Toward Responsible Dev., Apps. v. City Of Black Diamond, Res. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TOWARD RESPONSIBLE
DEVELOPMENT, a Washington No. 69418-9-1
not-for-profit corporation; CYNTHIA E.
and WILLIAM B. WHEELER; ROBERT DIVISION ONE
M. EDELMAN; PETER RIMBOS;
MICHAEL E. IRRGANG; JUDITH UNPUBLISHED OPINION
CARRIER; EUGENE J. MAY; VICKI
HARP; CINDY PROCTOR; ESTATE MO
o
—j<—
OF WILLIAM C. HARP, x-
£_
52
rn '
3C* CZ'
^2»* a -,-.
Appellants, "-''.„
PO
——i -'•^. Ti;
".P"-a
c> r' i
7P?*
.Jul* Z~£ r--
CD "c"">
CITY OF BLACK DIAMOND; BD **
•--'> CJ
CO '—• "'J:
LAWSON PARTNERS LLC 050510;
BD LAWSON PARTNERS LP 001251
BD LAWSON PARTNERS LP 050510;
BD LAWSON PARTNERS LP 059999;
BD LAWSON PARTNERS LP 091251
BD PARTNERS LP 05010; BD
PARTNERS LP 821004; BD VILLAGE
PARTNERS LP 050511; DIAMOND
STAR DEVELOPMENT LLC 247647;
DIAMOND STAR DEVELOPMENT LLC
247654; FRANKLIN DEVELOPMENT
LLC 1N0763; KING COUNTY DNRP
069800; PALMER COKING COAL CO
LLP 020445; and PLUM CREEK
TIMBER 353489,
FILED: January 27, 2014
Respondents.
Grosse, J. — Applying the "rule of reason," a Hearing Examiner properly
concludes that an environmental impact statement provides a reasonably
thorough discussion of the significant aspects of a Master Planned
Development's environmental impacts when, as here, the Hearing Examiner's
findings are supported by substantial evidence. Additionally, an agency may
No. 69418-9-1/2
properly rely on the use of phased review to defer further analysis of adverse
environmental impacts until the time of construction when, as here, specific
aspects of the project that would require such analysis are not yet determined.
Accordingly, we affirm.
FACTS1
In 1996, the city of Black Diamond (City) completed its first Growth
Management Act (GMA)2 Comprehensive Plan, which included a designation for
Master Planned Developments (MPD).3 In 2005, the City adopted MPD
ordinances. These ordinances established the MPD zoning district and the
standards and MPD permit requirements for parcelsthat exceed 80 acres.4
In 2009, the City adopted a new and updated Comprehensive Plan,
designating large areas of the City for MPDs.5 The City also enacted
development regulations in a 2009 MPD ordinance, codified in chapter 18.98 of
the City code (BDMC), that were consistent with the new Comprehensive Plan
and created an MPD permit and review process for large scale development
projects.6 This ordinance served to update the procedures, requirements, and
standards relating to application for, approval of, and amendment to the
conditions attached to an MPD, and also created an MPD zoning district, set the
standards and the permit process for the review of future MPD permit
1 Citations to the Administrative Record will be listed as "AR" citations.
2Chapter 36.70A RCW.
3 Ordinance No. 599.
4 Ordinance Nos. 05-779, 05-796.
5City of Black Diamond Comprehensive Plan, June 2009 ("Plan").
6 BDMC 18.98.010(B), 030(A).
2
No. 69418-9-1/3
applications, and contained generalized policy statements.7 The City also
adopted chapter 18.08 BDMC, which provided for additional procedures for
processing permits. These ordinances were not appealed or otherwise
challenged under the GMA.
In 2009, BD Village Partners and BD Lawson Partners (collectively Yarrow
Bay) sought approval from the City to build two MPDs on land that falls within the
City's urban growth area. Yarrow Bay submitted permit applications for two MPD
projects known as "The Villages" and "Lawson Hills." The Villages project
included 1,196 acres, proposed to be developed with a maximum of 4,800 low,
medium, and high density dwelling units, and a maximum of 775,000 square feet
of retail, offices, commercial and light industrial development, schools, and
recreation and open space.8 The Lawson Hills project contemplated a maximum
of 1,250 low, medium, and high density dwelling units on 371 acres, and a
maximum of 390,000 square feet of retail, offices, commercial and light industrial
development, schools, and recreation and open space.9
As required by the State Environmental Policy Act (SEPA), chapter
43.21 C RCW, Environmental Impact Statements (ElSes) were prepared by the
City under the direction of Steve Pilcher, the designated responsible official
overseeing their preparation. Initially, the City agreed that the draft ElSes could
be prepared by Yarrow Bay's consultants, but later retained Parametrix to peer
review the work performed by Yarrow Bay consultants. The final ElSes did not
7 See BDMC 18.98.005, .060.
8 AR 27160.
9 AR 27332-33.
No. 69418-9-1/4
include review of additional impacts such as traffic queue lengths at specific
intersections, mitigation project design, and the potential for an alternate, on-site
stormwater pond location. These impacts were instead to be deferred until later
stages of development and construction when more specific information about
them would be available.10
Once the final ElSes were completed, a public hearing was scheduled on
the two MDP permit applications. At the same time, the ElSes were appealed
and those appeal hearings were consolidated with the hearing on the MPD
permits. After extensive hearings, the Hearing Examiner issued two rulings for
each MPD: one that addressed the adequacy of the ElSes and one that made
recommendations to the Black Diamond City Council (Council) on the permits.
The Hearing Examiner concluded that each EIS provided an adequate analysis
of environmental impacts and recommended that the Council approve both The
Villages and Lawson Hills MDP permits subject to several conditions.11
The Hearing Examiner's recommendations were forwarded to the Council
for consideration. The Council voted unanimously to approve both permits
subject to a number of revised conditions and passed ordinances approving the
MPD permits.12 A citizens group, Toward Responsible Development (TRD), filed
a land use petition under the Land Use Petition Act (LUPA), chapter 36.70C, in
King County Superior Court appealing both the MDP permits and the Hearing
Examiner's determinations that the final ElSes were adequate. The superior
10 AR 1225-26, 1235-36, 2084-85, 2475, 2479-80.
11 AR 24770, 24770-988.
12 Ordinance Nos. 10-946, 10-947.
4
No. 69418-9-1/5
court affirmed the MDP permit approvals and upheld the adequacy of the ElSes.
TRD appeals.
ANALYSIS
To prevail on a LUPA petition, the party challenging a government entity's
land use decision has the burden of establishing that the land use decision was
error as set forth in RCW 36.70C. 130(1). Among these errors are that the
decision was a clearly erroneous interpretation of law, unsupported by
substantial evidence, or a clearly erroneous application of law to facts.13 These
are the claimed bases for TRD's challenges to the EIS determinations and the
ordinances. In reviewing such decisions, we give "deference to both legal and
factual determinations of local jurisdictions with expertise in land use
regulation."14 We also grant deference to the Hearing Examiner's determinations
under SEPA.15
I. Environmental Impact Statement
An EIS is reviewed under the "rule of reason" standard.16 The "rule of
reason" requires only a "'reasonably thorough discussion of the significant
aspects of the probable environmental consequences . . . .'"17 "The ElS'fs]
13 RCW 36.70C.130(1)(b),(c),(d).
14 City of Medina v. T-Mobile USA. Inc.. 123 Wash. App. 19, 24, 95 P.3d 377 (2004)
(recognizing deference standard in RCW 36.70C.130(1) (quoting Timberlake
Christian Fellowship v. King County. 114 Wash. App. 174, 180, 61 P.3d 332
(2002)).
15 RCW 43.21 C.090.
16 Klickitat County Citizens Against Imported Waste v. Klickitat County. 122
Wash. 2d 619, 633, 860 P.2d 390 (1993).
