postbriefycg123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -1 BEFORE THE HEARING EXAMINER OF THE CITY OF YELM IN RE: WAL-MART SUPERCENTER FILE NO. SPR 05-0091-YL AND APL 05-0203-YL
POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP I. INTRODUCTION The Examiner has two sets of issues to consider. One, the Examiner must consider the appeal by Yelm Commerce Group (YCG)
which challenges the City’s “threshold determination” to not require preparation of an Environmental Impact Statement (EIS). Two, the Examiner has before him the City Staff’s recommendation
to approve Wal-Mart’s site plan. That, in turn, includes the issue of whether the project is consistent with the City’s transportation concurrency ordinance. In this brief, we will demonstrate
that the threshold determination was erroneous. The City failed to utilize the prop?????er process for collecting adequate information before making the threshold determination. The
City failed to independently evaluate information provided by the applicant. Predictably, because it did not have all of the information it
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -2 needed and because it relied on skewed information provided by the applicant, an erroneous threshold determination
was made. Throughout the hearing, YCG and the citizens of Yelm presented evidence demonstrating that this project will have probable significant adverse impacts on Yelm’s environment.
It likely will work a major transformation in the Yelm commercial district forcing the closure of many business, uplifting the commercial core from its present location to the Wal-Mart
site, and potentially leaving the heart of Yelm dark and barren for years to come. We also demonstrated that the project will have major traffic impacts. In fact, most of this evidence
comes right from the Transportation Impact Analysis (TIA) prepared by the applicant. The critical information is buried in the appendices, not set forth in the text. But it is in there
for those willing to dig it out, as Mr. Bernstein did. Given the current transportation woes in downtown Yelm, it is not surprising that adding thousands of cars a day to those roads
would have a major impact on traffic. Those impacts require analysis in an EIS.We have demonstrated that the project would result in other significant impacts, too. Wetlands are at risk.
Flooding, treatment and handling of stormwater, and pollution of the drinking water aquifer all were demonstrated to be impacts that need further evaluation in an EIS.The citizens, the
true experts about Yelm, came forward with their evidence of yet additional impacts. Traffic is not just a congestion issue. As the citizens demonstrated, it
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 The legislature recognizes that each person has a fundamental and inalienable right to a healthful environment and
enacted this law to protect those rights. RCW 43.21C.020. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300
POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -3 also impacts safety, the provision of a critical public service (education), and even mental health. These and other impacts identified
by the citizens merit further analysis in an EIS. We believe the Examiner need not reach the second issue --whether to approve the site plan application. Because review under the State
Environmental Policy Act (SEPA) is not yet complete, it would be premature to rule on the site plan application. But if the Examiner does reach the site plan question, the Examiner should
deny the application because the project does not meet concurrency requirements. II. APPEAL OF MDNS: THE THRESHOLD DECISION DID NOT FOLLOW THE CORRECT PROCESS AND REACHED THE WRONG RESULT
A. SEPA’s Requirements 1. The threshold determination is critical to implementation of SEPA SEPA, Ch. 43.21C RCW, was promulgated to further a “state policy which will encourage productive
and enjoyable harmony between man and his environment” and “to promote effort which will prevent or eliminate damage to the environment and biosphere.” RCW 43.21C.010.1 To carry out
that policy, SEPA requires a detailed statement called an “Environmental Impact Statement” (“EIS”), prepared by a “responsible official,” reviewing the environmental impact of all major
actions significantly affecting the quality of the environment. RCW 43.21C.030 (2)(c)(i).
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 All of the Washington Administrative Code (WAC) provisions cited herein have been adopted by the City. See YMC 14.04.010.A.
Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -4
The responsible official must make an initial analysis called a “threshold determination” on each proposal. WAC 197-11-310.2 That analysis assesses whether the proposal will have significant
impacts. If the proposal is deemed to not have probable significant adverse impacts, a DNS is issued. Id. A responsible official may also adopt a “mitigated” DNS. An MDNS is a determination
that a project will cause probable significant adverse impacts but those impacts are mitigated through specific mitigation measures. WAC 197-11-350. If the proposal will have a probable
significant adverse impact, a Determination of Significance (DS) is issued and and an EIS must be prepared. Id.; WAC 197-11-330(4). If the Responsible Official determines that with mitigation
the impacts probably will not be significant, those mitigation measures can be incorporated into the project and a Mitigated Determination of Non-Significance (MDNS) may be issued. WAC
197-11-350. A negative threshold determination brings the environmental review process to a quick end. The agency is deprived of the much more robust information provided in an EIS.
The EIS is prepared in draft form and circulated to other agencies with expertise and the public for their review and comment. Those important contributions are then incorporated into
the Final EIS. The agency is deprived of all that useful information if a negative threshold decision is made. As the Supreme Court explained: [I]t is important that an environmental
impact statement be prepared in all appropriate cases. As a result, the initial determination by the ‘responsible official.’ . . . as to whether
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Another option, not relevant here, is to defer environmental review if the action is not sufficiently defined to
allow an environmental analysis at the present. WAC 197-11-335(4). Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -5 the action is a ‘major actions significantly affecting the quality of the environment’ is very important. The policy
of the act, which is simply to insure via a ‘detailed statement’ the full disclosure of environmental information so that environmental matters can be given proper consideration during
decision making, is thwarted whenever an incorrect ‘threshold determination’ is made. Norway Hill Preservation & Protection Ass’n. v. King County Council, 87 Wn.2d 267, 273 (1976). 2.
The threshold determination must be based on adequate information The threshold determination cannot be be made “in the blind.” A reasonably diligent investigation must be made to determine
the nature of the project’s probable impacts. The importance of having adequate information upon which to base the threshold determination is emphasized in the SEPA rules. The rules
require the City to review the applicant’s environmental checklist and to “independently evaluat[e] the responses in the checklist.” Further, the responsible official is required to
“indicat[e] the result of its evaluation.” WAC 197-11-330(1)(a)(i). “[I]f, after reviewing the checklist, the agency concludes that there is insufficient information to make its threshold
determination,” the Responsible Official is to obtain additional information from the applicant, through its own efforts, or from other agencies. Id.3 When an agency is confronted with
incomplete information, it must also comply with the requirements of WAC 197-11-080. The basic rule requires the agency to get the missing
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -6 information: If information on significant adverse impacts essential to a reasoned choice among alternatives is not
known, and the cost of obtaining it are not exorbitant, agencies shall obtain and include the information in their environmental documents. WAC 197-11-080. Absent a showing that the
costs of obtaining the missing information are “exorbitant,” or that the means to obtain the missing information are “speculative or not known,” the information must be obtained. WAC
197-11-080(3). By the time the threshold determination is made, the Responsible Official must have information “reasonably sufficient to evaluate the environmental impact of a proposal.”
WAC 197-11-335. See also WAC 197-11-080. Given the preliminary nature of environmental review at the threshold determination stage, certainty is not required to order preparation of
an EIS. “If the responsible official determines that a proposal may have a probable significant adverse environmental impact, the responsible official shall prepare and issue a determination
of significance (DS) substantially in the form provided in WAC 197-11-980.” WAC 197-11-360(1) (emphasis supplied). Because there is bound to be uncertainty about the magnitude of environmental
impacts at the threshold determination stage, it is sufficient that the project “may have” probable adverse impacts to trigger the EIS requirement. 3. Review of an MDNS On review, for
an MDNS to survive scrutiny, “the record must demonstrate that environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements
of SEPA and that the decision to issue an
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -7 MDNS was based on information sufficient to evaluate the proposal’s environmental impact.” Wenatchee Sportsman v.
