HomeMy WebLinkAbout1690Resolution No. 1690
["Beginning August 1, 2004"]
CON0=1293 Copper Ridge & Copper Ridge PUD Appeal
Passed -11/2/2004
Copper Ridge Preliminary Plat, PUD and SEPA Appeal Findings, Conclusions, and
Decisions
RESOLUTION NO. It; 90
A RESOLUTION of the city council of the city
of Kent, Washington, adopting findings of fact,
conclusions of law, and decisions regarding the quasi-
judicial, closed record appeal of the Copper Ridge
preliminary plat, planned unit development, and State
Environmental Policy Act appeal, (SU-2001-9, ENV-
2001-63, AP2003-4)
RECITALS
A. On October 19, 2004, the Kent City Council sitting as a quasi-Judicial body
heard a closed record appeal brought by Jack Kastien and Ed Shemeta, mdividually and on
behalf ofthe Coalition for Responsible Development regarding the prelimmary plat, planned
unit development, and State Environmental Policy Act appeal of the Copper Ridge
development (SU-2001-9, ENV-2001-63, AP2003-4). Mayor White and Councilmember
Harmon recused themselves from the hearing. Council President Julie Peterson presided.
B. The Council voted 6-0 to sustain the Kent Hearing Exammer's Decisions on
Recommendation, dated May 6, 2004, which are attached as Exhibit A and incorporated
herein by this reference.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS:
Copper Ridge Preliminary Plat,
PUD and SEPA Appeal
Findings, Conclusions, and Decisions
RESOLUTION
SECTION 1. -Adopt1on. The Kent City Council hereby adopts the attached Exlub1t
A as its findings of fact, conclusions oflaw, and decisions in the closed record appeal of the
Copper Ridge preliminary plat, planned unit development, and State Environmental Policy
Act appeal (SU-2001-9, ENV-2001-63, AP2003-4).
SECTION 2. -Severabilztv. If any section, subsection, paragraph, sentence, clause
or phrase of this resolution is declared unconstitutional or invalid for any reason, such
decision shall not affect the validity of the remaming portions of this resolution.
SECTION 3. -Ratification. Any act consistent with the authority and prior to the
effective date of this resolution is hereby ratified and affirmed.
SECTION 4. -Effective Date. This resolution shall take effect and be m force
immediately upon its passage.
PASSED at a ':l!}ar open public meeting by the City Council of the City of Kent,
Washington, this d., day of November, 2004.
J.-CONCURRED in by the Mayor of the City of Kent this J.; day of November,
2004.
ATTEST:
a~.d.>~
BRENDAJACOBER CLERK
2 Copper Ridge Preliminary Plat,
PUD and SEPA Appeal
Findings, Conclusions, and Decisions
I hereby certifY that this is a true and correct copy of Resolution No. 16 9tJ
passed by the City Council of the City of Kent, Washington, the J..-J.-day ofNovember,
2004.
P \CMI\RESOLUTION\CopperlbdgeFmdmasConclus1onsDcctSJon doc
3 Copper Ridge Preliminary Plat,
PUD and SEPA Appeal
Findings, Conclusions, and Decisions
EXHIBIT A
• I
• OFFICE OF THE LAND USE HEARING EXAMI
KENT
WASHINGTON FOR THE CITY OF KENT
In Re:
RECEIVED
MAY 7 2004
KENT LEGAL DEPT.
Theodore Paul Hunter
Hearing Examiner
The Review of the
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KENT Files: #SU-2001-9 and
#AP-2003-4 (ENV-2001-63)
King County Hearing Examiner
Recommendation of the
Copper Ridge Preliminary Plat,
PUD and SEPA Appeal.
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King County #891 P0004B, S91 U0001 8 )
And LOOMI091 ) ______________________ ),
DECISIONS ON RECOMMENDATION
I. Introduction
This matter involves an appeal of a Determination of Non-Significance (DNS) and a
review of applications for approval of a forty (40)-lot preliminary plat and Planned Unit
Development (PUD) on property located north of S. 2081h Street and east of
92nd Avenue S. The applications and appeal were first filed in King County in 1991.
The City of Kent became involved with the applications and appeal when it annexed the
property proposed for development to the City in 1993.
The Appellants in the DNS appeal are owners of property adjacent or near to the site of
proposed development. They allege that the development will have adverse
environmental impacts that will not be mitigated by the conditions of approval
recommended by King County. The Appellants urge denial of the plat and PUD
applications or additional conditions to address their concerns.
In the presentation of their appeal, the Appellants allege that the following problems
have not been adequately mitigated: 1) traffic problems on S. 2081h Street; 2)
destabilization of slopes on the hillside where the development is proposed; 3) surface
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner RecommendatiOns in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 1 of32
water runoff causing downstream flooding and water quality problems in Springbrook
Creek; and 4) inadequate pedestrian walkways.1
Because the applications were filed in King County prior to incorporation of the property
by the City, processing of the applications and appeal were addressed in a City/County
lnterlocal Agreement. The Agreement directs that the King County Hearing Examiner
conduct the hearings on the appeal and applications and make a recommendation to
the Kent Hearing Examiner. The King County Hearing Examiner held a hearing to
review the preliminary plat and PUD applications for compliance with regulations in
effect at time of the application and to gather evidence on the issues involved in the
SEPA appeal. The hearing record consists of 78 exhibits and 623 pages of transcribed
tape-recorded testimony as well as the 30-page Recommendation of the King County
Hearing Examiner.2
The Kent Hearing Examiner was instructed by the City to review the hearing record to -
determine if the findings are supported by evidence in the record and if the conclusions
are supported by the findings.3 If review revealed deficiencies in the Recommendation,
the Kent Hearing Examiner was instructed to remand the matter back to the King
County Hearing Examiner with specific instructions to correct deficiencies in the
Recommendation. The Kent Hearing Examiner, as the final decisionmaker on these
matters, was also authorized to correct any deficiencies in the recommendation and
enter a final decision. This is what the Kent Hearing Examiner chose to do.
This Decision on Recommendations details the procedural history of the applications
and appeal; articulates the standard and criteria for review of the applications and
appeal; describes the methodology used by the Kent Hearing Examiner in his review of
the hearing record; and details the results of that review. The bulk of this Decision
consists of identification of the exhibit or testimony that supports a finding, where
available, and a discussion of substantial evidence in the record.
1 In the appeal statement, the Appellants also alleged that there would damage to onsite wetlands and
negative impacts on wildlife. These issues were not pursued during the appeal hearing and thus will not
be addressed by the Hearing Examiner. An additional issue related to pedestrian walkways was not
raised in the appeal statement but was presented during the appeal hearings.
2 See Appendix B for a complete copy of the King County Hearing Examiner Recommendation.
3 This task was complicated by the fact that few findings of the King County Hearing Examiner referenced
an exhibit in the record; and no conclusions referenced any findings. Thus, it was necessary for the Kent
Hearing Examiner to independently review the exhibits and testimony to determine if a finding was
supported by the record. This task required a transcription of the record, which was made available to
the Kent Hearing Examiner on March 26, 2004. ·
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page2of32
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II. PROCEDURAL HISTORY
In January 1 991, Schneider Homes filed an application for preliminary plat and planned
unit development in an area of unincorporated King County to subdivide 9.64 acres into
40 lots for single-family dwellings consisting of tri-and four-plexes. In July 1992, King
County issued a Determination of Significance (OS), which the Applicant appealed. The
City of Kent annexed the land in question in May 1993, before the OS appeal was
resolved and assumed jurisdiction of the OS appeal and underlying development
applications.4 The Applicant appealed Kent's decision to apply Kent City Code
standards to the 1991 plat and PUD applications. The Washington State Court of
Appeals subsequently ruled that the applications vested when filed in 1991 and would
be decided based on the King County regulations in effect on the land at time of
application.
In 1996, Kent and King County entered into an lnterlocal Agreement establishing a land
use review process for lands within the annexation areas. In November 2000, the
lnterlocal a~reement was amended specifically to address the pending Copper Ridge
application. The City of Kent resumed processing the applications, using the King
County land use regulations in effect at the time of application, and issued a
Determination of Non-Significance on August 11, 2003.6 The Appellants tiled an appeal
of the SEPA threshold determination on September 5, 2003.1
The King County Hearing Examiner heard the SEPA appeal with the plat and PUD
applications in a three-day hearing in December 2003. His issued his Recommendation
on January 24, 2004. The Kent Hearing Examiner was instructed to review the
Recommendation. The complete hearing record was not made available to the Kent
Hearing Examiner until March 26, 2004, as it was necessary to transcribe the testimony
and forward the exhibits. The Kent Hearing Examiner now issues this Decision on
Recommendations.
Ill. SUMMARY OF DECISIONS
SEPA DNS Appeal
The King County Hearing Examiner appropriately recommended denial of the SEPA
appeal. His recommendation is supported by substantial evidence. The SEPA Appeal
is denied.
4 See Exhibit 2, King County Department of Development and Environmental Services (DOES) staff
report.
5 See Exhibit 22, 1996 lnterlocal Agreement, amended November 2000.
6 See Exhibit 6, Determination of Non-Significance.
7 See Exhibit 7, Notice of Appeal of SEPA threshold determination.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 3 of32
(
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In a SEPA appeal, the Appellants have the burden of proving that the decision was
clearly erroneous. The Appellants did not offer credible scientific or engineering
evidence to show that the studies, plans, and expert testimony offered by the Applicant
and the County were flawed in any way. Although the Appellants presented legitimate
concerns about some environmental aspects of the proposed development, the
Appellants did not present expert testimony or factual information that amounted to a
demonstration of clear error. The determination by the County that the proposed
project, as conditioned, would not have significant adverse environmental impacts is
supported by substantial evidence in the record.
PUD and Plat Applications
The King County Hearing Examiner appropriately recommended approval of the
preliminary plat and PUD applications. Although the King County Hearing Examiner's
findings and conclusions may not be adequate as written, there is substantial evidence
in the record to support approval of the plat and PUD applications, with revised
conditions that require additional studies on slope stability and that provide for safe
pedestrian walkways. The request for approval of applications is granted.
IV. STANDARD OF REVIEW
The decision review process detailed in the City/County lnterlocal Agreement is a
unique process without precedent in any other city. To help ensure a reliable review
process, the Kent Hearing Examiner will review the recommendations of the King
County Hearing Examiner as an appellate hearing body would review them. That is,
questions of law will be reviewed de novo, while questions of fact will be reviewed under
the substantial evidence standard. Christianson v. Snohomish Health District, 946 P.2d
768, 771 (1997), citing Hilltop Terrace Homeowners' Association v. Island County, 126
Wash.2d 22, 29 (1995). Substantial evidence exists when "there is a sufficient quantity
of evidence in the record to persuade a fair-minded, rational person of the truth of the
finding. u Sunderland Family Treatment Services v. City of Pasco, 903 P.2d 986, citing
Hilltop Terrace Homeowner's Association v. Island County, 126 Wash.2d 22, 34 (1995);
Christianson, citing Sparks v. Douglas, 127 Wash.2d. 901, 910 (1995).
Under the substantial evidence standard of review, the weight given to reasonable but
competing inferences and questions of credibility is the province of the fact finder.
Hilltop Terrace, supra, at 34. Findings of fact supported by substantial evidence are
verities when reviewed by an appellate body. Cowiche Canyon Conservancy v. Bosley
118 Wash.2d 801, 819 (1992). The reviewing body may not substitute its findings for
those that were made by the hearing officer. Thorndike v. Hesperian Orchards Inc., 54
Wash.2d 570, 575 (1959). The burden of proof is on the Appellant to show that the
decision is not supported by substantial evidence. Christianson, citing Nordstrom Credit
Inc. v. Dept of Revenue, 120 Wash.2d 935, 939-40, (1993).
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page4of32
The purpose of the requirement of findings and conclusions is to ensure that the
decision maker has dealt fully and properly with all the issues in the case before it is
decided, so the parties involved may be fully informe~ as to the bases of the decision
reached. State v. Agee, 89 Wash.2d 416, 421, 573 P.2d 355 {1977). In order to permit
meaningful review, findings of fact should at least be sufficient to indicate the factual
bases for the ultimate conclusions. Groff v. Department of Labor & Indus., 65 Wash.2d
35, 40, 395 P.2d 633 (1964); State v. Holland, 98 Wash.2d 507, 517, 656 P.2d 1056
(1983). The record need not contain findings of fact on all matters in evidence, but
should address those issues that establish the existence or nonexistence of
determinative factual matter. Maehren v. Seattle, 92 Wash.2d 480, 487-88, 599 P.2d
1255 {1979), cert. denied, 452 U.S. 938, 101 S.Ct. 3079 (1981).
Where inadequate, written findings may be supplemented by statements in the record.
State v. Holland, supra 98 Wash.2d at 518, 656 P.2d 1056. In cases of inadequate
findings, reviewing courts in Washington have looked to the record as a whole, as in
review of administrative agency decisions where findings may be supplemented by
undisputed evidence from the record. Chmela v. Department of Motor Vehicles, 88
Wash.2d 385, 391, 561 P.2d 1085 (1977). The Washington State Supreme Court has
held that the relevant query in cases of inadequate findings is whether substantial
evidence exists in the record below, not whether such evidence is disputed.
The Kent Hearing Examiner will follow the guidance offered by the Washington Court. If
the King County Hearing Examiner references exhibits or testimony in support of a
finding, the Kent Hearing Examiner will rely upon the judgment of the King County
Hearing Examiner as to the truth of that finding. However, where there is no exhibit or
testimony cited in support of a finding, the Kent Hearing Examiner must look to the
record to determine if substantial evidence supports a finding. If evidence is found in
support of a finding, the Kent Hearing Examiner will cite to that support and accept the
finding. If no evidence can be found, then the finding cannot be sustained.
V. CRITERIA FOR REVIEW
Any decision made by a hearing examiner must be made with reference to criteria for
review established by the local legislative body and the courts. A hearing examiner is
not a decisionmaker that can "do equity" with reference to a land use appeal or
application, but must rely only upon the directives of the local legislative body and the
courts for decisionmaking guidance. See Revised Code of Washington (RCW) Sections
35.63.130; 35A.63.170; 36.70.970; 58.17.330.
The criteria for review of the SEPA Appeal are found in Chapter 43.21 C RCW, Chapter
197-11 of the Washington Administrative Code and in judicial decisions interpreting
SEPA. The criteria for review of the plat and PUD applications are found in Chapter
58.17 RCW and in the ordinances of King County and the City of Kent.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 5of32
State Environmental Policy Act
The State Environmental Policy Act (Chapter 43.21C RCW or "SEPA") specifies the
environmental review procedures the City must follow for proposals that may have an
impact on the environment. One purpose of the act is to "insure that presently
unquantified environmental amenities and values will be given appropriate consideration
in decision making along with economic and technical considerations." Every proposal
that may impact the environment (unless it is exempt from the act) must undergo some
type of environmental review. RCW 43.21C.030 (b).
The SEPA threshold determination is a determination as to whether a proposal is "likely
to have a probable significant adverse environmental impact." WAC 197-11-330. If the
responsible official determines that the proposal would not have a probable, significant
adverse environmental impact then a D~termination of Nonsignificance (DNS) is issued
and an EIS need not be prepared. As stated in WAC 197-11-794, '"[s]ignificant' as used
in SEPA means a reasonable likelihood of more than a moderate adverse impact on the
environment. Significance involves context and intensity and does not lend itself to a
formula or quantifiable test." As stated in WAC 197-11-782, '"[p]robable' means likely or
reasonably likely to occur .... Probable is used to distinguish likely impacts from those
that merely have a possibility of occurring, but are remote or speculative."
RCW 43.21C.060 specifies that government action may be conditioned or denied
pursuant to SEPA only if the conditions or denials are "based upon policies identified by
the appropriate governmental authority and incorporated into regulations, plans or
codes which are formally designated by the agency ... as possible bases for the
exercise of authority pursuant to this chapter." The action may be conditioned "only to
mitigate ~pecific adverse environmental impacts which are identified in the
environmental documents prepared under this chapter." RCW 43.21C.060.
Clear error is the standard of review applicable to substantive decisions based on
SEPA. Cougar Mt. Assocs. v. King County, 111 Wn.2d 742, 749, 765 P.2d 264 (1988).
Under this standard of review, a reviewing body "does not substitute its judgment for
that of the administrative body and may find the decision 'clearly erroneous' only when it
is 'left with Jhe definite and firm conviction that a mistake has been committed.'" /d. at
747 (quoting Polygon Corp. v. Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309 (1978)).
The Appellant has the burden of proving that the County's decision was clearly
erroneous. Boehm v. City of Vancouver, 111 Wn. App. 711, 718 (2002). "Substantial
weight" must be given to the County's threshold determination. Moss v. City of
Bellingham, 109 Wn. App. 6, 14 (1997).
Planned Unit Development
The standards and criteria for review of the pending PUD application are found in King
County Code Title 21.56, which states that the purpose of planned unit development is:
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 6of32
A. To produce a development which would be as good or better than traditional lot
by lot development ... on unsubdivided property;
B. To permit flexibility that will encourage a more creative approach in the
development of land, and will result in a more efficient, aesthetic and desirable
use of open space, while at the same time harmonizing with adjoining
development and maintaining population and area coverage which are consistent
with the transportation facilities and utilities available, and with the public health
and safety standards of the County, and which do not adversely impact
neighboring development;
C. To permit flexibility in design, placement of buildings, use of open spaces, bicycle
and pedestrian circulation facilities, off-street parking areas, and street alignment;
and to best utilize the potentials of sites characterized by special features of
geography, topography, size, or shape .... KCC 21.56.010.8-.D.
Prior to approval of an application for planned unit development, the Hearing Examiner
must determine that the plans comply with the development policies of the
comprehensive plan, community plan policies, area zoning guidelines, applicable
provisions of the shoreline master program, the purpose of this title, and the provisions
of Chapter 21 of the King County Code. The Applicant is responsible for demonstrating
consistency with these requirements. KCC 21.56.030.A.
Preliminary Plat
The decision of the Hearings Examiner must be consistent with the standards and criteria
for review specified in King County ordinances in effect in January 1991, specifically King
County Code Title 19, Subdivisions. Those local ordinances are intended to implement
the requirements of RCW 58.17.110, which requires that:
Appropriate provisions are made for the public health, safety, and general
welfare and for such open spaces, drainage ways, streets or roads, alleys,
other public ways, transit stops, potable water supplies, sanitary wastes,
parks and recreation, playgrounds, schools and school grounds and all
other relevant factors, including sidewalks and other planning features that
assure safe walking conditions for students who walk to and from school;
and that the public use and interest will be served by the platting of such
subdivision.
VI. METHODOLOGY OF REVIEW
The purpose of the Kent Hearing Examiner's review is to determine whether evidence in
the record supports the findings entered by the King County Hearing Examiner and
whether the conclusions entered follow from those findings. If the answer to both
questions is yes, then the King County Hearing Examiner's Recommendation is to be
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001~9, ENV-2001-63, and AP-2003-4
Page 7of32
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accepted as the final decision.8 If not, then the City of Kent Hearing Examiner may
remand the recommendation to ttle King County Hearing Examiner "with specific
instructions to correct deficiencies in the recommendation." By City ordinance, the Kent
Hearing Examiner is the final decisionmaker in these matters. As the Kent Hearing
Examiner, and acting under that authority, he may choose to make a decision based on
his review of the record and correction of any deficiencies therein.9
Initial review of the record revealed that none of the forty-five (45) numbered findings
entered by the King County Hearing Examiner cited to exhibits or to testimony.10 Some
findings refer to types of documents, or to dates or authors of documents, which could
be searched for on the exhibit list. Examples include: "the application" (Finding No. 4 );
"[a] 1999 settlement agreement" (Finding No.5); "a determination of non-significance"
(Finding No. 6); and, "preliminary geotechnical engineering study performed by Golder
Associates, Inc., dated September 24, 1990" (Finding No.11 ). Without citations to page
numbers or to specific documents, however, it was not possible to determine whether
evidence in exhibits supported the statements in the findings without a complete review
of the document referenced in the finding.
In an attempt to avoid both a remand and a de novo review of the record, the Kent
Hearing Examiner requested the assistance of the parties in identifying specific citations
to exhibits in the record that might support the findings as written. The response from
the parties to this request was not sufficient to avoid de novo review.11 The King County
Hearing Examiner also declined the Kent Hearing Examiner's request to annotate his
Recommendation with citations to specific exhibits and testimony to facilitate review.
The Kent Hearing Examiner was thus compelled to conduct a de novo review of the
entire record to determine whether substantial evidence in the record supported the
findings and conclusions entered in the Recommendation.12
8 In accordance with Kent City Code Chapter 12.01, any appeal of the preliminary plat would be heard by
the Kent City Council as a closed record appeal. Any appeal of the PUD or further appeal of the SEPA
threshold determination would be to Superior Court. See Letter dated May 29, 2003 from C1ty Attorney
for Kent to the parties.