17 Klickitat County Citizens. 122 Wash. 2d at 633 (quoting Cheney v. Mountlake
Terrace. 87 Wash. 2d 338, 344-45, 552 P.2d 184 (1976)).
5
No. 69418-9-1/6
purpose is to facilitate the decision-making process; it need not list every remote,
speculative, or possible effect or alternative,'"18 nor evaluate every scenario or
conduct a "'worst case analysis.'"19 Courts review an EIS "as a whole"20 and
"examine all of the various components of [the] agency's environmental analysis .
. . to determine, on the whole, whether the agency has conducted the required
'hard look.'"21 We review SEPA determinations in a land use petition under the
clearly erroneous standard as set forth in RCW 36.70C.130(1)(d).
TRD challenges the adequacy of the ElSes on several grounds. It
contends that the Hearing Examiner erred by analyzing the MPDs as nonproject
programmatic actions, rather than project actions, by relying on phased review to
defer some detailed analysis until the time of construction, and by concluding that
the ElSes adequately addressed the impacts on Lake Sawyer and traffic. TRD
further contends that the ElSes failed to adequately respond to agency
comments on the draft ElSes.
A. Project vs. Programmatic Action
TRD contends that the Hearing Examiner erred by characterizing the
ElSes as "programmatic" rather than project specific and by applying a less
18 Gebbers v. Okanogan County Public Utility Dist. No. 1. 144 Wash. App. 371, 183
P.3d 324 (2008) (citing Klickitat County Citizens, 122 Wash. 2d at 641).
19
East County Reclamation Co. v. Biornsen. 125 Wash. App. 432, 442 n.9, 105
P.3d 94 (2005) (quoting Solid Waste Alternative Proponents (SWAP) v.
Okanogan County. 66 Wash. App. 439, 447-48, 832 P.2d 503 (1992)).
20 Save Lake Washington v. Frank. 641 F.2d 1330, 1336 (9th Cir. 1981).
21 Webster v. U.S. Dep't of Agriculture. 685 F.3d 411, 421-22 (4th Cir. 2012) (first
and second alterations in original) (quoting National Audubon Soc'v v.
Department of Navy. 422 F.3d 174, 186 (4th Cir. 2005).
6
No. 69418-9-1/7
rigorous review standard. The Washington Administrative Code (WAC) 197-11-
442 addresses the contents of ElSes on nonproject proposals:
(1) The lead agency shall have more flexibility in preparing EISs
on nonproject proposals, because there is normally less detailed
information available on their environmental impacts and on any
subsequent project proposals. . . .
(2) The lead agency shall discuss impacts and alternatives in
the level of detail appropriate to the scope of the nonproject
proposal and to the level of planning for the proposal....
(3) If the nonproject proposal concerns a specific geographic
area, site specific analyses are not required, but may be included
for areas of specific concern. The EIS should identify subsequent
actions that would be undertaken by other agencies as a result of
the nonproject proposal, such as transportation and utility systems.
WAC 197-11-704 distinguishes between "project" and "nonproject" actions as
follows:
(a) Project actions. A project action involves a decision on a
specific project, such as a construction or management activity
located in a defined geographic area. Projects include and are
limited to agency decisions to:
(i)License, fund, or undertake any activity that will directly
modify the environment, whether the activity will be conducted
by the agency, an applicant, or under contract.
(ii)Purchase, sell, lease, transfer or exchange natural resources,
including publicly owned lands, whether or not the environment
is directly modified.
(b) Nonproject actions. Nonproject actions involve decisions on
policies, plans, or programs.
(i)The adoption or amendment of legislation, ordinances, rules,
or regulations that contain standards controlling use or
modification of the environment;
(ii)The adoption or amendment of comprehensive land use
plans, or zoning ordinances;
(iii)The adoption of any policy, plan or program that will govern
the development of a series of connected actions (WAC 197-11-
060), but not including any policy, plan, or program for which
No. 69418-9-1/8
approval must be obtained from any federal agency prior to
implementation;
(iv)Creation of a district or annexations to any city, town, or
district;
(v)Capital budgets; and
(vi)Road, street, and highway plans.
The Hearing Examiner concluded that review of the MPDs amounted to a
project action:
The parties appear to agree that the MPD review is a nonproject as
opposed to a project action. The [Hearing] Examiner also agrees
that MPD review qualifies as nonproject action because it involves
"regulations that contain standards controlling use or modification of
the environment" as opposed to "a construction or management
activity located in a defined geographical area." See WAC 197-11-
704(2)(a) and (b). An agency has more flexibility in preparing an
EIS on a nonproject action "because there is normally less detailed
information available on their environmental impacts and on any
subsequent project proposals." WAC 197-11-442. The SEPA
Appellants have pointed out that the MPD does have some
characteristics of a project action due to the specificity of
improvements proposed and, in a broader sense, because the
review is treated as a quasi-judicial proceeding. This is quite true,
but hybrid actions are covered in the nonproject regulations that
specify that the level of detail must be appropriate "to the scope of
the nonproject proposal and to the level of planning for the
proposal.["] ]d. Given these requirements, the level of detail is
expected to be comparatively high for project specific impacts.22
We agree with the Hearing Examiner's characterization of the MPD permit
approval as a nonproject action, or at the very least, a hybrid action. As Yarrow
Bay points out, the MPD permits are not permits for clearing, grading,
subdivision, or construction of any kind; rather, they are initial project permits that
set forth a site plan for development. Accordingly, the Hearing Examiner did not
err by treating the action as "nonproject" and applying a more flexible standard.
22 AR 24594.
8
No. 69418-9-1/9
TRD also contends that the MPD permits should be treated as project
actions based on this court's determination in an earlier related appeal that the
MPD permits were "project permit approvals." This earlier decision involved
TRD's appeal of the MPD permits to the Growth Management Hearings Board
(Board) under the GMA,23 which was filed at the same time it filed the current
LUPA appeal in superior court.24 This court held that the Board lacked
jurisdiction to review the permits under the GMA because they did not qualify as
decisions involving comprehensive plans and development regulations, to which
the Board's jurisdiction was limited. Rather, this court concluded they were
approvals of a "project permit" under RCW 36.70B.020(4), which specifically
excludes decisions involving comprehensive plans, subarea plans, and
development regulations, and is defined as
any land use or environmental permit or license required from a
local government for a project action, including but not limited to
building permits, subdivisions, binding site plans, planned unit
developments, conditional uses, shoreline substantial development
permits, site plan review, permits or approvals required by critical
area ordinances, site-specific rezones authorized by a
comprehensive plan or subarea plan, but excluding the adoption or
amendment of a comprehensive plan, subarea plan, or
development regulations except as otherwise specifically included
in this subsection.[25]
23 BD Lawson Partners. LP v. Central Puget Sound Growth Momt. Hearings Bd..
165 Wash. App. 677, 269 P.3d 300 (2011), review denied, 173 Wash. 2d 1036, 277
P.3d 669 (2012).
24 The LUPA case was stayed pending the GMA appeal.
25 As this court explained, because the permit approvals did not amend
development regulations or the City's comprehensive plan but were processed
as permits consistent with the 2009 MPD ordinances, the only way the permits
could violate the GMA is if the MPD ordinance violated the GMA. BD Lawson.
165 Wn. App at 689. Noting that these regulations were never challenged under
the GMA, this court agreed with Yarrow Bay that "any challenge under the GMA
9
No. 69418-9-1/10
But that determination decided the issue of jurisdiction over review of the MPD
permits; it does not address the issue here, which is whether a more flexible
standard applies to review of an EIS for an MPD permit. As discussed above,
this depends on whether the MPD permit is characterized as a "project" or
"nonproject" action as defined in the specific regulations relating to EIS review,
and the Hearing Examiner properly reviewed it as a nonproject action.
