RES 935RESOLUTION NO.
A RESOLUTION adopting findings for a conditional
use permit application by Safeway,Inc.,for a fuel center at 800 NE
3rd Avenue,and adopting findings on the appeal of the Public
Works Department’s issuance of a Mitigated Determination of
Non-Significance (MDNS)under SEPA.
The Council of the City of Camas do resolve as follows:
Section I
The Council hereby adopts the Findings of Facts set forth in Exhibit “A”attached hereto
and by this reference incorporated herein as its findings on the conditional use permit application
of Safeway,Inc.for a fuel center to be located at 800 NE 3rd Avenue,Camas,Washington.
Section II
The Council hereby adopts by reference as its findings on the appeal of the MDNS issued
by the Public Works Department under SEPA for the fuel station,those findings set forth in
Exhibit “B”attached hereto and by this reference incorporated herein.
Section III
The appeal of the planning commission’s recommendation to approve the conditional use
permit is hereby denied,and the conditional use permit is granted subject to the conditions set
forth in the staff report and any conditions agreed to by the applicant in the proceedings before
the City Council.
Section IY
The appeal of the issuance of the Mitigated Determination of Non-Significance under
SEPA by the Public Works Department is denied.
ADOPTED by the Council at a regular meeting thisiT ^/A.
of May,2002.
SIGNED:A.
Mayor
ATTEST:
Clerk
APPROVED as to form:
t—City Attorney
i
FINDINGS OF FACT
File No.CUP 01-04
I.INTRODUCTION
The applicant,Safeway,Inc.("Safeway"),proposes to develop a fuel center on the
existing Safeway property,located at 800 NE Third Street,in the City of Camas.The fuel
center will include four double-sided gasoline dispensers,a canopy,a walk-in kiosk and two
20,000 gallon underground storage tanks (the "Project ").The Project is located in the
northwest corner of the existing Safeway parking lot .In connection with the Project,
Safeway has obtained Design Review approval from the City (DR 01-03)(the "DR
Decision").On February 7,2002,the City of Camas Department of Public Works issued a
Mitigation Determination of Non-Significance ("MDNS")under SEPA for the Project .
Additionally,at a public hearing on March 19,2002,the City of Camas Planning Commission,
recommended approval of a conditional use permit for the Project (the "Decision").On April
22,2002,the City of Camas City Council considered an appeal of the Decision filed by Ruby
E.Snoey (the "Appellant").1 The City Council unanimously approved Safeway's conditional
use request and denied the Appellant 's appeal.
In a letter dated March 28,2002,(the "Appeal Notice")the Appellant set forth the
specific reasons why the Appellant believed the Decision was in error.Additionally,the
Appellant filed an "Appellant's Brief 'on April 17,2002,which more specifically identified the
alleged errors in the Decision.In general,the Appellant argued that the Planning Commission
1 Ruby E.Snoey is the owner of the property located at 501 N .E.Third Avenue .The Chevron
gas station and Food Mart are located on Ms .Snoey's property.
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erred in concluding that the application met all of the applicable approval criteria.Under
Section 18.55.290 of the Camas Municipal Code (the "CMC "),the Appellant has the burden
of proving why the Planning Commission was wrong.After reviewing the record in this case
and after holding a duly noticed public hearing in accordance with applicable provisions of the
CMC,the City of Camas City Council denied the appeal and unanimously approved Safeway's
conditional use application.
H.FINDINGS
These findings specifically incorporate by reference the findings of fact and
conclusions of law set forth in the Staff Report issued on February 19,2002 (the "Staff
Report "),the DR Decision and the MDNS.
CMC Section 18.55 .210 sets forth the general approval criteria for any development
recommended for approval by the Planning Commission.CMC 18.43 .050 establishes the
specific approval criteria for conditional uses within the City.The approval criteria and
findings for each are set forth below.
A.General Approval Criteria
CMC 18.55.210 establishes the general criteria for approval of any development.
1.The development is consistent with the comprehensive plan
and meets the requirements and intent of the Camas Municipal
Code;
One overriding purpose of the CMC is to implement the Comprehensive Plan.CMC
18.01.020 .In other words,the CMC takes the broad policy considerations,goals and policies
of the Comprehensive Plan and incorporates such considerations into development
regulations,standards and criteria.With respect to permitted uses,the CMC incorporates the
goals and policies of the Comprehensive Plan and identifies the uses that are allowed in each
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zoning district .The Project is consistent with the Comprehensive Plan in that the Project is a
type of use that is specifically allowed in the Downtown Commercial zone ("DC ")with
conditional use approval.Fuel centers are conditionally allowed in the DC zone,although
they are defined in the CMC as "service stations."The City Council finds that for purposes of
this application and the CMC,a "fuel center"is a modem iteration of the traditional "service
station"use (even though the fuel center will provide no automobile service in the traditional
sense).The Comprehensive Plan and the CMC provide that when evaluating conditional uses,
the City should examine the potential impacts of the development on nearby uses.If there are
no significant adverse impacts to nearby uses,the CMC provides that the conditional use
should be approved.
Consistent with the Comprehensive Plan,the subject property is zoned DC.The DC
zone allows uses that provide for a wide range of goods and services designed to promote the
immediate residential and office uses in the area.The Project will provide goods and services
to serve the residential and office uses in the area.Area residents and office workers will
continue to utilize the existing Safeway store and will also benefit from the convenience of
having a fuel center on the same property.The proposed development will intensify the
existing development on the property consistent with the CMC and the goals and policies of
the Comprehensive Plan.In addition to the convenience offered to consumers,by locating the
use on Safeway's existing property,consumers will have to drive fewer vehicles miles to
purchase gasoline.Instead of driving to the grocery store and then to a fuel center,customers
can accomplish both tasks at one time on the same property.In a real sense,the fuel center is
an accessory use to the Safeway supermarket.
As stated in the StafFReport and as demonstrated by Safeway's application materials,
the Project will be consistent with all the applicable development standards of the CMC.
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Therefore,the proposed development is consistent with the Comprehensive Plan and the
CMC .