9 See Exhibit 1, Document /33, May 29, 2003 letter from City Attorney for Kent.
10 Only Finding No. 2 refers to an exhibit by number.
11 The SEPA Appellants did submit specific citations to exhibits upon which some findings could have
been based. The City ,of Kent had not presented exhibits at the hearing and declined to submit specific
citations to exhibits supporting findings. King County did not reply to the Hearing Examiner's request.
The Applicants, through their attorney, declined to submit citations to exhibits and requested remand to
the King County Hearing Examiner.
12 The exhibits fill two file boxes. They consist of 78 numbered exhibits ranging from one page to 50 or
more pages. The record also includes twelve 2-sided audiocassette recordings of testimony, transcribed
into 623 pages of hearing traJ"!SCript, not including the pre hearing conference.
City of Kent Hearing Examiner DeCisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD anrf SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page8of32 '
VII. RESULTS OF REVIEW
The following annotation of citations to the record was created to identify where there is
support for the findings and conclusions in the King County Hearing Examiner's
Recommendation. The annotation identifies the finding; summarizes the content of that
finding; and references exhibits and testimony that support that finding, where available.
It is most helpful to the reader to read each annotated finding or conclusion below in
conjunction with the corresponding findings and conclusions in the Recommendation.
All of the 45 findings in the Recommendation contain more than one factual statement.
Where support was not found in the record for all statements in a given finding, the
annotation below contains additional information.
A discussion of the findings and conclusions, as supplemented by the annotations
below, follows this section. The discussion focuses on whether the findings and
conclusions, as supplemented below, are sufficient to support the recommendation of
the King County Hearing Examiner. The decision of the Kent Hearing Examiner follows
the discussion section.
Annotated Findings of King County Examiner as
Supplemented by Review of the Record by Kent Hearing Examiner
Finding 1 relates to the specific details of the project. Exhibit 3, Application; Exhibit 2,
Staff Report, pages 1-2.
Finding 2 incorporates the facts of the ODES Staff Report into the King County Hearing
Examiner's Recommendation. Exhibit 2, Staff Report; Exhibit 66, Amendment to Staff
Report. Note: This finding incorporates the "facts" of the staff report into the
Recommendation and finds the "facts" are correct. However, as there is no "facts"
section in the staff report, the Kent Hearing Examiner is unable to determine which facts
are incorporated by this finding.
Finding 3 relates to the specific details of the project. Exhibit 2, Staff Report, pages 2 &
6; Exhibit 22, 2001 Amendment and 1996/nter/oca/ Agreement.
Finding 4 relates to the procedural history of the project. There is no support in the
record for Sentences 1, 6, and 7. The balance of Finding 4 is supported by Exhibit 2,
page 2; Exhibit 1, document 83, 9/25103 Pre-Hearing Order, page 2; Exhibit 22, 1996
lnterlocal Agreement and 2001 Amendment.
Finding 5 relates to the procedural history of the project. The 1999 Settlement
Agreement between the parties is not in the record, and there is no evidentiary support
for a statement of its terms. The balance of Finding 5 is supported by Exhibit 1,
Document 83, 9/25103 Pre-Hearing Order; Exhibit 1, Document /33, 5/23/03 Jetter from
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 9 of32
Kent City Attorney's Office to parties,· Exhibit 22, 1996/nterlocal Agreement and 2001
Amendment, page 1.
Finding 6 relates to the procedural history of the project. Exhibit 6, 8/11/03
Determination of Non-Significance; Exhibit 7, SEPA Appeal; Exhibit 1, Document 81,
Notice of Pre-hearing Conference.
Finding 7 relates to Appellants' concerns regarding the steep slopes. There is no
support in the record for a finding that Appellants mapped landslide areas totaling
19,000 sq.ft. The remainder of Finding 7 is supported by Exhibit 28, December 1990
King County Sensitive Area Mapfolio; Exhibit 9, Site Plan; Exhibit 14, September 1990
Talisman Land Resource Consultants' Wetlands report; Exhibit 15, October 2002 B-
Twelve Wetland Analysis Report, page 5.
Finding 8 outlines the SEPA appeal issues. There is no support in the record for a
finding that Appellants limited scope of SEPA appeal at hearing to slope stability alone.
Appellant Kastien raised concerns regarding water quality impacts from erosion, from
overflow of the detention pond, and from inadequate water quality protection provided
by 1 990 pond standards on downstream sensitive areas. Testimony of Mr. Kastien, pg
27, line 25 through page 37, line 5. Appellant Shemeta testified about the Appellants'
traffic and pedestrian safety concerns. Testimony of Mr. Shemeta, pg 54, starting at
line 2, et seq. Mr. Miller testified, as an expert for the Appellants, that he believes an
aquifer lies beneath the site that could be punctured during construction to the detriment
of his and other neighboring properties. Testimony of Mr. Miller, pg 14, line 21 through
pg 143/ine 6. The remainder of Finding 8 is supported by Exhibit 7, SEPA Appeal.
Finding 9 is a discussion of regulations concerning steep slope issues. There is no
support in the record for this finding. Ordinance 9614 is not in the record. KCC
Ch.21.54, Special Control Areas and Flood Hazard Areas, in the record at Exhibit 50,
does not contain the sections cited in this finding pertaining to definitions, soil types, and
classifications of steep slopes.
Finding 10 is a discussion of sensitive areas Ordinance 9614, which is not in the record.
The remainder of this finding is supported by Exhibit 50, KCC Ch. 21.54.040.0,
Sensitive Areas Special Studies; Exhibit 14, September 1990 Talisman Land Resource
Consultants' Wetlands repo1t· Exhibit 17, March 18, 1992 Preliminary Geotechnical
Report from Golder & Associates; Exhibit 2, Staff Report, pages 12-13, §Q. B. 2-5;
Testimony of Mr. West, pg. 469-70, lines 20-1.
Finding 11 relates to Appellants' concerns regarding the steep slopes. Exhibit 7, SEPA
Appeal; Exhibit 17, March 18, 1992 Preliminary Geotechnical Report from Golder &
Associates, pages 1-6; Exhibit 52, March 4, 1992 Additional Geotechnical Review and
Recommendations from Golder & Assoc; Testimony of Mr. West, pg.422-23, lines 24-3;
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 10of32
Testimony of Mr. West, pg. 429, lines 9-17; Testimony of Mr. West generally, pg. 422-
474. , , I
Note: The finding states there were 14 test pits; exhibits and testimony confirm there
were 13 test pits.
Finding 12 relates to Appellants' concerns regarding the steep slopes. Exhibit 7, SEPA
Appeal; Testimony of Mr. Kastien, pg. 18/ine 8 through pg. 21/ine 21; -19, Exhibits 29,
30, and 31, photographs taken by Appellant; Testimony of Mr. Melby, pg. 2181ine 11
through pg. 219 line 22.
Finding 13 discusse~ steep slope stability generally. The first sentence is not supported
in the record. The second sentence is generally supported by Exhibit 17, March 18,
1992 Preliminary Geotechnical Report from Golder & Associates; Exhibit 52, March 4,
1992 Additional Geotechnical Review and Recommendations from Golder & Assoc;
Testimony of Mr. West, pg.422-23, lines 24-3; Testimony of Mr. West, pg. 429, lines 9-
17; TestimonyofMr. Westgeneral/y, pg. 422-474; TestimonyofMr. Knitter,pg281,
lines 4-17; Testimony of Mr. Knitter generally, pg. 267-96. The third sentence is not
supported in the record. ·
FindingjA relates to the effect of the drainage pond on steep slope stability. Testimony
of Mr. Kastien, pg 25, lines 6-18; pg 30, lines 9-18; Testimony of Mr. Kastien generally;
Testimony of Mr. Miller, pg. 122, lines 1-25; pg. 178, lines 1-19; Testimony of Mr. Miller
generally.
Finding 15 relates to the effect of the drainage pond on steep slope stability. Sentence
1 is generally supported by testimony of Mr. Knitter, pg. 278, lines 4-9; testimony of Mr.
Daley, pg. 350, lines 8-23; pg. 386, lines 1-11. Sentence 2 is generally supported by
testimony of Mr. Daley, pg. 380, 9-13; testimony of Mr. Knitter, pg.281, lines 4-9.
Sentence 3 is generally supported by testimony of Mr. Daley, pg. 401, 9-15; Testimony
of Mr. Whittaker, pg. 426, lines 23-25. There is no support in the record for the
remainder of Finding 15.
Finding 16 is a discussion of the Appellants' concern that the site may be underlain by
an aquifer. Testimony of Mr. Miller, pg. 141, lines 3-7; pg. p142, lines 10-14; pg.146,
lines 6-11; pg.149, 9-21; Testimony of Mr. Miller generally; Exhibit 41, wei/logs.
Finding 17 discusses the possible aquifer and dismisses the Appellants' aquifer theory.
The King County Hearing Examiner's dismissal of the possible aquifer as a potentially
significant environmental issue is supported by testimony of Mr. West, pg 436, line 6
through 4371ine16, and Exhibit 17.
Finding 18 relates to steep slope stability. Exhibit 9, Site plan; Testimony of Mr. Knitter,
pg.281, line 18 through 282, line 14; Exhibit 17, pg.5; Exhibit 52, pg.1-2; Testimony of
Mr. Daley, pg. 367/ine 1 through 3681ine 14.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 11 of32
(
Finding 19 is a discussion of various storm water drainage standards. Exhtbit 2, Staff
Report, page 6; Exhibit 22, 2001 Amendment and 1996 lnterlocal Agreement;
Testimony of Mr. Kastien, pg. 24, line 18 through pg.251ine 5; Testimony of Mr.
Whittaker, pg. 480 line 17 through 481 line B.
Finding 20 continues the discussion of various storm water drainage standards. There
is no support in the record for this finding.
Finding 21 continues the discussion of various storm water drainage standards.
Testimony of Mr. Kastien, pg. 34, lines 1-8; Testimony of Mr. Daley, pg. 370, lines 3-21;
pg. 390, line 4 through 391 line 16.
Finding 22 relates to downstream drainage impacts. Sentences 4, 5, and 7 of this
finding are partially supported by Exhibit 16, Nov. 8, 2002 Revised Level2 Off-Site
Analysis prepared by Daley-Morrow-Poblete, Inc., Task 1, Upstream Drainage Analysis,
Task 3, #1, citing undersized culvert~ Task 4, citing second undersized culvert;
Testimony generally of Mr. Daley, starting at pg. 348; Testimony generally of Mr.
Whittaker, starting at pg. 474. The Kent Hearing Examiner is unable to determine
whether the specific statements in sentences 1-3, 6 and 8 are supported in the record.
Finding 23 relates to downstream drainage impacts. There is no support in the record
for sentences 1, 2, and 5 of this finding. Sentences 3, 4 and 6 are supported by
Testimony of Mr. Kastien, pg. 24, line 18 through pg.251ine 5; Testimony of Mr. Daley,
pg 3891ine 7 through 391/ine 16; Testimony of Mr. Whittaker, pg. 480 line 17 through
481/ine B.
Finding 24 relates to downstream drainage impacts. Exhibit 65, Drainage Basin
Comparison Data Sheet; Testimony of Mr. Daley, pg. 374/ine 8 through 376/ine 17;
Testimony of Mr. Whittaker, pg. 480, lines 2-8.
Finding 25 relates to water quality impacts. Exhibit 2, Staff Report, pages 5-6;
Testimony of Ms. Rhodes, pg. 490, lines 1-20; pg. 492/ine 3 through 4931ine 3.
Finding 26 relates to traffic impacts. Exhibit 2, Staff Report, pgs 2 & 5; Exhibit 1, ODES
file, unmarked document, May 23, 1991 Traffic Impact Analysis by Christopher Brown &
Assoc., pg. 3.
Finding 27 relates to traffic impacts. This finding is partially supported by Exhibit 1,
DDES file, unmarked document, May 23, 1991 Traffic Impact Analysis by Christopher
Brown & Assoc ..
Finding 28 relates to the road standard variance granted in this case. Exhibit 24,
March 2, 1992 Road Variance Decision; Exhibit 2, Staff Report, page 6, §J(3) Variance.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 12of32
Finding 29 is a discussion of trip distribution. Exhibit 20, October 31, 2003
Supplemental Traffic Impact Analysis by Christopher Brown & Assoc., pg. 8, Exhibit 19,
March 19, 2002 Supplemental Traffic Impact Analysis by Christopher Brown & Assoc.,
pg. 7; Testimony of Mr. Brown, pg. 305, lines 3-5; Testimony of Mr. Shemeta, pg.117,
lines 13-25; pg. 339, lines 1-4; Exhibit 77, traffic photos; Testimony of Mr. Kastien, pg.
592, line 18 through 593, fine 1.
Finding 30 continues the discussion on trip distribution. Exhibit 1, DOES ftle, unmarked
document, May 23, 1991 Traffic Impact Analysis by Christopher Brown & Assoc., pg. 6;
Exhibit 20, October 31, 2003 Supplemental Traffic Impact Analysis by Christopher
Brown & Assoc., pg. 5; Exhibit 26, February 14, 2002 Kittleson & Assoc. Traffic Impact
Analysis on the 21ih Street Retail Center, pg. 10; Exhibit 19, March 19, 2002
Supplemental Traffic Impact Analysis by Christopher Brown & Assoc ..
Finding 31 discusses the impacts ofthe new Winco 2121h Street Retail Center on
required mitigation for development of Copper Ridge. Exhibit 20, October 31, 2003
Supplemental Traffic Impact Analysis by Christopher Brown & Assoc., pg. 8; Testimony
of Mr. Brown, pg. 322/ine 23 through 323, fine 4; pg. 343, lines 13-18; pg. 343, 22-23;
Testimony of Ms. Langley, pg. 347, line 22 through 3481ine 2; pg. 501, lines 7-19;
pg.502, lines 1-13; pg. 520, line 16 through 521, line 7; pg. 522, line 10 through 523,
line 1.
Finding 32 relates to traffic and pedestrian safety and discusses bus stop safety issues.
Exhibit 23, November 15, 2001 letter from Kent Schoof District; Testimony of Mr.
Thompson, pg. 193, fines 6-11; Testimony of Mr. Woodward, pg.209, lines 1-8;
Testimony of Mr. Jencks, pg.214/ine 24 through 2151ine 21.
Finding 33 relates to traffic accident history along S. 208th Street SW. Exhibit 60 Map
entitled Accidents by Location, from Christopher Brown & Assoc.; Exhibit 61; Testimony
of Mr. Brown, pg. 311,/ines 6-19; TestimonyofMs. Langley, pg. 548, 11-15.
Finding 34 relates to traffic and pedestrian safety along S. 2081h Street. The first two
sentences of this finding are supported by Exhibit 2, Staff Report, Attach men{ 5; Exhibit
23, Nov. 15, 2001/etterfrom Kent School District; Exhibit 1, Document 131, 3/7/03DDES
letter; Exhibit 1, Document 126, 1013/02 Kent School District Letter, Testimony of Ms.
Langley, pg. 511-17; pg. 526, fine 23 through 527, line 22; Exhibit 69, December 12,
2003 Drawing depicting bus stop at plat entrance; Exhibit 9, Site plan (revised
entrance). The remainder of the finding is a discussion of traffic safety issues, not
supported by the record.
Finding 35 is further discussion of traffic and pedestrian safety along S. 2081h Street, for
which there is no support in the record.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 13 of 32 ·
Finding 36 relates to emergency vehicle access standards pertaining to the cul-de-sac.
This finding is partially supported by Exhibit 24, March 2, 1992 Road Variance Decision;
Exhibit 9, Site Plan; Testimony of Mr. Kastien, pg. 262, lines 6-21.
Finding 37 relates to plat/PUD zoning standards. Testimony of Ms. Dekordhi, pg. 404
line 22 through 405/ine; pg. 405, lines 19-23; Exhibit 2, Staff Report, pg. 1.
Finding 38 relates to plat/PUD approval procedures. See King County Code, Ch. 21.56,
in effect at time of application, available as an unmarked exhibit in the record.
Finding 39 relates to plat/PUD density calculation. Exhibit 2, Staff Report, Attachment
3, bonus calculation worksheet; KCC Ch. 21.56, in effect at time of application, available
as an unmarked exhibit in the record ..
Finding 40 relates to plat/PUD density calculation. KCC Ch. 21.54.080, .110, &
.250A., in effect at time of application, available as an unmarked exhibit in the record ..
Finding 41 is further discussion of plat/PUC density calculation. KCC Ch. 21.54.080, in
effect at time of application, available as an unmarked exhibit in the record.
Finding 42 is a discussion of bonus density credit calculation. The third sentence is
supported by Exhibit 2, Staff Report, pgs 4-5 and Attachment 3. See KCC
Ch.21.56.170, in effect at time of application, available as an unmarked exhibit in the
record.
Finding 43 continues the discussion of bonus density credit calculation. See Exhibit 2,
Staff Report, page 5; Testimony of Ms. Dekordhi, pg. 418, lines 2-7.
Finding 44 relates to the bonus density calculation discussion. This finding is partially
supported by testimony of Mr. Peckham, pg. 558, lines 1-3.
Finding 45 relates to the bonus density calculation discussion. See KCC
21.56.1708.4.b.
Conclusions
Conclusion 1 is a discussion of the standard of review for the SEPA appeal. It does not
cite any legal authority and does not follow from any findings.
Conclusion 2 is a discussion on standard of review and substantive authority for
Hearing Examiner SEPA decisions. It does not follow from findings but relates criteria
from KCC 20.24.0708.
Conclusion 3 includes the King County Hearing Examiner's conclusion that the "record
discloses actual consideration of environmental impacts." This conclusion follows from
City of Kent Hearing Examiner Decisions on
King Cotinty Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent Ftfe Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 14 of32
Findings numbers 7 through 18 (sensitive areas), 19 through 25 (drainage, downstream
water quality), and 26 through 36 (pedestrian safe walking and traffic safety).
Conclusion 3 also concludes that the "Appellants have not met their burden of proof' in
showing the County's DNS was clearly erroneous. While no findings establish the
burden of proof on Appellants, this conclusion follows from Findings numbers 13, 23,
and 24, and from substantial evidence in the record.
Conclusion 4 concludes that the potential traffic impacts of the proposed development
are adequately mitigated. This conclusion follows from Findings numbers 27, 28, 29,
31, and 33.
Conclusion 5 is a discussion of the adverse impacts to pedestrian safety caused by
road closures due to icy conditions and follows from Findings numbers 32, 34, and 35.
Conclusion 6 concludes that the probability of significant adverse environmental impacts
to pedestrian safety are adequately mitigated with conditions, and follows from Findings
numbers 34 and 35.
Conclusion 7 contains a discussion of the procedural history of the case and
substantive authority for the SEPA decision of the Hearing Examiner. It does not
appear to follow from any findings.
Conclusion 8 is a discussion of WAC 197-11-660(1)(a) as one basis for substantive
SEPA authority. It does not appear to follow from any findings.
Conclusion 9 is a discussion of the 1996 lnterlocal Agreement and the 1999 settlement
agreement between the City of Kent and the Applicant in relationship to substantive
SEPA authority in the instant appeal. It does not follow from any findings.
Conclusion 10 contains a discussion of WAC 197-11-660{1)(a) as one basis for
substantive SEPA authority. It does not follow from any findings.
Conclusion 11 continues the discussion of substantive SEPA authority and does not
appear to follow from any findings.
Conclusion 12 concludes that the SEPA substantive authority should be the policies and
regulations in effect in King County in 1993 immediately prior to annexation. It does not
follow from any findings.
Conclusion 13 concludes that only the condition of the pedestrian walkway requires the
invocation of substantive SEPA authority. However, it also concludes that the Hearing
Examiner has the authority to require the pedestrian walkway as a condition of plaUPUD
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 15of32
approval so that it is not necessary to rely on substantive SEPA authority in the decision
at all. It does not follow from any findings.
Conclusion 14 concludes that the proposed project meets the criteria for PUD under
KCC 21.56. This conclusion follows from Findings numbers 1, 2, and 37 through 45.
Note: The King County Hearing Examiner has left the number of dwelling units
approved to be determined at a later date after submission of new information. See
Conditions numbers 3 and 15.
Conclusion 15 relates to the criteria for approval of preliminary plats and cites RCW
58.17.110. It does not follow from any findings.
Conclusion 16 concludes that the original conditions of approval are related to legitimate
public purposes, are necessary to address impacts projected to be caused by the
development, and are proportional to impacts projected to be caused by the
development. It does not follow from any findings.