Chelan County 141 Wn.2d 169, 176 (2000). See, e.g., Sisley v. San Juan County, 89 Wn.2d 78 (1977) (reversing a negative threshold determination as to a 94-slip marina and support facilities
in a biologically sensitive area); Swift v. Island County, 87 Wn.2d 348 (1976) (reversing negative threshold determination as to a housing subdivision including area listed in the National
Register of Historic Sites and seriously impacting bird life); Norway Hill Preservation and Protection Association v. King County Council, supra., (reversing negative threshold determination
as to 52-acre residential development). B. Land Use Impacts The Responsible Official did not give adequate consideration to the project’s land use impacts. For that reason alone, the
Examiner could remand this matter to the Responsible Official for further analysis. But we believe that the evidence presented at the hearing also demonstrates that the project will
have probable significant adverse land use impacts. For that reason, in the interest of conserving everyone’s resources, the Examiner should reverse the threshold determination and direct
preparation of an EIS. 1. SEPA’s treatment of land use and related “socio-economic” impacts The SEPA regulations eschew the use of the term “socio-economic” impacts. WAC 197-11-448(2).
But the rules make clear that issues of urban environmental concern, including urban blight, must be considered: Significant impacts on both the natural environment and the built environment
must be analyzed, if relevant (WAC 197-
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Also see WAC 197-11-960 which provides an environmental checklist, including these required elements in more detail.
For example, WAC 197-11-960(B) discusses potential displacement and negative aesthetic impacts associated with the proposed development. Bricklin Newman Dold, LLP Attorneys-at-Law 1001
Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -8 11-444). This involves impacts upon and the quality
of the physical surroundings, whether they are in wild, rural, or urban areas. … EISs shall also discuss significant environmental impacts upon land and shoreline use, which includes
housing, physical blight, and significant impacts of projected population on environmental resources, as specified by RCW 43.21C.110 (1)(d) and (f), as listed in WAC 197-11-444. WAC
197-11-440(6)(e) (emphasis added). WAC 197-11-444 provides a list of elements in the environment which must be included in a SEPA review. These elements include: the relationship to
existing land use plans and to estimated population, housing, aesthetics, historic and cultural preservation, and movement/circulation of people or goods.4 Each of these elements involve
consideration of a project’s social and economic impacts that may cause adverse environmental impacts. The courts have consistently ruled that issues related to urban blight must be
considered under SEPA. In Barrie v. Kitsap County, the county and a city had approved rezones to permit the construction of a shopping center. 93 Wn.2d 843 (1980). The Supreme Court
concluded that the county’s EIS was inadequate because it focused “exclusively on sales impacts and overlook[ed] the real possibility of lost jobs and tax base in the [Central Business
District] and its possible resultant decline as Bremerton’s social center.” Id. at 859. In West 514, Inc. v. County of Spokane, 53 Wn. App. 838 (1989), the court
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 While some of the terminology in CEQA and SEPA differ, the procedural and substantive requirements are quite similar,
both statutes being patterned on the National Environmental Policy Act (NEPA). A review of the Bakersfield decision makes clear the great similarity between the two statutory schemes.
Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -9
identified “the problems of blight of downtown and urban areas which would be caused by proposed actions” as “traditional areas of concern” which fall within SEPA’s scope. West 514 at
848, n. 6, (quoting Kenneth S. Weiner, Section-by Section Summary of S.S.B. 3006, at 195, in R. Settle, Washington Land Use and Environmental Law and Practice (1983) and citing RCW 43.21C.110(f)).
In West 514, the court sustained the adequacy of an EIS which did not consider urban blight issues because there was no substantial evidence that urban blight would result from that
project. But the court emphasized that “if the probable effect of competition is downtown blight such that the built environment is affected, then discussion of that effect in an EIS
is called for.” Id. at 847-48 (emphasis in original). Recent case law from California parallels Washington decisions. In Bakersfield Citizens for Local Control v. City of Bakersfield,
124 Cal. Appl. 4th 1184, 1204 (2004), the appellant challenged the development of two retail shopping centers under the California Environmental Quality Act (CEQA). 124 Cal. App. 4th
1184 (2004). The plaintiff alleged that the Environmental Impact Reports (EIRs) prepared for the retail centers were inadequate.5 Located within 3.6 miles of each other, the two retail
centers each were to contain a Wal-Mart Supercenter, as well as a number of other retail stores. “The trial court concluded that the failure to study urban decay rendered the EIR’s inadequate
as informational documents and it ordered them decertified.” The appellate court affirmed the
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -10 trial court’s decision, stating that “CEQA requires analysis of the shopping centers’ individual and cumulative potential
to indirectly cause urban decay.” At 1204. Like West 514, the court in Bakersfield points out that the “focus of the analysis shall be on the physical changes.” Id. It went on to state
that “[i]f the forecasted economic or social effects of a proposed project directly or indirectly will lead to adverse physical changes in the environment, then CEQA requires disclosure
and analysis of these resulting physical impacts.” At 1205. The court thoroughly discussed the issue of urban decay as an environmental impact, even providing factors that would be relevant
in assessing potential for urban decay. It listed “size of the project, the type of retailers and their market areas and the proximity of other retail shopping opportunities,” as well
as potential for “long-term vacancies that deteriorate and encourage graffiti and other unsightly conditions.” Id. at 1207 and 1212. The court also highlighted specific expert testimony
on urban decay which established that: individually and especially cumulatively, [the project] will have economic impacts on existing businesses triggering a chain of events that may
lead to adverse effects on the physical environment in the southern part of Bakersfield. …[S]maller retailers…will be unable to compete…[and] this may cause permanent or long-term vacancies
of retail space in the area. The result is typically neglect of maintenance and repair of retail facilities, the deterioration of buildings, improvements, and facilities. This may then
culminate in physical effects associated with blight-like conditions, which include visual and aesthetic impacts accompanying the physical deterioration. Id. at 1209. Other California
decisions are consistent with Washington case law and Bakersfield.
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Washington courts have recognized the relevance of NEPA case law in construing the requirements of SEPA. Eastlake
Community Council v. Roanoke Associates, Inc., 82 Wn.2d 475, 488 (1973) (“Since much of the language from SEPA is taken verbatim from NEPA (signed into law January 1, 1970), we look
when necessary to the federal cases construing and applying provisions of NEPA for guidance”); Bellevue Farm Owners Ass'n v. State of Washington Shorelines Hearings, 100 Wn.App. 341,
353 (2000). Indeed, “while NEPA and SEPA are substantially similar in intent and effect, ... the public policy behind SEPA is considerably stronger than that behind NEPA.” ASARCO Inc.
v. Air Quality Coalition, 92 Wn.2d 685, 709 (1979). Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300
POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -11 See Citizens Ass’n for Sensible Development of Bishop Bishop Area v. County of Inyo, 172 Cal. App. 3d 151, 170 (1985) (“lead agency
had an affirmative duty to consider whether the new shopping center would start an economic chain reaction that would lead to physical deterioration of the downtown area.”); Citizens
for Quality Growth v. City of Mt. Shasta, 198 Cal. App. 3d 433, 445-46 (1988) (EIR invalidated for failing to “consider the potential physical effect of the rezoning on the central business
area”). Federal law also supports the conclusions reached in both Washington and California courts.6 In City of Rochester v. Postal Service, 541 F.2d 967, 973-74 (2d Cir.1976), the court
held that the applicant was required under NEPA to consider the long term effects of “urban decay and blight” associated with its proposal in its EIS. See also Trinity Episcopal School
Corp. v. Romney, 523 F.2d 88, 93-94 (2d Cir. 1975) (applicant must consider impact of its actions on urban decay and the city’s development plan). 2. The Responsible Official failed
to consider or adequately investigate the project’s land use and urban impacts Despite SEPA’s requirement that the Responsible Official “independently evaluat[e]”
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -12 the responses on the environmental checklist, there is no indication that the Responsible Official provided any evaluation
of the checklist’s response regarding land use and urban blight issues. The SEPA rules require that the Responsible Official report the results of his independent evaluation “on the
checklist” or “in the DNS.” WAC 197-11-330(1)(a)(i). There is no indication on either the checklist or in the MDNS of how the Responsible Official evaluated this critical issue. The
checklist itself provides no meaningful information. The checklist (as revised on May 11, 2005, Ex. 8) indicated that only a single business would be displaced and claimed that the project
is consistent with the Comprehensive Plan (Ex. 7 at 8). In contrast to the applicant’s submission of more detailed reports regarding traffic, water, and geotechnical issues, the applicant
provided no supplemental information regarding urban blight and other land use issues. The Responsible Official appears to have been disinterested in these issues. The Responsible Official
requested additional information from the applicant but it focused on such mundane issues as whether the parking lot contained the correct number of stalls for compact cars and that
the water storage tank discussed in the Water Supply Report was not shown on the site plan. Ex. 16. The Responsible Official requested no additional information from the applicant regarding
urban blight or other land use impacts. Yelm Commerce Group’s attorney Knoll Lowney wrote a lengthy letter to Mr. Beck raising several issues, including the urban blight issue. Ex. 24.
