Full Text
RE: Holmgren Short Plat, LAND2017-00548 Appeal Submitted by: CR HOME BUILDERS LLC s V . m APPEAL APPLICATION FORM •J /ulRedmond To file an appeal of a Type I or II decision or a SEPA determination, please complete the attached form and pay the applicable fee by 5:00 p.m. on the last day of the appeal period. Form submission and payment must be by PERSONAL DELIVERY at City Hall ls( Floor Customer Service Center c/o Office of the City Clerk-Hearing Examiner, 15670 NE 85,h Street. Contact the Office of the Hearing Examiner with process questions at [PHONE REDACTED]. Standing to Appeal: • Appeal to the Hearing Examiner of a SEPA determination - Any interested person may appeal a threshold determination, adequacy of a final E1S, and the conditions or denials of a requested action made by a nonelected City official based on SEPA. No other SEPA appeals shall be allowed. • Appeal to the Hearing Examiner of an Administrative, Technical Committee or Design Review Board Decision (Type I or II) - the project applicant, owner, or any person who submitted written comments (party of record) prior to the date the decision was issued may appeal the decision. The written appeal and the applicable fee must be received by the City of Redmond's Office of the Hearing Examiner no later than 5:00 p.m. on the 14th calendar day following the date of the decision. Should the appellant prevail in the appeal, the application fee will be refunded (City of Redmond Resolution No. 1459). The application fee will not be refunded for appeals that are withdrawn or dismissed. Hearing Examiner or City Council decision may be appealed to Superior Court by filing a land use petition which meets the requirements set forth in RCW Chapter 36.70C. The petition must be filed and served upon all necessary parties as set forth in State law and within the 21-day time period as set forth in RCW Section 36.70C.040. Requirements for fully exhausting City administrative appeal opportunities must be fulfilled. Please continue to page 2 to select your appeal type. (Staff Use Only) File No: Date Received: Receipt No. EXHIBIT 3 ---PAGE BREAK--- Please check the applicable appeal: • Appeal to the Hearing Examiner of a SEPA determination RZC 21.70.190(E). s%LT J vc,{^ v A f HASINA'>7 AC* mil- IIASIN Il o ^ • r\ I ' V !i u_i bui D. 2Q05 - An updated Critical Areas Stream Classification Map was approved by Ordinance 2278 and include a Class IV stream on the property. 2005 Stream Map (Clipped to the Property) 1993 Stream Map (Clipped to the Property) - "71 L Revised k»ca^on (survey) [ S8» wW* \ \ - I ' "iiwi' ss ? • 3 See D 4 Sec C, D & E EXHIBIT 3 ---PAGE BREAK--- Request for-Additional Information Holmgren Short Pint, LAND-20! 7-00548 4 of 13 E. 2009 - Updated Stream Map was approved by Ordinance 2448 and still included the Type IV stream as shown in 2005. F. 2012 - The City of Redmond reviewed the Forman Property or Timbers at Marymoor (LAND-2013-01511) which included a western addition to the stream segment on the property. As part of the Notice of Decision oil the Timbers of Marymoor states: "City maps show a Class IV stream running from west to east within a ravine at the north end of the subject property. Although runoff is naturally directed into this topographic feature, no stream channel is present. Dense vegetation and/or lack or scour indicates that storm flows are an insufficient volume and duration, and therefore do not produce a channel. Additionally, no channel was present within at least 40 feet of the down slope end. There may have been a stream here at one time, but currently the hydrologic inputs are insufficient to sustain a stream. Known at this time, the 40 feet comment was based off observation only and no critical area review was done on the Holmgren Short Plat property as part of the statement. G. 2015 - Former owners Jolm T. and Barbara N. Holmgren (per warranty deed 20170510001174) completed a Boundary Line Adjustment in May 2015 to change the property line between Lot 20 of East Crescent Lane and the property. The Boundary Line Adjustment Plat (Recording Number 20160601900007) shows the City of Redmond Mapped Class TV stream on the plat. A City of Redmond determination of the critical areas were not done at that time but Surveyor Timothy A. Griffin included under General Note two: "Location Type IV stream per City of Redmond GJS Map No evidence of stream seen on the ground "-Timothy A. Griffin H. 2016 - The area where the stream was removed from the Timbers property was put into a Native Growth Protection Area. The City of Redmond updated the City of Redmond Critical Areas Stream Classification Map by Ordinance 2819, removing the western stream segment on the Timbers at Marymoor property but still shown on the property. (Redmond Zoning Code "RZC" Map 64.3). 