B. Phased Review
TRD further contends that the Hearing Examiner erred by considering the
ElSes as part of a "phased" environmental review and allowing the deferral of
certain detailed environmental analyses until the time of actual construction. The
EIS regulations provide for "phased review" as follows in WAC 197-11-060(5):
(b) Environmental review may be phased. If used, phased review
assists agencies and the public to focus on issues that are ready
for decision and exclude from consideration issues already decided
or not yet ready. Broader environmental documents may be
followed by narrower documents, for example, that incorporate prior
general discussion by reference and concentrate solely on the
issues specific to that phase of the proposal.
(c) Phased review is appropriate when:
(i)The sequence is from a nonproject document to a
document of narrower scope such as a site-specific analysis
(see, for example, WAC 197-11-443); or
(ii)The sequence is from an environmental document on a
specific proposal at an early stage (such as need and site
to the 2010 permits approved consistent with the 2009 ordinances constitutes an
impermissible collateral attack on the 2009 ordinances," and concluded, "TRD's
challenge to the City's permit approval must be under LUPA in superior court, not
under the GMA before the Board." BD Lawson. 165 Wash. App. at 690.
10
No. 69418-9-1/11
selection) to a subsequent environmental document at a
later stage (such as sensitive design impacts).
(d) Phased review is not appropriate when:
(i) The sequence is from a narrow project document to a
broad policy document;
(ii) It would merely divide a larger system into exempted
fragments or avoid discussion of cumulative impacts; or
(iii) It would segment and avoid present consideration of
proposals and their impacts that are required to be evaluated
in a single environmental document under WAC 197-11-
060(3)(b) or 197-11-305(1); however, the level of detail and
type of environmental review may vary with the nature and
timing of proposals and their component parts.
(g) Where proposals are related to a large existing or planned
network, such as highways, streets, pipelines, or utility lines or
systems, the lead agency may analyze in detail the overall network
as the present proposal or may select some of the future elements
for present detailed consideration. Any phased review shall be
logical in relation to the design of the overall system or network,
and shall be consistent with this section and WAC 197-11-070.
Our courts have approved of phased review in cases where it is difficult to
assess the full impact of a project at the time. For example, in Cathcart-Maltbv-
Clearview Community Council v. Snohomish County, the court held that even
though the EIS was a "bare bones" presentation of impacts, a large scale
residential development project was an appropriate candidate for phased review:
Given the magnitude of the project, the length of time over which it
will evolve, and the multiplicity of variables, staged EIS review
appears to be an unavoidable necessity. At this point, an
exhaustive EIS is impracticable in light of the difficulty of
determining in the abstract, for a period of 25 years, such things as
the rate at which the project will develop, the particular location of
the housing units, the growth of the tax base which will support the
needed public services, the evolution of transportation
technologies, and the evolving socioeconomic interests of the
prospective population.1261
26 96 Wash. 2d 201, 208, 210, 634 P.2d 853 (1981).
11
No. 69418-9-1/12
But the court also made clear that approval of the initial EIS "does not relieve the
developers from ultimately complying with all SEPA requirements."27 Rather,
"[a]s the data becomes available or, at the latest, when sector plan approval is
sought, the secondary and cumulative impacts on the entire affected area . . .
must be quantitatively assessed and the costs of mitigating them identified."28
Similarly here, phased review is appropriate. The approved deferred
environmental review applies to those aspects of construction that can only be
adequately analyzed after additional detail is known. This includes construction
traffic impacts, traffic queue lengths at not yet constructed intersections, and the
potential for an alternate, on-site stormwater pond location.29 When this
information becomes available, Yarrow Bay must comply with all SEPA
requirements and provide a supplemental EIS that quantitatively assesses the
secondary and cumulative impacts on the entire affected area and identify the
27 Cathcart. 96 Wash. 2d at 211.
28 Cathcart. 96 Wash. 2d at 211(citation omitted).
29 See testimony at AR 2474-75 (potential impacts from construction hauling best
addressed at project stage); AR 1219 (not reasonable or cost effective to assess
queue length calculations for project build-out in the year 2025); AR 1226
(needed turn lanes can be identified, not appropriate at this stage to assess
sizing and length of turn lanes when construction not until 5, 10, 15 years, makes
sense when it is closer to design and construction); AR 2084 (if off-site
stormwater infiltration pond not permitted, potential impacts of an alternate on-
site pond would require additional analysis after specific locations are
determined); AR 2474 (potential impacts of constructing sewer system more
accurately assessed at project specific phase).
12
No. 69418-9-1/13
costs of mitigating them.30 TRD fails to show that the Hearing Examiner's
approval of the use of phased review is clearly erroneous.
C. Lake Sawyer Impacts
TRD contends that the ElSes failed to adequately address the impacts of
the MPDs on Lake Sawyer, which has a history of water quality issues. Lake
Sawyer's water quality problems were caused in part by failing septic systems in
the Lake Sawyer watershed and, in 1981, the City responded by constructing a
sewage treatment plant that discharged treated effluent into wetlands. The
effluent, however, ultimately reached Lake Sawyer, causing phosphorous levels
to increase and create algae blooms that rendered the lake unusable by the
public. The problem was eventually corrected in 1992 but it took several years
for water quality to reach acceptable levels of phosphorous.31
As a result, the Washington State Department of Ecology (DOE) listed
Lake Sawyer as an impaired water body subject to the federal Clean Water Act,
which requires that a limit be set for the amount of phosphorous allowed into the
water. This limit is known as the total maximum daily load (TMDL). In 1993, the
Environmental Protection Agency (EPA) set the TMDL for phosphorous in Lake
Sawyer at 715 kilograms per year, an in-lake concentration of 16 micrograms/L32
In 2000, King County prepared the Lake Sawyer Management Plan
(LSMP), which sought to complete a study begun in 1989 through 1990 to
30 Cathcart. 96 Wash. 2d at 211; see also WAC 197-11-405(4)(a),(b) (requiring a
supplemental EIS when there are either "substantial changes" to a proposal or
"significant new information" indicating probable environmental impacts).
31 AR 24669.
32 AR 20760.
13
No. 69418-9-1/14
assess the impact of the water treatment plant diversion on water quality, update
the lake's nutrient and water budgets, and evaluate restoration alternatives to
protect water quality. It also included a detailed projection of phosphorous levels
at full build-out of the Lake Sawyer watershed, with and without recommended
mitigation. The LSMP showed a phosphorous concentration of 31 micrograms/L
for build-out with "watershed controls" and 37 micrograms/L for build-out with
"internal load control."33
In 2009, DOE released a follow-up plan, the Lake Sawyer Total
Phosphorous Maximum Daily Load Water Quality Implementation Plan
(Implementation Plan), which provided for corrective actions to address sources
of phosphorous pollution in the lake and the surrounding watershed.34 The
Implementation Plan also contemplated the City's adoption of the 2005
Stormwater Management Manual for Western Washington and concluded that
the adoption of the manual and a monitoring program would result in meeting the
TMDL.35 The Implementation Plan also included data showing that phosphorous
levels had actually decreased by 2007, approximately 50 percent below the
TMDL.36
The ElSes discussed the phosphorous levels in Lake Sawyer as follows:
Historically, untreated sewage from septic tanks and drainfields
drained to Lake Sawyer, partially contributing to existing elevated
phosphorous concentrations in the lake. In 1992, all wastewater
discharge from Black Diamond's lagoons to Lake Sawyer was
33 AR 24670.
34 AR 24670.
35 AR 24671.
36 AR 15399 (figure 5 shows a graph indicating levels in 2007 at .08 micrograms).
14
No. 69418-9-1/15
terminated, although numerous septic drainfields still surround the
lake. In 1993, the EPA set a maximum mean summer total
phosphorous concentration limit of 16 ug/L (.016 mg/L). Although
the Department of Ecology has determined that some short term
noncompliance with the total phosphorous concentration limit may
exist, it has concluded that Lake Sawyer appears to be meeting the
limit as a long term average. Existing elevated total phosphorous
concentrations in the lake stem from several sources: release from
sediments during seasonal turnovers (19 percent); flow from Rock
Creek basin (35 percent); flow from Ravensdale Creek basin (17
percent); the immediate Lake Sawyer subbasin (12 percent); septic
tanks (8 percent); and input from aquatic plants, groundwater, and
the air (9 percent).