Mr. Lowney even included a copy of the Bakersfield decision for the Responsible Official’s review. But the
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -13 Responsible Official remained unmoved. Rather than requesting the applicant to provide information on this critical
issue, the Responsible Official put the burden on the community to develop this information. See Ex. 25. While the citizens were under no obligation to do the work that SEPA requires
of the Responsible Official and/or the applicant, the citizens rose to the challenge. The public comment letters submitted prior to the threshold determination contained additional information
regarding a variety of land use and urban blight impacts. See, Ex. 27 q, k, t, aa, ab, ac, af, ah, ai, aj, an, ar, as, au, aw; Ex. 28 n, m, l, d.To his credit, at the hearing, the Responsible
Official candidly acknowledged that he had made no assessment of the urban blight issue. Beck Testimony, Day 3, Tape 3B, 26:30. As the Supreme Court stated in Wenatchee Sportsmen, for
a negative threshold determination to survive scrutiny, it must be demonstrated that environmental factors were considered and that “the decision to issue the determination was based
upon information sufficient to evaluate the proposal’s environmental impact.” Id., 141 Wn.2d at 176. That certainly was not the case at the time the threshold determination was made.
While decisions of the Responsible Official are entitled to some deference, that deference is lost when the Responsible Official admits that he failed to consider the impacts at issue.
The MDNS is invalid for this reason alone. 3. The project’s probable land use impacts require preparation of an EIS In addition to the flawed process used by the Responsible Official
to assess land use
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -14 impacts, the evidence now in the record demonstrates overwhelmingly that the project’s probable land use impacts
necessitate preparation of an EIS. That evidence was presented by Dr. Marlon Boarnet and numerous citizens (aptly characterized as the “true experts” when it comes to knowing Yelm).
Their testimony was not seriously undermined by the testimony given by Wal-Mart’s real estate consultant William Reid. Dr. Boarnet testified in detail about the project’s probable significant
adverse impacts in the context of land use and urban blight. Dr. Boarnet is eminently qualified to discuss these issues. He has studied, written about, and taught graduate level courses
about these very issues for years. He currently chairs the University of California at Irvine’s Department of Planning, Policy, and Design. His Ph.D. dissertation studied “Intra-Metropolitan
Growth Patterns: The Nature and Causes of Population and Employment Changes Within an Urban Area.” Ex. 93. Yelm was fortunate to have a person with this level of expertise available
for the hearing. Dr. Boarnet testified about studies done by him and other researchers that document the impacts of a Wal-Mart Supercenter. Many of those studies were cited by the California
Court of Appeals in the Bakersfield decision. See Bakersfield, supra, 124 Cal. App. 4th 1209-10 and n.5. His testimony also was based on his personal review of the downtown Yelm commercial
core and data specific to economic activity in Yelm’s commercial core. (His detailed testimony is in sharp contrast to the generalized testimony that was rejected as too vague in West
514.) Based on Dr. Boarnet’s in-depth familiarity with these issues, his knowledge of Wal
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -15 Mart’s plans in Yelm, and his investigation of current conditions in the Yelm downtown core, Dr. Boarnet testified,
without hesitation, that the proposal would have three major impacts: * It would effectively move the downtown core from its current site to the site of Wal-Mart’s proposal; * It would
result in a transformation of the land uses in the present downtown core area; and * It would conflict with one of the central tenets of the City’s Comprehensive Plan. Effectively forcing
the downtown core to move a mile and a half down the road and transforming the nature of the remaining businesses in the (former) downtown area is a huge land use impact. Imagine if
a Comprehensive Plan amendment were proposed to accomplish that result. Would anyone seriously question whether that was a significant change that warranted examination in an EIS? Dr.
Boarnet’s conclusion that the Wal-Mart Supercenter would cause a re-location of the downtown core stems in large part from the likelihood that much of Wal-Mart’s retail sales would be
sales taken from existing businesses in the downtown core. While some of the Supercenter’s sales would reflect customers newly drawn into Yelm, Dr. Boarnet testified that the majority
of Wal-Mart’s sales would be captured from existing stores in the downtown core. Dr. Boarnet explained that at particular risk would be the QFC and Safeway Food Stores. Because QFC anchors
the Nisqually Plaza shopping center, there is a significant risk that the entire retail plaza may go “dark.” In all, Dr. Boarnet identified 18 retailers
in the existing downtown core that would
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 WAC 197-11-060(4)(d) and (e). Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle,
WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -16 be trying to compete head to head with Wal-Mart. Stores like Tim’s Pharmacy, the
True Value Hardware Store, nurseries, jewelers, and other retailers all would be at a substantial risk. Wal-Mart’s real estate consultant, William Reid, agreed that there would be “considerable
competition” between Wal-Mart and the QFC and Safeway. Day 2, Tape 2B, 27:45. Reid speculated that a variety of “niche” retailers might be able to survive but he did not directly dispute
Dr. Boarnet’s fundamental conclusions that the downtown core would shift to the Wal-Mart site and that there would be a significant qualitative change in the type of retailing in the
existing retail center (if retailing survived there at all). Dr. Boarnet also testified that secondary development associated with a Wal-Mart project would exacerbate these significant
trends. Other big box retailers would be attracted to the Wal-Mart “neighborhood,” further undermining the vitality of the existing downtown core. Secondary development around the Wal-Mart
site is probable given the history of development around other Wal-Marts and the evidence of vacant land and interested buyers proximate to the site proposed for Wal-Mart in Yelm. See,
e.g., Testimony of Fryst, Day 1, Tape 1, 58:35. Because SEPA requires consideration of impacts from secondary development,7 the City’s threshold determination has to consider the exacerbation
of the significant impacts that will inevitably result from the secondary development. Dr. Boarnet’s testimony corroborated the testimony from Yelm’s business community. One Yelm retailer
after another --and professional service providers --testified
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -17 that the likely impact of Wal-Mart would be a loss of sales causing financial stress and ultimately closure for many
downtown firms. They testified that the impacts would result not just because of competition but because traffic backups exacerbated by Wal-Mart would choke the downtown commercial core.
See, e.g., Peterson Testimony, Day 2, Tape 2A, 38:55 et seq. (owner of Gordon’s Garden Center). The business owners’ testimony was further corroborated by realtors and consumers who
described how increased traffic congestion would reduce access to downtown businesses, hastening their decline. The testimony of these business owners, realtors and local consumers was
well-informed and to the point. Not only is the Nisqually Delta center at risk; Gordon’s Nursery -the largest retailer in town -and a dozen other retails may be forced to close. Together
with the more academic and analytical approach provided by Dr. Boarnet, the evidence was overwhelming that Wal-Mart would likely cause the demise of the downtown core. That, Mr. Examiner,
is a huge, significant adverse impact, necessitating the preparation of an EIS. While destroying the existing downtown core and effectively moving it to Wal-Mart’s property is a significant
impact in its own right. Dr. Boarnet also identified another significant land use impact: moving the downtown core would be inconsistent with the City’s own Comprehensive Land Use Plan.