Contrary to the Appellant's argument in the Appellant's Brief,the City Council does
not find that the Planning Commission concluded that zoning compliance is legislative in
nature,nor does the City Council find that the Planning Commission determined that it lacked
authority to deny the application.There is simply no evidence in the record that would
support such findings.In the City of Camas,allowed conditional uses are presumed to be
appropriate,provided,however,that the Planning Commission and City Council consider the
potential impacts of the proposed conditional use and apply the conditional use standards set
forth in the CMC.If a proposed conditional use is consistent with the applicable approval
criteria,then conditional uses can and should be approved .In this case the Planning
Commission weighed the proposed use against the approval criteria and found that the Project
met or exceeded the approval criteria.Accordingly,the Planning Commission recommended
that the Project be approved by the City Council .
2.The development makes adequate provisions for open space,
drainage ways,streets and other public ways,transit stops,water
supply,sanitary wastes,parks and recreation facilities,
playgrounds,sites for schools and school grounds;
The Project is on the same property as the existing Safeway store .The open space
element of this standard is not applicable due to the commercial nature of the property .As
shown in the application and the Safeway's SEPA documents,the Project will have adequate
drainage,water and sanitary facilities.Stormwater run-off will be improved over the existing
development because new oil separators will be installed that will improve stormwater
discharge from the property.Additional landscaping will also be installed which will further
improve both quality and quantity of stormwater runoff.
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Safeway's traffic study demonstrates that there is sufficient capacity on adjacent streets
to accommodate the additional traffic and all transportation facilities will operate within
l
accepted City standards.No transit facilities will be impacted by the proposed development .
Parks,recreational facilities,playgrounds and sites for schools are not impacted by the Project
because the development will occur within the existing Safeway property.
3.The development adequately mitigates impacts identified
under Titles IS through 18 of the Camas Municipal Code;
The City has issued an MDNS for the proposed development .Therefore,any
potential impacts the Project may have on the environment and Title 16 have been adequately
evaluated and mitigated through the MDNS.Moreover,the Appellant has not provided any
argument or evidence which would demonstrate any adverse impact on the environment .
Additionally,with respect to buildings and construction,the Project will be constructed in
accordance with all applicable standards in Title 15,the state building code,and the DR
Decision.No specific impacts have been identified which relate to Title 15.To the extent
that there are any impacts which relate to Title 15,such impacts will be mitigated through
compliance with the applicable provisions of Title 15,the building code,the MDNS and the
DR Decision.Because the subject property is not being subdivided,there are no impacts
identified under Title 17.The Staff Report and Safeway's materials address the impacts
identified under Title 18 and the conditions of approval adequately mitigate any such impacts.
The City Council therefore finds that to the extent there are any impacts to Titles 15 through
18,such impacts have been adequately mitigated.
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4.The development is beneficial to the public health,safety and
welfare and is in the public interest;
The Project,as an identified conditional use,is presumed by the CMC to be
appropriate for the DC zone,provided there are no substantial adverse impacts which cannot
be mitigated or minimized .Additionally,the proposed use must be consistent with all
applicable approval criteria and standards .The purpose of conditional use review is to allow
the Planning Commission and the City Council to review the use and ensure that the proposed
use is reasonably compatible with the existing uses in the immediate vicinity.As set forth in
the MDNS,the development will not result in any significant adverse impacts to the
environment or the public's health.The operation of the fuel center will comply with or
exceed all applicable state,local and federal regulations relating to the transportation,storage
and sale of gasoline.The proposed development is in the public interest in that it will result in
the higher density re-development of a commercial project in the DC zone,it will result in
fewer vehicle miles traveled by Safeway customers and complies with all applicable
development standards.The proposed development efficiently utilizes commercially zoned
property,provides necessary consumer goods and services and will meet the needs of those in
the immediate area.The proposal,therefore,is beneficial to the public health,safety and
welfare and is in the public interest .
5.The development does not lower the level of service of
transportation and/or neighborhood park facilities below the
minimum standards established within the comprehensive plan.
As set forth in the applicant's traffic analysis for the Project,the proposed development
will not lower the level of service of transportation facilities below the minimum standards set
forth in the Comprehensive Plan.The City of Camas has adopted the level of service ("LOS")
"D"standard for intersection operations.As shown in Safeway's traffic analysis,Safeway's
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traffic consultants used a worse-case scenario which resulted in conservative conclusions
regarding the potential impacts to affected transportation facilities.Transportation Impact
Analysis for the Proposed Safeway Fueling Facility -Camas,Washington,dated November
9,2001 (the "Traffic Report ").Even with the conservative figures used,the Traffic Report
concludes that :
all study intersections are expected to continue to operate acceptably
under total weekday p.m.peak hour conditions.The average delay per
vehicle at all the study intersections will be within the requirements for
level-of-service "D".
The Project,therefore,will not lower the level of service of transportation facilities below the
minimum standards established within the Comprehensive Plan.Given the commercial nature
of the development and the fact that it is located on the site of an existing commercial
development,the project will not affect the level of service of any neighborhood park facility.
As discussed in greater detail below,the Appellant argued that the Traffic Report was
flawed because,according to the Appellant,the Traffic Report did not "comport with ITE
guidelines."Appellant's Brief at 6.The Appellant first raised this issue before the Planning
Commission.In response to the Appellant's argument,Kittelson and Associates,Inc.
submitted an explanatory "Technical Memorandum"dated March 19,2002,which explains
how Kittelson reached the conclusions set forth in the Traffic Report .Rather than using the
ITE guidelines,Kittelson conducted a study of six existing Safeway fuel centers to determine
the percentage of internal trips for a site.The Traffic Report,in turn,included the conclusions
set forth in this previous study rather than any figures from the ITE manual.The Traffic
Report,however,did not include a copy of the previous study,nor was it required to.In
response to the Appellant's arguments regarding the ITE manual,the Technical Memorandum
explained how Kittelson reached the conclusions regarding internal trips.The City Council
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finds that the Traffic Report was not flawed .Conversely,the City Council finds that the
Traffic Report is adequate because the internal trip generation figures come from actual
studies of other Safeway fuel centers,which is credible and sufficient evidence for purposes of
the approval standard at issue.The Traffic Report concludes that the Project will not result in
a reduction in the level of service below level of service "D".There is no contrary evidence in
the record .Therefore,the City Council finds that the Project will not lower the standards of
service below those set forth in the CMC and the Comprehensive Plan.
6.The area,location and features of land proposed for dedication
are a direct result of the development proposal,are reasonably
needed to mitigate the effects of the development,and are
proportional to the impacts created by the development.
