replybriefycg123456789 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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -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
YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF I. APPEAL OF THE MDNS: THE THRESHOLD DECISION DID NOT FOLLOW THE CORRECT PROCESS AND REACHED THE WRONG RESULT A. SEPA’s Requirements It
is not unusual for there to be uncertainty regarding potential environmental impacts at the threshold determination stage. After all, at that stage, predictions are being made without
the benefit of a full Environmental Impact Statement. The existence of uncertainty, especially regarding important environmental issues, underscores the need for an EIS so that the uncertainty
can be resolved or at least reduced: Preparation of an EIS is mandated where uncertainty may be ?????be resolved by further collection of data, see [Blue Mountains Biodiversity Project
v. Blackwood, 161 F.3d 1208, 1213-14] (lack of supporting data and cursory treatment of environmental effects in [environmental assessment] does not support refusal to produce EIS),
or where the collection of such data may prevent “speculation on potential . . . effects.
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -2 The purpose of an EIS is to obviate the need for speculation by ensuring that available data are gathered and analyzed
prior to the implementation of the proposed action.” [Sierra Club v. United States Forest Service, 843 F.2d 1190, 1195 (9th Cir. 1988)]. National Parks and Conservation Association v.
Babbitt, 241 F.3d 722, 732 (9th Cir. 2001), cert. denied sub nom Holland America Line-Westours, Inc. v. National Parks and Conservation Association, 534 U.S. 1104 (2002). Wal-Mart and
the City seek to impose the wrong standard on the appellant. It is not our burden to prove with certainty the magnitude of impacts that will result from Wal-Mart’s project. Assessing
impacts with greater certainty is the job of the EIS. We meet our burden by demonstrating that the City failed to collect the information it needed to make a threshold determination
and that the information now presented to the Examiner demonstrates that there may be significant adverse environmental impacts. The EIS will serve to resolve uncertainties, explore
alternatives, and develop mitigation measures to reduce the adverse impacts. Failing to prepare an EIS terminates prematurely the process of assessing impacts and developing the best
strategy for avoiding or reducing them. Given the potential magnitude of those impacts in this case, an EIS is desperately needed to assure that the City makes well-informed decisions
as it processes Wal-Mart’s permit applications. In pressing its case for more certainty at this threshold decision stage, Wal-Mart contends that Yelm Commerce Group’s experts should
have, but did not, undertake their own site-specific analyses. Wal-Mart Br. at 7:11. That is an inaccurate statement, legally and factually.
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -3 Legally, it is incorrect because the level of detail Wal-Mart seeks is required at the EIS stage, not now. It is not
the citizen’s job to prepare (and fund) the EIS for the City. Factually, it is incorrect because all of YCG’s experts conducted some site-specific analysis. They may not have set foot
on Wal-Mart’s private property but that does not mean that their studies were not specific to the Wal-Mart project. Mr. Bernstein, for instance, did not need to set foot on Wal-Mart’s
property to review Transpo’s assessment, to conduct his own re-calculations, or to do a limited travel time study through Yelm. Similarly, there is no indication that Dr. Boarnet needed
to set foot on Wal-Mart’s property to conduct his study. Dr. Boarnet did collect data specific to Yelm; Yelm; he surveyed the Yelm downtown area personally; and he had conversations
with informed citizens about Yelm’s business climate. That certainly constitutes some level of a site-specific analysis, Wal-Mart’s claims notwithstanding. Similarly, both Mr. Wiltsie
and Ms. Haslinger conducted their reviews specific to the Wal-Mart property. They reviewed the same technical data that was reviewed by Wal-Mart’s (and, perhaps, the City’s) consultants.
They both are personally familiar with the physical land forms on the property and in the vicinity because they live in the area. To claim that their assessments were not “site-specific”
is nonsense. Wal-Mart also claims that YCG’s witnesses did not perform “an independent analysis.” Wal-Mart Br. at 7:11. Yet, YCG’s experts certainly were more “independent” than Wal-Mart’s
paid consultants. The citizens who testified with personal knowledge about Yelm’s environment certainly brought an “independent” assessment to the situation, too.
