Section 2B Permit Denied Without Prejudice

The decision was received on January 5, 2017 and although this sounds rather negative, the Hearing Examiner actually agreed with the County on many issues.  We’ve tried to pick out the major points in the 52 page document which you can find on the City’s web page here:

He start off by saying, “Based upon the record and the four days of hearing, the Examiner is reasonably convinced that any Decision he issues in this case will be appealed to the SHB (Shoreline Hearing Board). There is so much antagonism and conflict among the various parties that not even a Solomon could craft a decision to satisfy everyone.

The “elephant in the room” must first be addressed: Is King County’s Segment B application complete? The Department states rather clearly that it is not. (Exhibit 1:B17, § IV.6; 131, p. 8 et seq.) But the Department then goes on in the same paragraph in Exhibit 1 to ignore its own finding and require King County to provide the missing information after issuance of the SSDP.

The Examiner concludes that the County’s application was incomplete because the site development plans (Exhibit 7) lack all information required for a complete application under WAC 173-27- 180(9)(f). 22 Specifically, they do not depict any utilities and may not depict all structures in the vicinity of the proposed construction. An incomplete application cannot be processed. An incomplete application creates no vested rights. An incomplete application cannot be cured by imposing a condition on the requested SSDP.

Three actions are possible: Remand, denial, or denial without prejudice. Remand would put the parties in an awkward position in that a remand is typically not considered a final action, and, thus, typically not considered ripe for appeal. The Examiner does not want to leave the parties in that position. Denial is a final, appealable action. But denial is not warranted where the problem is an incomplete application. Denial without prejudice is also a final, appealable action, but it is a denial which invites correction of a problem and resubmittal. The Examiner will use the denial without prejudice option.

The Hearing Examiner noted “The Decision could end here. But ending here would be unfair to the parties and (arguably) to the SHB as it would deprive them of the Examiner’s analysis of the voluminous record developed in this case. Therefore, the Examiner will provide a substantive analysis of the evidence in this record.”

 “The Department wants the County to reduce the width of the Master Plan Trail is unspecified areas by an unspecified amount. The Department argues that potential width reductions may be required to comply with mitigation sequencing provisions of the SMC: A reduced width might allow further avoidance of critical areas impacts. But it seems to this Examiner that such a request, presented in the open-ended fashion as here, is akin to arguing that the Port of Seattle could have further reduced impacts of its Third Runway project if only it had shortened or narrowed the runway. Or that the state could reduce wetland impacts of an interstate highway project if only it would reduce the width of the travel lanes.

Shifting the alignment of a proposal to avoid impacts is one thing. Even reducing the width of a proposal for a short segment to avoid a critically important feature could be reasonable. But changing a proposal simply to further reduce impacts on low-value wetlands that have already been avoided/reduced by alignment shifts and use of retaining walls does not seem justified. And that is what is being requested here. The Examiner is inclined to agree with the County that the primary reason the Department wants the Master Plan Trail width reduced is to reduce the impact of the trail on private improvements located within the ELST right-of-way. (Exhibit 131, p. 11 et seq., especially p. 13) That is not a sufficient or legally sound reason to try to change a fundamental aspect of the proposal.”

Although he had some sympathy for the homeowners situation,  he noted “Resolution of the ownership disputes is far beyond the scope of both this Examiner’s authority and the scope of concern of an SSDP application. Resolution of the ownership issues is a matter for the courts to decide.”

“The private improvements which property owners (and, implicitly, the Department) want the Examiner to protect by narrowing the width of the Master Plan Trail are all within the ELST right-ofway. King County has submitted voluminous evidence, which has been accepted by the City Attorney, to demonstrate that it owns the ELST right-of-way. Thus, for the purposes of this application, those private improvements all lie on King County property. The Examiner simply cannot deny or condition an otherwise compliant SSDP application to avoid impacts to things which lie within the ELST right-of-way and, thus, within the control of the applicant. Resolution of those many property rights conflicts must occur in another forum at another time.”

“Once application completeness and impact on private structures within the ELST Corridor are removed from consideration, evaluation of the ELST Master Plan Trail SSDP becomes fairly simple and straight-forward. The Conclusions of Law which follow demonstrate that the proposal as currently configured, properly conditioned, complies with all applicable requirements of the SMP.”

Hearing examiners comments regarding interpretation of AASHTO guidelines:

“The proposal complies with SMC 21A.30.210(3). Essentially, that subsection provides that trails “should be designed consistent with” the AASHTO Bike Guide and that clearing should be the minimum necessary. First, the requirement regarding the AASHTO Bike Guide is phrased as a “should,” not a “shall.” “Should” does not mandate, it suggests. Therefore, compliance with the Bike Guide is not mandatory. Second, even though the subsection refers to “AASHTO standards,” the Bike Guide contains guidelines, not rigid standards. Adopting guidelines does not convert “shoulds” to “shalls.” The City has adopted guidelines, not standards. The very language of the Bike Guide makes it clear that its contents are not rigid standards.