2005 & 2009 Stream Map (Clipped to the Property) 2016 Stream Map (Clipped to the Property) Rfvii*dlcK-itK»n(5Urvtey) j ^fr\- i i \ v yit 5 Sec Attachment F EXHIBIT 3 ---PAGE BREAK--- Request for Additional information Holmgren Short Pint, LAND-2017-00548 5 of 13 i 2016 - City of Redmond Staff, Cathy Beam and Tom Hardy were contacted in December 2016 by Annie Catlin identifying herself as the daughter of John T. and Barbara N. Holmgren. Ms. Catlin requested that City staff come out to the property with the desire to remove the stream classification on the Holmgren property with supporting statements; "Though (here has never been water or stream in my parents backyard" & "still no water exist or flows where indicated on my parent's property - Ms. Catlin December 13, 2016 ffo«\ tritor liclmj 1 U*d W I t>A fj! U7^C2)I11 to via'vtf h&r. IJ-CWw II fa r***f 2KCO fl ,u-OMb»y- Iviu el P/l'K t",f (w«j mi& r*m Uit) t«l U* INf «-nm f« l>;m' w< I1 »«d»JW0' « «i rj*t I i»jS Kw Ni p+«rMI«> t*»5I ^ r>rp»il U er lo P<»rit (in K*i M> Piirrtl ro Ktk*' fUti Ihr* Kir* I (*n'I trm up a-ilh H, r< rurfdUO be .ly vi i.k - a . J. January 2017 - Based on the site conditions at that time and Ms. Catlin's statements, Cathy Beam and Tom Hardy agreed via email that,"The City has confirmed that there is no stream across the property. Please be sure to include a wetland reconnaissance report with any future land development application" - Cathy Beam January 13, 2017 fcOTrl^z-'ig C*i*tJ*r!asry%t) ftp.": itflV TurtH,. U*Ai?V 17. 20174;] I PM I o: jrrv* «ilm • Cc;1ofnW H>idr'Iti21*2fiI2»^2£2ltLi> IU: Rp»wHf(«t lev Ji'vr I'm? » lr: .rwt ''Ail W.t?• IK If r 'It r»L-0nr.v I d J» »I;»iv'5r.,^»rws»r* I lr l'>f ripa i< t' t t».f! >HI ffll'lr I'IMl IW t"II IVflF I* W 13 thf *rt f'.i J'f y HI'TM J rt» U. Qnty rn. AJO» » D.I2E '>II pAf t#.»J rtN-K » »Il.« »vl » .l.'AI] S* EXHIBIT 3 ---PAGE BREAK--- Request for Additional Information Holmgren Short Pint. LAND-2017-00548 6 of 13 III. Subdivision Application Review History A. June 12. 2017 - The Holmgren Short Plat application was deemed complete per the Determination of Completeness. B. June 30. 2017 - Staff provided the first Additional Information letter to address outstanding code compliance issues. Staff noticed that the submittal showed a new pipe going across the property. The City of Redmond Senior Engineer, Jeff Dendy noted in the first Additional Information letter, is nuclear what runoff the western pipe located between the trees to be saved is to collect. The critical area report states that there is no stream." - Jeff Dendy Section JV.B.2.g & "The storm reviewer acknowledges that the critical area report stales that there currently is no stream onsite. The Geotech report slates that some boring had heavy seepage. It is possible that before the area developed, there was a stream." - Jeff Dendy Section IV.B.2.g of additional information letter. C. August 21. 2017 - The resubmitted Geotechnical Report by Terra Associates6, provided clarification regarding borings near the mapped stream. "At Test Hole IT-JO], we obsen'ed six inches of mulch overlying one-foot of hose drain rock enveloping a perforated pipe overlying loose to medium dense silty sand with scattered organics to the termus of the excavation." -Section 3.2 & "Moderate to hea\y seepage was obse/yed near the mapped location of the stream at Test Pit TP-1, and Test Holes IT-] 01 and IT- 102 at depths of one to one and one-half feet. This seepage was noted to flow from the contact between the upper topsoil/mulch fill and the underlying weathered glacial till. Additionally, the pipe enveloped with drain rock obsen'ed at Test Hole IT-101 was noted to produce a steady flow of water at an estimated rate of approximately one gallon per minute. Based on these seepage conditions, it is our opinion thai the local surface