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 WAC 197-11-330(1)(a)(i). Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154
Tel. (206) 264-8600 Fax (206) 264-9300 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -4 Moreover, it bears repeating: It is not YCG’s burden to conduct the analysis that SEPA requires
to be performed by the City. It is the City that is responsible for collecting sufficient information early on to make a reasonable threshold determination and, later, to acquire additional
information to complete an EIS. The issue is not whether YCG’s witnesses conducted an “independent analysis.” The issue is whether the City met its duty to “independently evaluat[e]”
Wal-Mart’s information1 and whether the evidence now before the Examiner demonstrates the need for an EIS. B. Land Use Impacts 1. Dr. Boarnet’s and Mr. Reid’s testimony Wal-Mart notes
that Dr. Boarnet addressed land use impacts though he is “an economist by training.” Wal-Mart Br. at 8:18. But his curriculum vitae and testimony reveal that his education and professional
experience are far broader than that. He received a Masters in Public Affairs from Princeton University and received his Doctorate based on a Ph.D. dissertation entitled “Intra-Metropolitan
Growth Patterns: The Nature and Causes of Population and Employment Changes Within an Urban Area.” Ex. 93. He currently serves as the Chair of the Department of Planning, Policy, and
Design at the University of California-Irvine. He previously was the Graduate Advisor and Director of Masters and Ph.D Programs at that University’s Department of Urban and Regional
Planning and served as a professor in that department for many years. Id. Wal-Mart’s efforts to limit Dr. Boarnet’s credentials are baseless.
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -5 Dr. Boarnet certainly is far more broadly qualified than Mr. Reid whose education is exclusively in economics and whose
emphasis in his professional work has been on economics, project management, and feasibility studies with very little experience (if any) in assessing land use impacts. See Ex. 102 (Reid
Resume). On the same page that Wal-Mart attacks Dr. Boarnet’s qualifications, it makes the equally astounding claim that YCG presented “no evidence” that Wal-Mart would be a significant
competitive force, cause businesses to fail, or induce urban blight. Wal-Mart Br. at 8:12-14. No evidence? Dr. Boarnet’s testimony provided extensive evidence of these impacts. Dr. Boarnet
explained that his analysis included a review of a list of 175 stores in Yelm provided to him by YCG. Dr. Boarnet confirmed that the list was comprehensive by comparing it with data
available from Dun & Bradstreet. Indeed, Dr. Boarnet testified that YCG’s list appeared to be more comprehensive than the Dun & Bradstreet data. Further, of the 175 stores, 18 were in
categories that compete directly with Wal-Mart. Dr. Boarnet explained that this is based on studies by Stone which identify specific store types that compete with and experience sales
losses when Wal-Mart enters a market (e.g., apparel stores, drug stores, jewelry stores, hardware stores). Day 2, Tape 1B, 22:30. He did not include general purpose auto part stores
(e.g., Schucks) despite Stone’s study showing that auto part stores do poorly in competition with Wal-Mart because of the possibility that national or regional chains might be able to
survive. He thus used his surveillance of the town to make modifications and fine tune the list to the specific situation in Yelm. He also noted that the eight stores were clustered
in the downtown core so that
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -6 cumulative impacts of their closures would be more hard-felt. Day 2, Tape 1B, 22:50-25:35. Two stores (QFC and Sunbirds)
that make up 75% of the Nisqually Plaza Center are at risk, meaning the viability of the whole shopping center is in question. The hardware, pharmacy and nursery that “anchor” the other
end of the downtown core are also at substantial risk. Id. The result is a significant possibility that vacated space will be left in the downtown core that will create an “eyesore,”
impact aesthetics and create adverse land use impacts. Id. This is a significant analysis provided by citizens at the threshold determination stage. It is totally unfair for Wal-Mart
to characterize this as “speculative.” This analysis demonstrates the real potential for the loss of many retail establishments in Yelm’s downtown core. It is precisely the level of
detail that is appropriate at the threshold determination stage to demonstrate the need for an EIS. Apparently, Wal-Mart’s “no evidence” claim is based on Wal-Mart’s characterization
of all of Dr. Boarnet’s testimony as “speculation.” If so, Wal-Mart would have to characterize their own witness’ (Mr. Reid’s) testimony as speculation, too. Mr. Reid acknowledged, for
instance, that: “Competition from Wal-Mart’s planned grocery store component will likely pose considerable competition against [QFC and Safeway].” Ex. 103 at 8. There is no evidence
that Mr. Reid had any better information than Dr. Boarnet regarding the QFC and Safeway, yet he was able to opine that the Wal-Mart would “pose considerable competition against these
two large grocers.” Wal-Mart attacks Dr. Boarnet’s reliance on studies from other states. Wal-Mart fails