Vlfl. DISCUSSION
A. Determination of Substantial Evidence in the Record for
Findings and Conclusions in the King County Hearing Examiner Recommendation
The Kent Hearing Examiner has determined that statements in Findings numbers 1, 3,
6, 7, 11,12, 14, 15, 16,18, 19,21,22,23,24,25,26,28,29,30,31,32,33,34,35,36,
38, 39, and 43 are supported by substantial evidence in the record. Findings numbers
37, 40, 41, 42, 44, and 45 relate to discussion of the criteria that the plat and PUD
applications must meet. These findings are based predominantly in the relevant King
County Code sections.
A number of findings in the King County Hearing Examiner Recommendation lack
support in the record. Of these, Kent Hearing Examiner has determined that Findings
numbers 2, 4, 5, 9, 10, 20, and 27 are not necessary to the final outcome in the SEPA
appeal or the plat and PUD applications. Findings numbers 2, 4, 5, 9, and 27 relate to
procedural history that is not essential to the outcome. Findings numbers 10 and 20
discuss various development standards that are applicable to the project but do not
contain factual information necessary to the ultimate outcome. The following findings
require more detailed discussion.
Finding 8 incorrectly characterized the scope of the SEPA issues addressed by
Appellants at the hearing, stating that only slope stability was at issue. De novo review
of the record revealed additional issues of concern to Appellants at hearing, including
downstream water quality impacts, traffic problems, and pedestrian safety concerns.
Despite the mischaracterization of Finding 8, these issues were all sufficiently
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations In the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 16of32
developed in the record to enable Kent Hearing Examiner to reach a final decision in the
SEPA appeal.
In Finding 13, sentence 3, the King County Hearing Examiner found that Appellants
offered "no evidence" that the recommendations in the geotechnical report
recommendations from the Applicant would be insufficient to avoid saturation of soils on
steep slopes. However, Appellants' Exhibit 33 is a letter from an engineer named
Prochaksa of CTS Engineers, Inc .. Appellant Kastien testified that he believes Exhibit
33 supports the SEPA Appellants' position that the proposed pond will be too small if
built according to 1990 SWDM criteria, resulting in saturated soils, at pg. 25, lines 15-18
and pg. 28 lines 1-4. Mr. Miller presented testimony regarding his concern about slope
failure due to soil saturation, at pg. 119-238.
Mr. Miller, the Appellants' only witness who offered evidence based on scientific
knowledge, was neither an expert hydrologist (see pg. 151, lines 5-6) nor an engineer.
He has an undergraduate degree in geology and works in construction. The Applicant
presented testimony from geotechnical engineer Cliff Knitter and engineering testimony
from Mel Daley, and Exhibits 17, 52, 58, 59, and 65. The County presented
geotechnical testimony from Larry West, stormwater drainage testimony from Bruce
Whittaker, water quality engineering testimony from Kate Rhodes, and Exhibit 67.
Sentence 3 of finding 13 may be intended to convey that after weighing the credibility of
the evidence offered by the Appellants against the credibility of the evidence offered by
the Applicant and the County, the Hearing Examiner determined that the Appellants
failed to offer sufficient evidence to overcome the presumption in favor of the County's
recommendation based on expert witness testimony and scientific study. If this is the
case, Kent Hearing Examiner finds there is substantial evidence in the record to support
such a credibility determination in favor of Applicant. The mischaracterization that
Appellants offered "no evidence" is not a critical error.
In Finding 17, the King County Hearing Examiner characterizes the alleged aquifer
underlying the site as "both highly speculative and quite unlikely based on known
information." In this finding, the King County Hearing Examiner does not specifically find
that the possibility of an aquifer does not rise to the level of requiring additional study.
Rejection of the possible aquifer as a basis for requiring additional study is supported by .
substantial evidence in the record. See the testimony of Mr. West, pg. 436 line 6
through 437/ine 16.
In Finding number 45, the King County Hearing Examiner finds that the Applicant does
not qualify for bonus density credit based on convenient pedestrian access to shopping.
Sentence 4 appears to base this denial of bonus credit on the fact that S. 208th Street is
not pedestrian accessible. However, Condition 24 requires construction of pedestrian
walkway from the internal access road to 92"d Ave, which could lead to pedestrian
access to the Winco 212th Street Retail Center. The Kent Hearing Examiner finds that
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 17of32
('
denial of the bonus density credit for convenient pedestrian access to shopping is not
based on evidence in the record.
Kent Hearing Examiner was charged with determining whether the conclusions in the
King County Hearing Examiner Recommendation follow from the findings. The
conclusions do not cite to findings for factual support. De novo review revealed that
several of the conclusions were not supported by findings. Conclusions 7, 8, 9, 10, 11,
12, and 13 do not follow from findings entered and are not supported in the record, but
rather discuss legal authority controlling the SEPA appeal. Conditions 15 and 16 do not
follow from findings and are not supported in the record, but instead address the legal
criteria for qualification for bonus density credit. The remainder of the conclusions
follow from findings entered.
Not all findings and conclusions necessary to reach the final decision in the SEPA
appeal and plat!PUD applications were made in the King County Hearing Examiner
Recommendation. De novo review, however, revealed support for all findings and
conclusions in the record necessary to support decisions on the appeal and
applications. A discussion of the substantial evidence in the record that supports the
final decisions follows.
B. SEPA Appea/13
In order for a SEPA threshold determination to be overturned, an Appellant must show
that the SEPA decision is "clearly erroneous." The law gives substantial weight to the
SEPA official's decision that there would be no significant adverse environmental impact
from the development proposal, if there is compliance with applicable ordinances. In
order to prevail in an appeal, the Appellant must provide substantial evidence sufficient
to persuade a rational, fair-minded person, that the decision is in error. See "Criteria for
Decision" section above.
In the presentation of their appeal, the Appellants alleged that the following adverse
impacts are likely to be caused by the project and would not be adequately mitigated as
proposed: 1) traffic problems on S. 208th Street; 2) destabilization of slopes from size
and placement of stormwater drainage facilities; 3} surface water runoff causing
13 Citations to evidence in the record supporting the necessary findings not made by the King County
Hearing Examiner are included in endnotes.
City of Kent Hearing /Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent Fife Numbers SU-2001-9, IENV-2001-63, and AP-2003-4
Page 18 of32
downstream flooding and water quality problems; and 4) inadequate pedestrian
walkways.14 · ,
In response to the allegation of steep slope failure due to size and placement of
stormwater drainage facilities; the Applicant presented geotech~ical reports and expert
engineering testimony that show the project can be safely built.' King County presented
reports and testimony from County engineering staff supporting the safe construction of
the project as conditioned, and further showed that the project might even improve
steep slope stability. The County also presented testimony from stormwater drainage
management staff that found there would not be significant adverse downstream ..
impacts, and that the project could mitigate existing drainage problems in the area."
The Appellants provided no contradictory studies or expert testimony. Although the
Appellants raised legitimat~ issues and concerns, they provided no credible evidence to
support their allegations of likely slope failure. Potential impacts to steep slope stability
can be adequately mitigated by conditions of approval.
In response to the allegation of adverse downstream water quality impacts, the
Applicant and the County presented evidence that shows there will be no negative
downstream water quality impacts. iii Although the Appellants raised legitimate issues
and concerns, they provided no credible evidence to support their claims of diminished
water quality as a consequence of the proposed development. The potential adverse
impacts on water quality from increased in impervious surface and stormwater drainage
can be adequately mitigated by conditions of approval.
The Applicant presented expert studies and testimony that shows there will be no
significant traffic impacts from the proposed development that rise to t~e level requiring
mitigation under the regulations in effect on the date of the application.1v The County
traffic engineer testified that the Applicants' studies were credible.v Although the
Appellants raised legitimate issues and concerns, they provided no credible evidence to
support their claims increased accidents and overloaded intersections as a
consequence of the proposed development. The potential adverse impacts from
increased traffic can be adequately mitigated by conditions of approval.
Finally, the Appellants alleged that the project as proposed will create unsafe walking
conditions for school-aged and adl!lt residents in the event of the closure of S. 2081h
Street due to inclement weather. School-aged children at all levels will be bussed to
14 In the appeal statement, the Appellants also alleged that there would damage to on site wetlands and
negative impacts on wildlife. These issues were not pursued during the appeal hearing and thus will not
be addressed by the Kent Hearing Examiner. The issue of safe pedestrian walkways was not raised in
the appeal statement but was presented during the hearing. The SEPA Appellants alleged the site is in a
landslide hazard area as defined by the sensitive area ordinance in effect on the land at time of
application, based on the mapfolio found at Exhibit 28. Evidence in the record supports a finding, not
made by the King County Hearing Examiner, that the site does not contain landslide hazard areas. See
testimony of Mr. West, pg. 431.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 19of32
their schools along with children from the surrounding residential area.v 1 The school
district has accepted the proposed bus stop design. Occasional unsafe walking
conditions caused by road closl!_res due to inclement weather are not a significant
adverse environmental impact.vu Although there occasionally may be unsafe walking
conditions, a condition 'of approval requiring a pedestrian walkway and increased
shoulder width on 92"d Avenue would adequately mitigate this concern.
C. Plat and PUD Applications
The proposed project as conditioned is consistent with the criteria for approval adopted
by the Washington Legislature and the King County Council. See, the section on
"Criteria" above. The development would. be served by Soos Creek Water & Sewer
District public water and sanitary sewer.vlu Onsite steep slope areas and their buffers
would be dedicated to the City of Kent in a Native Growth Protection Easement.1x The
internal access roads and site access from S. 2081h Street will meet King County
standards in effect at the time of complete application.x As proposed, the traffic impacts
from the development do not require mitigation. xi Even though mitigation is not
required under the applicable regulations, if the City of Kent later determines that traffic
calming devices would better serve public safety, a condition of approval ensure.? that
the Applicant would contribute a proportional share to the costs of construction. xu As
conditioned, downstream stormwater conveyance facilities would have adequate
capacity to handle the peak flows from Copper Ridge.xm Proposed stormwater detention
and conveyance improvements would meet development standards for runoff from new
impervious surfaces and also would ameliorate any pre-existing soil saturation
conditions by collecting and conveying existing uncontrolled runoff into the proposed
stormwater drainage system.xiv A condition of approval has been included to ensure
that open space and recreational areas would be adequately provided to future
residents of the development.xv No school children would walk to school from the
proposed development.xvi A condition of approval ensures pedestrian access to public
transit, nearby shopping, and to 92nd Avenue in the event of the closure of S. 208 111
Street due to inclement weather.xvu
IX. DECISION
Based on a de novo review of the entire record and of the findings and conclusions in
the King County Hearing Examiner Recommendation, the Kent Hearing Examiner
decides as follows.
SEPA
The King County Hearing Examiner appropriately recommended denial of the SEPA
appeal. His recommendation is supported by substantial evidence. The SEPA Appeal
is DENIED.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 20 of 32 -
Plat and PUD Applications:
The King County Hearing Examiner appropriately recommended approval of the
preliminary plat and PUD applications. Although the King County Hearing Examiner's
findings and conclusions may not be adequate as written, there is substantial evidence
in the record to support approval of the plat and PUD applications, with revised
conditions.15
Therefore, the request for approval of PUD and Preliminary Plat applications to
subdivide 9.64 acres of land into up to 40 single-family residential lots 16 is GRANTED,
subject to the following conditions:
1. Compliance with all platting provisions of Title 19 of the King County Code and
provisions of KCC 21.56 regulating PUD approval.
2. All persons having an ownership interest in the subject property shall sign on the
face of the final plat a dedication that includes the language set forth in King
County Council Motion No. 5952.
3. The plat shalf comply with the density requirements of KCC 21.56.150 through
21.56.180. All lots shall meet the dimensional and setback requirements of KCC
21.56.130. Those lots with a building attached on one side shall have a
minimum 40-foot width. Those lots with buildings attached on both sides shall
have a minimum 30-foot width.
For purposes of calculating the net development factor under KCC 21.56.140,
the planned unit development proposal shall comply with either KCC
21.56.1408(6) or KCC 21.54.080, whichever is the more restrictive. The
calculation for KCC 21.56.1408(6) shalf require a determination of the total onsite
area having 40 percent or greater slopes; the calculation for KCC 21.54.080 shall
require a determination of SAO-regulated 40 percent steep slopes onsite plus the
buffers mandated therefore under KCC 21.54.250A, and the total onsite area, if
any, occupied by the regulatory buffers mandated for offsite wetlands to the
southwest.
15 See Appendix A contains a discussion of modifications made to the conditions recommended by the
King County Hearing Examiner. Appendix B, the King County Hearing Examiner Recommendation,
includes the original conditions.
18 The final number of approved units will be determined after the net development factor is finally
calculated by City of Kent Planning Services and will depend on whether the Applicant presents steep
slope special studies, as required by Condition 15 and KCC 21.54.0400, in an effort to have steep slope
buffers reduced from the required 50-feet. The number of units would be either 39 or 40, depending on
net development factor and bonus density calculations, to be completed before final plat approval.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
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(
If for any reason the pedestrian pathway specified by condition No. 24 below is
eliminated as a requirement for project development, the bonus density credit
awarded for public transit availability shall be deleted from the net development
factor calculation.
4. Prior to clearing and grading, the Applicant shall obtain the approval of the City of
Kent fire protection engineer certifying the adequacy of the fire hydrant, water
main, fire flow and access amenities to meet City standards in accordance with
Attach~ent 4 to Exhibit 2, DOES Staff Report.
5. The proposed stormwater detention facilities shall meet the requirements of the
1990 King County Surface Water Design Manual (KCSWDM) for capacity. The
stormwater detention facility shall meet the requirements of the 1998 KCSWDM
regarding both water quality treatment and downstream conveyance capacity.
The detention and water quality facilities shall be placed in a separate tract
owned and maintained by the homeowners' association or other workable
organization as approved by the City.
6. Offsite drainage conveyance improvements are required along the easterly side
of 92nd Avenue South and along the north side of S. 2081h Street. These
improvements shall be designed in general conformance with the conceptual
drainage plan received April11, 2003, unless otherwise approved by Kent
Engineering
A capacity analysis of the existinJl downstream ditch along the north side of the
dead end access road (from 92n Avenue S. to SR 167) shall be submitted at
engineering plan submittal. Improvements to this section of the ditch or its
culverts are required if adequate capacity does not exist.
7. An interceptor drainage swale and wall drainage system is proposed along the
easterly portion of the developed site. The applicant's geotechnical engineer
shall provide recommendations for design and construction of the interceptor
drainage system, the stormwater detention/water quality facilities, and westerly
conveyance pipes connecting to 92nd Avenue S. The geotechnical
recommendations shall be included in the T.I.R. and incorporated into the design
at submittal and approved by the reviewing agency with the engineering plans.
8. Special geotechnical construction inspection of the above drainage interceptor
and stormwater detention system is required to ensure compliance with the
geotechnical recommendations, including installation of an impervious pond liner.
Inspection reports shall be submitted to the assigned construction inspector
during the construction phases of those facilities. A final construction report shall
be submitted to the City of Kent Public Works Department prior to clearing and
grading, verifying compliance with the geotechnical recommendations.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003~4
Page 22of32
9. All building downspouts, footing drains, and drains from all impervious surfaces
such as patios and driveways shall be connected to the permanent storm drain
outlet. The final approved plan shall be submitted with the application of any
building permit. All connections of the drains must be constructed and approved
prior to the final building inspection approval. For those lots that are designated
for individual lot infiltration systems, the systems shall be constructed at the time
of the building permit and shall comply with plans on file.
10. The proposed subdivision shall comply with the 1987 King County Road
Standards (KCRS), including the following requirements:
A. The internal access road shall be improved to the urban sub-access street
standard. This standard requires sidewalk on one side. An additional
sidewalk shall be provided on the west side of the access road, from Lot
40 (at the northwest quadrant of the access road intersection), wrapping
around the curb return at the S. 2081h Street intersection, to a point
approxir;nately 80feet west of the intersection. A "level" (2% maximum
cross-slope, east-west, as measured parallel/concentric to S. 2081h Street)
concrete pad pedestrian waiting area, 8 feet by 12 feet along this sidewalk
shall be provided at the intersection for school bus pickup area.
Appropriate safety barriers between waiting pedestrians and traffic shall
be designed and constructed subject to approval of the City of Kent
Planning Department.
The curb returns for the intersection shall be set based upon an ultimate
22-foot half-street section for a neighborhood collector street as measured
from the new centerline of S. 2081h Street. Sufficient width shall be
provided at the intersection entry to permit right turns onto S. 208th Street
when two vehicles are queued to make a left turn. The entire portion of
the internal access street improvements lying south and east of the curb
returns (i.e. south of a line 52feet north of the realigned S. 2081h Street
centerline) shall be dedicated as public right-of-way. The remainder of the
internal access street shall be contained within a separate tract.
Ownership and maintenance responsibility for the private portion of the
internal access shall be by the homeowners' association or other workable
organization. A note to this effect shall be placed on all engineering plans
and the recorded final plat
B. The proposed priv?te access road adjoining Lots 17 through 21 shall be
improved to the urban minor access street standard, without a sidewalk.
Maintenance responsibility for this portion of the road shall be the
responsibility of the adjoining lots (17-21) or the homeowner's association.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003·4
Page23of32
( ',
A note to this effect shall be placed on all engineering plans and on the
recorded plat.
C. The proposed joint use driveway adjoining Lots 22 and 23 shall be paved
with a minimum of 18-foot wide roadway with controlled drainage.
D. FRONTAGE: S. 2081h Street shall be reconstructed and realigned along
the frontage (with appropriate transitions) according to the approved road
variance granted on March 2, 1992 and the conceptual roadway
improvement plan dated January 22, 1992. These improvements shall
incorporate a 22-foot wide paved roadway, an 8-foot wide gravel shoulder
on the south side of the road along the entire length of the realigned
section of S. 2081h Street and an 8-foot wide paved shoulder along the
entire northerly side of the realigned roadway easterly to a point 490 feet
from the centerline of the internal access road intersection, except where
urban improvements (as noted in Condition 10A, above) are required.
The realignment road variance allows a reduced entering sight distance of
385 feet to the west from the proposed internal access road. The
variance also allows a rural type improvement for this realignment. All
conditions of the road variance shall be met upon submittal of the
engineering plans.
Adjacent to the concrete pad pedestrian waiting area, the half-street width
{from the centerline of the realigned roadway to the curb line) of S. 2081h
Street shall be 22-feet to provide a bus-pullout outside the traveled-way of
the westbound travel lane. This bus pull-out shall be at least 60-feet in
length (from the point of curb return on S. 2081h Street), plus an
appropriate length curbed and asphalt paved taper with concrete walkway,
to the connection with the proposed shoulder on the realigned S. 208 1h
Street improvements.
As required by Kent Engineering, the improvements to S. 2081h Street may
also include the installation of guardrail at locations along the south
margin of the roadway. Any sections of guardrail that may be required to
comply with this condition shall be located outside of sight lines required
for the intersection of the access road and S. 2081h Street {see 12G and
12H, below).
Although the KCRS do not require illumination on neighborhood collector
streets, these improvements shall include any roadway illumination
required by the City of Kent. Any additional right-of-way along the
frontage or off-site easements needed to achieve the realignment and
sight distance requirements shall be dedicated to the City of Kent with the
final plat.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page24of32
Traffic control plans for the realignment and regrading of S. 2081h Street
shall be submitted to the Kent Engineering for review and prior to any
clearing and grading of the site.
E. 92"d AvenueS. shall be widened across the entire property frontage and
south to the intersection at S. 2081h Street (per the Road Variance) with a
minimum 4-foot wide paved shoulder adjacent to the roadway
supplemented by an additional 4-feet of gravel shoulder inside along the
easterly side.
F. The hillside on the northerly margin of S. 208!h Street, east of the plat
entrance road, shalf be regraded to an elevation at feast 6 inches {0.5
feet) below the sight line elevations as required, with the construction of
an engineered retaining wall/rockery, to achieve the required (minimum)
490 feet of entering sight distance to the east. The graded area between
the toe of the wall and the shoulder improvements required (Condition
100, above) shalf be paved to minimize the potential of regrowth of
vegetation into the sight triangle.
G. Road improvements shalf achieve the following sight distance criteria as
required by the approved road variance:
(1)
(2)
(3)
(4)
385, feet of ESD approved by the Road Variance for the area within
the sight triangle on the south side of S. 2081h Street, west of the
subdivision access road,
490 feet of Entering Sight Distance (ESD) for the area within the
sight triangle on the north side of S. 208!h Street, east of the
subdivision access road,
In addition to the regrading and vegetation removal required to
achieve the required ESD, 250 feet of Stopping Sight Distance
(SSD) is also required at all points along the realigned section of S.
