RES 1147RESOLUTION NO.lH "7
A RESOLUTION OF THE CITY OF CAMAS,WASHINGTON
adopting Findings of Fact and Conclusions of Law reference SEPA
Appeal of Lake Hills PRD.
WHEREAS,the City of Camas issued a SEPA Determination reference Lake Hills Planned
Residential Development on August 19,2008;and
WHEREAS,the applicant timely filed an Appeal of the SEPA Determination;and
WHEREAS,the City Council held a hearing as required on February 17,2009 reference said
SEPA Appeal;and
WHEREAS,having reviewed the evidence presented therein and being otherwise fully
advised in the premises,the City Council of the City of Camas voted to deny the SEPA Appeal.
NOW,WHEREFORE,BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF
CAMAS,STATE OF WASHINGTON,as follows:
1.The SEPA Appeal of the applicant reference the Lake Hills Planned Residential
Development is hereby denied.
2.The City Council hereby adopts the Findings,Conclusions and Decision attached hereto as
Exhibit "A".
ADOPTED this .2^day of -fNPf ,2009.
Attest:
7 <A CITY COUNCIL OF THE CITY OF CAMAS,
STATE OF WASHINGTON(City Clerk
By:^—*-
Paul Dennis,Mayor
APPROVE:a
City Attorney
"EXHIBIT A "BEFORE THE CITY COUNCIL
FOR THE CITY OF CAMAS
In the Matter of the Appeal of :
NO.SEPA 08-10
Lake Hills PRD ...LAKE HILLS PRD
FINDINGS,CONCLUSIONS,AND
DECISION ,.<Of a SEPA Determination of Significance
Issued August 19,2008
SUMMARY OF DECISION
The appeal of the August 19,2008 Determination of Significance issued for the Lake Hills PRD ....
is DENIED./••::
SUMMARY OF RECORD
Procedural History:
December 19,2005 -Lake Hills PRD filed a Type III Land Development Application and
requested Optional Consolidated Permit Processing (CMC18.55.020-B)for a planned residential
development.On January 11,2006,the Applicant was provided a response by City of Camas •
staff providing a list of items that were missing from the application and other -project concerns.
March 14,2006 -Lake Hills PRD provided the City of Camas with a second submittal,which
was responded to by City staff on April 3,2006.Following-that response,City,staff met with,
the Applicant on May 16,2006 to discuss a number of code compliance issues,to include ;.•,
geotechnical,-archeological wetlands impacts,recreational open space,etc..•;>
July 13,2006 -The Applicant filed a third submission,which the City staff -responded to .by way-.•
of a meeting held July 27,2006.Specifically addressed during the meeting was code .-..-
compliance,as previously mentioned in the first letter and meeting,in such -areas as intersection
spacing,geotechnical concerns,archeological concerns,wetlands impacts,lot sizes,recreational-
open space,onsite parking,and sales office locations.
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October 23,2006 -The Applicant provided their fourth submittal to City staff .On November 8,
2006,City staff met with the Applicant,DOE,and COE on site to inspect the wetlands.During
dais site visit,additional wetlands were discovered.DOE required Applicant to revise their
wetlands reports.At tiaat time,there were development issues remaining,to include
geotechnical concerns,archeological concerns,wetlands impacts,lot sizes,recreational open
space and onsite parking.
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February 21,2007 -The Applicant provided City staff with their fifth submission and on March
13,2007,were provided notice that City staff would request comments from state agencies.
April 9,2007 -City staff received a technical memo from JD White,which was provided to •.
Applicant
June 1,2007 -The City indicated to the Applicant that a determination of significance •
hereinafter referred to as "DS"is likely pursuant to WAC 197-11-350.
June 29,2007 -City staff met with Applicant to discuss SEPA issues.
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April 7,2008 -The Applicant provided their sixth,and most current,submission,which was -
responded to by way of a July 24,2008 Technical Memorandum from JD White .
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iAugust19,2008 -The City of Camas acting as the lead agency for the State Environmental
Policy Act review of environment impacts caused by this proposal issued a (DS).
August 25,2008 -An appeal of this determination was filed by Arthur C.Piculell Jr.and Martin
C.Peets,principals of Homesite LLC,developers of Lake Hills PRD.A public hearing to
consider the appeal was scheduled before the City of Camas Council on October 20,2008,and at
the request of the Applicant,the hearing was canceled.An attempt was made to reschedule the
hearing for December 15,2008 by the City of Camas and asked for confirmation from the
Applicant by November 14,2008.Counsel for the Applicants responded that they were placing
a hold on any further proceedings dealing with Homesite LLCs Lake Hills Development.The
City responded by way of a letter dated December 9,2008 that the City wished to proceed to
establish a firm date for hearing the appeal and to establish a briefing schedule in this matter.