Safeway does not propose to dedicate any property to the City,therefore,this
standard does not apply to this application.
B.Conditional Use Approval Criteria
CMC 18.43.050 sets forth the applicable criteria for all conditional uses.The criteria
and findings are as follows.
1.The proposed use will not be materially detrimental to the
public welfare or injurious to the property or improvements in the
vicinity of the proposed use or in the district in which the subject
property is situated;
As set forth in the Safeway's SEPA checklist and the City's issuance of the MDNS,the
Project will not be materially detrimental to the public welfare.There will be no significant
adverse impacts to the environment which will not be mitigated pursuant to the MDNS .
Similarly,the Project will not be injurious to the property or improvements in the vicinity of
the use or those within the DC zone.The Project is a commercial activity on a site that is
zoned for commercial uses,surrounded by other commercially zoned property.Moreover,the
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property to the south of the subject property,while currently used for a mix of commercial
and non-conforming residential uses,is zoned Regional Commercial ("RC ").The RC zone
allows fuel centers as outright permitted uses.In other words,the zoning across the street
would allow Safeway,or any other property owner,to develop a fuel center without any
discretionary review.Therefore,because the property surrounding the subject property is
zoned for equally or more intensive commercial uses,the City Council finds that to be
"injurious"to such property there must be specific elements of the Project which will cause a
identified,specific injury to such property.In other words,the Project cannot be injurious to
surrounding property simply because the Project is commercial in nature.
It should be noted that there are other fuel centers in the immediate vicinity,including
the Chevron station on the Appellant's property.There is no evidence in the record,either
anecdotal or otherwise,which demonstrates that the existing Chevron station is injurious to
property in the vicinity.Moreover,there is nothing in particular about Safeway's fuel center
which would distinguish it from the Chevron station and would cause the Safeway fuel center
to be injurious to property,but the Chevron station not injurious to property.As an approved
use in the DC zone,the Project is presumed to be consistent with adjacent uses,but due to the
use,conditional use review is required to ensure that any potential impacts to neighboring
uses will be minimal.There is no evidence in the record to suggest that the Project will be
injurious to the property or improvements.
The Appellant argues that the record contains "un-rebutted expert testimony regarding
diminution in property values,and injury to the neighborhood,which will result from the
proposal."Appeal Notice at 2.The Appellant mischaracterizes both the testimony regarding
property values and Safeway's rebuttal of such testimony.
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First,even if the Appellant were correct that the Project would result in a direct
diminution of property values,such a conclusion still does not demonstrate that the Project
would be "injurious to the property or improvements in the vicinity of the proposed use[.]"
CMC 18.43.050(A).The applicable standard requires denial if the Project will result in an
injury to property or improvements.The City Council finds that an alleged diminution in
property values is not an "injury"to property or improvements as described by the CMC .
Webster's Third New International Dictionary defines "injury"as:
An act that damages,harms or hurts;an unjust or undeserved infliction
of suffering or harm.
Injury in the context of the applicable standard refers to some type actual physical damage,
not a diminution of property values.For example,soot or dust from a factory could be
considered an injury.Moreover,even if a diminution of property values could be considered
an "injury"that injury would be a loss of value,which is not an "injury"to the property or
improvements.At best a diminution in value would be an economic loss to a property owner,
however,it is not an injury to property or improvements for the purposes of the approval
standard .
Second,the record does not include "un-rebutted expert testimony regarding
diminution in property values[.]"What the record does include is conclusory statements from
a neighboring property owner with no evidentiary support whatsoever.In a letter dated
Februaiy 25,2002,from Eugene Harris of the Sirrah Corporation (the "Sirrah Letter "),
Mr.Harris states that a gas station will give his property a "black eye."Not once in the Sirrah
Letter does Mr.Harris claim that the Project will result in a diminution of property values as
the Appellant claims.What Mr .Harris does claim (without any evidentiary support)is that he
or a purchaser may have to perform environmental studies because of the proximity of the
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Project to his property.Mr .Harris offers no evidence in support of his claim.
Notwithstanding the fact that his property is also close to the Appellant 's Chevron station,
Mr .Harris simply states that such environmental tests may affect "eventual selling proceeds ."2
Contrary to Appellant 's claim,Mr .Harris does not state,nor does he supply any evidence,that
the Project will result in a diminution in property values.There is absolutely no evidence that
the Harris property will be injured or that the Project will result in a diminution of property
values.
Contrary to the Appellant's argument,the Planning Commission did not "disregard
evidence"about injury to property and improvements .There simply was no evidence in the
record that there would be an injury to property or improvements in the area.The City
Council finds that for the purposes of this standard an "injury"is some type of physical
damage or injury to real property.While diminution of property values could potentially be
considered in regards to a broad "compatibility"standard ,the standard at issue does not
include such a broad compatibility standard;it requires a direct physical injury to property.
There is no evidence in the record showing that there will be any such injury.
2.The proposed use shall meet or exceed the development
standards that are required in the zoning district in which it will
occupy;
As demonstrated in the Staff Report and the DR Decision,the Project will meet or
exceed the development standards of the DC zone and the CMC.Additionally,prior to
2 Read closely,what Mr.Harris actually claims that environmental testing will increase his
selling proceeds.Mr .Harris states:"This will increase our costs of selling,and probable market time
and eventual selling proceeds."Sirrah Letter at 1.
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issuance of a building permit for the Project,the building department will ensure that all
applicable development standards have been met.
3.The proposed use shall be compatible with the surrounding
land uses in terms of traffic and pedestrian circulation,building
and site design;
This standard requires the City to examine the traffic and pedestrian circulation
elements of the proposal and determine whether the traffic and pedestrian circulation elements
are compatible with surrounding land uses.It also requires the City to ensure that the building
and site design are compatible with nearby land uses .
With respect to traffic,as shown in the Traffic Report,access to the property will be
from the four existing driveways to the Safeway store.Most importantly,the traffic study
concludes that
[t ]he proposed fuel station will have minimal impact on the surrounding
transportation system and the study intersections will continue to
operate acceptably.