2081h Street (See Exhibit 2, Attachment 6 ) and will extend outside
of the limits of the required ESD sight triangles,
In addition to the regrading and vegetation removal required to
achieve the required ESD and SSD, the 500 feet of visibility to and
from the east of the plat access and of the school bus stop west of
the access road intersection is also required and may extend
outside. of the limits of any of the ESD/SSD sight triangles required
of conditions above, and
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page25of32
(5) In addition to the regrading and vegetation removal required by the
preceding, any additional area required to provide 500 feet of
visibility for the proposed school bus stop at the west side of the
project entrance.
The area within each identified sight line corridor shall be re-graded
and/or cleared of all sight line corridor impairments from a point at
least 6 inches (0.5 feet) below the applicable sight line elevations,
and in the case of overhanging vegetation (tree limbs), six (6)-feet
above the requisite sight line elevations. Preservation of the
identified sight lines/corridors from encroachment of re-growth of
vegetation (between regularly scheduled City maintenance
operations) shall be provided by extending, in the horizontal plane,
the required clearing limits by two (2) feet.
Additionally, the applicant shall evaluate potential measures to
minimize the re-growth of sight-obscuring vegetation into these
sight triangles (for example, 'weed block' fabric, gravel [or a
combination of gravel and 'turf block'], and hydroseeding) without
the creation of an overall impervious surface, and submit plans for
review, approval and construction, to the Kent Engineering prior to
clearing and grading of the site.
The criteria that shall be used for the measurement of sight
distance are as follows:
Design Speed:
Driver's Eye Height
Entering Sight Distance Object Height
Stopping Sight Distance Object Height
35 MPH
3.5 feet
4.25 feet
0.5 feet
Special construction inspection shall be done by the Applicant
during the regrading and reconstruction of S. 208th Street and
during the clearing and grading of the hillsides and vegetation to
achieve the sight distance requirements identified above. To
ensure achievement of the sight distance requirements and the
school bus stop visibility, these measurements shall be field-verified
by a licensed surveyor following the construction of all required
improvements.
H. The Applicant and the City of Kent will review the accident history for the
portion of S. 208th Street that lies directly east gf its intersection with 92nd
AvenueS. If the City determines that traffic calming measures (such as a
traffic circle) or other road improvements are necessary for traffic safety,
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent Fife Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 26 of 32 '
('
the Applicant shall contribute its fair share of the cost of such
improvements.
I. Modifications to the above road conditions may be considered in
accordance with the variance procedures in Section 1.08 of the KCRS, or,
by the Director of Public Works of the City of Kent.
11. All utilities within proposed rights-of-way must be included within a franchise
approved by the Kent City Council prior to final plat recording.
12. This subdivision application was filed prior to the adoption of King County Code
14.75, Mitigation Payment System (MPS). Per the City of Kent's 1993 traffic
mitigation requirements, the Applicant shall, at the discretion of the City of Kent
Public Works Department, either pay the applicable pro-rata share cost towards
the cost of the S. 192nd/196th/200th Street Corridor project (East leg) based
upon an estimated 33 PM peak hour trips and the capacity of the S. 192nd/
196th/200th Street Corridor, or, execute an Environmental Mitigation Agreement
(EMA) to financially participate in, and pay a pro-rata share towards, the S.
192nd/ 196th/ 200th Street Corridor project (East leg) based upon 33 PM peak
hour trips.
13. The planter islands within the cui-de-sacs shall be planted with native plant
materials and be maintained by the homeowners association. This shall be
stated on the face of the final plat and PUD.
14. The proposed subdivision shall comply with the 1990 Sensitive Areas Code.
Temporary marking of sensitive areas and their buffers (e.g., with bright orange
construction fencing) shall be placed on the site and shall remain in place until all
construction activities are completed.
15. The top, toe and sides of onsite 40% slopes shall be determined by field survey.
A 50-foot buffer shall be provided for these slopes. Pursuant to KCC
21.54.250A, this buffer may be reduced to a minimum of 1 0 feet plus a 15-foot
Building S~tback Line (BSBL) with the submittal of a satisfactory geotechnical
report, subject to review and approval by Kent Planning Services prior to
engineering plan approval. This geotechnical report shall meet the criteria of
KCC 21.54.040D, and shall include provisions requiring mitigation, maintenance,
and monitoring plans and bonding measures.
The 40% steep slope areas and their associated buffers shall be placed in a
Native Growth Protection Easement(s) (NGPE). Final engineering review shall
include verification of the conclusions of the 1992 Golder Associates
geotechnical report and require implementation of its recommendations, as
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4 .
Page 27of32
(
modified. Any city-required consultant peer review of the geotechnical report
shall be paid for by the Applicant.
' 16. The Applicant shall delineate all on-site erosion hazard areas on the final
engineering plans (erosion hazard areas are defined in KCC 21.04.345). The
delineation of such areas shall be approved by Kent Planning Services. The
requirements found in KCC 21.54.170 concerning erosion hazard areas shall be
met, including seasonal restrictions on clearing and grading activities.
17. The following note shall be shown on the final engineering plan and recorded
plat:
Building Setback and Native Growth Protection Easements
Structures, grading, fill and obstructions (including, but not limited to decks,
patios, outbuildings, or overhangs beyond 18 inches) are prohibited within the
building setback line (BSBL) and within 25/100 year floodplains (if applicable),
and within the Native Protection Easement(s).
Dedication of a Native Growth Protection Easement (NGPE) area and buffer
conveys to the public a beneficial interest in the land within the easement. This
interest includes the preservation of native vegetation for all purposes that benefit
the public health, safety and welfare, including control of surface water and
erosion, maintenance of slope stability, and protection of plant and animal
habitat. The NGPE Imposes upon all present and future owners and occupiers of
the land subject to the easement, the obligation, enforceable on behalf of the
public by City of Kent, to leave undisturbed all trees and other vegetation within
the tract/sensitive area and buffer. The vegetation within the easement may not
be cut, pruned, covered by fill, removed or damaged without approval in writing
from the City, unless otherwise provided by law.
Before beginning and during the course of any clearing, grading, building
construction, or other development activities on the site subject to NGPE, the
common boundary between the easement and the area of development activities
must be fenced or otherwise marked to the satisfaction of the Kent Planning
Services.
No building foundations are allowed beyond the required 15-foot building
setback line, unless otherwise provided by law.
18. A suitable recreation space within the common open space area for active
recreation shall be provided. The recreation space shall be a minimum 45
square feet per lot with no dimension less than 30 feet. The area must be flat (no
greater than 5% slope) centrally located, and with adequate access to the main
road. The recreation area shall be developed with play equipment (i.e., sport
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 2Bof32
court[s], children's play,equipment, picnic table[s}, benches, etc,) and
landscaping.
A. An overall conceptual recreation space plan shall be submitted for revimN
and approval by City of Kent, with the submittal of the engineering plans.
This plan shall include location, area calculations, dimensions, and
general improvements including landscaping. The approved engineering
plans shall be consistent with the overall conceptual plan.
B. A detailed recreation space plan (i.e., landscape specs, equipment specs,
play area, etc.) consistent with the overall conceptual plan, as detailed in
item A, shall be submitted for review and approval by the Kent Planning
Services prior to or concurrent with the submittal of the final plat
documents. The landscape plan shall include as much existing significant
vegetation as possible.
C. A performance bond for recreation space improvements shall be posted
prior to recording of the plat and PUD.
0, The common open space areas, including the sensitive areas, shall be
placed in a separate tract(s) to be maintained by a homeowners'
association. All lots shall have an undivided ownership of the Open Space
Tract(s).
19. A detailed crime prevention plan shall be submitted to the Kent Police
Department for review and approval. The plan shall include a detailed lighting
plan and other safety measures. The crime prevention plan shall be approved by
Kent Planning Services prior to the final engineering plan, No lights within the
development shall project onto the neighboring properties.
20. The proposed project shall generally conform with the building elevation and floor
plans submitted April 8, 2002. The proposed building coverage and other
dimensions shall comply with KCC 21.56.110 and KCC 21.20.
21. A homeowners' association or other workable organization shall be established
to the satisfaction of City of Kent which will provide for the ownership and
continued maintenance of the common open space/ sensitive area tract(s), play
area, and the private road and access tracts .
22, Street trees shall be provided as follows:
A Trees shall be planted at a rate of one tree for every 40 feet of frontage
along the private road (Tract X) and the north side of S. 2081h Street.
Ctty of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page29of32
Spacing may be modified to accommodate sight distance requirements for
driveways and intersections.
B. Trees shall be located within the street right-of-way and planted in
accordance with Drawing No. 5-009 of the 1993 King County Road
Standards, unless the Kent Engineering determines that trees should not
be located in the street right-of-way.
C. If it is determined that the required street trees should not be located
within the right-of-way, they shall be located no more than 20-feet from the
street right-of-way line.
D. The trees shall be owned and maintained by the abutting lot owners or the
homeowners association or other workable organization. Ownership and
maintenance shall be noted on the face of the final recorded plat.
E. The species of trees shall be approved by the City of Kent if located within
the right-of-way, and shall not include poplar, cottonwood, soft maples,
gum, any fruit-bearing trees, or any other tree or shrub whose roots are
likely to obstruct sanitary or storm sewers, or that is not compatible with
overhead utility lines.
F. The Applicant shall submit a street tree plan and bond quantity sheet for
review and approval by the City of Kent.
H. The street trees must be installed and inspected, or a performance bond
posted, prior to recording of the plat and PUD. If a performance bond is
posted, the street trees must be installed and inspected within one year of
recording of the plat and PUD. At the time of inspection, if the trees are
found to be installed per the approved plan, a maintenance bond must be
submitted or the performance bond replaced with a maintenance bond,
and held for one year. After one year, the maintenance bond may be
released upon inspection and determination by that the trees have been
kept healthy and thriving.
23. Appropriate school impact fees shall be paid prior to issuance of a building permit
for each loVresidential unit. ,
24. A pedestrian pathway shall be constructed connecting 92nd Avenue S. to the
internal plat access road, as approved by the Kent Engineering
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page30of32
Decided this 61h day of May 2004
THEODORE PAUL HUNTER, Hearing Examiner
DISCUSSION SECTION ENDNOTES:
'This statement is supported by Exhibits 17, 52, 58, and 59; testimony of Mr. Daley, pg. 358,
lines ll-20; pg. 380-81, lines l3 -6; testimony ofMr. Knitter, pg. 281, lines 2-8.
ii This statement is supported by testimony of Mr. West, pg. 469, lines 20-24 and pg. 471, lines
7-18; testimony of Mr. Whittaker, pg. 480, lines 2-8. See Exhibit 67.
1
• This statement is supported by testimony from Ms. Rhodes, pg. 408, lines 17-20; testimony of
Mr. Daley, pg. 372,1ines 17-24; pg. 375, lines 2-10; pg. 376, 15-17.
lv Findings 29 and 31 contain necessary findings regarding trip distribution, level of service
impacts, and the fact that mitigation at the onramp to 167 is not required from Copper Ridge
because of the mitigation being done at that intersection by the Winco 212th Street Retail
Center. Additional evidence in the record supporting the necessary findings on traffic impact
and accident rates is found at testimony of Mr. Brown, pg. 308, lines 17 -22; pg. 314, lines 10-15,
pg. 322-32, lines 23-4; pg. 332, lines 3-21; pg. 343, lines 13-23; see also Exhibits 18-21, 60-64.
v This statement is supported by the testimony of Ms. Langley, pg. 522-23, lines 18-1.
vi This statement is supported by Exhibit 23.
vii No finding in the King County Hearing Examiner report explicitly finds that such road closures
happen very rarely, but testimony in the record suggests that at time of hearing, S. 2081h Street
had not been closed due to ice in five years. This pertains directly to the determination of
whether occasional unsafe walking conditions constitute a significant adverse environmental
impact and bears inclusion in a finding. See testimony of Ms. Langley, pg. 518, lines 18-20.
viii Utilities connection and service are required for approval of a preliminary plat application
under RCW 58.17.110. Although the King County Hearing Examiner report makes no finding
concerning provision of utilities, this statement is supported in the record at testimony of Ms.
Dehkordi, pg. 406, line 19; Exhibit 2, pg. 1.
1x. The conditions in the King County Hearing Examiner report require dedication of the steep
slope areas and their buffers to the City of Kent in a Native Growth Protection Easement.
x This statement is supported by Exhibit 2, pg. 5-6.
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page 31 of32
xl See Fmdings numbers 29 and 31. For additional support in the record, see also testimony of
Mr. Brown, pg. 308, lines 17-22; pg. 314, lines 10-15, pg. 322-32, lines 23-4; pg. 332, lines 3-
21; pg. 343, lines 13-23; see also Exhibits 18-21, 60-64; testimony of Ms. Langley, pg. 522-23,
lines 18-1.
xll Findings 29 and 31 are supported by substantial evidence in the record.
xnl King County Hearing Examiner Finding number 23, sentence 6.
xlv This statement is not in the findings of the King County Hearing Examiner, but is supported
by testimony of Mr. Knitter, pg. 281, lines 2-8; testimony of Mr. Daley, pg. 358, fines 11-20; pg.
364-65, lines 1-20; pg. 370, lines 3-21; pg. 376, 15-17; pg. 380, lines 9-13; pg. 390-91, lines 4-
16; testimony of Mr. Whittaker, pg. 480, lines 2-8.
xv In order to approve subdivisions under RCW 58.17.110 generally, findings must be made that
open space and recreational facilities are adequately provided for. The King County Hearing
Examiner report does not make this necessary finding, but open space and recreational facilities
are required by conditions of approval. The Kent Hearing Examiner is able to conclude that, as
conditioned, the project makes adequate open space and recreational facilities available to
residents of the proposed subdivision.
xvl Safe pedestrian access for school aged residents is a required finding for approval of
preliminary plat. Where children will be bussed, safe pedestrian access is not required. The
King County Hearing Examiner report makes no finding that the school-aged residents will be
bussed, but this statement is supported in the record by Exhibit 23.
xVIi Condition 24.
ch:S:\Permit\Pian\SepaAppeals\2003\2032714-2003-4decision.doc
City of Kent Hearing Examiner Decisions on
King County Hearing Examiner Recommendations in the
Matter of Copper Ridge Proposed Plat and PUD and SEPA appeal
Kent File Numbers SU-2001-9, ENV-2001-63, and AP-2003-4
Page32of32
Appendix A:,
Discussion of Modifications to Conditions in the
King County Hearing Examiner Recommendation
The Kent Hearing Examiner finds that the conditions of approval in the King
County Hearing Examiner Report and Recommendation require amendment.
The majority of conditions have been accepted as written. Some conditions
require clarification, such as specifying time for compliance, to facilitate the
Applicant's ability to comply with conditions of approval and the City's ability to
enforce them. Additional language has been added to some conditions of
approval to ensure that all considerations for the public welfare and interest
discussed in testimony and supported in the exhibits are incorporated in the final
decision.1
Conditions numbers 1, 2, 3, 6, 7, 8, 108, 10C, 10E, and 10F are accepted as
written. Condition 10H in the King County Hearing Examiner Report required
clearing and grading of pro~erty adjacent to the subject property to improve
entering site distance on 208 h St. for cars turning right out of the plat. However,
the road variance previously approved in this matter already provides entering
sight distance that meets the King County Road Standards. There is no basis for
requiring the Applicant to provide entering sight distance beyond that required in
the applicable standards and already approved by King County. Therefore,
Condition 10H is deleted, causing conditions originally numbered 101 and 10J to
be renumbered to 10H and 101 in this decision.
Condition 4 has been modified to clarify which attached document controls fire
department and emergency vehicle access to the plat. Condition 1 OG3 has been
modified for the purpose of clarification of reference to exhibits.
Condition 5 has been amended in accordance with testimony at hearing which
stipulated that stormwater conveyance facilities would be constructed in
compliance with the 1998 KCSWDM standards, rather than 1990 KCSWDM
standards. See, Testimony of Mr. Daley, pg. 366, lines 11-13 & Summation of
Applicant's Attorney, transcript at pg. 612, lines 5-11.
Condition 15 has been modified to explicitly state the specific provisions of the
geotechnical studies it requires, addressing the concern on the part of the SEPA
Appellants that such geotechnical studies had not yet been completed. If the
Applicant desires to reduce steep slope buffer area as allowed in the applicable
code, thereby increasing the project's net development factor, the Applicant must
comply with the provisions requiring specific studies in the County code
protecting steep slopes sensitive areas.
1 The conditions from the King County Hearing Examiner's Report and Recommendation are
attached verbatim in Appendix B.
Conditions numbers 4, 100; 10G5, and 21 in the original report omitted deadlines
for compliance. These conditions have been amended to provide clarity for all
parties of the deadlines by which conditions of approval must be met.
Condition 1 OA has been amended to require the design and construction of
barriers surrounding the concrete pedestrian waiting pad at the bus stop. Public
comment at the hearing identified safety of school-aged children waiting at the
bus stop as a concern due to speed and volume of traffic and to the attractive
nuisance of the ravine across 2081h St. At the hearing, there were testimony and
exhibits that related to protection of school-aged children waiting at the bus stop
from Kris Langley, the DOES traffic engineer, which supports the construction of
a physical barrier between the waiting pad where children would stand and the
near by lanes of traffic. Exhibit 69 is a conceptual drawing done by Ms. Langley
of what such a barrier, constructed of metal railing, could look like. However, no
barrier is required in the Report and Recommendation. The Kent Hearing
Examiner finds that a bar~er would sufficiently mitigate safety concerns for waiti!
ng school-aged children at the bus stop. Per amended condition 1 OA, the design
and construction of such barriers shall be approved by the City of Kent Public
Works Department prior to final plat approval.
Condition 24 in the King County Hearing Examiner report cites SEPA substantive
policies as authority for requiring construction of a pedestrian walkway from the
internal plat road to 92"d Avenue. However, as the King County Hearing
Examiner noted in Conclusion No. 13, 2 the walkway can be required under
RCW 58.17.11 0. Therefore, reference to SEPA substantive authority is not
necessary and language concerning it has been deleted.
S:\Permit\Pian\SepaAppeals\2003\2031340-2003-3appendixa.doc
2 Appendix A, pg. 18.
APPENDIX B
OFFICE OF THE HEARING EXAMINER
KING COUNTY, WASHINGTON
400 Yesler Way, Room 404
Seattle, Washington 98104
Telephone (206) 296-4660
Facsimile (206) 296-1654
REPORT AND RECOMMENDATION TO THE CITY OF KENT HEARING EXAMINER
SUBJECT: King County Department of Development and Environmental Services file nos.
S91P0004B, S91U0001B and LOOMI091
and City of Kent file nos. SU-2001-9, ENV-2001-63, AP-2003-4
COPPER RIDGE
Preliminary Plat, Planned Unit Development and SEP A Appeal
Location: East of92nd Avenue South and north of South 208th Street
Applicant: Schneider Homes, Inc., represented by
George Kresovich, Attorney
Hillis Clark Martin & Peterson
500 Galland Bldg., 1221 Second Avenue
Seattle, WA 98101-2925
Telephone: (206) 623-1745
Facsimile: (206) 623-7789
SEP A Appellants: Coalition for Responsible Development,
represented by John Kastien
20609-94th A venue South
Kent, W A 98031
Telephone: (253) 852-5929
Facsimile: (253) 852-1772
City of Kent: Represented by Kim Marousek
220 Fourth Avenue South
Kent, Washington 98032
Telephone: (253) 856-5454
Facsimile: (253) 856-6454
King County: Department of Development and Environmental Services
represented by Fereshteh Dehkordi
900 Oakesdale Avenue Southwest
Renton, Washington 98055-1219
Telephone: (206) 296-7173
Facsimile: (206) 296-6613
S91P0004B &S91UOOOIB -Copper Ridge
SUMMARY OF DECISION/RECOMMENDATION:
Department's Preliminary Recommendation:
Department's Final Recommendation:
Examiner's Decision on SEP A Appeal:
Examiner's Decision on Preliminary Plat & PUD Applications:
EXAMINER PROCEEDINGS:
Hearing Opened:
Hearing Closed:
Page2 of30
Approve, subject to conditions
Approve, subject to revised conditions
Deny
Approve, subject to revised conditions
December 9, 2003
December 19,2003
Participants at the public hearing and the exhibits offered and entered are listed in the attached minutes.
A verbatim recording ofthe hearing is available in the office of the King County Hearing Examiner.
FINDINGS, CONCLUSIONS & DECISION: Having reviewed the record in this matter, the Examiner
now makes and enters the following:
FINDINGS:
l. General Information:
Owner/Developer:
Engineer:
STR:
Location:
Zoning:
Acreage:
Number of Lots:
Density:
Proposed Use:
Sewage Disposal:
Water Supply:
Fire District:
School District:
Application Date:
Schneider Homes Inc.