The Applicant was informed that a hearing on the appeal would be heard February 17,2009 at
4:00 p.m.and requested the Applicant provide any 'documents they wished to be considered at •
the appeal to be submitted no later than February 2,2009.Furthermore,the City indicated that .•
responsive materials and legal memoranda would be provided by the City no later,than .
February 10,20091 The 'Applicant complied with this request and an appeal hearing was 'y,
.conducted FebruhryN'7;2009.^*A --..--
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As part of the Applicant's appeal of the determination of significance issued August 19,2008,
.they appealed stkff decisions and~specifically requested ‘that the'City Council affirm two policy '-,
decisions alleged to have been made previously,1)Buffer averaging for wetlands located on the '
proposed development site;and 2)Offsite mitigation for wetlands disturbance for the proposed
development site.
Hearing Date:
An open record hearing on the appeal was held before the Camas City Council on February 17,
2009.The record was closed that same evening.
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Findings,Conclusions and Decision
City Council,City of Camas
Lake Hills PRD ,No.SEPA 08-10
Page 2 of 8
Testimony:-•
At the appeal hearing,the following individuals presented testimony under oath:.V ;--',
City of Camas
Sarah Fox,City Staff
Monte Braehmanh,City 'Staff -
Brian Bieger,JD White •
Mark Cline,Department of Ecology
Ted Labbe,WDFW '
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Stu Albright,Ash Creek Associates6.
Applicant,Lake Hills PRD
Martin Peets,Principal,Homesite LLC
Bill Horning,'Western Planning Associates;Tnc."
George Freitag,GRI
Kevin Grosz,The Resource Company
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Legal Counsel
Attorney Mike Simon,on behalf of the Applicant,Homesite LLC and Martin Peets
Attorney Shawn MacPherson,on behalf of City Staff
Attorney Chris Sundstrom,on behalf of the City of Camas
1.
2 .
3.
Exhibits:
At the appeal hearing the following exhibits were admitted into the official record -by way of
stipulation by City Staff ,the Applicant,and their attorneys of record:
City of Camas provided a CD that contained the entire public record of approximately .-
1400 pages,scanned and indexed;a handout of a Powerpoint presentation;all of which
were reviewed-during the hearing,and further referenced as File No.SUB.05-15,-.,i
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Three public records requests entered into'the record during the hearing,two of which
are standard forms and -another -referenced in a Post-it Note dated August 12,2008
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'Submission of Mike Simon dated February 2,2009 (letter referencing the Applicants
perspective of the controversy,inconsistent positions,Lake Hills legal position,to
include legal analysis,discussion of the City's obligations under Camas Municipal Code
16.12.060 and submissions of documents by the Applicant and the City referenced as
Exhibits 1 through 15)
Findings,Conclusions and Decision
City Council,City of Camas
Lake Hills PRD,No.SEP A 08-10
Page 3 of 8
Based upon the testimony and evidence admitted at the open record hearing,the Camas City
Council enters the following Findings and Conclusions:
FINDINGS
..1..On December 20,2005,the Applicant filed a consolidated Type III Land Development .
Application for a residential development herein referred to as Lake Hills Residential
Development included in that application was an Environmental Checklist filed by the
Applicant.An Environmental Checklist was filed by the Applicant with each
subsequent submission to the City.City staff generated a letter on January 11,2006
detailing the incompleteness of tire application.On March 14,2006,the Applicant -
through Western Planning,submitted a second submission dated March 14,-2006.On
March 16,2006,City staff received a preliminary geotechnical evaluation prepared by
George .Freitag dated December 30,2005.On April 3,2006,Sarah Fox,forwarded a letter •
to Homesite Development,LLC requesting clarification on the application and
requesting additional information.The record indicates that the application was ,.„
deemed complete as of March 14,2006.(CD /2006 /E.pdf /pg.3).The record also shows'
that the applicant submitted five more plat drawings,as well as other studies and
submittals in the proceeding two years separate and apart from the revised •
narrative/plat.
There is no dispute that the Camas Municipal Code (herein referred to as "CMC")in
effect for 2006 was the applicable code provision insofar as this project was vested under
that code.
2.
The project,as depicted in the current proposal of the Applicant dated April 7,2008,
provides for 80 residential lots located on 25 acres between NW Lake Road,NW Walden
Drive,and Michaelbrook Lane,,in Camas,Washington..The property is zoned R10.
3.