Traffic Report at 15 .Because the development will not result in any impacts to the
transportation system that would result in a reduction in the existing or accepted level of
service,the proposal is compatible with surrounding land uses in terms of traffic and
circulation .Landscaping and sidewalks will separate the fuel center uses from pedestrian uses
along NE Third Avenue,therefore,pedestrian circulation both on-site and off-site are not
affected by this proposal.
In this case Safeway has demonstrated that traffic impacts will be minimal and will not
result in any of the surroundings transportation facilities operating below accepted City
standards.Similarly,the development will have no effect on pedestrian circulation.
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Consequently,the proposed development is compatible with surrounding uses in terms of
under this standard.
The Appellant claims that the Project will "generate large volumes of traffic in a zone
where uses are required to be supportive of transit and pedestrian travel."Appellant's Brief
at 2.The Appellant argues that the traffic generated by the Project "is not compatible with the
purposes of the Downtown Commercial zone in terms of traffic and pedestrian circulation ^]"
Id.
The primary problem with the Appellant's argument is that the Appellant does not
claim that the traffic generated by the Project will be incompatible with the surrounding uses.
Rather,the Appellant claims that the Project will be "incompatible with the purposes of the
Downtown Commercial zone."CMC 18.43 .050(C)asks whether the proposed use will be
incompatible with surrounding uses in terms of traffic and pedestrian circulation.It does not
ask whether the use is "compatible with the purposes of the Downtown Commercial Zone."
CMC 18.43.050(C)requires the Planning Commission and the City Council to examine
whether the traffic generated by the use will somehow impact surrounding uses to the extent
that the proposed use would be incompatible with surrounding uses.There is no evidence in
the record that would demonstrate that the Project is not compatible with surrounding uses
based on the traffic generated by the Project .
As discussed above,the City of Camas has adopted the LOS "D"standards for
intersections in the area.The Traffic Report concludes that the Project will not result in any
reduction in the level of service and that "all study intersections are expected to continue to
operate acceptably under total weekday p.m.peak hour conditions.The average delay per
vehicle at all the study intersections will be within the requirements for level-of-service 'D'."
Traffic Report at 12.Notwithstanding the fact that the Appellant has not offered any evidence
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in support of its argument nor has the Appellant explained how the traffic will result in
incompatibility,the only evidence in the record demonstrates that traffic from the Project will
not result in a reduction in the level of service of affected intersections .
The City has already made the legislative determination that fuel centers are
conditionally allowed in the DC zone.Because Safeway has demonstrated that affected
transportation facilities will operate within accepted levels of service and that pedestrian
circulation will not be affected,the Project is compatible with surroundings land uses.With
respect to building and site design,the DR Decision demonstrates that the building and site
design are compatible with surrounding uses.
4.Appropriate measures have been taken to minimize the
possible adverse impacts that the proposed use may have on the
area in which it is located;
This approval,along with the conditions required under the DR Decision and the
MDNS,adequately minimize any possible adverse impacts that the proposed use may have on
the area.It should be stressed,however,that the Project meets all applicable approval criteria
and that the conditions of approval are not required to meet the approval criteria.Moreover,
there is no evidence that the Project will result in any adverse impacts to the area.
5.The proposed use is consistent with the goals and policies
expressed in the comprehensive plan.
The findings set forth in Section 11(A)(1)are incorporated by reference for this
approval standard .
m.RESPONSE TO OPPONENT TESTIMONY
In addition to the arguments raised by the Appellant discussed above relating to the
specific approval criteria,the Appellant has raised additional arguments.None of the
Appellant's arguments warrant reversal of the Planning Commission's recommendation or
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otherwise support a denial of the application..Under CMC 18.55 .290 the Appellant bears the
burden of proof to demonstrate that the Planning Commission was wrong in recommending
approval of the Project .In other words,in the context of this appeal,the Appellant must
demonstrate that the Planning Commission's decision was either clearly erroneous or not
supported by substantial evidence in the record .See generally,Hilltop Terrace Homeowner's
Association v.Island County,891 P.2d 29 (1995)(discussing substantial evidence standard).
A.Approval in Direct Conflict with the Applicable Zoning Code
The Appellant argues that the Planning Commission erred in recommending approval
because,according to the Appellant,the Project conflicts with CMC 18.05 .050(D).
Appellant's Brief at 2.There is no support in the CMC for Appellant 's argument .Similar to
Appellant's argument regarding the Comprehensive Plan,CMC 18.05.050(D)is not an
approval standard for this application.CMC 18.05 .050(D)is merely a text description of the
various zones in the City.Neither CMC 18.05.050(D)nor any other provision of the CMC
requires Safeway to demonstrate that the Project is consistent with CMC 18.05.050(D).This
argument provides no basis for overturning the Planning Commission's recommendation.
B.Transportation Impacts
The Appellant next argues that the application "failed to satisfy CMC 18.19.040 which
requires "such drawings,sketches and narrative as to allow the approval authority review the
specific project on the merits of the city's design review manual and other applicable city
codes."Appeal Notice at 3 .The Appellant appears to argue that because the Appellant
believes that the Traffic Report was flawed,somehow Safeway failed to satisfy
CMC 18.19.040.CMC 18.19.040 is not an approval standard for this application.More
importantly,CMC 18.19.040 applies only to design review applications and the contents of
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such applications.The Appellant offers no basis to overturn the Planning Commission's
decision.
C.Parking
The Appellant next argues that Safeway did not meet the parking standards of CMC
18.11.130.As an initial point,CMC 18.11.130 is not an approval standard for a conditional
use application and cannot be a basis for denial of the application.
In connection with the DR Decision,the City approved Safeway's parking plan and
conditioned the DR Approval on submission of a revised parking plan identifying 163 or more
off-street parking spaces.The design review approval was not appealed and is now a final
binding decision.Thus,the City has concluded that the combined Project and the existing
Safeway store require 163 total parking spaces.There was some confusion at the Planning
Commission hearing and in the Staff Report regarding the total number of spaces necessary
for the existing Safeway store and the fuel center.At the Planning Commission hearing
Safeway explained that if 164 parking spaces are necessary under the CMC,then the Project
will include 164 spaces.The record in this case indicates that Safeway is able to provide at
least 164 parking spaces on the subject property.Additionally,at the Planning Commission
hearing Safeway indicated that it would provide 164 parking spaces.It is unclear to the City
Council why the Appellant believes that the Planning Commission erred .