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -7 to note that their own expert relied on the same Iowa study by Ken Stone. See Exhibit 103 at 7 and note 3. We also note
that these studies were cited favorably by the California Court of Appeals in a case equally far removed (temporally and geographically) from Iowa and the other states where these studies
were conducted. See Bakersfield Citizens for Local Control v. City of Bakerfield, 124 Cal. App. 4th 1184, 1209-10 and n.5 (2004). Dr. Boarnet provided ample testimony, explaining the
reasonableness of relying on these studies. See, e.g., Day 2, Tape 1B, 43:00 (national studies show consistent results); id. at 45:00 (national studies provide good background of what
can be expected when Wal-Mart enters a market). Moreover, Wal-Mart’s attack on the studies ignores the role the studies play in economic theory. It does not require a detailed study
to postulate that a large, low-priced retail competitor in a small town would be expected to do two things --expand the market area (reverse leakage) and displace local stores. The larger
the new retail store relative to the market, the more likely both things, including displacement of local stores, will occur. The three studies cited by Dr. Boarnet provide empirical
evidence for this economic theory. Taken literally, Wal-Mart and the City seem to imply that no study other than a study of Yelm in the current time period could inform the City’s situation
--an overly strict criterion, especially at this threshold determination stage. We agree that a study specific to Yelm in 2005 is important to eliminate the uncertainty. That is exactly
what would be achieved if an EIS is prepared. Wal-Mart’s efforts to demonstrate that the studies in other states may not exactly fit the Yelm situation merely underscores the necessity
for a full evaluation of this critical issue in a Yelm-specific
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -8 EIS. Only by conducting such a study can the decision-maker be informed of the true land use impacts stemming from Wal-Mart’s
expected economic dislocations. Wal-Mart attempts to paint Dr. Boarnet as backtracking on his testimony with regard to the size of Wal-Mart relative to the surrounding market. Dr. Boarnet
did not change his testimony. Rather, he explained that Wal-Mart’s size relative to the surrounding market depends, of course, on how you define the surrounding market. On direct, Dr.
Boarnet testified to Wal-Mart’s size compared to the market in Yelm. On cross-examination, he was asked to compare Wal-Mart’s market to the larger market included within four zip codes
surrounding Yelm. Dr. Boarnet did not change his testimony; he was asked to answer a different question. Not surprisingly, Wal-Mart’s share of the larger four zip code market is smaller
than its share of the Yelm market alone. But, as Dr. Boarnet explained, that different comparison really did not change the underlying import of the data. Even utilizing the large, four
zip code area, Wal-Mart’s projected sales are 52 percent of the total consumer market demand for groceries and 65 percent of the total market demand for discount retail. Thus, even applied
to that large, four zip code area, Wal-Mart’s expected sales remain huge. While Wal-Mart inquired of the comparison to the larger four zip code market area, Day 2, Tape 2A, 00:47, the
more salient comparison is the one with the Yelm market demand because the issue is the extent to which Wal-Mart will put Yelm retailers at risk, id. at 10:45-11:34. But whether the
comparison is made to the market demand in the City of
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 During cross-examination, for the sake of argument, Dr. Boarnet assumed that population in the four-zip code area
would double between 2000 and 2010. This seems like an extraordinarily high and unlikely growth rate and probably inappropriate. Id. at 17:30-19:00; id. at 19:35-20:10. Even assuming
that, Wal-Mart’s sales within that larger area still would equal 25 percent of demand. The point remains the same. Wal-Mart’s sales are large relative to the market area and so some
stores are likely to go out of business. Id. at 19:25 An EIS provides the opportunity to assess this issue in more detail and analyze the land use impacts that will result from the likely
loss of a significant number of retailers in Yelm. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300
YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -9 Yelm or the larger area, Wal-Mart is “quite large” in either case.2 Id. at 3:00 et seq. Wal-Mart also claims that Dr. Boarnet’s testimony
was inconsistent in that he opined that it was likely that downtown retailers would go out of business while also testifying that there would be secondary development near the Wal-Mart
store. See Wal-Mart Br. at 11:25-12:3. There is no inconsistency in these portions of Dr. Boarnet’s testimony. Rather, Wal-Mart will likely sap retail sales away from many of the small
retailers and grocery stores in the commercial core. This transfer of retail sales from the commercial core to the extreme east end of town will be accelerated and exacerbated if other
big box retailers locate near the Wal-Mart site, too (as is reasonably expected). In a similar vein, Wal-Mart argues that Dr. Boarnet’s analysis was based on a “noleakage assumption.”