King County completed the Lake Sawyer Management Plan in
2000 and concluded that the lake is currently mesoeutrophic. The
Lake Sawyer Management Plan has a goal of maintaining the
lake's mesoeutrophic state while accommodating future population
growth through 2030.[37]
Nutrients of concern in stormwater consist largely of nitrogen and
phosphorous and often originate from fertilizers used on lawn and
landscaping, and from exterior use of detergents. Nitrogen and
phosphorous can also enter waterbodies from erosion during
construction and from bed movement in streams. Lake Sawyer
currently has a 303(d) listing for phosphorous, and both it and
Jones Lake are potential candidates for eutrophication based on
increased nutrients resulting from development.1 8]
The Hearing Examiner found that the ElSes failed to adequately disclose
potential phosphorous impacts to Lake Sawyer,39 but concluded that the LSMP
and Implementation Plan "[p]rovide a [h]ighly [credible and [thorough [r]eview of
[p]hosphorous [i]mpacts and [c]ontrol for [development in the [e]ntire Lake
Sawyer Watershed,"40 both MDP projects are within the phosphorous loading
37 AR 20760.
38 AR 20768.
39 AR 24671.
40 AR 24669 (boldface omitted).
15
No. 69418-9-1/16
assumptions employed by the LSMP,41 and both MDPs adequately mitigate
phosphorous impacts to Lake Sawyer.42
TRD first contends that the Lake Sawyer analysis was inadequate
because it failed to disclose the potential impacts of phosphorous loading into
Lake Sawyer. The Hearing Examiner found that this information was lacking but
concluded that this omission alone was not a basis to invalidate the entire EIS:
Neither [T]he Villages EIS or the Lawson Hills EIS adequately
identifies the impacts associated with reaching eutrophic status,
e.g., the health hazards, beach closures, harm to endangered fish
and aesthetic blight. . . . These omissions are difficult to justify
given that 65% of [T]he Villages sand [sic] 100% of Lawson Hills
drains into Lake Sawyer.
Given the prominence that Lake Sawyer water quality plays in the
Black Diamond community, the significance of phosphorous
impacts and the uncertainty in the science backing [sic]
Implementation Plan, it was unreasonable for the EIS to fail to warn
of the specific problems that could arise from phosphorous
contamination of Lake Sawyer. Given the large amount of
development involved in the MPD proposals, the information on
specific impacts could spur decision makers into advocating for
updated modeling [sic] the LSMP or a greater commitment to
implementing the regional mitigation measures identified in the
Implementation Plan. Given the overall scope and context of the
EIS, the failure to include these specific impacts cannot by itself
justify a finding of inadequacy for the entire document, especially
given that the reference to eutrophication in both documents does
provide inquiry notice to persons concerned about water quality.[43]
TRD fails to show that the Hearing Examiner's conclusion was clearly erroneous.
Applying the rule of reason, it was not error to conclude that omission of the full
extent of these impacts cannot alone justify invalidating the entire EIS. At the
41 AR 24673.
42 AR 24674.
43 AR 24672.
16
No. 69418-9-1/17
very least, it did identify Lake Sawyer as a "potential candidate[] for
eutrophication based on increased nutrients resulting from development."44
TRD further contends that the ElSes' failure to provide information about
the actual quantity of phosphorous that likely will reach the lake at full build-out of
the MPDs renders the ElSes inadequate because this information is "essential" in
assessing the projects' impacts on Lake Sawyer, which TRD contends is "at a
tipping point."45 But as the Hearing Examiner concluded:
On the utility of additional information, Mr. Zisette testified that the
Applicant failed to determine how much phosphorous the MPDs
would add to Lake Sawyer. He noted that the Applicant could have
easily made this determination since it had data on both projected
stormwater volumes and phosphorous concentrations. The
Applicant did not rebut this testimony and the Examiner finds that
the phosphorous loading would not have been unreasonably
difficult to compute. However, this additional information would not
have provided anything of significant use to the decision maker. As
ably demonstrated by Mr. Zisette, there is no question that under
the modeling of the LSMP that the MPD phosphorous loading
would exceed TMDL, no matter what amount of phosphorous was
generated by the projects'461
Of course, with more work the Applicant could recalibrate the LSMP
model to include current lake conditions, the Applicant's
adjustments to the drainage basins and the benefits of the 2005
stormwater manuals. In short, the Applicant would prepare its own
LSMP. The resulting information could indicate how close the
MPDs will bring Lake Sawyer to TMDL and what the Applicant's
proportionate share of phosphorous loading would have to be in
order to keep full build-out below TMDL. The price of this additional
information is to hold the Applicant to a different standard than the
watershed standards developed in the LSMP and the
Implementation Plan [T]he reliance of the Applicant upon the
LSMP, instead of its own calculations, provides a reasonably
44 AR 20768.
45 Appellant's Brief (AB) at 47 (boldface omitted).
46 AR 24678.
17
No. 69418-9-1/18
thorough discussion of stormwater impacts to Lake Sawyer as
required for an adequate EIS.[47]
Again, applying the rule of reason, TRD fails to show that the Hearing
Examiner's conclusion was clearly erroneous. The analysis reasonably
disclosed that phosphorous loading resulting from MPDs would exceed the
TMDL and identified reasonable mitigation measures in line with DOE standards.
While it certainly failed to identify by precisely how much the TMDL would be
exceeded, this lack of specific information alone does not render the entire EIS
inadequate. Indeed, WAC 197-11-080(3)(a) and (b) permits agencies to proceed
in the absence of "vital information" when information relevant to adverse impacts
is either "essential to a reasoned choice among alternatives, but is not known,
and the costs of obtaining it are exorbitant" or "important to the decision and the
means to obtain it are speculative or not known," and provides that in such
cases,
the agency shall weigh the need for the action with the severity of
possible adverse impacts which would occur if the agency were to
decide to proceed in the face of uncertainty. If the agency
proceeds, it shall generally indicate in the appropriate
environmental documents its worst case analysis and the likelihood
of occurrence, to the extent this information can reasonably be
developed.
Nor has TRD challenged any findings as unsupported by substantial
evidence. While TRD claims that Lake Sawyer is at the "tipping point" to
becoming eutrophic (i.e., exceeding 24 micrograms/L),48 the Hearing Examiner's
findings acknowledge "there is still a great deal of uncertainty in predicting
47 AR 24678.
48 AR 24677.
18
No. 69418-9-1/19
phosphorous loading," noting that the modeling in the LSMP shows levels 84
percent above the TMDL, while the most recent data shows it could be as much
as 50 percent below the TMDL.49 The Hearing Examiner's findings further note
that while the EIS relies on the phosphorous loading estimates in the LSMP, "the
preponderance of evidence in the record establishes that the LSMP significantly
overstates the amount of phosphorous generated by the proposed
development."50
The Hearing Examiner found that "[t]he record identifies three factors and
potentially one more factor that markedly skew the LSMP assumptions to
overstate MPD phosphorous loading. No factor was offered into the record to
that [sic] understates phosphorous loading."51 The Hearing Examiner further
found that "[tjhere is nothing to suggest in the record that the MPD proposals,
alone, will push the phosphorous concentration beyond the 24 micrograms/L
given the current conditions of Lake Sawyer."52 The Hearing Examiner noted
that TRD's expert testified that as little as a 5 percent increase could push the
lake into eutrophic status, but did not explain the basis for his assumption or
whether it considered the current state of the lake, as all of his calculations had
been based on that identified in the LSMP.53
49 AR 24671; AR 24673 (the Implementation Plan shows the 2007 phosphorous
concentration at 8 to 9 micrograms/L).