Having said that, the Master Plan Trail design is consistent with the AASHTO Bike Guide. The Guide recommends a 12-foot paved trail where volumes will exceed 300 users in the peak hour and where pedestrians comprise more than 30% of the users. Both situations apply here. The peak hour use factor is at or very near 300. Alexander is splitting hairs: It makes no sense to build a trail to a standard that will be outdated within a short time after completion. Further, the evidence indicates that user complaints are leading King County to widen existing 10-foot trails to 12-feet. Given Segment B’s placement in the regional trail system, it should be built to a 12-foot standard to begin with – just as were the segments to its north and south, both within the City and in Issaquah and Redmond.

Clearing limits have been reduced to a practical minimum. The testimony is compelling that even narrower clearing limits would be impractical and potentially unsafe for the workers: There simply must be adequate space beside the trail for workers to safely construct the retaining walls that are necessary to reduce the width of the trail’s footprint.”

The Hearing Examiner agreed with the County that 6 of the 16 conditions should be omitted and agreed with the County on most of the wording of several other conditions.  The six conditions requested by the City that the hearing examiner recommended being removed are the following.

(In the following section, the City’s condition is in parenthesis and italics with dots indicating this is just a section of the actual document.)

Recommended Condition 3 (The County shall identify all structures not owned and controlled by the County, and existing within the project area that were constructed or installed to a permit that is not revocable by the County.  For each permitted structure, if any, the County shall identify where the Project will be modified, narrowed, or relocated to mitigate for conflicts with permitted structures.)

This condition inserts the City into possible property rights disputes between the County and owners of improvements that have been constructed within the County’s ELST right-of-way. The SSDP should not be concerned with those private property disputes.

The Examiner would omit Recommended Condition 3.

Recommended Condition 4. (For those segments of the Project that located within the shoreline setback, the County shall update the plan set to depict that no development….will occur waterward of the current interim trail alignment…This section of the project must be minimized by either locating expanded improvement landward of the current interim trail alignment or by narrowing the Trail section.)

First, as has been previously concluded, the shoreline setback applies to structures; uncovered paved areas and fill are not structures by SMC definition. Second, SMC 25.06.020(1) generally calls for mitigation of otherwise not mitigated environmental impacts. This hearing record does not disclose any specific environmental impacts that would flow from widening the trail in those few places where the widened trail would be within 50 feet of the Lake Sammamish OHWM. Without specifically identified impacts needing mitigation, the subsection does not apply. Third, SMC 25.06.020(5) calls for general minimization of clearing and grading. It has nothing directly to do with the shoreline setback. Fourth, SMC 25.07.100(3) requires new transportation facilities, “not including trails, [to] be located outside of the shoreline setback”. This is an express authorization for new trails to be located within the shoreline setback.

The Examiner would omit Recommended Condition 4.

Recommended Condition 5.  (For that portion of the Project that is located within the Lake Sammamish Shoreline Setback, the County shall update the Project Plans to establish and maintain a Vegetation Enhancement Area (VEA) that is equal to the 15’ wide portion of the 50’ Lake Sammamish Shoreline Setback.)

Since the shoreline setback does not apply, the VEA requirement also does not apply.

The Examiner would omit Recommended Condition 5.

Recommended Condition 8.  (….The trail shall be narrowed as necessary to fully comply with tree protection in accordance with tree protection barrier and grading/grubbing limit restrictions in 21A.37.270(5))

The Examiner agrees with King County that this condition should be omitted. First, since most of Chapter 21A.37 SMC does not apply, this condition is trying to impose restrictions that are not appropriate. Second, the evidence is quite persuasive that employing standard tree protection measures would result in the removal of more trees, not preservation of more trees. Third, the Examiner concludes that alternative measures under SMC 21A.37.270(7) can be approved by the Examiner in the context of an SSDP review and that the alternative measures proposed by King County are appropriate. Finally, to the extent the purpose of this condition is to force the County to reduce Master Plan Trail width, it is a mis-use of Chapter 21A.37 SMC.

The Examiner would omit Recommended Condition 8.

Recommended Condition 9.   (….The trail can be narrowed in locations to reduce required clearing  and grading limits  and correspondingly reduce then minimize impacts to a level that is below what is currently proposed.  The County shall provide an updated Critical Areas Study (CAS) and updated clearing and grading plan…that address how Trail narrowing and clearing and grading limits reductions have been implemented in each instance where a critical area…..has been impacted….The updated CAS shall also include more specific information about how impacts on shoreline ecological functions are avoided and minimized.

The obvious objective of this condition is to force the County to reduce Master Plan Trail width. This objective is flawed for two major reasons. First, the time to consider major design changes (and the Examiner would contend that reducing the paved width from 12 to somewhere between 8 and 10 feet would be a major design change) is before the SSDP is issued, not afterward. Leaving trail width decisions to after issuance of the SSDP places them in an administrative forum for which there is no established procedure nor appeal process. Second, the voluminous record in this case fails to identify any wetlands along the ELST that are so valuable or so sensitive as to warrant forcing a reduction in the width of the proposed project. The adjacent wetlands are all Category 3 or 4 with low habitat scores. They simply are not major features.

The Examiner would omit Recommended Condition 9.

Recommended Condition 12. (Where fences, retaining walls, or a combination of fence and retaining wall exceed 4’ in height, adequate provisions shall be made to allow wildlife passage at intervals along the Trail if existing driveways are not sufficient.)

 This condition is unnecessary: The submitted plans show more than adequate opportunities for wildlife to cross the trail. Compliance with the plans would preserve those crossing opportunities.

The Examiner would omit Recommended Condition 12.