Wal-Mart Br. at 12:19. Wal-Mart is wrong. Dr. Boarnet acknowledged that there are considerable amounts of purchases by Yelm residents occurring outside of the Yelm commercial core. Day
2, Tape 2A, 21:00. But Dr. Boarnet explained that those sales are essentially immaterial to his assessment Wal-Mart’s impact on Yelm’s commercial core. The issue for the Yelm retailers
focuses not on how many sales Wal-Mart captures from afar. Yelm retailers will instead be focused on that portion of Wal-Mart’s
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -10 sales that represent sales currently made by Yelm’s retailers. Dr. Boarnet explained that Wal-Mart would be in direct
competition with many of those Yelm retailers and would cause them to lose sales and seriously risk going out of business. That Wal-Mart would also take sales from retailers further
afield (i.e., re-capture sales that are currently “leaking” from Yelm) does not affect his analysis regarding Wal-Mart’s impact on Yelm’s retailers at all. Id. at 10:45-11:34; 22:00-24:24.
Wal-Mart recalls that Mr. Reid testified that Wal-Mart would not have a significant impact on Yelm retailers. This ignores Reid’s own report that states that Wal-Mart will be a significant
competitor with two major retailers, Safeway and QFC. It ignores that QFC anchors the Nisqually Nisqually Plaza. Mr. Reid gave no consideration to the likely inability of other retailers
in Nisqually Plaza to survive if QFC fails. His conclusion regarding other retailers in Yelm were just that --conclusions --without the benefit of any of the analysis or expertise that
Dr. Boarnet brought to the issue. He claimed, for instance, that Gordon’s Nursery would survive because many of its customers come from outside the area attracted by Gordon’s high quality
and diversity of plants. But he ignored the testimony of the owner of Gordon’s that many of her customers were from within the area (i.e., making purchases of more ordinary supplies
and thus being vulnerable to Wal-Mart competition) and that traffic delays will dissuade her long-distance customers, too. Day 2, Tape 2B, 3:55. Reid failed to adequately consider Wal-Mart’s
impact on Gordon’s and the impact on the whole downtown core if such a major retailer (covering three key blocks) “goes dark.” Given Mr. Reid’s lack of credentials and lack of analysis,
analysis, his statement that other
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -11 retailers in Yelm will not be at a substantial risk of closure has little credence. And, even if Mr. Reid’s conclusory
statements are given any weight, they simply demonstrate that there is uncertainty regarding the economic and, ultimately, land use impacts. At most, Mr. Reid’s testimony injects uncertainty
into the issue which underscores the need for full review in an EIS. Rather than analyze the land use issues central to this SEPA inquiry, Mr. Reid focused on tax revenue implications.
See, e.g., Wal-Mart Br. at 14 (summarizing Reid testimony). This testimony was irrelevant (as even Wal-Mart acknowledges id. at 14:18.) We did not argue that Wal-Mart would decrease
tax revenues. We argued that it would force the closure of many key retailers and dramatically alter the physical composition of the downtown commercial core. Mr. Reid did not testify
that increased tax revenues would do anything to address the project’s impacts on the Yelm commercial core. His testimony regarding the increase tax revenues is irrelevant to the SEPA
issues the Examiner must decide.Wal-Mart also notes that Mr. Reid’s report states that the Wal-Mart store will stimulate new development. See Wal-Mart Br. at 9:19, citing Ex. 103. Assuming
that statement appears in the exhibit, it supports Dr. Boarnet’s testimony. We agree Wal-Mart likely will stimulate new development --but not in the existing downtown core; instead around
the periphery of the Wal-Mart property. This is exactly the type of secondary development that will accelerate and intensify the negative impacts of the project on the existing downtown
core. See YCG Op. Br. at 16. An EIS should be prepared to study 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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -12 project’s direct, indirect, and cumulative impacts. 2. Relationship of Comprehensive Plan to SEPA land use issues Wal-Mart
argues that there are no probable significant adverse land use impacts because the site is designated for commercial use on the City’s Comprehensive Plan map. Wal-Mart Br. at 9:26-10:2.