water flows are being directed to flow near the contact of the native till soil and the organic fill and drain rock/pipe system that have been installed-Section 3.3 The Report further states; "In our opinion (Terra), the proposed development would adequately reduce/divert the current groundwater seepage such that the detention vault would not be adversely impacted. The Proposed interceptor drain on Lot 3 which bisects the drainage path upgradient of the vault combined with the vault wall andfooling drainage system installed on the below-grade portion of the vault will prevent groundwater flow from becoming impounded upgradient of the buried structure." & "After the vault is installed and the fill to establish Lot 2 and Tract A is in place the side slopes of the drainage channel will be mostly eliminated" - Section 5.9. The map provided below shows the proposed interceptor drain across the project. D. August 24. 2017 - At the neighborhood meeting, neighbors including Stephanie Monk and Cornelia Kimmell brought up the concerns regarding the presence of a stream on the property and a location of a neighboring private well impacts. Staff requested neighbors to provide any documentation to the City of Redmond that may exist. 0 See Attachment G EXHIBIT 3 ---PAGE BREAK--- Retiuc.il for AddiiionaI Information Holmgren Short Pint. LAND-2017-00548 7 Of 13 E. September 12. 2017 - Staff completed a site visit to the property to better understand the topography challenges, the revised geotechnical report and neighbor's comments. F. September 22. 2017 - Ms. Monk and Ms. Kimmell provided video evidence dated February 2015 that shows surface flow of water on the property contrary to Ms. Catlin email statements on December 13,2016. Other photo evidence was provided showing that a gravel filled trench with perforated pipe was installed in the approximate location of the mapped Class IV stream dated September through November 2016 (shown below). This work was prior to the City of Redmond visiting the site and making a stream determination in January 2017. W-l i Itv - i m immm 111# 0m life tesSl^i G. October 2. 2017 - Given the Geotech information & neighbors' video/photos documentation, staff asked the applicant to provide more information with a Second Add Information letter: "Staff's oiiginal decision regarding the Stream determination was based off the information available at thai time. As a result of the updated information EXHIBIT 3 ---PAGE BREAK--- Request for Additional Information Holmgren Short Plat, LAND-20I7-Q0548 8 of 13 contained within the Geotech report and public comments receivedplease provide more information pertaining to the date of itistallation of the perforated pipe and loose drain rock, including the purpose for the work. Please submit any other relevant information regarding the stream. This will enable staff to make the best determination on moving forward. " - Scott Reynolds Section l.B.2.g Second Add Information Letter H. November 15. 2017 - The applicant responded to the City's Additional Information request with: "The applicant has not performed any work on the property and did not install the drain pipe or loose drain rock. The King County Mapping System identifies a stream, but based on both the applicant's biologist and the City's biologist, the stream does not exist." - James A. Olsen November 15, 2017 I. December 12.2017 - City staff took a video two parcels that showed significant base flow in the system without recent rain. J. December 20. 2017 - The City included further comments as part of the Third Additional Information letter: "After reviewing the information provided by the community and your response, the City of Redmond has determined that the Class IV stream did exist on the property and was put into an unpermitted piped system. As a result the January 17, 2017 e-mail determination by Cathy Bean and Tom Hardy regarding the stream is null and void due to information being withheld as part of the determination. To finish out the review: 1. A critical area report shall be provided by a qualified professional and include the extent of the pipe, possible presence of wetlands and any stream information. The Critical Areas Report shall be submitted in accordance with the City's reporting requirements as outlined in Redmond Zoning Code