The Appellant also argues that the Planning Commission erred in concluding that the
parking spaces in front of each gasoline nozzle may count towards the total 164 parking
spaces.The Appellant did not raise this issue below and is precluded from raising this
objection at this point .Moreover,the conclusion regarding the location of parking was
approved through the DR Decision and is not before the City Council on review.
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Notwithstanding the foregoing,CMC 18.11.130 requires that the Project include one
parking space per nozzle,plus one space per 250 gross feet of floor area.The Planning
Commission,via the DR Decision,found that the parking spaces in front of each nozzle
should count towards the total required parking for the Project .Common sense supports this
interpretation.As discussed above,the Project includes gasoline pumps and a payment kiosk .
A person purchasing gas will park at the pump,pump gas,walk to the kiosk and make
payment inside.Payment may also be made directly at the pump .To the extent that the
Appellant argues that there should be a parking space for the customer's car at the pump and
another spot elsewhere on the property,the City Council rejects that argument.A car cannot
be in two places at once.Moreover,a customer is not going to pump gas,move the car to a
parking space,then go inside and pay.There is simply no need to have two parking spaces
for one vehicle,as suggested by the Appellant .Moreover,there is no requirement in the
CMC to provide two parking spaces for each car.The CMC does not provide,as the
Appellant would suggest,that the dedicated parking spot for each nozzle cannot be directly in
front of such nozzle.To the contrary,the CMC simply requires that a parking space be
provided .The City Council,therefore,finds that the applicant may provide the required
parking space in front of the gasoline nozzle.
D.Due Process
Appellant next claims that the Planning Commission erred in closing the public record
and denying Appellant's request to review and comment on a Technical Memorandum
submitted at the hearing by Safeway's traffic consultant .The Appellant 's argument fails for a
number of reasons.
First and foremost,the Technical Memorandum submitted by Safeway's traffic
consultant is not "new evidence."The memorandum was rebuttal testimony to the written
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arguments submitted by the Appellant prior to the public hearing.The memorandum quoted
Appellant's written arguments and then responded to the arguments with information already
in the record .The Traffic Report referred to by the Appellant was already in the record and,
in fact,was reviewed and contested by the Appellant in writing and at the hearing.The
memorandum simply explained the figures and conclusions in the Traffic Report.Argument,
explanation and rebuttal do not constitute "new evidence."
As discussed above,the conclusions set forth in the Traffic Report regarding internal
trips were based on an earlier traffic study prepared by Kittelson relating to internal trips at
other Safeway fuel centers.The conclusions of the earlier report formed the basis for the
conclusions in the Traffic Report.Therefore,the Technical Memorandum simply explained
the conclusions set forth in the Traffic Report and provided a copy of the earlier Safeway
internal traffic count .
Moreover,both the Technical Memorandum and the attached study were offered in
rebuttal to the Appellant's testimony regarding internal trips.The Appellant argued that the
ITE manual does not provide for internal trip discounts.In explaining the Traffic Report and
rebutting the Appellant's testimony,Safeway submitted the Technical Memorandum.The City
Council finds that materials submitted in rebuttal which do not contain contrary information
but which merely support or explain the conclusions set forth in evidence already in the record
are not "new evidence."
CMC 18.55.230 establishes the procedure for submitting evidence into the record at
public hearings.Subsection E provides :
If at any time after the public has testified,the applicant modifies his
proposal or introduces new evidence,then the public shall be provided
an opportunity to respond to such modifications or new evidence.
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As indicated above,the memorandum submitted did not constitute "new evidence."The
Technical Memorandum and the supporting traffic study merely documented the conclusions
set forth in the Traffic Report.
Finally,even if the Appellant were correct that the memorandum constituted new
evidence and that the Appellant was improperly denied the opportunity to respond to the
memorandum,in the context of this appeal the Appellant was free to respond to the
memorandum with legal argument—the same opportunity the Appellant would have had at
the Planning Commission level.The Appellant did not raise any objection or set forth any
legal argument in either the Appeal Notice,the Appellant 's Brief or at the hearing .In fact,
the Appellant's attorney made no arguments regarding the alleged "new evidence"and did not
appear at the City Council hearing.Although the appeal in this case was a "closed record "
appeal,the Appellant was free to make legal arguments regarding the Technical
Memorandum.The Appellant failed to do so .In short,Appellant offers no basis to modify
the Planning Commission decision.
E.Community Displeasure
Finally,the Appellant argued that the "Planning Commission erred in failing to
consider community displeasure in violation of decisions of the Washington Supreme Court
and Appellate Courts.Appeal Notice at 4.The Appellant offers no basis for reversing or
remanding the Planning Commission decision.
Appellant is incorrect as a matter of law that Washington courts require local decision
makers to consider community displeasure.The cases cited by Appellant in its earlier
testimony in no way support the Appellant's argument .At best,local decision makers are
allowed to consider significant community displeasure.
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Moreover,the "significant opposition"cited by the Appellant was entirely absent at the
Planning Commission hearing and the City Council hearing .The "significant opposition"
referred to by the Appellant consisted solely of a form petition signed by a number of
individuals,most of whom live on property zoned RC .According to the Appellant's attorney
at the Planning Commission hearing,the petition was drafted either by the Appellant's attorney
or an assistant,then hand carried door to door by an assistant —hardly a groundswell of
opposition as suggested by the Appellant .Nobody other than the Appellant's attorney spoke
in opposition to the Project at the Planning Commission hearing.Moreover,one of the
petition signers included in the "significant opposition"actually supported the application .
Members of the Planning Commission commented that many of the persons signing the
petition either had addresses outside the city limits,or lived in the RC zone across the street in
the commercial zone which permits the fuel center use outright .Finally,even if there were
significant community displeasure,such displeasure provides no basis to overturn the Planning
Commission's decision.
IV.CONCLUSION
For the reasons set forth above,the City Council affirms the Planning Commission's
recommendation and approves CUP 01-04 and denies the appeal filed by the Appellant .
EXHIBIT zoPAGEOF
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[33225-0032/PA021230.093]
FINDINGS OF FACT
SEPA-MDNS File SC 01-02-02
I.INTRODUCTION
Safeway,Inc.("Safeway")proposes to develop a fuel facility on the existing Safeway
property located at 800 NE Third Street,in the City of Camas.The fuel facility will include
four double-sided gasoline dispensers,a canopy,a walk-in kiosk and two 20,000 gallon
underground storage tanks (the "Project").The Project is located on the northwest comer of
the existing Safeway parking lot.In connection with the Project,Safeway has obtained
Design Review approval from the City (DR 01-03),and has obtained approval for a
Conditional Use Permit from the City of Camas City Council (CUP 01-04).
