provide adequate protection for
most small stream channels...
and
, for consistency with the wetland regulations, the City may consider utilizing buffer averagin
only
�� (�u�ertTK8(� 18.45.100.E currently ��a buffer reduction by up to 5O96vv�h buffer
enhancement.ThepropoaedTK�(�18.45bufferreduotionnequirennarnovvestbufferwidthno|eoathan7596of
standard bu�er.gannetotal area aorequired bu�erand additional regulatory and �nanoio|
burdens (repo�a.aequendng.vegetation nnanagennent.financial guananteea).
The propooedTK8<� 1O.45update introduce an''interrupted buffer xveive�that o||ovvaexisting
nonconforming structures to be remodeled, reconstructed or replaced with buffer enhancement,
by limited expansion v8�iCa||yO[laterally O[byenclosing existing footprint providing that itis
outside ofthe 75Y6ofthe exisdn0bu�ar.
The cumantTK8{}1O.45viUoUovvapropedvovvnert000n�for abuffer reduction pennbto
develop 5O96ofthe existing buf��rvv�hout�nanoio|burden unnecessary add�iona|regulatory
compliance and �nancia|hardship and nosize |innitationo.
The Ecology regulatory vvmterooureebuffer �annevvorkhas been developed tofor large
acreage onforested and non urban areas vvhene@1O0tbuffer has nnpractical innpactfor the
use of the property.
By the oontnary, in o highly urbanized area like Tukwila, the parcels are of small size, and
some buf��reextend over the whole pnope�v. Under the ou�entcode, watercourse buffer
waivers
and requires enhancement of wildlife habitat. Under the proposed 7596 width and total area
conditions the deve|op[DeDii8innp0SSib|8and for all praoUC8|purposes that vvi||baap[Ope�y
confiscation vvithoutconnpeneaUonand nofu�herenhanoennentfor vvi|d|ifeofhunnanhabitat.
This vvil|be contrary tothe purpose mfTyN{�18'45including balance ofthe rights mf
individual property owners with the preservation of the environmentally critical areas.
The proposed reduction nvatercoursebuf��nmofupbm259�and preser*a�onmfthe total
but�»narea m/�hout including best available science and just for consistency with
Vvmt|andregulations could be construed msinnon compliance with T80��18.45.10'TyN��
18.45.20 and RiC���3G.7D/�.172 and could bethe subject mfopetition m/ithunder ;���VV
�� 3G.70.290'
It will bermmmsfair and constructive and in concordance with the purpose mfthe TyN{�
10'45tm maintain the 5096 reduction rule as is novVand no further requirements on
minimum widths or total buffer area.
Re: Ty��� 18�5.11Q �82. Alterations"4nyvv8te[COVrSeG|te�dionSh8UO[tcauae@dvenGeinnp8CttO�ah,con�OetheChanne|or�oOd
plain, or adversely affect riparian habitat (including downstream habitat)
Hovvevar.aUovveda|te�tionelike crossing and cu|ve�evviUconfine the channel nr�oodplain.
It will be more appropriate to remove "confine the channel or flood plain" text.
Re: TK8C1O.4511O.{}d
^8�eannchannel bed and bio�bratonevaternequ�8lerdb)0nthe case nfpublic drainage
rnaintenancap jents)andba�erthan(inoeeeofotherkindaofp jeote)intheohgina|a�eonn^
It implies a double standard for public drainage vs. other kinds ofprojects.
It will be more appropriate toreplace '''' system equivalent &o ''' and better tharr-'"Vxith
°.'' system equivalent to the original stream"
Them* is m new requirement stating that:
"All unavoidable impacts are fully mitigated"
The statement is confusing. The whole purpose of reasonable use exception is to address
expressly the exceptional situation in which mitigation alternatives have been exhausted.
Requiring full mitigation ofimpacts will practically exclude the use ofreasonable use exception
permitting alternative.
It will be more appropriate to exclude this provision.
There is no justification of establishing a minimum penalty of $ 1,000 per tree regardless of the
tree size and marketable value of each tree.
|twill be more appropriate that penalty to be "up to the marketable value of the tree"
established by aoertifhyd professional.
Ion Manee Date: 04]1.2019
m
Pm��m�e�1��4 8x8.Tukwila, WA..QO1O8