Appendix A Scott Reynolds Section IB. 2. a Third Add Information Letter. February 14,2018 - The resubmittal included a "Critical Area Determination Report" dated February 14, 2018 and a letter dated February 13, 2018 from Ms. Caitlinon behalf of her father Mr. Holmgren. The letter claims: "When I was in high school 98/99 the Wickman 's,for whom 1 was a Nanny, decided to develop the apple orchard adjacent to the Healea/Holmgren property line. White doing so they brought a small bull dozer down the property line betvi'een the Holmgren and Wickman at the existing chain-linkfence. They were remedying a mushy hillside which was created from runoff at their apple orchard. It was discovered some years later they had crushed the end of our drain pipe, which my parent never addressed in a timely fashion. " - Ms. Catlin L. April 3. 2018 - In reviewing the applicant's "Critical Area Determination Report" (prepared by Scott Brainard of Wetland Resources, dated February 14, 2018), the City found the document did not meet the City's Critical Area reporting requirements under RZC Appendix 1, specifically addressing all known best available science. Staff provided redline comments to address supporting evidence for the pipe replacement and known information. EXHIBIT 3 ---PAGE BREAK--- Request for Additional Information Holmgren Short Plat. LAND-2017-00548 9 of 13 M. May 4, 2018 - The applicant resubmitted with the following response to the City of Redmond's request to provide additional supporting evidence and show code compliance with the Redmond Zoning Code: "The applicant has carried any reasonably conceivable burden of establishing there is no critical area on the site. " & "Regardless, the appropriate forum for a determination of the Application now lies with the Technical Committee, and the Applicant request thai the matter be submittedfor a decision. " - James R. May 4, 2018 IV. SEPA Determination A. May 17. 2018 - The City of Redmond issued a Determination ofNonsignificance. The City received two comments from Matthew Bearwalde of the Snoqualmie Tribe and Karen Walter of the Muckleshoot Tribe. B. June 18, 2018 - The City of Redmond shared the two comments it received and issued a Request for Additional Information. C. June 22. 201 8 - The applicant responded to the tribes' comments stating. "Again, the applicant has carried any reasonably conceivable burden of establishing there is no critical area on the site, and there is no data or analysis in the record thai would remotely carry the burden ofproving to the contrary" -Mr. June 22, 2018 D, July 13.2018 - In response, Mr. Bearwalde provided follow-up7 comments stating: "The applicant's June 22nd, 2018 response to the City of Redmond's June 18,h Request for Additional Information contends that the applicant's eyewitness narrative fully and credibly explains running surface water. The Snoqualmie Tribe takes issue with this statement. The applicant's argument that no stream exists on the Holmgren site hinges at least partially on the story of the neighbor's allegedly formerly broken pipe, now fixed. We ask, where is the documentation of the broken pipe that is now fixed? This should be a simple matter to resolve and would lend partial credence to the applicant's narrative of no stream having been present on the site prior to its recent alteration. Mr. Bearwalde July 13, 2018 E. July 17. 2018 - The City of Redmond provided Mr. Bearwald's response to the applicant. The applicant responded to the City stating: "Just to confirm, the applicant does not intend to provide additional materials at this time, as the Tribes' comments are addressed in detail in prior submissions responding to the neighbor's materials. We do not blow when or under what circumstances the neighbor's video was made, but our materials confirm the obsen'ed surface water resulted from a broken drainage pipe, and that was consistent with the historical data and biologists analysis Mr, July 17, 2018 7 See Attachment H EXHIBIT 3 ---PAGE BREAK--- Request for Additional Information Holmgren Short Plat. LAND-2017-00548 10 of 13 V. Post Decision History A. July 25, 2018 - Application was presented to the Technical Committee for a decision, the outcome was denial. The official Notice of Decision was under review by the Directors but not yet signed. B. July 26. 