On February 7,2002,the City of Camas Department of Public Works (the "Lead
Agency")issued a Mitigated Determination of Non-Significance ("MDNS").On February 20,
2002,Ruby E.Snoey (the "Appellant")filed comments and an appeal of the MDNS ("Appeal
Notice").In response to the comments of the Appellant,on March 5,2002,Safeway
submitted an addendum with supplementary comments and supporting documentation to the
City.WAC 197-11-625 .Pursuant to WAC 197-1 l -340(2)(f ),the Lead Agency reviewed
Safeway's supplementary information and determined on March 12,2002,that the Lead
Agency would retain the MDNS and would not withdraw or modify the MDNS.On April 17,
2002,the Appellant filed a supplementary "Appellant 's Brief 'which set forth additional
arguments,but did not provide any additional argument regarding the issues raised in the
Appeal Notice.On April 22,2002,the City of Camas City Council heard the Appellant 's
appeal,affirmed the Lead Agency's decision and denied the appeal.
1EXHIBIT /7LOFPAGEFINDINGSOFFACT-SEPA MDNS
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H.COMPLIANCE WITH STATE ENVIRONMENTAL POLICY ACT
One of the fundamental goals of SEPA is to ensure that environmental values are
disclosed and considered in the City's decision making process.See Klickitat County Citizens
Against Imported Waste v.Klickitat County,122 Wash.2d 619,860 P.2d 390,amended on
denial of reconsideration,866 P.2d 1265 (1993).Under SEPA,before issuing the MDNS,
the City was required to determine whether the Project constituted a major action significantly
affecting the quality of the human environment .See Anderson v.Pierce County,86
Wash.App 290,936 P.2d 432,reconsideration den.(1997).In the present case,the City
issued a MDNS after sufficiently considering all the environmental factors associated with the
Project and after following all the procedural requirements of SEPA.The City issued the
MDNS,received comments from the Appellant,received additional supplemental information
from Safeway directly responding to the Appellant 's comments,and then retained and affirmed
the MDNS.The City's issuance of the MDNS was appropriate because,based on the Lead
Agency's review of Safeway's checklist and supporting materials,the Lead Agency found that
the Project will not produce significant adverse environmental impacts.Id.An environmental
impact statement ("EIS")is only required where a project will have significant adverse impacts
on the environment.WAC 197-11-330;See also,King County v.Washington State
Boundary Review Bd.for King County,122 Wash.2d 648,860 P.2d 1024,reconsideration
den.(1993).The City found no such impacts and the Appellant has not identified anything in
the record that demonstrates that the Project will cause significant adverse environmental
impacts.More importantly,the Appellant does not claim that the Project will cause significant
and adverse environmental impacts.Rather,the Appellant merely alleges that the SEPA
checklist did not disclose potential impacts to certain elements of the environment.Safeway
submitted an addendum with supplemental information,which essentially rendered the
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2 OF
Appellant's allegations moot .Because such information was disclosed and the MDNS
affirmed,it is unclear whether the Appellant still believes the MDNS should be withdrawn.
Additionally,the Appellant 's Brief did not expand or further develop the arguments raised in
the Appeal Notice.In fact,the Appellant's Brief did not mention the arguments raised in the
Appeal Notice.Because the earlier arguments were not discussed and because the Appellant 's
attorney did not attend the MDNS appeal hearing and explain the Appellant's basis for
appealing the MDNS,it is unclear whether the Appellant has abandoned the arguments raised
in the Appeal Notice.The Appellant's Brief states that additional environmental documents
should have been submitted to the record.However,the Appellant fails to state whether this
alleged failure constitutes reversible error.Regardless,for the reasons set forth below,the
City Council finds that the MDNS was properly issued and hereby denies the appeal .
Accordingly,the Lead Agency's decision to issue and retain the MDNS is affirmed .
m.RESPONSE TO APPELLANTS'ARGUMENTS
The SEPA implementing rules set forth the format for SEPA checklists and identify
each of the environmental elements that applicants must address in every SEPA checklist .
WAC 197-11-315;WAC 197-11-960.The checklist and supplements submitted by Safeway
follow the required format and address each and every environmental element identified in
WAC 197-11-960.The Appellant alleges that Safeway's SEPA checklist failed to disclose the
"probable,significant impacts"to air,water and environmental health.In direct response to
the Appeal Notice,Safeway submitted additional information to the Lead Agency.The Lead
Agency reviewed the information and determined that the issuance of the MDNS was still
appropriate and therefore retained the MDNS pursuant to WAC 197-1 l -340(2)(f ).Because
the Lead Agency did review and consider the potential impacts to air,water,and
environmental health,issuance of the MDNS was appropriate.
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1.General Response to Appeal Notice
It is important to note that the Appellant has not alleged that the Project will result in a
significant adverse impact to the environment.Assuming that the Appellant has not
withdrawn its objections raised in the Appeal Notice,the Appellant has argued that the SEPA
checklist did not consider the potential impacts to certain elements of the environment and
that the Lead Agency should withdraw the MDNS and prepare a new checklist at the expense
of Safeway.Appeal Notice at 6.There is no support in the administrative code for such a
requirement.
WAC 197-11-340(3)requires lead agencies to withdraw an MDNS if the lead agency
determines that
(0 There are substantial changes to a proposal so that the proposal
is likely to have significant adverse environmental impacts;
There is significant new information indicating,or on,a
proposal's probable significant adverse environmental impacts;or
The DNS was procured by misrepresentation or lack of material
disclosure;if such DNS resulted form the actions of an applicant,any
subsequent environmental checklist on the proposal shall be prepared
directly by the lead agency or its consultant at the expense of the
applicant .