"A,Pursuant to:RCW 43.21c (commonly'referred to as.'the State Environmental.Policy Act
[SEPA]),the City of Camas is designated the lead agency for review of environment ;..impacts caused by the proposal/On March 13,2007,the City circulated an ,
...Environmental Checklist to various agencies,for comment.Several comment,l e t t e r s
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were received during the comment period,which are entered herein on theuecord as-../.
stipulated exhibits.Based upon the input received during the comment period,the City '
requested the Applicant to change the proposal to reduce the probable adverse
environmental impacts identified during the review process.The Applicant did not
make the changes to the proposal.The City issued a Determination of Significance
(herein referred to as "DS")on August 19,2008 to Lake Hills PRD.The DS contains the
following combination of environmental concerns:
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a.Wetlands under CMC 18.31.050
b.Steep slopes under CMC 16,90.020
c.Trees under CMC 18.31.080
Findings,Conclusions and Decision
City Council,City of Camas
Lake Hills PRD,No.SEP A 08-10
Page 4 of 8
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The Applicant filed an appeal of the Determination of Significance on August 25,2008.
The appeal was timely under the fourteen-day appeal deadline and Camas Municipal
Code 18.55.165.-The appeal alleged the following issues as contained in the,document ;
filed on behalf of the Applicant dated February 2,2009 by the Applicant's attorney of •
record,Mike Simon:
5.
a.’-Confusion and inconsistencies ‘resulting from staff policy decisions disallowing
•'•buffer averaging for wetlands located on the site
b.’Denying offsite mitigation for wetlands disturbance on the site
c.--’Failing to identify probable;adverse significant impacts from the proposal ;.•
d .:City staff s rejection of the tree survey,to include the Tree Preservation:Plan,as
'•proposed by the Applicant
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Findings Related to Impacts
Wetlands.Under the current proposal,as submitted by the Applicant,it is not disputed
that the wetland buffers do not comply with the applicable City code.Further,the ,
"application does not provide for an analysis of the functions of the seven wetlands and
associated buffers,nor does the application avoid or minimize the impacts to the buffers
and the wetlands.The Applicant has countered that they should be allowed buffer
averaging for this site,arguing,in part,that buffer averaging was allowed for other sites.
This argument was rejected by council as not relevant to the application of the City code
to this particular proposed development site.
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Slopes.The proposed application notes slopes that are steeper than 15 %(fifteen percent)
and thus regulated under CMC 16.90.The application does not avoid or minimize
impacts to steep slopes,especially concerning the combined concerns with significant
trees and the proximity of the wetland areas.The Applicant argues that there is a
difference of opinion between the two geotechnical firms hired by .the City staff or .the '••
Applicant to conduct an analysis of the slopes and .their stability.The council -finds .that
the'Applicant has not properly addressed:the issue of slope stability or avoidapce.-.-y,,.i :;
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•8-.•Trees.«The current proposal by the'Applicant contemplates the proposed ,reipoval of •
1,774 (one .thousand seven hundred and seventy four)significant trees as defined under
'CMG'18.31,:Staff has identified that-453 (four hundred fifty three)of those significant -«/
trees'would be removed from steep slopes..The Applicant has provided no .analysis of •
tree preservation by a qualified biologist pursuant to CMC 18.31.080.
Findings regarding Applicant Con fusion
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The Applicant spent a significant portion of their testimony alleging confusion on their
behalf by correspondence and materials submitted by City staff and claimed City staff
issued,from their perspective,three Mitigated Determinations of Nonsignificance
(herein referred to as "MDNS"),one of which is referred to specifically in the
Applicant's briefing packet alleging that on May 29,2007,a Mitigated Determination of
Nonsignificance was issued.The Camas City Council finds that this alleged MDNS
Findings,Conclusions and Decision
City Council ,City of Camas
Lake Hills PRD,No .SEP A 08-10
Page 5 of 8
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issued on May 29,2007 was not,in fact,a threshold determination,but rather an
unsigned document located within the City file and obtained by the Applicant by way of
a Public Records Request.--The Camas City Council further finds that there was no;,.
confusion on the part of the Applicant regarding the position of City staff .The...
Applicant,as part of their request,argued and requested that the City Council,as the
body hearing the appeal,order City staff to issue a MDNS.The City Council finds that.,
this,request -is inappropriate.The authority of City Council in hearing this appeal is-•
limited insofar,as they can either affirm the threshold determination issued ,by the City
.staff or reject the threshold determination and send the matter back to City staff for •;
further review and analysis.
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CONCLUSIONS
Turis diction:•
The Camas.City Council has jurisdiction to hear and decide appeals of SEPA threshold
determinations pursuant to .16.28.060 of the Camas Municipal Code.
Criteria and Standards for Review:
SEPA Appeal
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 )..
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The SEPA.threshold determination is a determination as to whether a proposal is "likely,to have
a probable significant adverse environmental.impact.,!R\^4.C.:J 97-22-330.If the responsible;u /.
official determines that a proposal will not have a probable,significant adverse,environmental .•
impact then a Determination of Nonsignificance (DNS)is .issued .If the responsible official'.y
.determines .that a;proposal willhave a .probable,,significant adverse ,environmental impact then
.a Determination of Significance (DS)is issued-and -am Environmental ImpactStatement ^EIS)'.....
must -be .prepared,-An MDNS may be issued to mitigate identified probable-significant adverse ;•;
environmental impacts so that an EIS need not be prepared.WAC 197-11-350 ,
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"Significant"as used in SEPA means a reasonable likelihood of more than a moderate adverse
impact on environmental policy.Significance involves context and intensity and does not lend
itself to a formula or a quantifiable test.WAC 197-11-794.Several marginal impacts when
considered together may result in a significant adverse impact.WAC 197-11-330(3 )(c ).