2018 - The City responded to the Applicant's request for Technical Committee outcome, "The Technical Committee has denied the Holmgren Short Plat application. More information is contained in the official Notice of Decision letter that will be sent to you in the next couple of days. " - Scott Reynolds C. August 2. 2018 - City Staff met with Todd Levitt based off his request prior to the official Notice of Decision being released. VI. Outstanding Code Compliance Issues A. The May 3, 2018 "Critical Area Determination Report"8 or "The Report" by Wetland Resources fails to meet the reporting requirements for a Critical Area Report as required by Critical Area Ordinance (RZC 21.64.010.G.2.a-b & RZC 21.64.010.C.2) and Review standards (RZC 21.76.070.B.3.ii.a), The following items were not included: 1. RZC Appendix l.A.l. Name of the Proposal, "Holmgren Short Plat" is missing from the document. 2. RZC Appendix. 1.A.3. Scott Brainard is not listed as the author of the report coversheet. 3. RZC Appendix l.A.4. Technical expertise/special qualification of Scott Brainard has not been provided. 4. RZC Appendix KA.6. Vicinity Map of all parcels involved in the proposed subdivision have not been provided. 5. RZC Appendix 1 A.7. Identification of the development proposal being addressed including the City file number has not been provided. 6. RZC Appendix I .A.8. Site acreage and current and past uses on the property have not been provided. 7. RZC Appendix l.A.l2. Bibliography of published information referenced, including maps and best available science material has not been provided. 8. RZC Appendix I.B.I Wildlife Report has not been included within the Critical Area Report. 9. RZC Appendix 1.A.I7 Test Pit S3 depth only goes down to 18" stopping at the known imported topsoil layer per Teita Associates Geotechnical Report9. Lack of current scientific information regarding the soil condition below 18" has not been provided that would clarify on what existed prior to the above photo work taking place. 8 See Attachment I ' See Attachment G EXHIBIT 3 ---PAGE BREAK--- Request for Additional Information Holmgren Short Pint, LAND-2017-00548 11 of 13 10. R2C Appendix I.A. 17. The Report slates there is no stream but the plans and Geotech Report8 recommends capturing surface flows due to shallow subsurface water in the same area that is mapped as a Class IV Stream. The report does not address the inconsistency in information and in addition, the Washington Department of Fish and Wildlife does not allow piping of a Class IV streams.10 1 l.RZC Appendix 1.A.17 The Report fails to address the video and photo evidence provided by Ms. Monk and Ms. Kimmell as stated above. 12. RZC Appendix 1.A.17 The Report states that "approximately 100 linear feet of pipe was replaced" but does not give a mapped location or accurate location of either the "original" or "replaced" pipe. 13. RZC Appendix 1.A.17 The Report fails to address the Wickman Preliminaiy Storm Water Report that calls out a stream channel in 1998/1999. In addition, the Wickman report fails to identify a buried pipe on the Property, contradictory to Ms. Catlin's statements about pipe replacement. B. The "Critical Area Determination Report" that was submitted based the conclusion of a pipe replacement on four items below. It is found that the supporting items have failed to provide the best available science to support the claim of a pipe replacement due to: 1. "Wickman Short Plat" - The Wickman Short Plat was recorded in 1999, approximately six years before the Class IV stream was mapped on City of Redmond Critical Areas Map. The Wickman Preliminarily Storm Report does not state anything about a buried pipe, (Further explained under Section II. C&D above and VI1.B. below) 2. "1936 King County Aerial Photography" - The 1936 King County Aerial Photo does not provide a high-quality detail image to accurately show small details. Staff is unable to confirm the claim that "ho observable stream channel east or way/ of the site"- Scott Brainard based off the photo. 