The Appellant argues that the MDNS was procured by a lack of material disclosure and,
therefore,should be withdrawn.Appeal Notice at 6.However,the MDNS was not
"procured by misrepresentation or lack of material disclosure[.]"In this case the Lead Agency
issued the MDNS based on the initial information supplied by Safeway.In response to the
Appellant's comments set forth in the Appeal Notice,Safeway submitted additional
information responding directly to the Appellant's comments .The Lead Agency reviewed
Safeway's supplemental information and reaffirmed the MDNS.Neither the issuance of the
(ii)
(iii)
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OFPAGE
MDNS or the later affirmation,was based on a "lack of material disclosure."It would be very
different if,based on Safeway's supplemental information,the Lead Agency determined that
there would be a significant adverse impact to the environment .In such a case it would be
entirely appropriate to withdraw the MDNS because the subsequent information would have
demonstrated that there would be a significant adverse effect on the environment .In that case
the MDNS would have been issued solely because of a lack of material information .Here,
however,the supplementary information simply reinforced the Lead Agency's conclusion that
there would be no significant adverse impact to the environment .The information submitted
specifically addressed the Appellant's concerns and further demonstrated that the would be no
significant adverse impact on the environment.Consequently,the City Council finds that the
Lead Agency properly issued and reaffirmed the MDNS.
Under Section 18.55.290 of the Camas Municipal Code (the "CMC"),the Appellant
must identify the reasons why it believes the issuance of the MDNS was wrong,and bears the
burden of proving that the issuance of the MDNS was wrong or,in this case,"procured by
misrepresentation or lack of material disclosure[.]"The Lead Agency determined both before
reviewing the supplementary information and afterwards that the Project would not result in a
significant adverse impact to the environment .Based on its initial review and secondary
review,the Lead Agency determined that issuance of an MDNS was appropriate.Quite
simply,the Appellant has not met its burden of proof that the MDNS was "procured by
misrepresentation or lack of material disclosure ^]"Accordingly,under CMC 18.55.290,the
Appellant 's appeal is denied and the Lead Agency's determination upheld.
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[33225-0032/PA021260.100]
2.Potential Impacts to Air
The Appellant alleges that "the Environmental Checklist fails to disclose,and the
MDNS fails to consider,the emission of toxic chemicals in vapor form,by the proposed
fueling facility."Appeal Notice at 2.
As the SEPA checklist,the record and the agency comments demonstrate,the Project
will not result in significant impacts to the environment,including the air element .Moreover,
Safeway's checklist,as supplemented,did disclose the potential impacts to the air element .
Under WAC 197-11-330,the Lead Agency was required to review the checklist and
supporting information and determine whether the proposal is likely to have a "probable
significant adverse environmental impact[.]WAC 197-11-330(1).In this case the Lead
Agency reviewed the checklist and supporting documentation and determined that,as
conditioned,the Project would not have a significant adverse impact on the air element of the
environment .Nothing more is required under SEPA.Additionally,Safeway submitted
information directly responding to the Appellant's concerns.Because Safeway's supplemental
information responds directly to the Appellant's concerns regarding air emissions,the MDNS
should is upheld and the appeal denied .
As the SEPA checklist discloses,the Project will include Stage I and Stage II Vapor
Recovery Systems.These systems are designed to prevent primary and secondary release
vapors associated with gasoline.More importantly,on February 28,2002,the Washington
Department of Ecology issued an Air Quality Permit to Safeway for the Project .SEPA
Checklist 2(a).Consequently,the agency with the greatest expertise regarding air quality
issues has issued a permit to Safeway and determined that the Project will meet all applicable
State air quality standards.By operating within the parameters of the Air Quality Permit and
through the use of Stage I and Stage II Vapor Recovery Systems,Safeway has demonstrated
BEXHIBIT6 /2-FINDINGS OF FACT -SEPA MDNS
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that the Project will not result in any significant adverse impact to the environment .Thus
Safeway has disclosed,and the SEPA checklist and supporting information discuss,the
potential impacts of the Project on the air element of the environment .The Lead Agency
reviewed this information and,based on such review,determined that the issuance of the
MDNS was appropriate.Consequently,Safeway and the Lead Agency have addressed the
concerns raised by the Appellant.The Appellant has not met its burden of proof under
Code 18.55.290(3)that the MDNS was issued based on a material lack of information.
Because the SEPA checklist disclosed the potential impacts to the air element of the
environment and the Lead Agency considered such impacts and the operation of the Project
within the constraints of the Air Quality Permit,the City Council hereby affirms the MDNS .
3.Potential Impacts to Environmental Health
The Appellant next argues that the SEPA checklist did not disclose potential impacts
to the environment based on potential spills of gasoline during refueling of automobiles or
through refilling of the underground storage tanks.Appeal Notice at 2-4.In response to the
Appellant's comments,Safeway referenced the project design elements which limit or
minimize potential spills.Safeway also included a copy of its Spill Containment and
Assessment Plan for the Project.SEPA Checklist 7(a).The Spill Containment and
Assessment Plan more precisely identifies the spill containment control equipment on site to
control spills,identifies the underground storage tank monitoring procedures and explains
how any spills on-site will be contained and human exposure avoided .The plan also includes
an Emergency Response Plan which describes the actions to be taken in the unfortunate (and
unlikely)event of a major spill or a fire.The plan directly responds to the Appellant 's
concerns and discloses the potential environmental health hazards of the Project.
IEXHIBIT 12=i OFPAGEFINDINGSOFFACT-SEPA MDNS
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[33225-0032/PA021260.100]
The Appellant argues that the Lead Agency should withdraw the MDNS because
Safeway and the SEPA checklist did not disclose the potential impacts to environmental health
hazards.Because Safeway's supplemental information and,in particular,the Spill
Containment and Assessment Plan,directly respond to Appellant's concerns and disclose all
potential risks and Safeway's response program,the Appellant has not met its burden to
demonstrate that the MDNS was issued based on a material lack of information.
Consequently,the City Council affirms the issuance of the MDNS and denies the appeal.
4.Potential Impacts to Water
The Appellant next argues that the SEPA checklist and the MDNS failed to disclose or
consider the potential impacts to groundwater resulting from the placement of underground
storage tanks.Appeal Notice at 5.The Appellant further stated that Safeway did not cite any
study or data "which would attest that groundwater will not be encountered while excavating
to a depth sufficient to place underground storage tanks and associated piping below ground
surface."Appeal Notice at 4 .