50 AR 24673.
51 AR 24674.
52 AR 24677.
53 AR 24677.
19
No. 69418-9-1/20
Nor has TRD successfully challenged the Hearing's Examiner's finding
that the MPDs "meet the conditions for DOE's finding ofTMDL compliance."54 As
the Hearing Examiner concluded, "any conclusion that the MPDs would fail to
meet TMDL would be directly contrary to the findings of DOE, made in 2009, that
the MPDs would satisfy TMDL."55 And as the Hearing Examiner noted, the
appellants offered nothing to refute DOE's findings.56
D. Traffic Impacts
TRD contends that the ElSes' traffic analyses were inadequate by failing
to address safety impacts, increase in travel times, construction traffic impacts,
and the feasibility of implementing mitigation measures. TRD further contends
that the ElSes failed to adequately analyze alternatives. We disagree.
The Hearing Examiner recognized that the ElSes did not address a
number of potential impacts on traffic.57 The Hearing Examiner further found
that the ElSes did not provide much detail about alternatives 3 and 4, and
instead "merely noted the percentage increase posed by each alternative."
54 AR 24675.
55 AR 24678.
56 AR 24676 ("nothing was offered by the Appellants to explain why DOE would
reach such a conclusion if there was no reasonable basis for it.").
57 AR 24615, Findings of Fact (FF) 9 (EIS did not include a detailed analysis of
potential queue lengths resulted from increased traffic); AR 24615, FF 10 (EIS
did not address individual turning movement failures at the various "legs" of each
intersection); AR 24616-18, FF 14, 16 (EIS did not address safety concerns
including those faced by bicyclists and pedestrians); AR 24617-18, FF 15 (EIS
did not include an analysis or estimate of anticipated increases in travel times);
AR 24620, FF 19 (EIS did not assess traffic impacts posed by construction ofthe
proposed projects).
68 AR 24620, FF 20.
20
No. 69418-9-1/21
But the Hearing Examiner ultimately concluded that the traffic analysis was
adequate:
Although many facets of the transportation analysis could have
been better, the choices made by Parametrix are all within the
parameters of reasonably justified professional judgment,
especially given the substantial weight that must be given to the
SEPA Responsible Official's determination that the analysis is
adequate. The FEIS [(final EIS)] contains a reasonably thorough
discussion of the significant adverse transportation impacts of the
proposed project at the programmatic level of analysis. However,
the use of a regional model to project local traffic impacts, the
divergence in the effect of modeling assumptions, along with
concern related to the effect of the choice of models on potential
impacts and mitigation will lead the Hearing Examiner to
recommend additional mitigation measures based on the outcome
ofthis subsequent study in the MPD.I59]
TRD first contends that the ElSes' failure to address safety impacts
renders it inadequate. The Hearing Examiner concluded:
While the FEIS did not identify safety concerns as a probable
significant adverse impact, the Appellants did not present evidence
that these issues could be adequately addressed at this higher
level review. It is reasonable to conclude that decision-makers
would recognize that vehicle accidents will increase proportionately
with increased traffic volumes.1601
The Hearing Examiner also made findings recognizing the difficulty of predicting
safety impacts without evaluating the particular configuration of a high-accident
location.61 TRD does not assign error to these findings. Accordingly, they are
59 AR 24620.
60 AR 24620, FF 2.
61 Finding of Fact 14 cites Parametrix' expert John Perlic's testimony: "Mr. Perlic
noted while some of the safety impacts are mitigated by the improvements called
for in the FEIS, the randomness of the accidents makes it difficult to predict and
impose more specific mitigation that would decrease the risk. He further testified
there is no known way to analyze safety impacts except to evaluate the particular
configuration of a high-accident location." AR 24617.
21
No. 69418-9-1/22
verities on appeal and support the Hearing Examiner's conclusions. TRD fails to
show that the conclusions are clearly erroneous.
TRD also contends that the ElSes' traffic impact analysis was inadequate
because it failed to analyze travel times and instead only analyzed intersection
levels of service (LOS). The Hearing Examiner concluded that it was not
necessary for the ElSes to discuss anticipated increases in travel times due to
increased traffic and that the LOS analysis "is the more customary manner to
address traffic issues."62 The Hearing Examiner further concluded that the ElSes
contained "a reasonable discussion of the impacts resulting from increased traffic
volumes and decreased levels of service."63 As the City notes, these conclusions
are supported by substantial evidence, including testimony from TRD's traffic
expert, city ofMaple Valley's traffic expert, and Parametrix's expert.64
TRD further contends that the ElSes failed to disclose "the true extent of
LOS failures," by omitting an AM peak hour analysis and an analysis of individual
intersection legs. The Hearing Examiner concluded that "[u]se of the PM peak
hour analysis was sufficient to establish necessary mitigation for traffic
increases," citing testimony from Parametrix's expert that it is customary to use
the highest travel hour to account for worst-case traffic scenarios.65 The Hearing
Examiner also concluded that "[analysis of whole intersection failure was
sufficient to establish necessary mitigation," citing testimony from both TRD's
62 AR 2462, CL 3.
63AR24621,CL3.
64 AR 849, 878 (TRD expert Ross Tilghman); AR 1109 (City of Maple Valley
expert Natarajan Janarthanan); AR 1218, 1234 (John Perlic from Parametrix).
65AR24621,CL4.
22
No. 69418-9-1/23
expert and Parametrix's expert that "it is standard practice to analyze the entire
intersection because mitigation is tied to failure of whole intersection."66 The
Hearing Examiner further concluded that examining various legs of each
intersection is inappropriate for the EIS itself as this analysis is contained in the
Transportation Technical Report.67 TRD fails to show that the Hearing
Examiner's conclusions are not supported by substantial evidence and are
clearly erroneous.
Next, TRD contends that the ElSes were inadequate by failing to analyze
construction impacts. The Hearing Examiner recognized this omission but
concluded that "mitigation of such impacts is more appropriately handled at each
phase ofthe project."68 As the Hearing Examiner explained:
There is no evidence that addressing these impacts at this stage of
environmental review would result in a more effective mitigation.
SEPA allows the City to determine the appropriate scope and level
of detail of environmental review to coincide with meaningful points
in their planning and decision-making processes, and to focus on
issues that are ready for decision and exclude from consideration
issues already decided or not yet ready. WAC 197-11-060(5).
Construction impacts are such issues not ripe for consideration.
The City's Engineering and Construction Standards will require a
traffic control plan that will address the specific impacts prior to
commencement of construction.1691
TRD fails to show that this conclusion is clearly erroneous. As the Hearing
Examiner noted, no evidence was presented showing that addressing impacts at
66AR24621,CL5.
67AR24621,CL5.
68 AR 24624, CL 14.
69 AR 24624, CL 14.
23
No. 69418-9-1/24
this stage would result in more effective mitigation and TRD points to no such
evidence.
TRD also contends that the failure to include an analysis of the feasibility
of implementing mitigation measures renders the ElSes inadequate. The
Hearing Examiner concluded that it was not necessary for the ElSes to address
the feasibility of implementing mitigation measures, explaining:
SEPA requires the FEIS to discuss reasonable mitigation measures
that would significantly mitigate impacts, and indicate what the
intended environmental benefits of mitigation measures are for
significant impacts. WAC 197-11-440. The FEIS may discuss the
economic practicability of mitigation measures // there is concern
about whether a mitigation measure is capable of being
accomplished. Id. It need not analyze mitigation measures in detail
unless they involve substantial changes to the proposal causing
significant adverse impacts, and those measures will not be
subsequently analyzed under SEPA. Id. In this case, the measures
will be subsequently analyzed, and it would be premature to
attempt to analyze the feasibility of implementation of mitigation
measures at this juncture. Such an analysis is of limited use given
the multitude of other factors that could derail the project. Cost-
sharing arrangements may be addressed by development
agreements entered into between the developer and City.