3. "Previous Owners Supplied photos in area of concern just prior to pipe replacement" - The photo does not clearly show the ground at the eastern end of the property where the "existing" pipe was installed, to prove presence or absence of a channel at that location. A Type IV stream can be intermittent, therefore the lack of any surface flows in the photo is inconclusive. (Further explained under VII.B. below) 4. "Written testimony from the previous property owner on the historical site conditions and the reason behind the pipe replacement" - Scott Brainard's reference to Ms. Catlin's statement that an existing pipe was crushed in 1998/1999 has not been supported by scientific evidence or Wickman Preliminarily Storm Report11. 10 Including Washington Code WAC 220-660 & 220-660-030 (153) " See Attachment D EXHIBIT 3 ---PAGE BREAK--- Request for Additional Information Holmgren Short Plat. LAND-2017-00548 12 of 13 C, Additional code compliance issues: 1. Private well R_473921122073201 listed under King County Water and Land Services Groundwater Well Data Viewer is not shown on the plan set with appropriate buffers. Staff was unable to confirm compliance with WAC 173-160- 171. VII. Critical Area Report Review A. The City of Redmond has a mapped Class IV stream on the property (Parcel ID [PHONE REDACTED]) since 2005 as stated in Section II above. The City of Redmond's January 2017 Stream determination was based off incomplete information from Ms. Catlin who represented the past owners. B. The current definition of a Class IV streams is; "those natural streams that are not Class J, Class 11, or Class III. They are either perennial or intermittent, do not have fish or the potential for fish, and are non-headwater streams" per RZC 21.64.020.A.2.d.iv. C. The Critical Area Regulations (RZC 21.64.010.G.2.a-b & RZC 21.64.010.C.2) and Decision Criteria standards (RZC 21,76.070.B.3.ii.a) required the applicant to submit a Critical Area Report by a qualified consultant. D. Per RZC 21.76.070.B.3.C. "The burden of proof for demonstrating that the application is consistent with the applicable regulations is on the proponent. The project application must be supported by proof that it conforms to the applicable elements of the City's development regulations and the Comprehensive Plan, and that any significant adverse environmental impacts have been adequately addressed." E. Matthew Bearwalde of the Snoqualmie Tribe12 and the City of Redmond Natural Resource Division reviewed the applicants "Critical Area Determination Report"13 and is unable to confirm or agree with the conclusion. F. The City's request for the applicant to provide code compliance with the Critical Area Regulations has been rejected by the applicant as referenced above. Since the information in the "Critical Area Determination Report" failed to show rigorous analysis and lacks code compliance for the City to make a determination, the City using the precautionary principle14 is left with the only option to limit development until the uncertainty is resolved. 12 See Attachment H 13 See Altacluticnl I H Supported by City of Redmond Comprehensive Plan NE-20 EXHIBIT 3 ---PAGE BREAK--- Request for Additional Information Holmgren Short Plat, LAND-2DJ7-00S48 13 of 13 VIII. City of Redmond Permit Decision The submitted Critical Area Report is code deficient based off Section VI above and needs more rigorous analysis per Section Vll above. The City is unable to condition the plat as a possible outcome of an updated code compliant Critical Area Report could be that a stream is on the property. This would cause significant changes to the plat affecting multiple code compliance standards. The City's desire is to work with the applicant to achieve code compliance, yet the applicant has requested a decision and the City will honor the request stated above. The City is left with no other option but to deny the application based off lack of compliance with the short plat subdivision criteria RZC 21.74.030.B.l.a & c, more specifically, showing compliance with the Critical Area Report requirements15. IX. Attachments A. Cresent Lane As-Builts B. 1992 Memo to City Council for Sensitive Area Ordinance. C. Wickman 2 Lot Short Plat As-Builts D. Wickman Preliminarily Stormwater Report Wickman 2 Lot Short Subdivision E. Wickman SEPA Checklist F. Forman Property (Timbers at Marymoor) NOD G. Holmgren SP Geotechnical Report H. Holmgren SEPA Letter from Snoqualmie Tribe I. Critical Area Determination Report 15 RZC 21.76.070.13.3.ii.A., RZC 21.76.070.B.3.C, RZC 2J.64.0IO.C.2, RZC 21.M.OIO.G.2.a-b & RZC Appendix I EXHIBIT 3