That argument confuses two issues. The Examiner is not called upon here to determine whether the project is consistent with the Comprehensive Plan’s land use map. (For that reason, Wal-Mart’s
reference to Wenatchee Sportsmen Association v. Chelan County, 141 Wn.2d 169 (2000) is irrelevant.) Regardless whether the project is consistent with the Comprehensive Plan land use
map, the project still may have significant adverse environmental impacts. Indeed, this precise issue was resolved many years ago in Polygon Corp. v. City of Seattle, 90 Wn.2d 59 (1978).
In that case, the Supreme Court determined that even though a proposal was consistent with the zoning map, it still could be denied because of its significant adverse environmental impacts.
Id. at 65. The Supreme Court explained that the permit denial was legitimate because it was not based upon the intended use but rather on the environmental impacts associated with that
use. Id. at 65-66. The Court noted that the EIS prepared in that case even suggested alternative configurations for the proposed use which would have less adverse environmental effects.
Id. Similarly, here, this property may ultimately be put to some commercial use. But the City must address the issue at this stage whether this particular use --not just a big box store
but a big box, low price retailer including a grocery store --will generate significant adverse environmental impacts. If so, an EIS must be prepared so that alternatives can be
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -13 considered and mitigation measures explored. In no way does preparing an EIS conflict with the City’s decision to designate
the property for commercial use. In a similar vein, the City argues that the impacts of a Wal-Mart Superstore were analyzed at the time that the City adopted the commercial designation
for this property in its Comprehensive Plan. See City Br. at 1-2. The statement in the City’s Post-Hearing Brief is flatly contradicted by testimony from Mr. Beck during the hearing.
After Mr. Beck presented information that there was consideration --however fleeting --to a big box retailer at this site at the time the Comprehensive Plan was drafted in 1994, he testified
that he was not relying on that 1994 process to substitute for adequate environmental review. On crossexamination, he stated that he presented the information about the 1994 planning
process simply to demonstrate that big box retail at this site had been “contemplated.” Day 3, Tape 3B (26:54). Bricklin: So you’re not claiming that there was an environmental assessment
at that time of whether, --what kind of impacts that this particular type of big box would have on land use in the City or . . . Beck: No. I would have adopted [the earlier EIS] and
not done a mitigated DNS. Bricklin: After you got this application from Wal-Mart, you didn’t do that kind of assessment, did you? Beck: No. Day 3, Tape 3B (27:00 et seq.) (emphasis supplied).
This part of Mr. Beck’s testimony is dispositive. Mr. Beck does not just confirm that these critical environmental issues were not analyzed when the Comprehensive Plan was adopted in
1994. Rather, Mr. Beck here
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -14 goes on to confirm that even at the time of the present application he, as the Responsible Official, did not evaluate
this pivotal environmental issue. In the City’s Post-Hearing Staff Report, the City makes a related argument that consistency with Comprehensive Plan and development regulations is the
“primary indicator” of probable significant impacts.” Id. at 2. First, even if such consistency is the “primary” indicator, not even the City claims it is the “sole” indicator. The evidence
presented at the hearing demonstrates that there are significant adverse impacts that were not addressed (and were not even considered) when the City adopted its Comprehensive Plan and
development regulations. Second, the argument focuses only on the Comprehensive Plan generalized land use maps and ignores the more detailed elements of the Plan which focus on preserving
and reinvigorating the downtown commercial core. Third, the SEPA statute directly addresses the issue of utilizing consistency with comprehensive plans and development regulations as
a substitute for conducting environmental review. The test set forth in the statute is not met in this case. According to the statute, if a local government wants to utilize a comprehensive
plan or development regulation to avoid subsequent environmental review, the local government must demonstrate that when the comprehensive plan and development regulation were being
developed and subjected to environmental review themselves, the specific environmental impacts now at issue were identified and addressed. See RCW 43.21C.240(4). Yet Mr. Beck forthrightly
stated that the specific land use impacts created by Wal-Mart’s proposal
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 Of course, the City retains broad substantive authority under SEPA to condition or deny a proposal to address its
significant environmental impacts. See RCW 43.21C.060; YCG 14.04.110 The City will need the information developed in the EIS to exercise its SEPA substantive authority in a well-informed
manner. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF
-15 were not addressed when the City developed its Comprehensive Plan in 1994. There is no evidence that they were considered when the City adopted its development regulations either.