Under SEPA, inconsistencies with land use plans is an indication of significant environmental impacts. See WAC 197-11-330(3)(e)(iii) (conflicts with local environmental laws); WAC 197-11-444(2)(b)(i)
((“[r]elationship to existing land use plans”). Notably, the City has adopted its Comprehensive Plan “together with appendices and plans referenced therein” as the City’s official SEPA
policies. YMC
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -18 14.04.027.A. Dr. Boarnet explained that the City’s Comprehensive Land Use Plan includes as Appendix E the proceedings
of an economic development summit which “shall constitute the economic development focus envisioned for the City of Yelm.” Comprehensive Plan, XIII-1. That “economic development focus”
“requires expanded retail services” in the downtown area. Comprehensive Plan, App. E at 13. The plan evinces an effort to strengthen the downtown core --not abandon it. Yet, as Dr. Boarnet
testified, the Wal-Mart Supercenter would likely do the latter, undermining the heart of the Comprehensive Plan’s vision for the downtown core. Wal-Mart’s traffic expert acknowledged
the City’s land use plan seeks to promote livability and a pedestrian friendly environment. Armbruster Testimony, Day 3, Tape 3A, 38:40. This project runs directly counter to that objective.
The Wal-Mart project’s inconsistency with one of the central elements of the City’s Comprehensive Plan requires a finding that the project will have significant adverse land use impacts.As
mentioned earlier, the City’s Responsible Official never gave any consideration to these issues. Not only did he neglect to consider these issues at the time of his threshold determination
but he testified at the hearing that as of that date he still had not given these issues any consideration. Beck Testimony, Day 3, Tape 3B, 26:20. Wal-Mart’s real estate consultant did
not fare much better. He admitted during cross-examination that he had given no consideration to the project’s lack of consistency with the City’s Comprehensive Plan. Reid Testimony,
Day 2, Tape 2B, 37:35. Instead, Mr. Reid predictably trotted out data regarding economic benefits that would result from
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -19 Wal-Mart’s project. But this testimony was irrelevant because in assessing the potential negative impacts of a project,
the Responsible Official is not supposed to balance those against the potential benefits. WAC 197-11-330(5). Further, to the extent that Mr. Reid was attempting to demonstrate that some
of Wal-Mart’s sales would be a “re-capture” of purchases that Yelm residents are currently making outside the community, Mr. Reid failed to recognize (or admit) that this was consistent
with Dr. Boarnet’s testimony. Dr. Boarnet explained that a significant amount (but less than half) of Wal-Mart’s sales would be drawing in purchases that would otherwise occur outside
the community. But, as Dr. Boarnet explained, this does not undermine his opinion that the majority of sales would represent a transfer of sales from existing Yelm retailers to Wal-Mart
--a transfer that coupled with rising traffic congestion will likely doom the existing commercial core. Dr. Boarnet’s testimony should not have been surprising. We have seen this pattern
in this region before. The Tacoma Mall had a significant adverse impact on downtown Tacoma. The Silverdale Mall has left much of downtown Bremerton dark and in tatters for years. Yelm’s
downtown area is not exactly robust. It is unlikely that it can withstand the impacts associated with this proposal. The value judgments of whether, on balance, the community would benefit
by transferring the downtown core from its existing site to Wal-Mart’s property is not the issue. The issue for SEPA purposes is whether there would be significant negative impacts associated
with that transformation. Obviously, there would be. The Responsible Official erred initially in failing to consider this issue and erred a second time in issuing an MDNS. The Examiner
should order the preparation of an EIS because
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -20 of the project’s probable significant adverse land use and urban decay impacts. C. Transportation 1. Concurrency
and SEPA review are not the same SEPA requires a thorough examination of a project’s potential impacts. If multiple methods are available for assessing the impacts, the Responsible Official
cannot arbitrarily limit himself to a single methodology and ignore information generated by other methodologies that indicate that significant impacts will arise. It would be as if
a doctor took the temperature of an ill patient and saw that it was normal and decided not to consider blood pressure results. Even if an insurance company told the doctor it would reimburse
fees only if the patient’s temperature was elevated, the doctor still would have to consider all of the reasonably available medical information to develop a valid assessment of the
patient’s condition. Similarly, here, even if the City Code provides that only one measure of traffic congestion is to be used for its concurrency ordinance, that does not limit the
responsibilities of the SEPA official who has a broader charge to consider all reasonably available information regarding a project’s potentially significant impacts. In this case, all
of the transportation experts agreed that there are multiple methods for assessing traffic congestion. The experts --including the City’s and Wal-Mart’s experts --did not state that
any of them were “better” or “worse” than the others. See, e.g., Testimony of Armbruster, Day 3, Tape 2A, 25:30. All the methods discussed are valid and simply provide different perspectives
on the traffic congestion issue. For SEPA purposes,
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 We do not agree that the City and Wal-Mart have properly construed the requirements of the City’s concurrency ordinance
but that is not the issue here. For purposes of the SEPA argument, we can accept the City’s construction of its concurrency ordinance. We will address that issue in a later section dealing
with the concurrency ordinance specifically. 9 Given the significance of this data and recognition by City staff and Transpo that SEPA requires consideration of more than just narrow
measures of concurrency, why was this data buried in the appendices and not discussed in the body of the TIA? Perhaps the answer lies in the bias displayed by Wal-Mart’s transportation
consultant. That Mr. Armbruster was doing everything possible to paint a Wal-Mart friendly picture was most evident -almost comically so -when he refused to describe the traffic backups
that already plague Yelm Avenue. We all saw it each day coming to and from the hearing. Why couldn’t Mr. Armbruster bring himself to admit it and describe it? See, e.g., Day 3, Tape
1B, 33:30. his bias, so fully displayed then, is also evident, though more subtly, in the way in which he presented -and buried -information in the TIA. Bricklin Newman Dold, LLP Attorneys-at-Law
1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -21 then, the Responsible Official had to consider
all of the information that was generated pursuant to these different methodologies and could not limit his inquiry to a consideration of only the one methodology he thought was required
by the City’s concurrency ordinance.8 This is not a situation where the appellants are seeking to impose on the Responsible Official the obligation to undertake a major analysis as part
of the threshold determination. For the most part, our arguments are based on data and analysis that was created as part of Wal-Mart’s Traffic Impact Analysis (TIA). Information compelling
an EIS is right there --in the TIA. The question is whether the Responsible Official should have considered that information when making his threshold determination. Obviously, given
SEPA’s overarching purposes (e.g., look before you act and to base important government decisions on the best information reasonably available), the Responsible Official could not turn
a blind eye to the data that was contained within the TIA presented to the City as part of the application.9
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -22 In Byers v. Board of Clallam County Commissioners, 84 Wn.2d 796, 802 (1974), the Supreme Court explained that “the
requirements of SEPA may not be thwarted merely because compliance therewith is difficult. ‘It is an attempt by the people to shape their future environment by deliberation, not default.’