"Probable"as used in SEPA 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
Findings,Conclusions and Decision
City Council,City of Camas
Lake Hills PRD,No.SEPA 08-10
Page 6 of 8
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or speculative.WAC 197-111-782.A potential impact can be considered speculative if the
complaining party does not provide evidence of the impact.Boehm v.Cit\j of Vancouver,111 Wn.!
'-App.711/720 (2002)'."•':.;.!.:•s \
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In order for the threshold determination to be upheld,the lead agency must demonstrate that it .
actually considered relevant environmental factors before -reaching the decision.The relevant :%:;;.
*environmental facts are those set forth in WAC 197-11-444.Boehm v .City of Vancouver,111 Wn.
*App .711,718 (2002).The leadagency must make its threshold determination "based upon ./
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'information reasonably sufficient to evaluate the environmental impact of a proposal."WAC .•;*
197-22 -335.
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In deciding whether to require an EIS,the lead agency must consider mitigation measures'that •••
the agency or Applicant will implement as part of the proposal,including any mitigation
.measures required by development regulations,comprehensive plans,or other existing ..
environmental rules or laws.WAC 197-11-330(1 )(c).The lead agency's reliance on existing laws -.•
and plans to mitigate some of the environmental impacts of a project need not be disclosed in
•the MDNS.Moss v;City of Bellingham,109 Wn.App.6,21*^23 (2001).t
The standard for review applicable to procedural decisions under SEPA is arbitrary and
capricious or contrary to law.Short v .Clallam County,22 Wn.App.825,830,593 P.2d 821 (1979).
The burden of proof is on the Appellant to show that the proposal will not have probable,
significant adverse environmental impacts.Boehm v.City of Vancouver,111 Wn.App..711;719,47
P.3d 137 (2002).
'Conclusions Based on Findings '
SEPA Appeal
The SEPA Responsible Official considered the relevant and cumulative environmental
factors prior to the issuance of the SEPA threshold determination,and based the-DS on
:"information reasonably sufficient to evaluate the combined environmental impacts of
the proposal.'
'The'proposal ddes not provide for 'Iaivful.br'adequate wetland buffers '
"b;'^'The'proposal presents risks inherent to Unstable slopes
c.>•The proposal presents risks from the removal of significant trees
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The Apphcant failed to meet their burden 'that the proposed project is unlikely to
present significant,adverse environmental impacts,which cannot be reasonably
mitigated.Once again,the proposed development does not conform to Camas
Municipal codes to avoid of minimize impacts to environmentally sensitive areas.The '
Apphcant has failed to adequately address the inherent risks associated by steep slopes
and the resulting steep slope instability,and the adjacent wetland areas ,The Apphcant
has not addressed the environmental impacts of their proposed tree removal and the
fact that the trees are considered "significant trees"453 of which are located on steep
slopes as defined by CMC 16.90.Further,the Apphcant has not provided any analysis
of tree preservation by a qualified biologist as required by CMC 18.31.080.The City
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Findings,Conclusions and Decision
City Council,City of Camas
Lake Httls PRD,No.SEPA 08-10
Page 7 of 8
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Council concludes there was no confusion.The City Council concludes that the
Applicant decided that City,staffs'position was unreasonable and therefore they did not
need to address the concerns upon which the City staff based their PS.
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3'.o .•The Applicant's request that-the City'Council require City Staff to issue a MDNS.is .
rejected .City Council concludes that .the only authority they have as-the hearing body ..
for this appeal is'to affirm or reverse the DS determination made by the SEPA
Responsible Official.•/.5
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Applicant has failed to prove that the City made any clear error while conducting the
SEPA review for the project.The SEPA Responsible Official's DS is based upon the
.determination that the proposed development of the site by -the Applicant is likely to .
present significant adverse environmental impacts which cannot be reasonably
mitigated..
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DECISION
Based upon the findings and conclusions,the appeal of the August 19,2008,Determination of ••
Significance issued by the City of Camas as the lead agency for the Lake Hills PRD Project is
denied and the City's Determination of Significance made by the SEPA Responsible Official is
affirmed .
DECIDED this 17*day of February 2009.
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Honorable Paul Dennis,Mayor
,City of Camas
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Findings,Conclusions and Decision
City Council,City of Camas
Lake Hills PRD ,No.SEPA 08-10
Page 8 of 8