These issues are more appropriately addressed later as part of the
review of the specific project pieces when the City has the
permitting authority to condition the project on implementation of
mitigation measures. If level of service impacts mandate mitigation,
any development can only proceed if mitigation is actually
implemented. While SEPA does not require the FEIS to discuss
mitigation measures in detail in all instances, mitigation must be
reasonable and capable of being accomplished. If mitigation is
determined to be unfeasible at the time the project will be built, then
GMA concurrency will prevent the development from proceeding.
Consequently, any feasibility analysis at this point would only
speculate on whether the development will proceed to completion if
approved.1701
70
AR 24622-23, CL 10.
24
No. 69418-9-1/25
TRD fails to show that this conclusion is clearly erroneous. The Hearing
Examiner relies on the relevant regulations addressing mitigation in an EIS,71 and
TRD cites no contrary authority requiring the level of detail it urges.
Finally, TRD challenges the adequacy of the alternatives analysis in the
ElSes' discussion of traffic impacts, contending that it failed to address safety
impacts and did not disclose the number of intersections failing LOS standards.
The Hearing Examiner concluded:
While the FEIS gave short shrift to Alternatives 3 and 4, merely
noting the percentage increase posed by each alternative, failure to
go into more detail is not fatal to the validity of the FEIS. The SEPA
Responsible Official made a determination that the FEIS is
adequate. The FEIS provided sufficient information to enable the
decision-makers to making [sic] a reasoned choice among
alternatives. The issues that Appellants claim should have been
addressed in more detail with regard to each alternative, such as
safety, hours of commute analyzed, character and travel times are
discussed elsewhere herein, and were not necessary for the validity
oftheFEIS.[72]
TRD fails to show that this conclusion is clearly erroneous. An EIS need only
include "[reasonable alternatives" and they need not be discussed in detail.73
Here, the ElSes identified two specific scaled down alternatives and disclosed
the percentage of traffic increases attributable to both. TRD points to no
authority requiring the detail it seeks.
71 WAC 197-11-440(6)(a),(c)(iv) (An EIS need only "discuss reasonable
mitigation measures that would significantly mitigate," and "may discuss their
technical feasibility and economic practicability, if there is concern about whether
a mitigation measure is capable of being accomplished.") (emphasis added).
72 AR 24622, CL 9.
73 WAC 197-11-440(5)(b)(i) ("The word 'reasonable' is intended to limit the
number and range of alternatives, as well as the amount of detailed analysis for
each alternative.").
25
No. 69418-9-1/26
E. Noise Impacts
TRD further contends that the ElSes failed to adequately address impacts
of construction noise. The Hearing Examiner concluded:
The FEIS and its Technical Appendices reasonably disclose,
discuss, and substantiate the loudness of construction noise that
may be attributable to the proposed development.'741
The Applicant proved that the existing noise levels in the FEIS were
sufficiently accurate.'751
Although [The Villages] FEIS does not adequately address noise
impacts upon the Harp [property] and potentially the Proctor
property, this does not render the entire FEIS inadequate. The
noise appeal was limited to impacts upon the three residences
identified in Finding of Fact No. 1. Mitigation and further analysis of
noise impacts upon those properties can be handled under the
MPD conditions of approval without having any substantial impact
upon the noise analysis conducted in the EIS. Further the
information in the FEIS was sufficient to notify the decision maker
that noise impacts could be severe for some property owners, such
as the Harps and Ms. Proctor.'761
TRD contends that because the Hearing Examiner also concluded that the
ElSes should have included an assessment of the duration of the noise impacts
and mitigation,77 the Hearing Examiner should have found the ElSes inadequate.
But as the Hearing Examiner also concluded, mitigation and further analysis of
noise impacts "can be handled under the MPD conditions of approval without
having any substantial impact upon the noise analysis conducted in the EIS."
74 AR 24610, CL1.
75AR24611,CL3.
76 AR 24612, CL6.
77 See AR 24583, 24611.
78 AR 24612.
26
No. 69418-9-1/27
As the City contends, an EIS may properly take into account mitigation imposed
as part of project permit conditions.79 In fact, the Council followed the Hearing
Examiner's suggestions and imposed detailed noise mitigation and monitoring
conditions, including a requirement for development of a separate haul route and
a prohibition against hauling on certain existing streets in residential areas.80
F. Responses to Agency Comments
TRD further challenges the adequacy of the ElSes on the basis that they
failed to respond to critical agency comments of the draft EIS. TRD points to the
lack of adequate responses to King County's comments about (1) how a
proposed infiltration pond in a rural area may impact the regional Green River to
Cedar River trail corridor, (2) the draft EIS's deficient discussion of stormwater
impacts, (3) the draft EIS's failure to adequately address potential adverse
impacts to rural areas and resource lands per countywide planning policy and
county comprehensive plan, and (4) more detail about new local wastewater
infrastructure and impacts to local streams, wetlands, soil, public health, and to
comments from both King County and Washington State Department of
Transportation (WSDOT) about deficiencies in traffic analysis.
As a threshold matter, the City first notes that the Hearing Examiner found
that the SEPA appellants never raised the adequacy of the responses to agency
comments in their administrative SEPA appeals. Rather, the issue was first
79 See Edwardsen v. U.S. Dep't of Interior. 268 F.3d 781, 790 (9th Cir. 2001);
City of Sausalito v. O'Neill. 386 F.3d 1186, 1212-13 (9th Cir. 2004).
80 AR 27310-11,AR 27478.
27
No. 69418-9-1/28
raised in TRD's posthearing closing brief.81 Accordingly, the Hearing Examiner
concluded, "the failure to respond to DEIS [(draft EIS)] comments on its own is
not within the scope ofthe appeals ofthis decision."82 But the Hearing Examiner
did clarify that the issue can be a factor if related to an appeal issue that has
been timely presented and concluded that "[d]uring the course of this appeal the
SEPA [a]ppellants have raised the adequacy of [The Villages] FEIS responses
related to issues that they have properly presented, such as transportation and
Lake Sawyer waterquality."83 Thus, the issue is properly before this court.
The "rule of reason" applies to claimed failures to respond to agency
comments and inconsequential errors must be dismissed as harmless.84
Applying this rule of reason in Klickitat County Citizens, the court held that the
county's failure to respond to specific comments about handling of waste on a
draft EIS did not render the EIS inadequate, noting that the county did respond to
general comments on handling waste and made some changes to the final EIS
as a result.85
The Hearing Examiner concluded that "there is nothing in the record to
suggest that the City failed to address DEIS comment letters that raised
significant adverse environmental impacts that were not adequately addressed in
the EIS," but did note that the City's failure to use a localized model "certainly
81 AR 24634-35.
82 AR 24635 (Citing BDMC 18.08.210[(F)]: "no new substantive appeal issues
may be raised or submitted after the close of the time period for filing of the
original appeal.").
83 AR 24635.
84 Klickitat County Citizens. 122 Wash. 2d at 637-38.
85 Klickitat County Citizens. 122 Wash. 2d at 638.
28
No. 69418-9-1/29
detracts from the reasonableness of its discussion, but not enough to render it
inadequate."86 The Hearing Examiner noted that the city of Maple Valley did, in
fact, use a local model and the city's transportation engineer was highly qualified,
worked for the city instead of the applicant, and had good reason to use the
regional model.87 Applying the rule of reason, TRD fails to show that the Hearing
Examiner's conclusion was clearly erroneous. Additionally, as the City points
out, all of the agency comments were addressed in detail during the EIS appeal
hearing; thus, any failure to respond amounts to harmless error.