6510 Southcenter Blvd.
Tukwila, WA 98188
(206) 248-2471
Mel Daley
DMP Engineering Inc.
726 Auburn Way North
(253) 333-2206
SE 6-22-5
Generally east of 92"" Avenue South and North of South 208th Street in
Kent
(SR-9600) 4.5 du/acre
9.64
40
4.15 du/acre
Attached single family residences
Soos Creek Water & Sewer District
Soos Creek Water & Sewer District
King County Fire District No. 37
Kent School District
January 31, 1991
S91P0004B & S91UOOOI B-Copper Ridge Page3 of30
2. Except as modified herein, the facts set forth in the King County Land Use Services Division's
preliminary report to the King County Hearing Examiner for the December 9, 2003, public
hearing are found to be correct and are incorporated herein by reference. The LUSD staff
recommends approval of the application, subject to conditions. Revisions to page 13 of the
DDES staff report appear at Exhibit no. 66.
Procedural History
3. As presently configured, Schneider Homes Inc. is proposing to develop 40 lots on 9.64 acres for
triplex and fourplex townhouse development. The application also seeks planned unit
development approval for the townhouse development and reduced lot areas. The vesting date
for the application is January 31, 1991, which subjects the application to the since-repealed Title
21 King County Zoning Ordinance and other County regulations in effect at that time. The
property is located on a hillside on the eastern edge of the Kent valley and in 1993 was annexed
to the City of Kent.
4. The Copper Ridge application has a lengthy and contentious procedural history. After the
application was filed in 1991, the King County Building and Land Development Division, the
predecessor to the Department of Development and Environmental Services (DDES), issued a
determination of significance under SEPA on July 14, 1992. The DS was issued primarily on the
basis of alleged school impacts and on appeal by the Applicant was reversed by the County
hearing examiner within a March 17, 1993, decision. The application was then remanded for
further review under SEP A, and before that review was completed the property was annexed to
the City of Kent in May 1993. An interlocal agreement was concluded between Kent and King
County in 1996 for the general processing ofland use and building permit applications that were
pending at the time of various annexations. With specific respect to Copper Ridge, however, the
City of Kent declined to process the PUD portion of the application. This led to a lawsuit and a
1997 Court of Appeals decision which held under authority ofRCW 58.17.033 that the Copper
Ridge application was vested to both the platting and PUD provisions of the 1991 County zoning
code and that these vested rights were unaffected by the annexation.
5. A 1999 settlement agreement between Kent and Schneider Homes established the format for
completion of review of the Copper Ridge application, with a hearing to be held by the King
County hearing examiner using the laws, ordinances and policies in effect on the property in 1991
at the time of application. These principles were also set out in a November I, 2000, amendment
to the interlocal agreement between Kent and the County that dealt specifically with Copper
Ridge. Pursuant to this amendment, the hearing report by the County hearing examiner is to take
the form of a recommendation to the City. As interpreted by a May 29, 2003, letter from the
Kent City A ttomey' s office, the recommendation of the County bearing examiner is to go to the
City of Kent hearing examiner for limited review, with any appeal therefrom directed to the Kent
City Council. Based on State SEPA regulations, the City Attorney's office determined that any
appeal of the Copper Ridge threshold determination should be combined with the hearing on the
underlying permit.
6. The City of Kent issued a determination of non-significance under SEPA for the Copper Ridge
proposal on August II, 2003. This DNS was appealed by John Kastien, Edward Shemeta and
other neighborhood residents organized under the rubric of the Coalition for Responsible
Development (CRD). A pre-hearing conference was held by the King County hearing examiner
on September 23, 2003, at the Kent City Hall on the consolidated preliminary plat and planned
S91P0004B & S91UOOOJB-Copper Ridge Page4 of30
unit development applications and SEPA threshold determination appeal. . The pre-hearing order
issued September 25, 2003, identified SEPA issues in the areas of traffic safety, site slope
stability, surface water runoff, wetland and stream delineation and impacts to wildlife. The pre-
hearing order also specified disclosure deadlines and set hearing dates. The public hearing on the
consolidated applications and SEPA appeal was opened on December 9, 2003, at the Kent City
Hall, continued to December 12,2003, and concluded on December 19,2003.
Sensitive Areas
7. The 1990 King County Sensitive Areas Map Folio shows bands of overlapping landslide and
erosion hazard areas lying on the eastern half ofthe Copper Ridge property. In addition, a steep
slope hazard area at gradients in excess of 40 percent lies near the southwest comer of the
property, downslope from the proposed site detention and water quality pond facility. As mapped
by the Applicant, this steep slope area appears to occupy about 19,000 square feet, although
hearing testimony suggested that in actuality it may be smaller. Initial investigations had
suggested the possibility that a wetland area and a regulated stream might exist on the site, but
later analysis concluded that such was not the case. A Class 3 wetland lies downslope from the
steep slope area but has been determined to be off-site.
8. The SEPA threshold determination appeal filed by the Coalition for Responsible Development
raised sensitive areas issues regarding site slope stability, protection of wetlands and streams and
impacts on area wildlife. Of these, only the slope stability issues were pursued by the Appellants
at the hearing.
9. Some of the Appellants' concerns, and much of their sense of outrage, seems to be fueled by a
fundamental misunderstanding as to how the 1990 King County Sensitive Areas Ordinance
operates in assessing environmental impacts. Under Ordinance 9614, erosion and steep slope
hazard areas are very broadly defined. As applied to this property pursuant to section 36 of the
ordinance, the term "erosion hazard" refers to the presence of Alderwood soils on slopes of 15
percent or greater. Section 47 defmes a "landslide hazard" as an area of 15 percent slopes
interbedded with impermeable and granular soils or characterized by springs or groundwater
seepage. And under section 68 a "steep slope hazard" is defined as a 40 percent slope with a 10
foot vertical elevation change. Based on these broad definitions, indicative classifications were
represented on the 1990 map folio using available baseline geologic data.
But the map folio is intended to be the beginning of analysis, not its conclusion. The presence of
a mapped sensitive areas hazard on a property indicates that further site-specific analysis needs to
be done. Nor is the presence of a mapped sensitive areas hazard intended in all cases to preclude
development. The presence of an erosion hazard usually implies a limitation on site clearing
during the winter wet season and the need to submit an erosion control plan. Steep slopes with or
without landslide hazards are, on the other hand, to be left undeveloped under most circumstances
with a perimeter buffer applied at a presumptive distance of 50 feet, which may be reduced to as
little as 10 feet based on appropriate studies. It is not the intention of the ordinance that the
generalized folio mapping information should trump site-specific study and analysis. With
respect to the regulatory effect of the folio maps, section 11.A of the SA 0 provides that the
"actual presence of absence of the features defined in KCC Title 21 as sensitive areas, as
determined by King County, shall govern."
S91P0004B & S91UOOOIB-Copper Ridge Page 5 of30
I 0. Section 5 of the Sensitive Areas Ordinance requires an applicant for a development proposal
containing a sensitive area to "submit such special studies as are required by King County to
adequately evaluate the proposal and all probable impacts." For Copper Ridge the County
required the Applicant to perform a wetland study and a preliminary geotechnical study of site
soils conditions focused on evaluation oflandslide risks. While not specifically characterized as
sensitive areas special studies, the wetland and geotechnical reports meet the requirements of
Section 5 and, with appropriate updates, were accepted as satisfactory by DDES.
II. The SEPA Appellants have challenged the adequacy of the preliminary geotechnical engineering
study performed for the site by Golder Associates, Inc., dated September 24, 1990. The study
was based on a site reconnaissance plus fourteen test pits excavated with a backhoe to a 12 foot
maximum depth. The study identified the predominant site soils as glacial tills undedain by
advance outwash sands, determined that they were competent for construction purposes and also
identified fill areas resulting from previous site usage. With respect to landslide hazards, the
Golder study characterized the slopes as stable so long as adequate drainage facilities were
installed and the proposed detention pond were lined. The study also proposes the maintenance
of25 foot setbacks from steep slope areas, major earthwork to be done in the dry season, and a
geotechnical reevaluation prior to actual construction. The principal conclusions of the Golder
study were verified by DDES staff geologist Larry West, who has visited the property a number
of times in the last few years, and the geotechnical recommendations have been incorporated into
the Applicant's site plans.
12. The SEPA Appellants have expressed skepticism that slope stability issues have been adequately
addressed by the Applicant and DDES, and have offered a number of hypotheses in support of
their position. As pointed out by Appellant John Kastien, slopes below the site along 92nd
Avenue South experienced mudslides in I990 and 1997. Mr. Kastien suggested that the 1990
slide was the result of rapid infiltration on the Copper Ridge site resulting from vegetation
removal followed by a major rain storm. The 1997 slide was explained by nearby property owner
Ronald Melby as the consequence of the installation across the hillside in the late 1980s of a
sewer pipe within a gravel-lined trench. The trench apparently was neither installed with
sectional flow barriers nor drainage diversion facilities. As a result, groundwater accumulated in
the gravel trench and saturated the lower portions of the hillside, resulting in the blowout.
13. There is simply no question that steep slopes underlain by outwash sands can fail if the soils
become saturated. That indeed is the principle insight underlying the Golder geotechnical
recommendations for drainage control during major earthwork, for dry season excavations, and
an impermeable pond liner. The Appellants have offered no evidence that the Golder
recommendations will be insufficient to avoid saturation of soils on steep slopes, and the record is
clear that the importance of avoiding such saturated conditions has been a foundational principle
of the geotechnical analysis.
14. The Appellants also contend that placement of a drainage and wetpond facility in the southwest
comer of the property, upgradient from the 40 percent slope area, creates a major risk of slope
failure. They have suggested that the weight of the water in the pond, as well as the overflow
pond condition in major storms, will cause the pond structure to collapse, imposing significant
damage on downstream locations.
I 5. Construction of an RID facility on competent soils lying on a 20 percent slope is not a major
engineering challenge and has been successfully accomplished on many occasions throughout the
S91P0004B & S9IUOOOIB -Copper Ridge Page6of30
Puget Sound Area. The fact is that the pond water weight will be approximately one-half per unit
of volume of the soils displaced, and structural pond walls and an impermeable pond liner will
provide the slope with greater structural stability than it now experiences in the undeveloped
state. Moreover, drainage ponds are expected to overflow during major storm events and are
designed to accommodate the overflow condition. Section 4.4.4 of the 1990 King County
Surface Water Design Manual provides detailed instructions for designing overflow mechanisms:
"A pond overflow system must provide controlled discharge of the I 00-year, 24-
hour design storm event for developed site conditions without overtopping any
part ofthe pond embankment or exceeding the capacity of the emergency
spillway. The design must provide controlled discharge directly into the
downstream conveyance system. This assumes the pond will be full due to
plugged control structure inflow pipe and/or plugged restrictor/orifices
conditions."
In other words, not only must the overflow mechanism be designed to accommodate the 1 00-year
storm without overtopping the pond sides, but an emergency spillway must also be provided to
relieve the primary overflow channel if it becomes blocked.
16. Also within the realm of geotechnical issues, area resident Richard Miller, in support of the SEP A
Appellants' case, offered a hypothesis that onsite excavation might pierce an aquifer lying
beneath the site and thereby perhaps pollute and dewater downgradient wells. This hypothesis is
primarily based on the examination of two well logs lying north of the site, one at a distance of
approximately 2000 feet and the second at 700 feet. There appears to be approximately 140 feet
of difference between the water elevations in the two wells, and Mr. Miller has projected this
gradient as a piezometric incline extending onto the Copper Ridge site. If this inferred incline
were accurate, the upper end of an extensive aquifer would lie just beneath the Copper Ridge
slopes. Supporting evidence for this hypothesis is presumed to include the existence of hillside
seeps north of the Copper Ridge property.
17. While Mr. Miller's hypothesis is not inconceivable, it appears to be both highly speculative and
quite unhkely based on known information. A water level drop of 140 feet between two wells
only 1300 feet apart rather strongly suggests that the two wells are not in hydraulic continuity but
rather are tapped into different ground water sources. Moreover, the known soils data for the
Copper Ridge hillside is typical of glacial outwash formations, and the existence under the till
layer of compacted outwash sands argues against extensive hydraulic continuity at the gradient
suggested. The presence of springs on a steep hillside are more likely the consequence of upslope
infiltration emerging as perched seeps, and the supposition of a thick clay layer capping a
confined aquifer is unsupported by any known geologic data. A major layer oflacustrine clay
would not be expected to occur on a glacial outwash hillside.
18. Mr. Kastien's concern for the stability of cut slopes beneath his house on the eastern edge of the
Copper Ridge property is certainly understandable. The rockeries shown on the plat map
schematic would simply function as erosion control facilities unless structurally engineered.
While final design decisions have yet to be made, the geotechnical study clearly indicates that
rockeries alone cannot serve as structural retaining walls and that any retaining walls installed
will need adequate interceptor drains.
S9IP0004B & S9IUOOOIB-Copper Rldge Page 7 of30
Drainage
19. Copper Ridge is vested to the standards contained in the 1990 King County Surface Water Design
Manual. This document was superseded in 1998 by a new manual that contains a more detailed
menu of detention and water quality treatment options. Because DDES staff at one point
recommended that Copper Ridge construct a detention pond to provide Level 2 flow control
under the 1998 manual and the Applicant declined to volunteer for the upgrade, the SEP A
Appellants have surmised that construction ofthe plat to the lesser 1990 standard w11l result in
adverse environmental impacts.
20. In order to evaluate this contention, it is necessary to briefly discuss the difference between the
1990 and 1998 Surface Water Design Manuals. The detention release rate provided in the 1990
manual requires the facility to match existing conditions with its post-development peak runoff
rates for the 2 and 10 year, 24-hour duration design storm events. The Level 1 flow control under
the 1998 manual likewise requires site release to match the existing condition for the 2 and to
year peak events, while Level 2 control adds to the menu a duration control based on matching 50
percent of the 2 through 50 year storm events. The Level 2 control seeks to control peak
durations to a level where they will not increase erosion within damaged or overcapacity stream
channels. In addition to adding a duration control requirement, the principal difference between
the 1990 and 1998 manuals inheres in their analytical methodologies. The 1990 manual is based
on the Santa Barbara Urban Hydrograph, which is a single event model that assumes a drainage
facility at the beginning of a storm event will be empty and preceding weather conditions dry.
The 1998 manual, on the other hand, is based on the King County Runoff Time Series (KCRTS),
which is a continuous flow model that analyzes a storm event more realistically as part of a chain
of similar events. The fact that 1998 SWM facilities are larger than those required under the 1990
manual is mainly due to the shift to a continuous event modeling analysis.
21. It is undisputed that constructing a storm water drainage facility at Copper Ridge based on the
1990 manual will result in a pond capacity that is approximately one-third of that which would be
required under the 1998 manual to achieve Level2 flow control. The question to be answered is:
what are the real-world consequences of this change? Clearly, the most obvious consequence is
that the 1990 design pond will overflow more frequently than the 1998 Level 2 pond.
22. The question of the hydraulic effects of more frequent pond overflow has two aspects. There is
the matter of the consequences for the downstream conveyance ditch and culvert system, then
there is the further issue of the effect on the ultimate downstream natural receiving body-in this
case the Garrison Creek system. Looking at the downstream conveyance system for Copper
Ridge, the following elements stand out. First, Copper Ridge has very little in the way of
upstream flows to be conveyed through the site. The drainage system for Valley View Heights
on the plateau above the hillside is channeled through a different conveyance system. Second,
there is also little in the way of development downstream of Copper Ridge to contribute
additional developed runoff flows to the conveyance system; therefore, the conveyance system
will not be burdened by other significant developed area surcharged flows. Third, as detailed in
the Applicant's downstream analysis, the existing downstream system is constrained both by a
few undersized culverts and by sections ofunder-capacity channel. The staff recommendation for
Level 2 flow control was predicated on the perceived need to not overtax these constraints within
the existing downstream conveyance system.
S91P0004B & S91UOOOIB-Copper Ridge Page 8 of30
23. Limitations in the downstream conveyance system can be mitigated in one of two ways. Either
the detention pond can be enlarged and the peak flow release attenuated so as not to increase the
peak flows to the undersized downstream facilities, or the downstream facilities themselves may
be upgraded. DDES staff suggested initially the former approach, but the Applicant has opted for
the latter. The Applicant proposes to replace the undersized culverts and regrade the downstream
channels where necessary to increase their capacity. But the net result will be the same. The
downstream conveyance system will have adequate capacity to handle the peak flows from
Copper Ridge.
24. The impact on the Garrison Creek system is a different sort of question. The nine plus acres of
Copper Ridge constitute 3.27 percent of the 295 acre Chestnut/Garrison sub-basin that empties
into Garrison Creek at the SR 167 culvert. Use of the 1990 Surface Water Design Manual
standard for design of the detention facilities for Copper Ridge would increase the level of
Garrison Creek less than one-quarter inch for the I 00 year storm event. In other words, the
impact of Copper Ridge in this much larger sub-basin will be negligible. The SEPA Appellants
have also suggested that regional drainage facihties constructed within the Garrison Creek system
may be adversely impacted by increased flows from Copper Ridge. Without knowing precisely
where these facilities area located and what the flows are at these locations, it is hard to evaluate
this information. It appears probable that at least some of these facilities may be on Garrison
Creek upstream of the SR 167 culvert, in which case Copper Ridge runoff would not pass through
these structures at all. In any event, no evidence has been provided that the minor increase in
flows resulting from Copper Ridge will have an adverse impact to either Garrison Creek or its
regional drainage facilities.
25. Issues of water quality impacts have also been raised. In this respect it is important to note that
the Applicant has in fact volunteered to meet the 1998 standard for water quality treatment. The
1998 manual's basic water quality menu provides an array of options for water quality treatment,
including water quality ponds and vaults, biofiltration swales and sand filters. The Applicant has
indicated preliminarily that it will opt for a combined wet pond and detention pond whereby
water quality treatment is provided within a permanent pool of dead storage at the bottom of the
facility. These facilities are designed to remove 80 percent oftotal suspended solids within the
project surface water flows on an annual basis. While the Appellants have questioned whether
the 80 percent target can be met in the context of a 1990 RID facihty, as Mr. Shemeta noted most
of the pollutants are contained in the first half inch of rainfall after a dry spell. This pollutant-
laden first flush will always receive water quality treatment, and that which is bypassed through
overflow will be limited to the Jess-polluted later flows.
Traffic
26. The truly difficult issues concerning development of Copper Ridge relate to site access and traffic
safety. The property lies northeast of the intersection of92nd Avenue South and South 208th
Street, with frontage on both roads. From the east South 208th Street descends the hillside from
the intersection at South 212th Street/96th Avenue South along a winding route that includes
grades as steep as 16 percent. The original traffic study performed for the project in 1991 stated
that South 208th Street "can be classified as mountainous between 92nd Avenue South and 96th
Avenue South." Due to the road's curvature the portion of South 208th Street adjacent to the site
is constrained with entering sight distance limitations on the downhill or west side. Even though
a narrow two-lane roadway with limited shoulders, South 208th Street is classified as a
(
S9!P0004B & S91UOOOIB-Copper Ridge Page9of30
neighborhood collector and in fact perfonns at an arterial level transporting vehicles during
conunuter hours between the South 212th Street and 84th Avenue South corridors.
27. Because of the sight distance problems on South 208th Street, the initial traffic study also
considered providing site access on the property's west side on 92nd A venue South at the base of
the slope. Although 92nd A venue South has a flatter gradient, site access from that location was
rejected due to the necessity of traversing onsite slopes in excess of20% and because of limited
entering sight distances to the east at the South 208th Street/92nd Avenue South intersection.
The initial recommendation by the traffic study was a preference for development of the South
208th Street access with the roadway to be widened for an uphill left tum lane into the project.
28. The eventual parameters for the entry road design were set by a March 2, 1992, road variance
issued by the County Road Engineer. In lieu of a left tum lane, this road variance provided for
the widening of the South 208th Street roadway to the south to improve entering sight distances
to 385 feet to the west, rural standard frontage improvements on both South 208th and 92nd
Avenue South, and extension ofthe internal road cul-de-sac length to 950 feet with fire marshal
approval. After considerable internal debate, County staff concluded recently that the 1992 road
variance remains valid for review of the current application.