In response to the Appellant's comments,Safeway submitted a geotechnical report
which concluded that "[g]roundwater is not likely to be encountered during the excavation for
the USTs."Geotechnical Investigation Proposed Gas Station Safeway Store #1287 800 NE
Third Avenue,Camas,Washington,dated September 7,2000 ("Geotechnical Report").This
conclusion was based on the fact that "[g]roundwater was not encountered in any of the
borings ..."Geotechnical Report at 4 .Additionally,the City of Camas has established
"wellhead-protected areas"which,in general,limit the underground activities near established
wellheads.The Project is not within a wellhead protection area and is almost one-half mile
from the nearest wellhead protected area.SEPA Checklist ,3(b).
15EXHIBITa OF /2~PAGEFINDINGSOFFACT-SEPA MDNS
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Safeway's supplemental information directly responded to the Appellant's concerns and
disclosed all potential impacts to the groundwater.The Appellant does not argue that the
Project will result in a significant adverse impact to the environment .Rather,the Appellant
argues that the MDNS should be withdrawn because the SEPA checklist and the MDNS did
not disclose potential impacts to groundwater and that the MDNS was obtained through
material lack of information.Safeway has provided supplemental information which discloses
all potential impacts to groundwater resources.Based on such information the Lead Agency
affirmed and retained the MDNS .Because the Appellant has not met its burden and proved
that the MDNS was procured by a lack of material disclosure,the City Council denies the
appeal and affirms the MDNS .
5.Potential Noise Impacts
The Appellant's final challenge is that the SEPA checklist does not disclose the
potential noise impacts of the Project.Appeal Notice at 5-6.Based on the Appellant 's
comments,Safeway supplemented the SEPA checklist and explained 1)that there would be
no noise impacts which would affect the Project;2)what types of noise the Project would
generate in the short and long-term;and,3)the measures to reduce or control noise impacts.
SEPA Checklist 7(b).Additionally,Safeway disclosed that the Project will operate within all
established limits set by local and state ordinance and law.Id.
Safeway's supplemental information directly responded to the Appellant 's concerns and
disclosed all potential noise impacts of the Project .The Appellant does not argue that the
Project will result in a significant adverse noise impacts.Rather the Appellant argues that the
MDNS should.be withdrawn because the SEPA checklist and the MDNS did not disclose
potential impacts and that the MDNS was obtained through material lack of information.
Safeway has provided supplemental information that discloses all potential noise impacts of
EXHIBIT a /2,/PAGEFINDINGSOFFACT-SEPA MDNS
SC 01-02-02 -9
[33225-0032/PA021260.100]
OF
the Project.Nothing more is required under SEPA.Based on the information provided by
Safeway,the Lead Agency affirmed and retained the MDNS .Because the Appellant has not
met its burden and proved that the MDNS was procured by a lack of material disclosure,the
City Council denies the appeal and affirms the MDNS .
B.Record Supports Denial of Appeal
Although the Appellant has not argued that the Project will result in significant adverse
impacts to the environment,if such challenge were implied,there is substantial evidence in the
record in this case to support the MDNS and deny the appeal."Substantial evidence exists
where there is a sufficient quantity of evidence in the record to persuade a fair-minded,
rational person of the truth of the finding."Hilltop Terrace Homeowner's Association v.
Island County,891 P.2d 29 (1995)(citations omitted).In this case,the City determined that
the proposal does not have a "probable significant impact on the environment."The City's
decision was based on an extensive SEPA checklist which was supplemented by significant
supporting documentation,including environmental reports,geotechnical studies,traffic
reports,spill and containment plans and archeological studies.Based on all of this
information,the City determined that the Project would not have a probable significant impact
on the environment.Not only is there substantial evidence in the record to support the City's
finding,all of the evidence in the record supports the City's threshold determination.Indeed,
the record contains no evidence that the Project would have a probable significant adverse
impact on the environment .
C.Completeness of Environmental Record
In the Appellant's Brief the Appellant argues that the environmental record is not
complete because,according to the Appellant,two environmental assessments were not
submitted in the SEPA record .The Appellant argues that the two reports may contain
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environmental information should have been submitted into the record.The Appellant
provides no basis to remand or otherwise modify the issuance of the MDNS.In fact,the
Appellant has not identified any SEPA provision which either requires the submission of such
reports or which would require the withdrawal of the MDNS if such reports were not
submitted .Although the Appellant claims that such additional reports should be submitted,
the Appellant has not argued that the failure to do so should result in the withdrawal of the
MDNS.Furthermore,Safeway testified at the MDNS appeal hearing that neither of the two
reports exist (no Phase I assessment was performed on the fuel center site and no Phase II
assessment has been performed on the portion of the site containing the house to be
demolished).Consequently,the City Council finds that the Appellant has provided no basis to
withdraw the MDNS.
The appellant cites "Item A.(8)of the Addendum to SEPA Checklist"as the basis for
arguing that the additional environmental documents should have been submitted,circulated
and reviewed .However,"Item A(8)"merely asks what "environmental information ...has
been prepared related to this proposal."Even assuming that the two reports referred to by the
Appellant were the types of environmental information referenced,no provision of SEPA
requires that they be submitted.For purposes of this appeal,the Appellant has not sufficiently
explained what error was committed and why such error would require withdrawal of the
MDNS.Finally,the Appellant made no attempt at the public hearing to explain the basis for
the appeal and the Appellant's attorney did not attend the hearing to testify in support of the
appeal.In short,neither the Appellant's Brief nor the Appeal Notice provide any basis to
either withdraw or modify the MDNS .
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rv.CONCLUSION
The Appellant has argued that the Lead Agency should withdraw the MDNS because
it was procured by a "lack of material disclosure."To the contrary,upon receipt of the
Appellant's comments,Safeway supplied the Lead Agency with supplemental information
responding directly to the Appellant's concerns.Based on the original submittal and the
supplementary materials,pursuant to WAC 197-11-340,the Lead Agency considered the
Appellant's comments and retained and affirmed the MDNS.The Appellant has not met its
burden of proof to demonstrate that the MDNS was procured by a "lack of material
disclosure."Additionally,because the Appellant has not explained why the failure to submit
additional environmental materials should require the withdrawal of the MDNS,the Appellant
has not met its burden of proof.Because the Appellant raises no other challenge to the
MDNS and has not met its burden of proof,the City Council denies the appeal and affirms the
issuance of the MDNS.
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