II. Permit Approval
TRD next challenges the ordinances approving the MPD permits,
contending that they are inconsistent with the Comprehensive Plan policies to
preserve small town character, violate City code standards for job creation and
walkability, and fail to provide adequate mitigation for adverse environmental
impacts.
TRD first contends the MPD proposals fail to preserve the City's small
town character and natural setting as mandated by the Comprehensive Plan
("Plan"). As TRD points out, BDMC 18.98.080.A.1 provides that an MPD permit
will not be approved unless it "complies with all applicable adopted policies,
standards and regulations," and BDMC 18.98.010.L lists as one of the purposes
of the MPD permit process:
[To] [p]romote and achieve the city's vision of incorporating and/or
adapting the planning and design principles regarding mix of uses,
86 AR 24635, CL 3.
87 AR 24635, CL 3.
29
No. 69418-9-1/30
compact form, coordinated open space, opportunities for casual
socializing, accessible civic spaces, and sense of community; as
well as such additional design principles as may be appropriate for
a particular MPD, all as identified in the book Rural By Design by
Randall Arendt and in the city's design standards.
TRD also points to references in the Plan to "fundamental principles to retain its
small town character," and "[r]etain the natural setting."88 TRD contends that the
MPD applications are contrary to these principles, noting that the development
areas will be cleared of all vegetation and graded, and will involve the excavation
of six million cubic yards of soil and fill. TRD contends that the result will be a
"classic, mega-suburban subdivision development pattern" and "big box retail
development" that is inconsistent with the historic small character of Black
Diamond and the principles of Rural by Design.89 TRD further contends that the
MPD proposal is not a continuation of the City's "incremental development," and
does not "control the scale and character" of the development as required by the
Plan because it seeks to quintuple the City's current size in 15 years, which is
wholly out of character and scale of the existing small town ambience.90
In its approval of the MPDs, the Council found that the purpose of BDMC
18.98.010.Lwasmet:
As detailed in Finding No. 2, the Land Use Plan map and the MPD
application, [T]he Villages MPD application proposes a mix of
residential and commercial type uses, with development located in
compact clusters separated by sensitive areas and open space.
88 AB at 79 (emphasis omitted).
89 AB at 80; see Plan at 7-49 (reference to "sustain[ing] historical community
character") (emphasis omitted). TRD cites Rural By Design's reference to
planning developments to "[f]it within the environment rather than on top of it,"
and "to nestle into rather than intrude upon its natural setting " AR 14081.
90 AB at 81-82; Plan at 5-10, 33.
30
No. 69418-9-1/31
Parks and schools are proposed to be located on site with a road
and trail network to link the residential portions of the project.
These will provide opportunities for interaction, socializing and a
sense of community. Stands of trees and natural areas are
proposed along the main spine road through the project. These
natural areas and extensive open space will help preserve rural
character.'911
The Council further found:
The proposed project is generally consistent with the vision
statement and the City's development regulations and policies.
Further, Page 5-13 of the Comprehensive Plan (Land Use element)
discuss the MPD Overlay plan designation. The Villages MPD is
also consistent with that section ofthe Comprehensive Plan.'921
The Council also concluded:
The most controversial policies at issue concern those pertaining to
preservation of small town character. Many parties of interest
argued that the Comprehensive Plan policies require preservation
of "rural" character. This is incorrect, and would be inconsistent
with the Growth Management Act, the City's Comprehensive Plan,
and implementing development regulations in any event. As the
Hearing Examiner's Recommendation explained, when it comes to
density, "the die has already been cast on this issue." The Growth
Management Act, [c]hapter 36.70A RCW, requires cities to
encourage urban densities in order to promote efficient use of
infrastructure and contain urban sprawl. . . . Under the GMA, cities
are not permitted to adopt Comprehensive Plan policies requiring
certain areas to remain "rural." See, e.g.. Final Decision and Order
in Robison v. Bainbridge Island. CPSGMHB No. 94-3-0025, at 22-
23. In Robison. the Board determined that the City of Bainbridge
Island's "Overriding Policy No. 1," which called for the City to
"preserve the rural character of the Island" violated RCW
36.70A.020(1) and (2), and remanded the policy to the City for
revision (the City excised the word "rural"). As the Board explained,
"Compact urban development is not 'rural' land use. . . . [BJecause
Bainbridge Island has chosen to be a city, it must remain cognizant
of its duty under the Act to plan for compact urban development
within its boundaries as it grows."'931
91 AR 27249.
92 AR 27249.
93 AR 27257 (internal citations omitted) (alteration in original).
31
No. 69418-9-1/32
The Council noted that it implemented the GMA's mandate to provide for
urban densities by adopting the MPD overlay provisions in the Plan, which state
that the MPD densities "are intended to be urban in nature" and "will be
established as part of the MPD approval process."94 The Council further noted
that the Plan states that all cities are included within the urban growth area that
are expected to accommodate urban growth in the next 20 years and that the
Plan proposed a "village" environment with residential and economic
development.95 The Council then concluded that it is "not in a position to deny
the MPD applications because their densities might be construed as damaging
'rural character,'" but noted that impacts created by those densities "may be (and
are) addressed through application of the MPD criteria and conditions of approval
imposed .. . ."96
The Council also concluded that the Plan's policies do not require
preservation of "rural character" even if it was permitted under the GMA. Rather,
the Council pointed out that the Plan refers to protection of "small town
character," which is accomplished by principles that include compact
development.97 Citing the Plan policies, the Council noted that "it calls for the
use of 'techniques that continue the character of compact form,' while design
guidelines will help the new, compact development feel like a rural community.
94 AR 27257 (emphasis omitted).
95 AR 27257.
96 AR 27258.
97 AR 27258.
32
No. 69418-9-1/33
This does not mean that the Plan is calling for protection of 'rural character' by
limiting density."98
As to the policies referenced above by TRD requiring preservation of
community character, historic character, natural setting, rural community, small
town character, and existing historical development, the Council concluded,
"None require rural densities or suggest that they supersede the more specific
comprehensive plan policies and state mandates requiring urban densities within
the City."99 Rather, the Council recognized that MPD regulations must be applied
to harmonize the urban density requirement with maintaining small town
character.100 While the Council noted that the MPD regulations provide
examples of how to accomplish this, including reference to Rural by Design, it
recognized that it "must apply these specific standards, and may not impose
conditions upon the MPDs on some vague 'feeling' that they are necessary to
protect small town or rural character, because such terms are highly subjective
and difficult to assess."101
TRD fails to show that the Council's determinations were not supported by
substantial evidence or were clearly erroneous. The City was entitled to
deference in construing its own Plan and what is consistent with that Plan.102 As
the Council's findings and conclusions demonstrate, the MPD approvals were
98 AR 27258.
99 AR 27258.
100 AR 27258.
101 AR 27259.
102 Phoenix Dev. Inc.. v. City of Woodinville. 171 Wash. 2d 820, 838, 256 P.3d 1150
(2011).
33
No. 69418-9-1/34
consistent with Plan policies. And while TRD claims that the MPDs are contrary
to the Plan's "incremental development" policies, the Plan itself expressly
projects at least a quadrupling of the City's population by 2025.103
TRD next contends that the ordinances approving the MPDs are invalid
because they violate City code job creation requirements set forth in BDMC
18.98.120.C, which provides:
The MPD shall, within the MPD boundary, or elsewhere within the
city, provide for sufficient properly zoned lands, and include
sufficient incentives to encourage development as permit
conditions, so that the employment targets set forth in the
comprehensive plan for the number of proposed residential units
within the MPD, will, with reasonable certainty, be met before full
build-out of the residential portion of the MPD.