29. Everyone seems to agree that approximately 70 percent of Copper Ridge peak hour traffic will
travel to and from SR 167 northbound via its South 21 2th Street ramps, but there has been
diversity of opinion as to how such traffic will anive there. The 1991 traffic study was
predicated on 79 percent of Copper Ridge's traffic traveling on South 208th Street uphill to the
east, while the Applicant's more recent traffic studies have come to an opposite conclusion and
only distribute 3 percent of site peak-hour trips to the uphill route. The route up South 208th
Street to the 96th Avenue South/212th intersection, then back downhill west to the SR 167
interchange is the shorter alternative. But based on Puget Sound Regional Council studies traffic
engineers now believe that the downhill route on South 208th Street west to 84th Avenue South,
then left to 212th Street and left again to the SR 167 interchange will be a quicker and more
attractive alternative for Copper Ridge traffic. Certainly this rationale is compelling for the AM
peak hour. For morning peak hour traffic exiting Copper Ridge to utilize the uphill route, it
would be required to tum left across the dominant traffic flow. As Mr. Shemeta has argued, this is
probably not an attractive option because the signal uphill at South 212th Street/96th A venue
South fails to effectively platoon traffic down the hill. The 20-second signal phase for
southbound 96th A venue South traffic provides an effective platoon only if there are minimal
right turns from 96th Avenue South to South 208th. Accordingly, it is not unreasonable to
conclude that AM peak hour traffic from Copper Ridge will prefer to tum right into the dominant
traffic flow and take the longer route to theSE 167 intersection via 84th A venue South.
On the other hand, trip distribution choices for the PM peak hour are less clearly one-sided,
although the initial right-band tum from the SR 167 ramp onto South 212th Street to the 84th
A venue South route may provide an attractive initial option supporting the longer return trip. But
the deciding factor here is less likely to be the inconvenience ofleft turns and more a question of
whether eastbound congestion on South 208th Street is expected to be worse than that on South
212th.
30. In addition to the conundrum over trip distribution, the Applicant's traffic studies over time
appear to apply increasingly Jess defensible traffic growth rates. Christopher Brown's 1991 study
for the Applicant employed a growth rate annually of2. 74 percent, which had decreased to 1.24
S9 I P0004B & S91 UOOO I B-Copper Ridge PagelOofJO
percent in 200 I and a barely discemab1e 1.0 I percent in the 2003 traffic study update. This last
figure was apparently based on traffic counts on SR 167 just south of its 43rd Street interchange
near the northern Kent city limit. By way of comparison, the February 2002 Kittleson and
Associates traffic study for the South 212th Street Retail Center employs an annual growth rate of
3.5 percent based on South 212th Street historical figures.
Moreover, the Applicant's ]ow traffic growth rates are inconsistent with its own traffic counts for
South 208th Street in the immediate vicinity of Copper Ridge. The traffic counts provided by the
Applicant in its three most recent studies show eastbound PM peak hour traffic on South 208th
Street adjacent to the site increasing nearly 50 percent between February 2001 and October 2003.
In addition, the PM westbound non-peak direction flows on South 208th Street next to the site
increased approximately 40 percent between 2002 and 2003 according to the Applicant's traffic
counts. In short, regardless of what may be happening on SR 167 near the Renton boundary,
South 208th Street itself appears to have undergone significant peak hour traffic increases within
the last few years.
31. Happily for the Applicant, the conjecture surrounding traffic distn"bution in the neighborhood of
Copper Ridge, its evolving patterns and volumes, and the contribution of the plat proposal to
existing problems becomes much Jess critical with the construction of the South 212th Street
Retail Center near the SR 167 interchange. The only clearly identified level of service F problem
on the nearby supporting arterial system occurs at the SR 167/South 212th Street northbound
ramp in the PM peak hour. Copper Ridge will contribute more than 10 peak direction trips to this
intersection in the PM peak hour and thus exceed the I 989 Road Adequacy Standards mitigation
threshold. However, the new retail center is in the process of providing substantial upgrades to
this intersection which will improve it to a LOS D condition for the PM peak hour, thus
alleviating any need for Copper Ridge to mitigate traffic impacts.
The only other intersection of potential importance to Copper Ridge from a level of service
standpoint would be 84th Avenue South/South 212th Street, which is predicted by the Applicant
to operate at a level of service E in the 2006 project year with an average vehicle delay of 60
seconds. lf the SR 167 ramp upgrades become a magnet for more traffic, and if the Applicant's
traffic growth rates are as understated as they appear to be, the 2006 level of service at this
intersection could prove to be worse than predicted and edging toward an unacceptable level.
Based on current information, however, such a conclusion is at this point purely speculative.
Finally, employing the currently accepted trip distribution, the signalized intersection at South
212th Street/96th Avenue South will not be impacted by I 0 peak hour/peak direction trips from
Copper Ridge and overal1 will operate at an acceptable level of service.
32. The traffic and pedestrian safety issues that affect Copper Ridge are both more localized and
clearly defined than the regionaJ level of service impacts. As suggested above, the combination
of road curves, steep gradients, limited entering sight distances and excessive speeds raises a
number of safety concerns, particularly when combined with inclement weather conditions. Both
the Kent School District and area residents have been adamant in their assertions that adverse
winter weather conditions have a greater effect on South 208th Street in the hillside section
adjacent to Copper Ridge than at almost any other nearby location. The section of South 208th
Street between 92nd A venue South and 96th Avenue South is regarded as extremely dangerous in
icy conditions and is reported to be the first road to be closed during a winter storm.
S91POQ04B & S91UOOOI B-Copper Ridge Page II of30
33. These concerns are buttressed by the accident history for South 208th Street at the 92nd Avenue
South intersection and uphill to the east. Mr. Brown's analysis ofthe accident history for the last
four yeaTS describes an accident rate of22.6 accidents per million vehicle miles of travel within
the 300 foot road section east of92nd Avenue South on 208th. An accident rate of over 6 mvm
exists for the second 300 foot segment east of92nd Avenue South. For the remainder of South
208th Street between 84th Avenue South and 96th Avenue South the accident rate is below l
mvm, with the overall King County average reposing at 2.7 mvm. Mr. Brown concluded
correctly that the high accident rate in the 300 foot section directly east of 92nd A venue South is
"not due to chance alone but, rather, ... due to the roadway itself." Based on this data, the
Applicant has offered to contribute a pro-rata share to a traffic calming device such as a traffic
circle at the South 208th Street/92nd A venue South intersection ifthe City of Kent were to
implement such a mitigation.
Mr. Brown in his testimony suggested that the high accident rate on South 208th Street east of
92nd Avenue South at the base ofthe hill was due to the excessive speeds of eastbound traffic
accelerating up the grade. This interpretation is not supported by neighborhood testimony, Mr.
Brown's own data or common sense. Rather, it appeaTS to be the downhill speeding traffic that
primarily causes the accident problem. This is shown by the City of Kent corridor accident data
attached to Mr. Brown's report, where one observes that the vehicle causing the accident is
almost always the westbound vehicle going downhill. This is most explicitly demonstrated in the
data for the six single-car accidents, where a vehicle hit either a parked car or other stationary
object. In each of these incidents, the vehicle causing the accident was traveling downhill toward
the west.
34. Much of the information concerning winter weather risks on South 208th Street was developed
within the dialogue between the Applicant and the Kent School District concerning bus service to
Copper Ridge to pick up and deliver school children. The eventual outcome of this discussion
was a bus stop design on South 208th Street west of the plat entrance that will be set back 17 feet
from the roadway pavement edge and feature protective amenities. The bus stop, however, does
not address the problem of what will happen when South 208th Street is iced up and school buses
cannot travel the roadway, or the roadway is closed entirely to traffic use. In such cases, school
children will need to be picked up and delivert<d near the 92nd Avenue South/South 208th
inteTSection at the bottom of the hill, then walk up to Copper rudge. This is perhaps not an
overwhelming problem when South 208th Street between 92nd Avenue South and 96th A venue
South is completely closed to all traffic, and children can simply walk in the middle of the
roadway without fear of danger. But when school bus delivery is forced to occur at the bottom of
the hill yet South 208th Street remains open to traffic generally, the danger would be extreme.
The 300 foot section on South 208th Street east of the 92nd Avenue South intersection, which
features a high accident rate and poor sight distance, only possesses a two-foot gravel shoulder on
the north side bordered by a drainage ditch and an equally narrow shoulder at the edge of a steep
decline on the south. It is unthinkable that school children should have to walk along such a
narrow shoulder either uphill or downhill in icy conditions when there is traffic on the roadway.
Although steep gradients must be crossed which may require sections of stairway, the only
acceptable answer to this dilemma is to provide a pedestrian walkway through Copper Ridge
down to 92nd Avenue South.
35. Related to the school bus problem is the predicament of adult site residents who return home in
. their vehicles to find that they either cannot negotiate the South 208th hill due to icy conditions or
that the roadway section has been completely closed. Under such circumstances, these residents
(
S9JP0004B & S9JUOOOIB-Copper Ridge Page 12 of30
will need to park their cars at the base ofthe h!ll and walk to their homes. Again, these residents
would be placed at risk if there were no pathway from 92nd Avenue South into the plat.
Moreover, the need to park on 92nd A venue South during inclement weather requires that the
shoulder adjacent to the site be improved to an eight foot width rather than the four foot minimum
currently proposed.
36. Finally, as Mr. Kastien noted, the 1992 road variance approval for cul-de-sac length of up to 950
feet based on County fire marshal review does not take into account that the fire regulations for
the City of Kent appear to limit driveways off the turnaround bulb to a total length of 150 feet.
The most northerly unit of the proposed Copper Ridge development is approximately 250 feet
from the turnaround bulb. Although we are not in a position to anticipate the results of fire safety
review, clearly approval of the internal road design for Copper Ridge must include appropriate
fire safety review, and it is possible that the internal roadway system may need to be redesigned
as a consequence of that procedure.
Plat/Planned Unit Development
37. In 1991 at the time of the original Copper Ridge application, the 9.64 acre site was zoned SR
9600. The SR zone was created under the Title 21 Zoning Ordinance as a transitional
classification between rural and urban uses. When proposed for development at urban densities,
SR-zoned properties are generally subject to the development requirements established for the RS
single-family dwelling district. Both the SR and RS zoning classifications list planned unit
developments as permitted uses. The planned unit development provisions ofKCC Chapter
21.56 are intended to provide design flexibility so that an applicant may efficiently address the
special features ofthe property.
38. The procedure for approving a planned unit development proposal is generally set forth in KCC
21.56.030A. The approval process provides that after staff review, "the examiner shall determine
that the plans comply with the development policies of the comprehensive plan, community plan
policies, area zoning guidelines, ... the pu~pose of this title, and provisions of this chapter. The
applicant shall be responsible for demonstrating consistency with these requirements at the time
of application and at public hearings." Pursuant to this process, the bearing examiner makes a
written recommendation to the County Council, which in turn confers preliminary approval on
the planned unit development. KCC 21.56.050 provides for the consolidation of a planned unit
development proposal with a preliminary plat application.
39. As set forth in KCC 21.56.140, the density of residential development allowed within a PUD
requires the calculation of a net development factor, which in the case of Copper Ridge mandates
the exclusion from the total developable area of75 percent of those on-site areas having 40
percent slopes. The net development factor expressed in acres is then further multiplied by the
base units per acre applicable to the zone as well as the bonus units per acre derived from the
provision of specified amenities. The worksheet submitted by DDES staff attributes to Copper
Ridge a net development factor of9.23 acres based on the exclusions described at KCC
21.56.140.
40. As pointed out by Mr. Kastien, the base density for the Copper Ridge property is also subject to a
competing procedure stated within section 10 of the 1990 Sensitive Areas Ordinance. This
provision authorizes a density credit equal to I 00 percent of the net parcel area only if the
S9 I P000411 & S9 I UOOO I 11 -Copper R1dge Page 13 of30
percentage of the site in designated sensitive areas and buffers is less than I 0 percent. Sites
possessing between 1 I and 20 percent designated sensitive areas and buffers receive a density
credit of90 percent. As applied to Copper Ridge to calculate the appropriate density credit, the
gross parcel area would need to be reduced by the area of regulated steep slopes and their buffers
and by the extent of any on-site buffers attributable to off-site wetlands. The section I 0 density
credit calculation does not apply to erosion hazard areas and, folio mapping notwithstanding, no
landslide hazard areas have been determined to exist on the property. If Copper Ridge were
subject to a 90 percent density credit rather than I 00 percent, the acreage qualifYing for density
calculation would be 8.676 acres, which at a 9600 square foot lot size would support 39.36
dwelling units. In other words, if after reduction of the gross acreage by the regulated steep slope
areas and their buffers plus any impinging wetland buffers the acreage excluded in sensitive areas
exceeds I 0 percent, the Copper Ridge proposal would be subject to losing one dwelling unit
under the KCC 2 I .54.080 calculation.
41. DDES staff initially argued that the KCC 21.54.080 density credit process was preempted by the
KCC 2 I .56.140 calculation, but the regulatory language does not support this position. Section
10 of Ordinance 9614 (KCC 21.54.080) applies without qualification to "development
proposals," and section 3.B lists planned unit developments as subject to SAO requirements.
Moreover, section 3.A states that when SAO requirements conflict with other County code
requirements, "that which provides more protection to the sensitive areas shall apply." The
discussion of the actual effect of these density requirements on the application remains
conjectural pending a more precise calculation of the portions of the Copper Ridge site subject to
the sensitive areas exclusion. Condition no. 4, however, has been revised to provide for the
density reduction mandated by the SAO if the measurements so require.
42. Returning to the PUD process itself, the second potentially controversial operation required by
the ordinance is the determination of bonus units under KCC 21 .56. I 70. Here the I 963 Zoning
Code origins of the PUD ordinance become apparent when one sees that an applicant can receive
bonus points for such now commonplace amenities as sewer and water availability and the use of
a professional design and development team. The categories in which DDES staff has
recommended bonus unit credit under less than obvious circumstances are 'for significant
recreation areas to be "developed and equipped with such features as, but not limited to, trails,
landscape passive or open areas, pools, tennis courts, children's play areas, etc."; public transit
"available within walking distance (approximately one-half mile)" on a twice-hourly basis during
morning and evening peak hours; and a crime prevention plan "incorporating Jocks, dwelling unit
lighting, street lighting, doors, windows, and alarms." Although use of a security gate ultimately
may not be permitted, compliance with crime prevention plan requirements is certainly feasible,
and staff review can assure that such compliance is provided. Similarly, a recreation plan needs
to be submitted that offers the facilities mandated by code. In this respect, if a pedestrian path is
required down slope to 92nd A venue South, such an amenity also could contribute to the
recreation plan.
43. Qualification for the public transit bonus credit is more problematic. The twice-hourly service
within approximately one-half mile requirement can be met both to the east and west, with transit
stops located uphill along the arterial section of South 208th Street at 98th Place South and
downhill to the west on 84th A venue South at South 208th Street. The real question here is, in
view of the steep grades, narrow shoulders, high traffic flows and often dangerous walking
conditions between the plat entrance and the bus stops, can these public transit facilities
reasonably be said to be "available" to Copper Ridge residents? Our view is that without any
S9 I P0004B & S9 I UOOO IB -Copper R1dge Page 14 of30
route offsite to a safe walking location, the answer is probably no. If, however, a pathway is
provided down to 92nd Avenue South, pedestrian travel to public transit locations can be deemed
feasible and the credit conferred.
44. Near the end of the public hearing the Applicant's project manager disclosed that the Applicant
was contemplating a later request for bonus unit credit for off-site convenience shopping facilities
based on the anticipated construction of the retail center at the South 212th Street/SR 167
intersection, approximately seven-tenths of a mile from the site via the easterly uphill route. This
statement evinces a misunderstanding as to how the PUD bonus credit approval process works.
While detailed review of plans to achieve bonus credits may reasonably be deferred to later staff
analysis, the PUD ordinance requires at a minimum that the bonus credit request be disclosed at
the public hearing and a determination of feasibility made. This is consistent with the provision
ofK~C 21.56.030A quoted above requiring at the hearing that the applicant shall demonstrate
consistency with PUD requirements, and with the KCC 21.56.120 preclusion of post-hearing staff
adjustments to the PUD authorization that increase the number of dwelling units. In short, basic
review of a request for bonus credit for the proposal's accessibility to convenience shopping
facilities must occur at the hearing level.
45. KCC 21.56.170B.4.b confers bonus credit for offsite convenience shopping facilities that are
"functionally accessible within reasonable walking distance (approximately one-half mile)."
Without belaboring the distance requirement, it seems clear that a shopping center more than a
half mile away can only be functionally accessible if there are safe and adequate pedestrian
walking facilities between the PUD site and the commercial facility. This is a higher standard of
convenience than required for public transit bonus credit, presumably because walking home
from shopping is deemed feasible only if one can safely and comfortably carry a modest amount
of purchased goods. It is our view that the functional accessibility requirement cannot be met
along the section of South 208th Street east of the site where a steep road is only served by a
narrow, unpaved shoulder as a pedestrian walkway. Copper Ridge therefore does not qualifY for
this bonus density credit.
CONCLUSIONS:
SEPAAppeal
I. The basic standard to be applied to the review of a threshold determination appeal is that the
SEP A record must demonstrate the actual consideration of relevant environmental impacts. With
respect to those relevant impacts shown to be actually considered, the decision of the SEP A
official is entitled to substantial weight on review and shall not be overturned unless clearly
erroneous based on the record as a whole.
2. In conjunction with the SEP A statute and regulations, KCC 20.24.070.8 confers upon the hearing
examiner broad authority to impose such conditions, modifications and restrictions on the appeal
decision as may be required to make it compatible with the environment and carry out applicable
statutes, regulations, codes, plans and policies. This authority supplements the SEP A appeal
standards and allows specific conditions of mitigation to be imposed or modified to address
adverse environmental impacts, independent of whether the determination of non-significance is
found overall to be clearly erroneous.
S9JP0004B& S9JUOOOJB-CopperRidge Page 15 of30
3. The SEPA record discloses actual consideration by the Department of Development and
Environmental Services and by the City of Kent of the potential environmental impacts of this
proposal. The Appellants have not met their burden of proof to demonstrate that the
determination of non-significance is either contrary to law or inadequately supported by the
record and, therefore, clearly erroneous with respect to alleged geotechnical hazards, groundwater
impacts, drainage impacts to downstream water quality and the capacity or integrity of
conveyance systems, traffic levels of service, wetlands and wildlife.
4. Potential adverse impacts are demonstrated by the record with respect to traffic and pedestrian
safety on South 208th Street between 96th Avenue South and 92nd Avenue South. Regarding the
former, the historic accident rate at the South 208th Street/92nd Avenue South intersection
suggests that similar safety problems could occur at the new plat access road entry. Mitigation
for these potential impacts will be implemented by the entering sight distance improvements
required under the County road variance, which will provide adequate sight distance in the
eastern uphill direction and greatly improve sight distance on the downhill, western side. Since
left turns, both into and out of the site, depend primarily on the adequacy of the uphill sight
distance measurement, and the quantity of traffic generated by Copper Ridge will be a relatively
small percentage of the total flow, potential traffic impacts appear to be adequately mitigated.
Moreover, the Applicant has offered to contribute a pro-rata share to traffic calming devices at the
South 208th Street/92nd Avenue South intersection if the City of Kent deems such improvements
to be warranted as a further safety mitigation, and a condition to such effect has been
recommended.
5. The potential for an adverse impact to pedestrian safety will occur under icy weather conditions
that prevent school buses and some vehicles from successfully traversing the steep gradient on
South 208th Street adjacent to the site, but which may not be sufficiently severe to warrant total
closure of the road section. Under such circumstances, school children will need to meet the
school bus at the bottom of the hill at the 92nd Avenue South intersection, walking up or down
the steep 208th Street grade to the site entrance along a narrow gravel shoulder under dangerous
traffic conditions. A similar situation will confront Copper Hill adult residents who are forced by
winter weather to park at the bottom of the hill.
6. These pedestrian safety impacts can be mitigated by providing additional shoulder width along
92nd A venue South for emergency parking and constructing a pedestrian path from 92nd A venue
South into Copper Ridge. If such mitigations were provided, the adverse impacts to pedestrian
safety would be mitigated, the decision of the SEPA official would not be clearly erroneous, and
the probability of significant adverse environmental impacts resulting from the proposal would be
avoided.
7. In recognition of the fact that more than twelve years have transpired between the initial
submission of the Copper Ridge application to King County in 1991 and the issuance of a
determination of non-significance by the City of Kent in 1993, the pre-bearing order issued for
this proceeding requested the parties to brief the question of what substantive authority should
apply to this project under SEPA if the Examiner were to determine that unmitigated adverse
environmental impacts exist. Thoughtful and well-researched briefs have been submitted on this
issue by the Applicant, King County and the City of Kent. The King County Prosecuting
Attorney's Office identified four legally defensible vesting points for SEPA purposes, those
being the 1991 application date, the 2003 DNS date, and intervening times based on when the
threshold determination ought to have been issued and the date of the first County DS issued in
S91P0004B & S91UOOOIB-Copper Ridge Page 16of30
1992. In choosing among these, the Prosecutor's Office diplomatically suggests that the
Examiner should defer to the City's detennination of the appropriate vesting date for the Copper
Ridge application. The City's brief, in tum, identifies and argues for a fifth possibility, that
Copper Ridge should be vested to the City's SEP A policies in effect in 1993 when the property
was annexed to the City. The memorandum for Schneider Homes argues in favor of the 1991
application date for vesting the proposal to the County's SEPA policies.