Stempel v. Department of Water Resources, 82 Wn.2d 109, 118, 508 P.2d 166, 172 (1973).” Here, compliance with SEPA would not have been “difficult.” Most of the pertinent data was sitting
right in the City’s files. Mr. Shea, the City’s traffic consultant, did not disagree with this analysis. He explained that he asked for more information in the TIA than that necessary
to address the concurrency ordinance because SEPA requires a broader analysis. Testimony of Shea, Day 3, Tape 3A, 27:00. Similarly, Wal-Mart’s traffic engineer, Mr. Armbruster, acknowledged
on cross-examination that while other jurisdictions do not focus on individual turning movements as part of their concurrency analysis, he believes they do consider that information
in their SEPA process. Testimony of Beck, Day 3, Tape 3B, 30:00; Testimony of Bernstein, Day 3, Tape 3A, 30:00. 2. The project will result in major congestion problems at many intersections
in Yelm The traffic volumes at many intersections will increase by 10 to 22 percent as a result of the project. TIA (Ex. 11) at 22 (Table 5). As a result, the level of service for many
turning movements at these intersections will decline significantly. The LOS at ten unsignalized intersections would decrease to LOS D or worse. (The worst movement at five intersections
would decrease from C to D; two intersections would decrease from D to E;
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 The misleading nature of referring only to “overall” intersection LOS instead of individual turning movements is
apparent in this data because the “overall” LOS for all but one of these intersections is A or B. Using that “overall” statistic hides the true impacts imposed on the traveling public
that are trying to make their way through these various intersections. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600
Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -23 two more intersections would decrease from D to F; and one would decrease from E to F, Table 6, pp. 25-26).10
The delay time at these intersections would increase dramatically, too: No. Unsignalized Intersection Baseline Vehicle Delay With Project Vehicle Delay 8 West Yelm Avenue/Cullens Street
100.7 157.8 9 West Yelm Avenue/Longmire Street 32.5 44.6 12 West Yelm Avenue/Edwards Street 102.1 232.7 232.7 13 West Yelm Avenue/Railroad Avenue 58.4 92.9 15 East Yelm Avenue/Second
Street 92.9 495.6 16 East Yelm Avenue/Third Street 161.1 437.4 21 East Yelm Avenue/Plaza Drive SE 236.3 940.2 24 SR 507/Grove Road 27.9 736.1 25 SR 507/Old McKenna Road SE 28.0 60.0
26 SR 507/Vail Road SE 26.2 38.2 Id. Wal-Mart attempted to trivialize these impacts by suggesting that only a few people would be trying to utilize these particular turning movements.
But Table 6 reveals that the total number of vehicles caught in these worst delays (LOS E and F) would total 496. The total number of occupants suffering this delay would be an even
larger number. These are
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -24 hardly insignificant numbers. Moreover, these numbers represent only the number of vehicles caught in the worst peak
hour. The record reveals that traffic congestion in Yelm is not limited to a single hour during the PM rush hour. These delays extend for several hours in the morning and evening (and
with Wal-Mart, may extend throughout the day). The number of vehicles (and a greater number of occupants) suffering these delays must number in the thousands. (An EIS would help pin
this down.) Further, Wal-Mart’s effort to trivialize this data overlooks that this data relates only to the very worst movement at each intersection. At most of these intersections,
the second worst movement is not much better. Wherever a cross street intersects Yelm Avenue, the worst movement typically will be for vehicles approaching from the side street, say
from the south, and attempting to cross over to the side street continuing on the other side (or to make a left hand turn across traffic to get on Yelm Avenue westbound). Yet an almost
equally difficult movement would occur for vehicles approaching Yelm Avenue from the north and attempting to cross Yelm Avenue from that side (or make a left hand turn across traffic
to get onto to Yelm Avenue eastbound). The additional number of vehicles (and the larger number of occupants) caught in this almost equally horrific backup on the opposite side street
is not accounted for at all in Table 6 which tabulates only the vehicles and delay for the very worst movement. Including the number of vehicles (and occupants) attempting to turn onto
(or cross) Yelm Avenue from the opposite side street would nearly double again the number of vehicles (and occupants) suffering through these horrendous delays. Another 406 vehicles
(and their occupants) would would be caught in LOS E or F conditions at the “second
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 These numbers are buried in the TIA’s Appendix C. The intersections with a second leg at LOS E or F which contribute
to the additional 406 trapped vehicles are Intersections Nos. 8, 12, 13, 15, 16 and 21. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel.
(206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -25 worst” movement at those intersections. For instance, there would be another 170 vehicles stalled
in LOS F conditions at East Yelm Avenue/Plaza Drive (Intersection No. 21) and 126 vehicles stalled in LOS F conditions at East Yelm Avenue/Third Street. None of this information was
presented in the body of the TIA or apparently considered by the Responsible Official in making his threshold determination.11 While Mr. Shea did not dispute that the TIA predicts these
significant problems at multiple unsignalized intersections along Yelm Avenue, he testified there really was no way to effectively mitigate that impact. That may be the case. And that
certainly is a worthy subject for review in an EIS. But the possibility that these impacts will be difficult (or even impossible) to mitigate does not undermine in any way that these
impacts are significant and require preparation of an EIS. Mr. Shea’s testimony on this point does not detract from the need for an EIS but rather bolsters it. The few signalized intersections
in Yelm are not spared from Wal-Mart’s traffic woes either. Again, the impacts are not disclosed in the text of the TIA which reports only averages for all movements at a given intersection.
It takes extracting data from the technical appendices to reveal that at the central intersection at 1st and Yelm (intersection No. 14) both the westbound left turn lanes and northbound
through traffic are at LOS E and that even the intersection average using the “ICU” LOS method is LOS E. Even worse, at the Yelm Avenue/Creek Street intersection (No. 22), two movements
would be at LOS E
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 There was no evidence that funding for construction of the bypass is available now or in the foreseeable future.
State Representative Campbell’s letter makes clear that Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300
POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -26 or F and the average of all westbound movements would be LOS F. Over a thousand cars (and their occupants) would be suffering in
these backups. This data for signalized and unsignalized intersections buried within the TIA reveals that the project will have probable significant adverse impacts on Yelm’s transportation
system. Simply put, Wal-Mart’s project is going to make a bad situation even worse and will make it virtually impossible to cross or make left turns onto Yelm Avenue through an increasing
number of hours of the day. Notably, neither Wal-Mart’s nor the City’s traffic consultants disagreed with these central findings in Mr. Bernstein’s testimony. After all, this data is
taken directly from the TIA prepared by Wal-Mart’s consultant. And both Wal-Mart’s and the City’s consultants acknowledged that these other measures of congestion were legitimate methodologies
and should be considered in the SEPA environmental review process. Based on this uncontested testimony, there really can be little doubt that the project will result in probable significant
adverse transportation impacts and that an EIS must be prepared. Beyond these uncontrovertible impacts, Mr. Bernstein identified other issues where it appeared that the TIA failed to
consider important issues or addressed them incorrectly. Perhaps tops on that list is the failure of the TIA --or any other analysis undertaken by the Responsible Official --to consider
the traffic impacts beyond the year 2006. With the exception of a very limited analysis of impacts at a few intersections if the SR 507 Loop opens in 2010,12 Wal-Mart and the City City
conceded that absolutely no consideration was given
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 construction funds are highly uncertain. Ex. 70. Moreover, the “what if” analysis in the TIA analyzed only a small
number of intersections, primarily the intersection of the loop with SR 510 and the project’s driveways. See TIA at 24, 27. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue,
Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -27 to traffic impacts after 2006. Yet SEPA clearly requires a longer
range view than that: Agencies shall carefully consider the range of probable impacts, including short-term and long-term effects. Impacts shall include those that are likely to arise
or exist over the lifetime of a proposal or, depending on the particular proposal, longer. WAC 197-11-060(4)(c) (emphasis supplied). The failure of the City to consider the project’s
long-term transportation impacts violates SEPA’s requirements. Obviously, as traffic, including traffic from Wal-Mart patrons, increases in future years, the project’s impacts will be
even worse. While in 2006 the project might cause a given intersection to degrade only from LOS B to C (and therefore not be considered a particularly significant impact), in a future
year, the project might cause that same intersection to degrade from LOS D to E (or E to F). That future year impact might be much more significant than the impact assessed in 2006 only.