The Comprehensive Plan states:
The City's employment target is to provide one job per household
within the City by the year 2025, which would translate to a jobs
target of approximately 6,534 jobs. However, employment
projections used in this update are more conservative in order to
recognize that the City's population will need to grow first so it
provides a larger market base that can attract and support a higher
level of commercial development, including the services needed by
a larger population.'1041
TRD contends that the Council erroneously relied on a jobs per household
target of 0.5 per household, rather than one per household as required by the
Comprehensive Plan. The Council acknowledged the Plan's reference to the
target of one job per household by 2025, but pointed out that the Plan also
recognized that these projections are more conservative and that the Plan's
"[e]mployment [t]argets" as shown in Table 5-3 for 2025 show a jobs per
103 AB at 81-82; Plan at 5-29.
104 Plan at 3-11,3-12.
34
No. 69418-9-1/35
household ratio of 0.468.105 Thus, the Council concluded that the Plan's jobs per
household target is actually 0.5 per household:
Given the Comprehensive Plan's acknowledgement that more
conservative targets are being utilized to recognize that population
growth must precede employment growth, and in light of the
"Employment Targets" specified in Table 5-3 and on page 3-12, the
jobs per household target specified by the Comprehensive Plan is
0.5 jobs per household. Applying this standard to [T]he [Vjillages
MPD, the MPD should include sufficient land either within the MPD
boundary or City as a whole, to provide approximately 2,400 jobs
(4,800 x 0.5 = 2.400).'1061
The Council then concluded that the code requirement was met:
Because [T]he Villages MPD is projected to generate 1,365 jobs
within [T]he [VJillages MPD boundary, because the City has
sufficient zoned land within the City as a whole for 5,761 jobs and
because the conditions of approval contain incentives for
development of the retail/commercial/light industrial areas, the
criterion in BDMC 18.98.120[.]C is met.'1071
TRD fails to show that this conclusion was clearly erroneous or unsubstantiated
by the record. As the Council explained, the 0.5 jobs per household target is
based on projections set forth in the Plan. As noted above, the City is entitled to
deference in interpreting its own Plan and TRD fails to show that this was an
unreasonable interpretation.
TRD also argues that approval of the MPD permits violates the walkability
standard required by BDMC 18.98.080.A.14, which provides: "School sites shall
105 AR 27271, CL 40(B) ("[T]he Comprehensive Plan includes the City's updated
projection for 2,677 new jobs by the year 2025. Table 3-9 characterizes this as
0.5 jobs per household by the year 2025. This is roughly consistent with the
Comprehensive Plan's "Employment Targets" shown on Table 5-3, for a year
2025 jobs target of 2,952 jobs (2,525 new jobs) which, when divided by the
household target of 6,302 households, is jobs per household ratio of 0.468.").
106 AR 27271, CL 40(D).
107 AR 27272, CL 40(G).
35
No. 69418-9-1/36
be identified so that all school sites meet the walkable school standard set for in
the comprehensive plan." TRD contends that despite the Council's recognition
that the Plan calls for a half mile walkability standard, it did not impose this
requirement for the MPDs. To ensure compliance with BDMC 18.98.080.A.14,
the Council imposed a condition to require that "where reasonable and practical,
all schools should be located within a half-mile walk of residential areas."108 The
Council noted that the Plan contains no specific "walkable" standard but instead
refers to the "ten-minute walk" concept and a goal for 80 percent of City residents
to have no more than a half-mile walk from commercial services, employment, or
access to transit.109 TRD fails to show that this conclusion is clearly erroneous or
unsubstantiated by the record. The Council's characterization of the Plan's
references to walkability standards is accurate and does not require a half-mile
walkability standard as TRD contends.
Finally, TRD challenges the MPD permit ordinances on the basis that the
Council improperly concluded that significant adverse impacts on Lake Sawyer
and traffic would be mitigated. TRD argues that Yarrow Bay was required to
show that the MPDs would not cause an increase in phosphorous pollutants
reaching Lake Sawyer, referring to the Plan's policy NE-6, which provides:
The special protection measures noted in NE-5 should evaluate
and define "high risk" uses and address the siting of such uses in
sensitive aquifer recharge areas. The protection measures should
also evaluate and include measures to reduce pollutants loads,
including phosphorous discharged to Lake Sawyer/1101
108 AR 27268, CL 40(B).
109 AR 27268, CL40(A).
110 Plan at 4-25.
36
No. 69418-9-1/37
But as the City notes, this policy is not a requirement for MPD permit approval as
TRD suggests; it is a requirement that the City adopt special protection measures
in areas highly susceptible to groundwater contamination as identified in policy
NE-5[111] and to evaluate and reduce phosphorous loading into the lake. As
discussed above, the City has taken such measures (e.g., adoption of
stormwater management manual and monitoring program).
The Council's findings and conclusions further establish that the code
requirements for MPD permit approval were satisfied. BDMC 18.98.080.A.2
provides that a permit may not be approved unless "[significant adverse
environmental impacts are appropriately mitigated." The Council concluded that
the MPDs satisfied the permit requirement to "identify significant environmental
impacts and ensure appropriate mitigation" as follows:
The MPDs have been subject to extensive and intensive
environmental review. The FEIS is supported by hundreds of
pages of environmental analysis. The bulk of the hearings on the
MPDs was comprised of the testimony of numerous experts
addressing the appeals of the FEIS. Through this process several
areas of improvement were identified, resulting in Hearing
Examiner recommendations for and Applicant offers of extensive
additional mitigation, including additional future impact analysis and
mitigation. That mitigation, and the requirements for future
analysis, are incorporated into the conditions of MPD approval in
Exhibit C below. New conditions addressing traffic and noise in
particular, will help ensure that all significant environmental impacts
are appropriately mitigated.'1121
111 NE-5 provides that such measures must "require businesses that use
hazardous chemicals to have containment facilities to capture potential chemical
spills, and require the use of best management practices for applying pesticides
and fertilizers for business residential and recreational uses." Plan at 4-26.
112 AR 27246, CL 9.
37
No. 69418-9-1/38
The Council also concluded that BDMC 18.98.020.B was satisfied, which
requires "[protection of surface and groundwater quality both on-site and
downstream, through the use of innovative, low-impact and regional stormwater
management technologies."113 The Council's findings cite the City's adoption of
the 2005 Ecology Stormwater Management Manual for Western Washington,
and the MPD application's stormwater management plan which includes
incorporation of low-impact development (LID) techniques.114 The Council's
findings of fact and conclusions of law also refer to its imposition of several
conditions of the MPD permit approval, including: requiring identification of
mechanisms to integrate LID into the overall design of the MPD; requiring
incorporation of additional innovative techniques (e.g., requiring new
phosphorous treatment technology if authorized for use by DOE in meeting
stormwater manual requirements);115 requiring Yarrow Bay to identify estimated
maximum annual volume of total phosphorous that will be discharged in runoff
from the MPD site and that will comply with TMDL for Lake Sawyer, and if the
discharged amount exceeds the maximum, to make changes to reduce
discharge below the maximum;116 imposing monitoring requirements;117 and
imposing restrictions on roof types.118 Again, TRD fails to show that these
conclusions are clearly erroneous or are unsubstantiated by the record.
113 AR 27251, CL 18 (boldface and italics omitted).
114 AR 27251, CL 18(B).
115AR27251,CL18D(i).
116AR27251,CL18(D)(ii).
117 AR 27252, CL 18 (D)(v).
118 AR 27252, CL 18 (D)(iv).
38
No. 69418-9-1/39
TRD's contention that traffic and noise impacts were not adequately
mitigated is likewise without merit. TRD essentially reasserts its challenges to
the ElSes on this basis, which as discussed above, lack merit.
We affirm.119