8. WAC I97-Il-660(l){a) adopted in 1984 states that "mitigation measures or denials shall be based
on policies, plans, rules, or regulations formerly designated by the agency ... as the basis for the
exercise of substantive authority and in effect when the DNS or DElS was issued:" But in light of
appellate court cases interpreting the Washington vested rights doctrine, no one has argued that
this WAC provision should be applied unconditionally to a proposal where the time elapsed
between the initial application date and the DNS exceeds twelve years. The rationale for
declining to apply WAC l97-ll-660(1)(a) literally as written was well summarized in the City of
Kent's legal brief:
"A simple reading of WAC 197-ll-660(1 )(a) would say that Schneider Homes
vested to the City of Kent's substantive SEPA policies in effect on August 11,
2003, when the City issued its DNS. These policies are listed in section
11.03.510 of the Kent City Code. This analysis, while easy, would ignore the
complicated history of this case to the effect ofviolating the applicant's
substantive due process rights, and perhaps rending (sic) the decision in
Schneider Homes meaningless.
" ... .in the rare case where city officials clearly frustrated a developer's diligent,
good faith efforts to complete the permit process, due process considerations of
fundamental fairness require a court to look beyond whether a developer
technically met the requirements of vesting. [Citation omitted.] When these rare
circumstances are present, ... the developer vested to the rights it would have
vested to in the absent:e of frustration by city officials. [Citation omitted.]
"The City believes that the facts of this case show that Schneider Homes has
diligently made good faith efforts to reach the point in the application process
where a threshold determination would be made and substantive SEPA policies
would vest. Schneider Homes was technically not able to reach this point until
August of2003 because rather than issue its own threshold determination when it
obtained jurisdiction over Copper Ridge, the City took the position that the PUD
was not vested, which led to lengthy litigation. While the City acted in good
faith in arguing that a floating PUD did not vest, it nevertheless frustrated
Schneider's efforts to obtain a threshold determination and vest to substantive
SEP A policies."
9. There are two variables to be analyzed in determining SEP A vesting for the instant case; first,
what the appropriate vesting dated for SEPA policies should be, and second, whether the policies
vested to should be those of King County or the City of Kent. Bearing on these issues are not
only the applicable statutes, regulations and court interpretations of the vesting rights doctrine,
but also the arrangements that have been concluded among the parties for addressing these
questions. With respect to this last matter, the 1996 interlocal agreement between King County
and the City of Kent treated of annexation properties generally, stating at section 2.1 that "the
S9IP0004B & S9JUOOOIB -Copper Ridge Page 17 of30
County shall continue to process those vested land use related applications filed with the County
before the effective date of annexation which involve property within the Annexation Area.
Processing shall occur in accordance with those County regulations under which the application
is vested ... The City will detennine whether the land use application is vested."
In 1999 after conclusion of the litigation between the City and Schneider Homes, the two parties
entered into a settlement agreement that provides in pertinent part as follows: "The laws,
ordinances, and policies to be applied to review of these applications will those in effect at the
time that the applications vested .... The intent of the parties is to process these applications as
nearly as possible as if review had been completed by King County in 1993 without annexation."
The terms of the settlement agreement were implemented by a 2000 amendment to the 1996
interlocal agreement between the County and Kent that dealt specifically with Copper Ridge.
This amendment provided that "County review of these applications shall be based upon County
codes in effect at the time such applications were initially submitted to King County prior to
annexation."
10. The precise legal effect of WAC 197-11-660(l)(a) has never been judicially determined and its
status remains a source of endless speculation and controversy. Nonetheless, we see no basis for
according it no legal effect at all as suggested by the Applicant. The regulation has survived
unscathed since 1984, and the concept that the SEPA vesting date may be different than the
application vesting date has received tacit statutory recognition in RCW 58.17.033(3) dealing
with subdivisions and in RCW 19.27.095(6) regarding building permits. Both statutory
provisions provide that the application date vesting requirements being specified therein "shall
not restrict conditions imposed under chapter 43.21 C RCW."
11. On the other hand, it is clear that the vesting case law does not contemplate a situation where the
local agency may defeat SEP A vesting by arbitrarily and endlessly manipulating the
environmental review process. Although nowhere specifically articulated, the cases appear to
suggest overall that while the SEPA vesting date may occur after submission of a complete
application, to be valid such later vesting date must occur within a reasonable time in the ordinary
course of processing the proposal application. Whether or not one considers the administrative
appeal and resultant remand of the initial County DS issued for Copper Ridge have been an
expedient procedure, surely no argument exists for extending the SEP A vesting date beyond mid-
1993 without risking impainnent to Schneider Homes' substantive due process rights.
12. While we believe the City of Kent's rationale for preferring a 1993 vesting date is compelling, we
see no basis for concluding that the City's policies rather than the County's policies ought to be
applied to Copper Ridge. Although the City's SEPA policies may have been theoretically in
effect at the time of annexation, in reality Copper Ridge has not been analyzed pursuant to City
regulations and policies at any time during the past 12 years, either before or after annexation.
Under such facts, we believe the term "in effect" as used in WAC J97-II-660(I)(a) needs to
mean "in actual use." Certainly, this interpretation comports with the arrangements among the
parties within the interlocal agreements and the settlement agreement. In particular, with respect
to the settlement agreement it actualizes the "intent of the parties ... to process these applications
as nearly as possible as if review had been completed by King County in 1993 without
annexation." Accordingly, it is our recommendation for purposes of SEP A substantive authority
that the policies and regulations applicable to Copper Ridge ought to be those in effect in King
County in 1993 immediately prior to annexation.
S91P0004B & S91UOOOIB-Copper Ridge Page 18 of30
13. Mercifully, the issue ofthe basis for SEP A substantive authority is not a source of major concern
under the facts of this case. Only the new condition requiring a pedestrian pathway from the
developed portion of Copper Ridge downslope to 92nd Avenue South appears to necessitate
invocation of SEPA substantive authority, in this case 1985 Comprehensive Plan policies F-20 I,
204,206, 216F and 234. In addition, the pathway requirement is supported by Soos Creek
Community Plan policies R-25 and 27. But in view of the authonty conferred on the hearing
examiner at KCC 2l.56.030A and 20.24.0700, it may also be argued that the pathway
requirement may be imposed without recoul"Se to SEP A support.
Plat/PUD
14. The Copper Ridge proposal clearly qualifies as a planned unit development under the provisions
ofKCC Chapter 21.56. The SR 9600 zone specifically authorizes planned unit developments
based on the residential uses permitted in the RS zone. Townhouses are permitted uses in the RS
9600 district. The only unknown of any consequence is the verification ofthe net development
factor required under 21.56.140, and condition no. 3 within the staff recommendation has been
modified to detail that process. Other minor modifications of the proposed conditions have been
made either to spell out procedures and requirements that are implicit in the review analysis or
which have been elucidated by the hearing record. The potential effect of the net development
factor recalculation on the proposal may be to reduce the number of dwelling units from 40 to 39.
I 5. If approved subject to the conditions imposed below, the proposed planned unit development and
subdivision make appropriate provision for the public health, safety and welfare; serve the public
use and interest; and meet the requirements of RCW 58.17.11 0.
16. The conditions of approval imposed herein, including dedications and easements, will provide
improvements that promote legitimate public purposes, are necessary to serve the planned unit
development and subdivision proposal and are proportional to its impacts; are required to make
the proposed planned unit development and plat reasonably compatible with the environment;
and will carry out applicable state laws and regulations and the laws, policies and objectives of
King County.
Recommended Decision
The SEP A threshold determination appeal of the Coalition for Responsible Development should be
DENIED, provided that the attached condition of mitigation under SEPA authority is appended to the plat
and planned unit development approval. The plat and PUD applications should be APPROVED for either
39 or 40 dwelling units, pending verification of the net development factor as required within condition
no. 3. Accordingly, the plat and PUD applications, as revised and received on April 11,2003, should be
granted preliminary approval subject to the following conditions offinal approval:
1. Compliance with all platting provisions of Title 19 of the King County Code and provisions of
• I KCC 21.56 regulatmg PUD approval.
2. All persons having an ownership interest in the subject property shall sign on the face of the final
plat a dedication that includes the language set forth in King County Council Motion No. 5952.
S9JP0004B& S91UOOOIB -CopperR1dge Page 19 of30
3. The plat shall comply with the density requirements ofKCC 21.56.150 through 21.56.180. All
Jots shall meet the dimensional and setback requirements ofKCC 21.56.130. Those lots with a
buildings attached on one side shall have a minimum 40 foot width. Those lots with buildings
attached on both sides shall have a minimum 30 foot width.
For purposes of calculating the net development factor under KCC 21.56.140, the planned unit
development proposal shall comply with either KCC 21.56.140B(6) or KCC 21.54.080,
whichever is the more restrictive. The calculation for KCC 21.56.140B(6) shall require a
determination of the total onsite area having 40 percent or greater slopes; the calculation for KCC
21.54.080 shall require a determination of SAO-regulated 40 percent steep slopes onsite plus the
buffers mandated therefor under KCC 21.54.250A, and the total onsite area, if any, occupied by
the regulatory buffers mandated for offsite wetlands to the southwest.
If for any reason the pedestrian pathway specified by condition no. 24 below is eliminated as a
requirement for project development, the 0.15 bonus unit awarded for public transit availability
shall be deleted.
4. The Applicant shall obtain the approval of the City of Kent fire protection engineer certifYing the
adequacy of the fire hydrant, water main, fire flow and access amenities to meet City standards in
accordance with Attachment 4.
5. The proposed stormwater detention and conveyance facilities shall meet the requirements of the
I 990 King County Surface Water Design Manual (KCSWDM). The water quality treatment
aspects of the stormwater facility shall meet the requirements of the basic water quality menu in
the 1998 KCSWDM. The retention and water quality facilities shall be placed in a separate tract
owned and maintained by the home owners' association or other workable organization as
approved by the City.
6. Offsite drainage conveyance improvements are required along the easterly side of 92nd Avenue
South and along the north side of South 208th Street. These improvements shall be designed in
general conformance with the conceptual drainage plan received April 11,2003, unless otherwise
approved by the reviewing agency. ·
A capacity analysis of the existing downstream ditch along the north side of the dead end access
road (from 92nc1 Avenue South to SR 167) shall be submitted at engineering plan submittal.
Improvements to this section of the ditch or its culverts are required if adequate capacity does not
exist.
7. An interceptor drainage swale and wall drainage system is proposed along the easterly portion of
the developed site. The applicant's geotechnical engineer shall provide recommendations for
design and construction of the interceptor drainage system, the stormwater detention/water
quality facilities, and westerly conveyance pipes connecting to 92nd Avenue South. The
geotechnical recommendations shall be included in the T.I.R and incorporated into the design at
submittal and approved by the reviewing agency with the engineering plans.
8. Special geotechnical construction inspection of the above drainage interceptor and stormwater
detention system is required to ensure compliance with the geotechnical recommendations,
including installation of an impervious pond liner. Inspection reports shall be submitted to the
assigned construction inspector during the construction phases of those facilities. A final
(
S91P0004B & S91U0001B -Copper Ridge Page 20of30
construction report shall be submitted to the reviewing agency, verifying compliance with the
geotechnical recommendations.
9. "All building downspouts, footing drains, and drains from all impervious surfaces such as patios
and driveways shall be connected to the permanent storm drain outlet as shown on the approved
construction drawings # on file with DDES and/or the King County Department of
Transportation. This plan shall be submitted with the application of any building permit. All
connections of the drains must be constructed and approved prior to the final building inspection
approval. For those lots that are designated for individual lot infiltration systems, the systems
shall be constructed at the time of the building permit and shall comply with plans on file."
I 0. The proposed subdivision shall comply with the 1987 King County Road Standards (KCRS),
including the following requirements:
A. The internal access road shall be improved to the urban subaccess street standard. This
standard requires sidewalk on one side. An additional sidewalk shall be provided on the
west side of the access road, from Lot 40 (at the northwest quadrant of the access road
intersection), wrapping around the curb return at South 208th Street intersection, to a
point approximately 80 feet (west of the intersection). A "level" (2% maximum cross-
slope, east-west, as measured paralleVconcentric to SoutlJ 2081h Street) concrete pad
pedestrian waiting area, 8 f~t by 12 feet along this sidewalk shall be provided at the
intersection for school bus pickup area.
The curb returns for the intersection shall be set based upon an ultimate 22 foot half-
street section for a neighborhood collector street as measured from the new centerline of
South 208'b Street. Sufficient width shall be provided at the intersection entry to permit
right turns onto SoutlJ 208th Street when two vehicles are queued to make a left turn
movement. The entire portion of the internal access street improvements lying south and
east ofthe curb returns (i.e. south of a line 52 feet north of the realigned South 2081b
Street centerline) shall be dedicated as public right-of-way. The remainder of the internal
access street shall be contained within a separate tract. Ownership and maintenance
responsibility for the private portion of the internal access shall be by tlJe homeowners'
association or other workable organization. A note to this effect shall be placed on all
engineering plans and the recorded final plat
B. The proposed private access road adjoining Lots 17 through 21 shall be improved to the
urban minor access street standard, without a sidewalk. Maintenance responsibility for
this portion of the road shall be tlle responsibility of the adjoining lots (17-21) or the
home owner's association. A note to this effect shall be placed on all engineering plans
and the recorded plat.
C. The proposed joint use driveway adjoining Lots 22 and 23 shall be paved with a
minimum of 18 feet wide with controlled drainage.
D. FRONTAGE: South 2081h Street shall be reconstructed and realigned along the frontage
(with appropriate transitions) according to ilie approved road variance granted on March
2, 1992 and the conceptual roadway improvement plan dated January 22, 1992. These
improvements shall incorporate a 22-foot wide paved roadway, an eight (8)-foot wide
gravel shoulder on tlle south side of the road along the entire length of the realigned
section of South 208th Street and an eight (8)-foot wide paved shoulder along the entire
S91POO<l4B & S91UOOOJB-Copper Ridge Page 21 of30
northerly side of the realigned roadway easterly to a point 490 feet from the centerline of
the internal access road intersection, except where urban improvements (as noted in
Condition I OA, above) are required. The realignment road variance allows a reduced
entering sight distance of 385 feet to the west from the proposed internal access road.
The variance also allows a rural type improvement for this realignment. All conditions of
the road variance shall be met upon submittal of the engineering plans.
Adjacent to the concrete pad pedestrian waiting area, the half-street width (from the
centerline ofthe realigned roadway to the curb line} of South 208 111 Street shall be 22 feet
to provide a bus-pullout outside the traveled-way of the westbound travel lane. This bus
pull-out shall be at least 60-feet in length (from the point of curb return on South 208111
Street), plus an appropriate length curbed and asphalt paved taper with concrete walkway,
to the connection with the proposed shoulder on the realigned South 208 1h Street
improvements.
As required by the reviewing agency, the improvements to South 2081h Street may also
include the installation of guardrail at locations along the south margin of the roadway.
Any sections of guardrail that may be required to comply with this condition shall be
located outside of sight Jines required for the intersection of the access road and South
208 1h Street (see 12G and 12H, below).
Although the KCRS does not require illumination on neighborhood collector streets,
these improvements shall include any roadway illumination required by the City of Kent.
Any additional RIW along the frontage, or, off-site easements, needed to achieve the
realignment and sight distance requirements, shall be dedicated to the City of Kent with
the final plat.
Traffic control plans for the realignment and regrading of South 208th Street shall be
submitted to the reviewing agency for review and approval.
E. Ninety Second (92nd) Avenue South shall be widened across the entire property frontage,
and south to the intersection with South 2081h Street (per the Road Variance) with a
minimum 4-foot wide paved shoulder adjacent to the roadway supplemented by an
additional 4 feet of gravel shoulder inside along the easterly side.
F. The hillside on the northerly margin of South 208 111 Street, east of the plat entrance road,
shall be regraded to an elevation at least 6 inches (0.5 feet) below the sight line elevations
as required, with the construction of an engineered retaining wall/rockery, to achieve the
required (minimum) 490 feet of entering sight distance to the east. The graded area
between the toe of the wall and the shoulder improvements required (Condition IOD,
above) shall be paved to minimize the potential of regrowth of vegetation into the sight
triangle.
G. Road improvements shall achieve the following sight distance criteria as required by the
approved road variance:
(1) 385-feet ofESD approved by the Road Variance for the area within the sight
triangle on the south side of South 208'b Street, west of the subdivision access road,
S91 P0004B & S91UOOO I B-Copper Ridge Page22 of30
(2) 490-feet ofESD for the area within the sight triangle on the north side of South
20810 Street, east of the subdivision access road,
(3) In addition to the re-grading and vegetation removal required to achieve the required
Entering Sight Distance, 250-feet of Stopping Sight Distance (SSD) is also required
at all points along the realigned section of South 208'" Street (refer to Staff
Attachment 6 within Exhibit no. 2) and will extend outside of the limits of the
required ESD sight triangles,
(4) In addition to the re-grading and vegetation removal required to achieve the required
ESD and SSD, the 500 feet of visibility to and from the east of the plat access and of
the school bus stop west of the access road intersection is also required and may
extend outside of the limits of any of the ESD/SSD sight triangles required of
conditions above, and
(5) In addition to the re-grading and vegetation removal required by the preceding, any
additional area required to provide 500 feet of visibility for the proposed school bus
stop at the west side of the project entrance.
The area within each identified sight line corridor shall be re-graded and/or cleared
of all sight line corridor impairments from a point at least 6 inches (0.5 feet) below
the applicable sight line elevations, and in the case of overhanging vegetation (tree
limbs) six (6) feet above the requisite sight lines' elevations. Preservation ofthe
identified sight lines/corridors by encroachment of re-growth of vegetation (between
regularly scheduled City maintenance operations) shall be provided by extending, in
the horizontal plane, the required clearing limits by two (2) feet.
Additionally, the applicant shall evaluate potential measures to minimize there-
growth of sight-obscuring vegetation into these sight triangles (for example, 'weed
block' fabric, gravel [or a combination of gravel and 'turf block'], and
hydroseeding) without the creation of an overall impervious surface, and submit
plans for review, approval and construction, to the reviewing agency.
The criteria that shall be used for the measurement of sight distance are as follows:
Design Speed: 35 MPH
Driver's Eye Height 3.5 feet
Entering Sight Distance Object Height
Stopping Sight Distance Object Height
4.25 feet
0.5 feet
Special construction inspection shall be done by the applicant during the re-grading
and re-construction of South 20811> Street and during the clearing and grading of the
hillsides/vegetation to achieve the sight distance requirements identified above. To
ensure achievement of the sight distance and the stopping and entering sight
distances (SSD, ESD) requirements and the school bus stop visibility, these
measurements shall be field-verified by a licensed surveyor following the
construction of all required improvements.
'
S9JP0004B & S91UOOOJB-Copper Ridge Page23 of30
H. If determined to be feasible by the reviewing agency, after a geotechnical evaluation of
the area, it is recommended that the hillside at the northeast corner of92"d Avenue South/
South 2081h Street be re-graded to increase the entering sight distance (looking right, out
of the plat entrance) above the 385-foot ESD as approved by the road variance. This may
require a gravel surface shoulder be constructed where the hillside is graded.
I The Applicant and the City of Kent will review the accident history for the portion of
South 208th Street that lies directly east of its intersection with 92nd Avenue South. If
the City determines that traffic calming measures (such as a traffic circle) or other road
improvements are necessary for traffic safety, the Applicant shall contribute its fair share
ofthe cost of such improvements.
J. Modifications to the above road conditions may be considered in accordance with the
variance procedures in Section 1.08 of the KCRS, or, by the Director of Public Works of
the City of Kent.
I I. All utilities within proposed rights-of-way must be included within a franchise approved by the
Kent City Council prior to final plat recording.
12. This subdivision application was filed prior to the adoption of King County Code 14.75,
Mitigation Payment System (MPS). Per the City of Kent's 1993 traffic mitigation requirements,
the applicant shall, at the discretion of the City of Kent Public Works Department, either pay the
applicable pro-rata share cost towards the cost of the South 192nd/196th/200th Street Corridor
project (East leg) based upon an estimated 33 PM peak hour trips and the capacity of the South
l92nd/ I96th/200th Street Corridor, or, execute an Environmental Mitigation Agreement (EMA)
to financially participate in, and pay a pro-rata share towards, the South 192nd/ 196th/200th
Street Corridor project (East leg) based upon 33 PM peak hour trips.