Further, as Mr. Bernstein testified, the City’s analysis failed to consider the project’s traffic impacts on future development potential in the City. If the project consumes whatever
limited capacity is remaining on Yelm Avenue, it will be virtually impossible for any other new development to occur. Does the City want to put all of its development potential “eggs”
in one basket? Nowhere has the City considered the adverse impacts of devoting all of its remaining transportation capacity to this one project. The City’s failure to consider this negative
effect further underscores the impropriety of the MDNS. (It also
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -28 underscores the interconnection between the land use impacts discussed by Dr. Boarnet and the transportation impacts
discussed by Mr. Bernstein.) Again, there was no conflicting testimony from the other traffic planners or the City’s Responsible Official. The Responsible Official does not dispute that
he failed to consider these future year impacts in making his threshold determination. There is no indication that he gave any consideration to the impact of future congestion on the
ability of other development to proceed. The TIA also failed to consider traffic impacts in the context of the amount of time it would take to get through town. As Mr. Bernstein explained,
the “urban street segment LOS” is the tool used to provide this important information. This yardstick measures delays suffered by through traffic (as opposed to delays at intersections
alone). Mr. Bernstein testified that it appears that the urban street segment LOS for Yelm Avenue already is at LOS F and that this critical measure of traffic congestion needs to be
studied in the context of the Wal-Mart project and its impacts. Bernstein Testimony, Day 2, Tape 4, 31:00-34:16 and Ex. 120. See also Testimony of Staples, Day 2, Tape 1A, 9:57 (17 minutes
to go one mile in Yelm); Testimony of Sacreta, Day 1, Tape 2B, 26:40 (45 minutes to get through Yelm). The only area in which Mr. Bernstein suggested there was a significant flaw in
the work presented in the TIA (as opposed to critical evidence buried in appendices or issues not addressed at all) was with regard to the analysis of the SR 507/SR 510 intersection.
We have already demonstrated that even as reported in the TIA, the project will cause significant
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -29 adverse impacts at that intersection. But Mr. Bernstein indicated that the calculations in the TIA understated the
impacts and that the probable traffic congestion at that intersection would be even worse than projected in the TIA. Mr. Bernstein explained that the analysis of that intersection is
based on traffic counts taken in January --typically the lowest travel month of the year. As Mr. Bernstein explained, WSDOT requires that January counts be factored up by 10 to 20 percent
but that was not done in the TIA. Mr. Bernstein also explained the deficiency in the TIA’s use of the “peak hour factor.” Day 2, Tape 4, 23:27 et. seq. Correcting for these deficiencies,
Mr. Bernstein (using the same computer program as was used in the TIA) testified that the traffic traffic impacts at this key intersection would have degraded even more than reported
in the TIA. In particular, the westbound left turn would fall to LOS F. See Ex. 119 and Bernstein Testimony. Mr. Bernstein’s testimony was underscored by the testimony of numerous Yelm
area residents who testified from personal knowledge about the transportation network, current levels of congestion, and the reasonably foreseeable congestion that would result with
all the additional vehicles forecast to be attracted to the Wal-Mart Supercenter. These residents know the “ins and outs” of the Yelm road network better than anyone. Some of them had
spent considerable time documenting travel time information that highlighted the congestion levels already present in Yelm and the inability of that system to accept even more cars without
grinding to a halt for more time each day. See, e.g., Testimony of Nichols, Day 1, Tape 4, 38:00. As Mr. Bernstein explained, if one thinks traffic is bad now at certain hours of the
day and it cannot get any worse, one only has to recognize the phenomenon of
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law
1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -30 “peak hour spreading.” That is, if there
now are one or two hours per day when traffic is at a virtual standstill, Wal-Mart’s impacts will not make those hours any worse (unless the cars start going backwards), but it will
increase the number of hours per day when those gridlock conditions persist. The jams will start earlier, last longer and spread onto adjacent streets. Extending those terrible conditions
to more and more hours of the day is a significant impact in and of itself. These traffic jams also increase the need to study related safety issues. As Mr. Bernstein testified (and
everyone knows) frustrated drivers are more likely to make bad decisions. These traffic jams are in front of two public schools. Neither the TIA nor the Responsible Official gave any
serious attention to these hugely significant issues. See, e.g., Testimony of Shea, Day 3, Tape 3A, 9:20 et seq. (ignored pedestrians at unsignalized intersections). In sum, by numerous
and various measures, most of them documented in the appendices of the TIA, this project will result in probable significant adverse impacts to Yelm’s transportation system. The Responsible
Official erred in not considering all of this information and erred in not requiring an EIS. D. Stormwater/Ground Water Impacts Analytically, this issue has some similarity with the
transportation issue. Here again the City was confronted with multiple methodologies for assessing the project’s impacts. Where one of those methodologies indicated uncertainty about
potentially significant groundwater impacts, the City could not turn a blind eye and claim its stormwater manual
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -31 was based on a different methodology. Whatever methodology is required for code compliance purposes does not limit
the field of inquiry for SEPA purposes. In this case, the staff report acknowledged the relevance and utility of assessing groundwater impact issues by utilizing the Thurston County
method (even though the Thurston County method is not used for Yelm code compliance purposes). Appellant’s stormwater/groundwater expert, Ed Wiltsie, made clear that significant information
required by this analytic method remained unknown. In particular, the Thurston County method requires (understandably) knowledge of the groundwater level beneath an infiltration pond
to assess the rate at which waters in the infiltration pond will dissipate into the earth. But if groundwater levels are within six feet of the bottom of the infiltration pond, the groundwater
will interfere with seepage from the pond. Depending on how close the groundwater level is, seepage from the pond can be reduced dramatically (by 90 percent or even more). Testimony
of Wiltsie, Day 3, Tape 3B, 42:00 et seq. The problem with the data available to the City is that there is considerable uncertainty as to the groundwater level beneath the proposed stormwater
pond. No borings had been done directly beneath the pond site during times of the year when groundwater levels would be at their highest. As a result, Wal-Mart’s consultants were forced
to guess and speculate as to what the groundwater levels would be during the wettest months of the year and during particularly wet years (as opposed to average or dry years). While
time might not have permitted waiting for a particularly wet year, there certainly was an opportunity to monitor groundwater levels at the site during the wettest times of the year so
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -32 that at least one part of the extrapolation could have been avoided. Mr. Wiltsie explained that Wal-Mart’s speculation
as to the groundwater levels beneath the site were not likely to be correct not only because they failed to take measurements at times of the year when groundwater levels were highest,
but because the extrapolated groundwater levels did not match data available on-site and adjacent to the site. For instance, borings from two holes indicated that groundwater levels
may be rising from east to west across the site contrary to Wal-Mart’s informed speculation that the groundwater levels were rising from west to east. Wiltsie Testimony, Day 3, Tape
4A, 11:40. Moreover, Wal-Mart’s informed guesswork did not account for the likelihood that groundwater groundwater levels were higher as one moves away from the creek and drainage ditch
where the aquifer discharges. Nor did Wal-Mart’s extrapolation of the possible groundwater level account for perched groundwater. That potential has to be addressed because there is
evidence of perched groundwater on-site. Id. at 12:00 Mr. Wiltsie emphasized that the first step in the Thurston County methodology is to determine as accurately as possible the groundwater
level beneath the detention pond --and that was not done here. Id. at 13:40. That should have been accomplished by installing monitoring wells and collecting data from them during the
wet season. Id. at 14:45. Then, that groundwater level should have been factored up to account for the possibility of unusually wet years. That was not done either. Id. at 15:45. Then
the infiltration gallery should have been designed to assure the elevation met the six foot separation criteria. But because the maximum groundwater level was not accurately assessed,
there was no way to
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -33 know whether the six foot separation criteria has been met. Id. at 17:30. The failure to the Responsible Official
to adequately assess this issue could have major repercussions. Mr. Wiltsie explained (and the undisputed testimony demonstrated) that this is an area of significant groundwater and
flooding concern. If the stormwater system fails, stormwater from the extensive impervious surfaces (rooftops and parking lot) will spill out to nearby lowlands at much faster rates
than would occur if the site were left in its relatively undeveloped condition. Flooding would be only part of the problem, though. Contaminants in the stormwater would be released into
an area that serves to recharge a shallow drinking water aquifer. Id. at 26:00. Thus, given local hydrology and groundwater conditions, serious quantity and quality issues loom if the
system has not been designed properly. The uncertainties regarding this issue provide yet another grounds for requiring preparation of an EIS. As mentioned earlier, the SEPA rules provide
that if important information is lacking and the costs of obtaining it are not exorbitant, “agencies shall obtain and include the information in their environmental documents.” WAC 197-11-080(1).
The data gaps surrounding this issue are of major significance. Tremendous volumes of stormwater are supposed to be collected and treated in the system the City has approved. Yet the
viability of that system hinges on adequate separation between the bottom of the pond and the groundwater table below. An adequate investigation of that groundwater table has not been
completed. An EIS should be prepared to be certain that these stormwater and groundwater issues are addressed appropriately.
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -34 Mr. Wiltsie testified to additional concerns regarding these issues. He noted that it is unusual for stormwater systems
to rely on power. The norm is to allow gravity to move stormwater to ponds and other stormwater facilities. But Wal-Mart’s engineers chose to locate the pond at the highest point of
the site. As a result, the stormwater plan relies on electrically powered pumps to make the system work. We all know about the prevalence of power outages during particularly stormy
weather in this region. As Mr. Wiltsie explained, even stormwater systems with backup generators have failed causing some jurisdictions to prohibit electrically powered stormwater systems
altogether. Id. at 25:30. Whether the City should allow such a system is a policy issue that does not need to be resolved in the SEPA context. The issue is whether the City has adequately
considered the potential for a power failure and the consequences if that causes a disruption in the stormwater system. There is absolutely no evidence that the City has given any consideration
to that potential --despite the evidence that that potential is very real. (Real enough that Thurston County has prohibited these systems altogether. Id. at 27:45.) An EIS could address
these issues and others identified by Mr. Wiltsie. Mr. Wiltsie testified that the aquifer was vulnerable to contamination from pesticides and herbicides that would not be captured by
the stormwater treatment system. Id. at 29:00. He also explained that certain types of filter media (i.e., compost) could leach out phosphorous which could contaminate the aquifer, too.
Id. at 33:25. Preparation of an EIS would assure that all of these issues were adequately analyzed before virtually irreversible decisions were made. For once an aquifer is contaminated,
it is very difficult, very time consuming, and very
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -35 expensive to clean it up. In assessing the relative significance of potential impacts, the SEPA regulations direct
that consideration be given to “context and intensity.” WAC 197-11-794(2). The regulation explains: “The context may vary with the physical setting. Intensity depends on the magnitude
and duration of an impact.” Id. Clearly the potential for contaminating a drinking water aquifer is an impact which is of sufficient “magnitude” and “duration” that it should be judged
“significant” for purposes of requiring an EIS. The City or Wal-Mart may argue that power failures and other concerns raised by Mr. Wiltsie are unlikely to materialize. But the SEPA
rules instruct: “An impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred.” Id. Groundwater contamination
and flooding are just the type of “severe” impacts that rise to the level of “significant” even when the risk of the impact is not as great as, say, the likelihood that this Wal-Mart
will exacerbate traffic jams in downtown Yelm. The impacts are severe enough and the likelihood of occurrence large enough that an EIS should be prepared to examine these stormwater/groundwater
issues. E. Wetlands The wetlands issue is yet another one where the City has not adequately analyzed the situation and is making a threshold determination based on superficial information.
There were three principal problems with the wetland information provided by Wal-Mart. One, Wal-Mart’s expert did his site investigation during the driest time of the year (early October).
See, e.g.,Testimony of Shiels, Day 2, Tape 3B (20:50). He collected
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(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -36 additional data the next summer and missed the chance to collect information during the intervening wet season, though
he admitted that data would be “interesting.” Id. at 23:30. What little rain begins to fall in late September and early October is not sufficient to restore typical wetland vegetation.
As Ms. Haslinger testified, the search for wetland vegetation could not have been undertaken at a worst time of the year. Second, the search for wetland vegetation failed to take into
account and acknowledge the land was subject to heavy grazing. Ms. Haslinger explained that this situation calls for fencing off a small plot to allow wetland species an opportunity
to revegetate. Wal-Mart’s consultant acknowledged that this was not done either. Because Wal-Mart’s search for wetland vegetation was limited to the driest time of the year in a heavily
grazed pasture with no effort made to allow the wetland vegetation to re-vegetate itself, the wetland study presented by Wal-Mart was inadequate to make a wetlands determination. If
this site were far removed from any wetlands, perhaps the significance of this low quality work could be overlooked. But the undisputed testimony is that a significant wetland runs close
to and perhaps through the northeast corner of the site. Failing to observe proper protocols in this situation cannot be excused. Ms. Haslinger identified another procedural error in
the wetland evaluation process. Inexplicably, Wal-Mart’s consultant failed to provide the City with the “data sheets” which are the staple of any wetland determination/delineation. Mr.
Shiels claimed that the data sheets were not presented because he was so sure of his conclusions. That hardly is an adequate response. Among other things, it deprives the City from reviewing
the
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(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -37 information. It is the City’s responsibility --not Wal-Mart’s paid consultant --who is responsible for making the
threshold determination. Deprived of the basic underlying data sheets, there is no way that the City’s Responsible Official could assess the strength (or weakness) of Mr. Shiels’ conclusions.
The SEPA rules require the Responsible Official to “independently evaluat[e]” the applicant’s responses during the threshold determination process. WAC 197-11-330(1)(a)(i). This obviously
was not done on this issue (as with so many others). F. Conclusion We have demonstrated that there are multiple grounds for requiring preparation of an EIS. Citizen comments also referenced
additional issues that would be worthy of evaluation in an EIS. For example, numerous parents, teachers and health professionals raised the concern that school children were already
spending over two hours per day on the bus. This amount of time is already burdensome and disruptive to family life, causing inadequate time for sleep and eating breakfast, which results
in both poor attendance and ability to study. (Parents Bott, Peterson, and Hald; School Teacher Beverly; Student Fryst; Health Professionals Olson, and Elledge). Jerry Jenkins, Director
of the Yelm Schools Transportation System, in his letter stated that 12 buses, containing 600 school children would be affected as they drove by the proposed site in the afternoon. The
citizens also requested information from their elected representative, Tom Campbell, who serves on the House Transportation Committee, as to the likelihood of funding the proposed Y2/Y3
loop and as to the veracity of the application's use of the year
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -38 2010 as the completion date for the loop. He stated in his letter, “Given the current very real possibility that
I-912 the Gas Tax Repeal will be adopted by the voters I am not even certain that we will be able to deliver the northern spur portion by the projected completion date of 2012.” Ex.
70. Coupled with the lack of analysis of the project's 2010 impacts, his concluding sentence is revealing: “I do not believe that we can honestly guarantee the needed funds to properly
handle the added traffic that this development will require.” Id. The evidence demonstrates overwhelmingly that the City failed in its responsibilities to independently evaluate the
environmental issues at the threshold stage and failed to develop an adequate record for making the threshold decision. But now, through this appeal process, an adequate record has been
made that demonstrates a clear need for an EIS. The Examiner should reverse the MDNS and order preparation of an EIS. III. SITE PLAN REVIEW A. If an EIS is Required, the Site Plan Review
Automatically Must be Vacated If the Examiner agrees that an EIS is required, then review of the site plan approval is unnecessary. As Mr. Beck acknowledged during his testimony, the
site plan approval must be preceded by adequate environmental review. See WAC 197-11-055(1); (2)(a); (2)(c); -400; -460; -655. If the environmental review process needs to be resumed,
then the site plan approval must be vacated. See, e.g., Leschi Improvement Council v. Washington State Highway Commission, 84 Wn.2d 21 at 279 (1974); Noel v. Cole, 98 Wn.2d 375 (1982);
Eastlake Community Council v. Roanoke Associates, 82 Wn.2d 475, 513 P.2d 36 (1973) (failure to file EIS before building permit renewal was issued rendered the permit
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax
(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -39 void). The additional information to be developed in the EIS process will help inform the City’s decision on the
site plan review including the potential need to impose additional mitigation measures pursuant to the City’s SEPA substantive authority. See RCW 43.21C.060; WAC 197-11-660; YCC 14.04.110.