13. The planter islands within the cui-de-sacs shall be planted with native plant materials and be
maintained by the homeowners association. This shall be stated on the face of the final plat and
PUD.
14. The proposed subdivision shall comply with the 1990 Sensitive Areas Code. Temporary marking
of sensitive areas and their buffers (e.g., with bright orange construction fencing) shall be placed
on the site and shall remain in place until all construction activities are completed.
15. The top, toe and sides ofonsite 40% slopes shall be determined by field survey. A 50-foot buffer
shall be provided for these slopes. This buffer may be reduced to a minimum of I 0 feet plus a
15-foot Building Setback Line {BSBL) with the submittal of a satisfactory geotechnical report,
subject to review and approval by the reviewing agency's geologist prior to engineering plan
approval. The 40% steep slope areas and their associated buffers shall be placed in a Native
Growth Protection Easement(s) (NGPE). Final engineering review shall include verification of
the~onclusions of the 1992 Golder Associates geotechnical report and require implementation of
its recommendations, as modified. Any city-required consultant peer review of the geotechnical
report shall be paid for by the Applicant.
16. The Applicant shall delineate all on-site erosion hazard areas on the final engineering plans
(erosion hazard areas are defined in KCC 21.04.345). The delineation of such areas shall be
approved by the reviewing agency's geologist. The requirements found in KCC 21.56.170
S9JP0004B & S9JUOOOIB-Copper Ridge Page 24 of30
concerning erosion hazard areas shall be met, including seasonal restrictions on clearing and
grading activities.
17. The following note shall be shown on the final engineering plan and recorded plat:
Building Setback and Native Growth Protection Easements
Structures, grading, jill and obstructions) including, but not limited to decks, pat1os,
outbuildings, or overhangs beyond 18 inches) are prohibited within the building setback
line (BSBL) and within 25/100 year floodplains (if applicable), and within the Native
Protection Easement($).
Dedication of a Native Growth Protection Easement (NGPE) area and buffer conveys to
the public a beneficial interest in the land within the easement. This interest includes the
preservation of native vegetation for all purposes that benefit the public health, safety
and welfare, including control of surface water and erosion, maintenance of slope
stability, and protection of plant and animal habitat. The NGPE imposes upon all
present and future owners and occupiers of the land subject to the easement, the
obligation, enforceable on behalf of the public by City of Kent, to leave undisturbed all
trees and other vegetation within the tract/sensitive area and buffer. The vegetation
within the easement may not be cut, pruned, covered by jill, removed or damaged Without
approval in writiJlgfrom theCity, unless otherwise provided by law.
Before beginning and during the course of any clearing, grading building construction or
other development activities on the site subject to NGPE, the common boundary between
the easement and the area of development activities must be fenced or otherwise marked
to the satisfaction of the reviewing agency.
No building foundations are allowed beyond the required 15-foot building setback line,
unless othe~se provided by law.
18. A suitable recreation space within the common open space area for active recreation shall be
provided. The recreation space shall be a minimum 45 square feet per lot with no dimension less
than 30 feet. The area must be flat (no greater than 5% slope) centrally located, and with adequate
access to the main road. The recreation area shall be developed with play equipment (i.e., sport
court[s], children's play equipment, picnic table[s], benches, etc.) and landscaping.
A. An overall conceptual recreation space plan shall be submitted for review and approval
by City of Kent, with the submittal of the engineering plans. This plan shaH include
location, area calculations, dimensions, and general improvements including landscaping.
The approved engineering plans shall be consistent with the overall conceptual plan.
B. A detailed recreation space plan (i.e., landscape specs, equipment specs, play area, etc.)
consistent with the overall conceptual plan, as detailed in item A, shall be submitted for
review and approval by the reviewing agency prior to or concurrent with the submittal of
the final plat documents. The landscape plan shall include as many significant existing
vegetation as possible.
' !
S9JP0004B & S91UOOOIB-CopperRidge Page 25 ofJO
C. A perfonnance bond for recreation space improvements shall be posted prior to recording
of the plat and PUD.
D. The common open space areas including the sensitive areas shall be placed in a separate
tract(s). All lots shall have an undivided ownership of the Open Space Tract(s) and be
responsible for its maintenance.
19. A detailed crime prevention plan shall be submitted to the reviewing agency for review and
approval. The plan shall include a detailed lighting plan and other safety measures. The crime
prevention plan shall be approved by the reviewing agency prior to the final engineering plan.
No lights within the development shall project onto the neighboring properties.
20. The proposed project shall generally confonn with the building elevation and floor plans
submitted April 8, 2002. The proposed building coverage and other dtmensions shall comply
with KCC 21.56.110 and KCC21. 20.
21. A homeowners' association or other workable organization shall be established to the satisfaction
of City of Kent which will provide for the ownership and continued maintenance ofthe common
open space/ sensitive area tract(s), play area, and the private road and access tracts.
22. Street trees shall be provided as follows:
A. Trees shall be planted at a rate of one tree for every 40 feet of frontage along the private
road (Tract X) and the north side of South 208'h Street. Spacing may be modified to
accommodate sight distance requirements for driveways and intersections.
B. Trees shall be located within the street nght-of-way and planted in accordance with
Drawing No. 5-009 of the 1993 King County Road Standards, unless the reviewing
agency determines that trees should not be located in the street right-of-way.
C. If it was determined that the required street trees should not be located within the right-
of-way, they shall be located no more than 20 feet from the street right-of-way line.
D. The trees shall be owned and maintained by the abutting lot owners or the homeowners
association or other workable organization. Ownership and maintenance shall be noted
on the face of the final recorded plat.
E. The species of trees shall be approved by the City of Kent iflocated within the right-of-
way, and shall not include poplar, cottonwood, soft maples, gum, any fruit-bearing trees,
or any other tree or shrub whose roots are likely to obstruct sanitary or stonn sewers, or
that is not compatible with overhead utility lines.
F. The Applicant shall submit a street tree plan and bond quantity sheet for review and
approval by the City of Kent.
H. The street trees must be installed and inspected, or a performance bond posted prior to
recording of the plat and PUD. If a perfonnance bond is posted, the street trees must be
installed and inspected within one year of recording of the plat and PUD. At the time of
inspection, if the trees are found to be installed per the approved plan, a maintenance
bond must be submitted or the performance bond replaced with a maintenance bond, and
(
S9IP0004lll/cS9lUOOOIB-Copper Ridge Page26of30
held for one year. After one year, the maintenance bond may be released after the
reviewing agency has completed a second inspection and determined that the trees have
been kept healthy and thriving.
23. Appropriate school impact fees shall be paid prior to issuance of a building permit for each
lot/residential unit.
The following condition is required under SEPA authority to mitigate the adverse environmental impacts
of the proposal:
24. A pedestrian pathway shall be constructed connecting 92nd A venue South to the internal plat
access road, as approved by the reviewing agency.
Substantive authority: 1985 King County Comprehensive Plan Policies F20l, 204, 206, 216F,
and 234; 1991 Soos Creek Community Plan Policies R-25 and 27.
RECOMMENDED this 23rd day of January, 2004.
King County Hearing Examiner
TRANSMlTIED this 23rd day of January, 2004, to the parties and interested persons of record:
Kim Adams-Pratt
CityofKent
220 Fourth Ave. S.
Kent WA 98032
Paul & Lisa Bartholomew
20437-94th Ave. S.
Kent W A 98031
Chestnut Ridge Homeowners Assoc.
Attn: Diane Forland
20524-97th Ave. S.
Kent WA 98031
Lt. Mike Evans
Kent Fire Dept
220 Fourth Ave. S.
Kent W A 98032
Charlene Anderson
CityofKent
220 Fourth Ave. S.
Kent WA 98032
Chris Brown
Christopher Brown & Associates
9688 Rainier Avenue South
Seattle W A 98118
Steve & Joni Concillado
20212-94th Pl. S.
Kent WA 98031
Auburn WA 98002
R.W. Gathman
20607-95th Ave. S.
Kent W A 98031
Kent WA 98032
On>ille Anderson
9425 S. 207th Pl.
Kent W A 98031
Tom & Mary Byrne
9423 S. 204th Pl.
Kent WA 98031
DMPinc.
Attn: Mel Daley
726 Auburn Way N.
Gary Gill
CityofKent
220-4th Ave. S.
S91 P0004B & S91UOOOI B -Copper Ridge Page 27of30
Linda Greene Susan Hall Ronald Harmon
Chestnut Ridge Homeowners Assoc. 20436-94th Ave. S. P.O Box I384
20419-96th WayS. Kent W A 9803 I Kent W A 98035
Kent W A 98031
David & Karen Harris Chris Holden J.S. Jones & Assoc., Inc.
20622 95th Ave. S. CityofKent 3408 -52nd Pl. NE
Kent W A 98031 220Fourth Ave. S. Tacoma WA 98422
Kent WA 98032
Normandy & Brian Jencks William McLaughlin Jr. Ron Jusenius
9420 S. 207th Pl. P.O. Box 60106 20205 97th Ave. S.
Kent W A 98031 Renton WA 98058-3I06 Kent W A 98031
John & Norma Kastien Clifford-Knitter George Kresovich
20609-94th Ave. S. Golder Associates Inc Hillis Clark Martin & Peterson
Kent WA 98031 4104 !48th Ave NE 1221 2nd Ave, #500
Redmond WA 98052 Seattle WA 98101-2925
Richard Lin Kim Marousek Ronald Melby
20509 -94th Ave. S. City of Kent 20450 92nd Ave. S.
Kent W A 98031 220 Fourth Ave. S. Kent W A 9803 I
Kent W A 98032
Richard Miller Larry & Elise Moyer Leonard Ohve
20204 92nd Ave. S. 9526 S. 207th Pl. CityofKent
Kent WA 9803I Kent W A 98031 220 Fourth Ave. S.
Kent WA 98032
Kenneth Peckham Paul Peterson Rick Rademacher
Schneider Homes, Inc. Kent Police Dept. Hydrometric
6510SouthcenterBivd. #1 220 Fourth Ave. S. 5219 N. Shirley St.
Tukwila WA 98188 Kent WA 98032 Ruston W A 98407-6599
Richard Schnell Edward Shemeta Fred Statterstrom
20609 ·95th Ave. S. 9405 S. 205th Pl. City of Kent
Kent WA 98031 Kent WA 98031 220 Fourth Ave. S.
Kent W A 98032
Randal Thomson Lori & Gary Westerlund Howard & Diana Woodward
9406 S. 205th Pl. 9623 S. 205th Pl. 9623 S. 203rd St.
Kent WA 98031 Kent WA 98031 Kent WA 98031
Greg Borba Kim Claussen Fereshteh Dehkordi
DDESILUSD DDESILUSD DDESILUSD
MS OAK-DE-0100 Current Planning Current Planning
MS OAK-DE-0100 MS OAK-DE-0100
N1ck Gillen Kristen Langley Carol Rogers
DDES/LUSD DDESILUSD LUSD/CPLN
Site Development Services Land Use Traffic MS OAK-DE-0100
MS OAK-DE-0100 MS OAK-DE-0100
S91 P0004B & S91 UOOO 1B -Copper Ridge Page28of30
Larry West
DDES/LUSD
GeoReview
Bruce Whittaker
DDES/LUSD
Kate Rhoads
DNR&P
MS KSC-NR-0600
MS OAK-DE-0100
Pre!. Review Engineer
MS OAK-DE-0100
MINUTES OF THE DECEMBER 9, 2003, PUBLIC HEARING ON DEPARTMENT OF
DEVELOPMENT AND ENVIRONMENTAL SERVICES FILE NO. S9!POOOIB, S91 U0001B &
LOOMI091.
Stafford L. Smith was the Hearing Examiner in this matter. Participating in the hearing were Fereshteh
Dehkordi, Larry West, Bruce Whittaker, Kate Rhoads and Kristen Langley, representing King County
DOES; George Kresovich, representing the Applicant; John Kastien and Edward Shemeta, representing
the Appellants; Kim Marousek, representing the City of Kent; and Richard Miller, Brian Jencks, Randal
Thomson, Ronald Melby, Cliff Knitter, Christopher Brown, Mel Daley, Norma Kastien, Diana
Woodward and Ken Peckham.
The following exhibits were offered and entered into the record on December 9, 2003:
Exhibit No. 1
Exhibit No. 2
Exh1bit No. 3
Exhibit No. 4
Exhibit No. 5
Exhibit No. 6
Exhibit No.7
Exhibit No.8
Exhibit No. 9
Exhibit No. 10
Exhibit No. II
Exhibit No. 12
Exhibit No. 13
Exhibit No. I4
Exhibit No. I5
Exhibit No. I6
Exhibit No. I7
Exhibit No. I8
Department of Development and Environmental Services File No LOOMI091.
Department of Development and Environmental Services Preliminary report, dated
December 9, 2003.
Applications for both plat & PUD preliminary approval received January 28, 1991.
Revised Environmental Checklist received May 29, 2003.
SEPA recommendation to the City of Kent dated June 23, 2003.
Determination of Non Significance issued by the City of Kent dated August II,
2003.
Notice of appeal ofthe SEPA threshold determination dated September 5, 2003.
Affidavit of Posting received by the Department of Development and Environmental
Services on October 23, 2001 indicating the posting of the property.
Site Plan dated April II, 2003 consisting of:
a. Preliminary Plat
b. Preliminary Planned Unit Development
c. Preliminary Conceptual Drainage Plan
d. Preliminary Conceptual Clearing & Grading Plan
e. Crime Prevention Plan
Conceptual Landscape Plan received February 25, 2003.
Conceptual Elevation and Unit Floor Plans (3 pages) received 4/08/02
Land Use Map Kroll pages 608 E & Wand 613 E & W (attached as one map)
Assessors maps (4), NE & NW 7-22-05 and SE & SW 6-22-05.
East Hill Terrace Wetland Determination and Delineation report by Talisman Land
Resource Consultants dated September 1990.
Wetland Analysis Report by B-twelve Associates, Inc. dated October 9, 2002.
Levell Off-site Analysis by Daley-Morrow-Poblete, Inc., dated May 17, 2001,
revised December 2, 2001, and revised November 8, 2002,
Preliminary Geotechnical Engineering study by Golder Associates dated March 18,
1992.
Traffic Impact Analysis by Christopher Brown & Associates dated April25, 2001.
' . '>
I ,
S91P0004B & S9JUOOOJB-Copper Ridge Page29of30
Exhibit No. 19
Exhibit No. 20
Exhibit No. 21
Exhibit No. 22
Exhibit No. 23
Exh1bit No. 24
Exhibit No. 25
Exhibit No. 26
Exhibit No. 27
Exh1bit No. 28
Exhibit No. 29
Exhibit No. 30
Exhibit No. 31
Exhibit No. 32
Exh1bit No. 33
Exhibit No. 34
Exhibit No. 35
Exhibit No. 36
Exhibit No. 37
Exhibit No. 38
Exhibit No. 39
Exhibit No. 40
Exhibit No. 41
Exhibit No. 42
Exhibit No. 43
Exhibit No. 44
Exhibit No. 45
Exhibit No. 46
Traffic Impact Analysis-Supplement by Christopher Brown & Associates dated
February 18, 2002.
Supplemental Traffic Impact Analysis by Christopher Brown & Associates dated
October31, 2003.
Supplemental TIA, 'Analyses ofintersection with less than 10 vph" by Christopher
Brown & Associates dated November 12,2003.
Interlocal Agreement between King County and the City of Kent and its amendment
dated 3/20/96 and 11/1/2000 respectively.
Letter from Kent School District dated November 15,2001
Road Variance Decision dated March 2, 1992
Diagram of project roadway entrance, depicting existing and future site improvement
Traffic study by Kittleson & Assoc., dated 2114/02
Copy ofpg. 9 of the King County SEPA Checklist for 97-345 Copper Ridge
Sensitive Areas map folio dated December 1990
Maps (3) of subject area depicting landslide and erosions areas
Photographs (a & b, dated late summer 1990; c & d, dated 11125/90; and e & f,
dated 6/16/97) of subject property and nearby roadway
Photographs (a-c) of subject property, dated 5/6/01, 10/31/03, and 10/31/03
respectively
Excerpt from 1990 sensitive areas ordinance page 956, 21.54.040
Letter from Paul Prochaska dated II 113/03
Documents (2) regarding Garrison Creek improvement award, attached map w/photo
inset
Calculations estimates re: detention pond holding capacity
Outline of comments by Edward Shemeta re: safety, traffic and intersections
w/attached diagrams & charts
Nu-Metrics Traffic Analyzer Study for S. 208 St. between 92 Ave. S/96 Way S.,
dated 9/23/03
Entering site distance chart
Letter from Fereshteh Dehkordi to Ken Peckham dated 11119/01, and attached
response to Plat Screening Transmittal from dmp, inc., dated l/07/02
Canadian Landscape Fact Sheets-Glacial Meltwater Landforms
Cross-section illustration of text pit results and well log
Photos by Richard Miller
Letter from Ron Jusenius (undated)
Letter from Lori Westerlund dated 12/9/03
Memo from Tom and Mary Byrne dated 12/09/03
Letter from Chestnut Ridge block captains dated 12109/03
The following exhibits were entered into the record at the December 12, 2003, continued hearing:
Exhibit No. 47
Exhibit No. 48
Exhibit No. 49
Exhibit No. 50
Exhibit No. 51
Exhibit No. 52
Color drawing entitled "Cap. aquifer/tributary"
Email letter from Larry and Elise Moyer to John Kastien, dated 12/08/03
Letter from David and Karen Harris to Kim Marousek dated 11/29/03
Copy of King County Code, Chapter 21.54 dated 9-90
King County Development Assistance Bulletin no. 21
Letter from Clifford Knitter of Golder Associates, Inc., to Schneider Homes, Inc.,
dated 3/04/92
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S9JP0004B & S9JUOOOIB -Copper Ridge Page30of30
Exh1bit No. 53
Exhibit No. 54
Exh1bitNo. 55
Exhibit No. 56
Exhibit No. 57
Exhibit No. 58
Exhibit No. 59
Exhibit No. 60
Exh1bitNo. 61
Exhibit No. 62
Exhibit No. 63
Exhibit No. 64
Exhibit No. 65
Exhibit No. 66
Crime Prevention Plan for Copper Ridge with highlighting
Conceptual Drainage Plan for Copper Ridge with highlighting
Reprint of newspaper photo of hill slide date I 0/22/03
Emails between John Kastien & Michael Evans, dated I 1/30/03 and I2/01/03
Photos (2 color) of South 208th
Curriculum vitae of Clifford C. Knitter
Golder Associates brochure entitled "Around the world Under the earth Above &
beyond"
Map entitled "Accidents by Location" by Christopher Brown & Associates
Fig. A-1 Poisson and x2 Curves for Determining the Statistical Significance of
Accident Reductions at the 0.05 Level
Diagrams and text entitled, "Principles of Capacity"
Two-way Stop Control Summary printed 12/I2/03
Resume of Christopher Brown, P.E.
Drainage basin comparison data sheet dated 12/1 l/03
Revision to Staff Report, page 13, Section R., paragraphs 2 and 3.
The following exhibits were entered into the record at the December 19, 2003, continued hearing:
Exhibit No. 67
Exhibit No. 68
Exhibit No. 69
Exhibit No. 70
Exhibit No. 71
Exhibit No. 72
Exhibit No. 73
ExhibitNo. 74
Exhibit No. 75
Exhibit No. 76
Exhibit No. 77
Exhibit No. 78
SLS:ms
Copy of Conceptual Drainage Plan with red marking indicating the approximate
route of Larry West on his most recent site visit
Addition to condition I O.G, to precede last paragraph
Drawing by Kristin Langley depicting potential improvements to the site entrance,
dated I2/l2/03
Article from the Journal of the American Water Resources Association, Vol. 22, No.
5 (October I997) entitled "Urbanization of Aquatic Systems ... "
Photograph (I, color) of site from north end of property looking up hill
Photograph (1, color) of site looking ESE
Photograph (1, color) Kastien back yard, dated I7 12 13:34
Copy of newspaper article entitled "Sliding-on a big scale" dated February 28, 1996
J. Kastien's notes from conversations with Carl Thurman regarding Westridge
Condos, dated, 1 l/10/03
Letter from Don Walkup, Kent School District; to Mel Daley dated 10/03/02
Photographs (2, color) of evening traffic on 208th, dated I 0/31/03
Proposed additional condition regarding traffic accident history and potential road
improvements
S91P0004B & S91UOOOIB RPT
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