B. Substantive Review of the Site Plan Approval The site plan approval also should be reversed because Wal-Mart has not established that it meets the requirements of all applicable City
codes. A site plan cannot be approved without such a showing. YCC 17.84.020.C. Most notably, Wal-Mart has failed to meet its burden of demonstrating that it complies with the City’s
transportation concurrency regulation. (With respect to the site plan approval, Wal-Mart bears the burden of proof. The site plan comes to the Hearing Examiner with only a recommendation
from staff that the site plan be approved. YCG is not the appellant and does not bear the burden of proof.) Yelm’s concurrency determination was flawed because it was based on a misunderstanding
of the concurrency standard for the State Routes passing through the City. The City (staff and consultants) mistakenly believed that the City’s concurrency standards were applicable
not only to City roads but also to the State Roads inside Yelm’s borders. The City is wrong. State law is explicit that the LOS standards for state roads are set by the applicable Regional
Transportation Planning Organization (RTPO): (1) each regional transportation planning organization shall develop in cooperation with the Department of Transportation, providers of public
transportation and high capacity transportation, ports, and local governments within the region, adopt, and periodically update a regional transportation plan that:
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 For a limited number of State Roads deemed to be of “statewide significance” the State Department of Transportation,
not the applicable RTPO, sets the LOS standard. RCW 47.80.030(1)(c). But neither SR 507 nor SR 510 have been classified as roads of “statewide significance,” (see Washington State Transportation
Commission, Resolution 660 (http://www.wsdot.wa.gov/ppsc/hsp/hss.htm). Therefore, the RTPO sets the LOS for both of them. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue,
Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -40 *** (c) Establishes level of service standards for state highways
and state ferry routes, with the exception of transportation facilities of state-wide significance as defined in RCW 47.06.140. These regionally established level of service standards
for state highways and state ferries shall be developed jointly with the Department Department o Transportation, to encourage consistency across jurisdictions. In establishing level
of service standards for state highways and state ferries, consideration shall be given for the necessary balance between providing for the free interjurisdictional movement of people
and goods and the needs of local commuters using state facilities; RCW 47.80.030 (emphasis supplied)13 The applicable RTPO in this instance is the Thurston Regional Planning Council
(TRPC). The TRPC has set the LOS for state roads in the southern part of Thurston County at LOS D. Testimony of Bernstein (Day 2, Tape 3B, 43:09). City staff and the City’s transportation
consultant testified --mistakenly --that the LOS for SR 507 and 510 inside the City of Yelm was set by the City at LOS F. See, e.g., Testimony of Shea, Day 3, Tape 3A, 35:40. The City
staff and consultant were wrong as a matter of law. Their concurrency determination is fatally flawed as a result. Once it is recognized that the applicable LOS standard is LOS D, it
becomes evident
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 Of the failing intersections, several of them would not have been failing but for the project or decreased from
LOS E to LOS F because of the project: Intersections No. 9, 10, 14, 24, 25, and 26. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206)
264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -41 that the project does not satisfy concurrency requirements. Several turning movements on intersections
along SR 507 fall below LOS D. In particular, according to the TIA, the following intersections do not pass concurrency: No. Intersection Name LOS in 2006 with Project 6 West Yelm/Mountain
View Road E 8 West Yelm/Cullens Street F 9 West Yelm/Longmeyer Street E 10 West Yelm/Solberg Street F 12 West Yelm/Edwards Street F 13 West Yelm/Railroad Avenue F 14 Yelm Ave/First St.
E 15 East Yelm/Second Street F 16 East Yelm/Third Street F 21 East Yelm/Plaza Drive SE F 24 SR SR 507/Grove Road F 25 SR 507/Old McKenna Road SE F 26 SR 507/Vail Road SE E TIA, Table
6 (pp. 25-26).14 Finally, the project fails the concurrency test even if one were to apply, erroneously, the City’s LOS standards. This City’s LOS standards are found in its Comprehensive
Transportation Plan. The LOS standard for “all commercial and light industrial zones” as
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 There are yet other dubious assumptions made by the City staff (and its consultant) in construing the City’s LOS
standard. As Mr. Bernstein testified, the description of the City’s LOS standard fails to specify what method is to be used to calculate LOS. All of the transportation issue planners
testified acknowledge that multiple methods are available. See, e.g., Testimony of Arbruster, Day 3, Tape 2A, 25:30. Further, Mr. Bernstein explained -and no one disputed it -that using
various methods to calculate LOS along Yelm Avenue would result in LOS E or F at various intersections as well as along the length of Yelm Avenue itself (using the “urban street LOS”
method). The City’s decision to utilize the only LOS method which would result in a “passing grade” and to reject use of all the other LOS methods which would have demonstrated a concurrency
failure is arbitrary and lacks any support in the record. Absent some indication that the City Council intended staff to utilize Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth
Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -42 LOS D. Yelm Comprehensive Transportation Plan (Jul.
2001) at 2. The City makes an exception and allows LOS F in the urban core under limited conditions. Those conditions do not apply here. According to the Yelm Comprehensive Transportation
Plan: In the urban core, LOS F is recognized as an acceptable level of service where mitigation to create traffic diversions, bypasses, and alternate routes and modes of transportation
are authorized and being planned, funded and implemented. Id. at 3 (emphasis supplied). There is no evidence provided by Wal-Mart or the City that there are any “traffic diversions,
bypasses, alternate routes or alternate modes of transportation” that are being “planned, funded and implemented” that would mitigate the current traffic congestion on Yelm Avenue. It
appears that the City staff has erroneously read this provision to provide carte blanche use of LOS F “in the urban core,” without giving any recognition to the rest of the provision.
The City Council in adopting this provision clearly limited the application of the LOS F in the urban core to a specific situation which does not exist here. Thus, even if reference
were made, erroneously, to the City’s LOS standards, the result would be the same as when reference is made, correctly, to the LOS D standard established by the Thurston Regional Planning
Council.15
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 only the one LOS standard that it decided to use in this case, the currency determination should be made by reference
to all applicable LOS methods. The City should not be allowed to pick and choose among them. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154
Tel. (206) 264-8600 Fax (206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -43 IV. CONCLUSION The Examiner’s attention throughout the lengthy hearing and while reading
these lengthy briefs is appreciated. The citizens and all counsel also appreciate the Examiner’s kind words at the conclusion of the hearing. A Wal-Mart Supercenter is not like any other
commercial development. Wal-Mart Supercenters compete in a very broad range across the retail spectrum. They have unusual power to drastically shape and re-shape the urban environment.
In Yelm, a supercenter located at the far end of town has the ability to destroy the downtown core core and effect its relocation to and around the Supercenter property. These are monumental
issues for a town like Yelm and need to be thoroughly examined in a comprehensive environmental impact statement. The traffic, stormwater/groundwater, wetlands, and numerous other issues
identified by the citizens also require detailed study in an EIS. Decisions of this magnitude should be preceded by preparation of an EIS to assure that environmental consequences, if
they arise, are the result of “deliberation, not default.” Stempel, supra. Numerous times during the hearing, staff was commended for its responsiveness to citizen requests for information.
We echo that appreciation at this time. But unfortunately, being responsive to citizen information requests is not the same thing as properly discharging responsibilities under SEPA.
It appears that staff was too willing to accept Wal-Mart’s submissions at face value and that staff failed to undertake the independent evaluation
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(206) 264-9300 POST-HEARING OPENING BRIEF OF YELM COMMERCE GROUP -44 required by SEPA. Had an independent inquiry been undertaken by City’s staff and its consultants, they surely would
have recognized the need for an EIS. The results of an independent inquiry, performed and funded by the citizens, have now been presented to the Examiner who can correct the staff’s
erroneous threshold determination. In sum, we request that the Examiner direct the issuance of a Determination of Significance for a comprehensive Environmental Impact Statement. The
Examiner should take no action on the site plan application
until after the environmental review process is complete. If the Examiner were to address the substance of the site plan application, that application should be denied because it fails
the transportation concurrency test. Dated this _____ day of September, 2005. Respectfully submitted, BRICKLIN NEWMAN DOLD, LLP By: s/David A. Bricklin David A. Bricklin WSBA No. 7583
Attorneys for Yelm Commerce Group YCG\Post-Hearing Brief