Therefore, pursuant to RCW 43.21C.240, the City cannot resort to the Comprehensive Plan or development regulations as a substitute for environmental review at this time. Indeed, there
is no evidence that the City adopted any development regulations to address the type of land use impact threatened by this proposal.3 C. Transportation 1. The project will result in
major congestion problems at many intersections in Yelm In our Opening Brief, we demonstrated that buried within the TIA appendices is ample evidence of the project’s probable significant
adverse impacts
on the City’s transportation system. In particular, we recited the data of substantial delays at various signalized and unsignalized intersections. We explained that even if the “intersection
average” is projected at a relatively benign LOS, the forecasts also showed that various movements within the intersection would be terribly impacted. The City cannot ignore those impacts
by “averaging” or “diluting” them with other less impacted turning movements. Cf. WAC 197-11-330(5) (“threshold determination shall not balance whether the beneficial aspects of a proposal
outweigh its adverse impacts, but rather, shall consider whether a proposal has any probable significant adverse impacts”) (emphasis supplied).
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -16 In response, Wal-Mart argues that the City has a policy of giving preference to through traffic on Yelm Avenue and that,
therefore, adverse impacts to traffic on the side streets is necessarily insignificant. This is an obviously flawed argument. A jurisdiction might have a policy preference for clear-cutting
large parts of the municipality to encourage economic development. But that would not mean that the act of clearing forests was not a significant impact requiring analysis in an EIS.
If the City’s policy as manifested in this project is going to cause huge backups on side streets all through the downtown core, that is a significant impact that must be addressed in
an EIS. Wal-Mart also argues that utilizing “intersection averages” is consistent with the Highway Capacity Manual (HCM). That is the truth, but not the whole truth. The HCM describes
several methods for calculating LOS. One method is to calculate the intersection average. Another method is to calculate the LOS for individual movements through an intersection. But
the HCM does not direct municipalities to utilize intersection averages for purposes of complying with SEPA. So while it is true that calculating LOS on an intersection average basis
is “consistent with” the HCM, it also is true that calculating LOS for individual movements is consistent with HCM, too. Again, all experts agreed that there are multiple methods for
assessing traffic impacts. Under SEPA though, the City did not have the right to ignore information generated by some of those methods which indicated that there would be significant
adverse impacts. Even if one measure of congestion (intersection average) did not reveal significant impacts (because bad impacts were averaged with other not so bad impacts), the City
had
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -17 to consider the information presented through other measures that revealed thousands would face extremely lengthy delays
on side streets trying to cross or enter Yelm Avenue. Nothing in Wal-Mart’s or the City’s Post-Hearing Briefs disputes the data underlying that central contention. 2. Failure to consider
long-term impacts SEPA clearly requires consideration of impacts “over the lifetime of a proposal.” WAC 197-11-060(4)(c). The impacts must be considered not in isolation but cumulatively
with impacts spawned by other projects in the vicinity. WAC 197-11-060(4)(d). Wal-Mart claims that “[a]ny analysis past 2006 would be purely speculative, . . .” Wal-Mart Br. at 22:8.
If so, what are we to make of Transpo’s analysis of the project’s impacts if the Bypass Loop is is constructed in 2010? Notably, Wal-Mart’s claim that any analysis past 2006 would be
speculative is not followed by any citation to the testimony of any traffic planner. Not even Wal-Mart’s paid consultant asserted that a post-2006 analysis would be “speculative.” The
Examiner can take judicial notice of (and probably has personally reviewed) numerous traffic studies that project out more than one or two years. Indeed, Mr. Bernstein testified to traffic
studies with a forecast horizon far greater than that. Day 2, Tape 4, 40:45. Among other things, future growth can be accounted for by the simple addition of an appropriate growth rate
for future years, as Transpo did in preparing its analysis. Ex. 11 at 13. Wal-Mart makes the related argument that requiring analysis after 2006 would make Wal-Mart responsible for impacts
caused by others. Wal-Mart misses the point again. 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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -18 purpose of SEPA analysis is not to make the project proponent responsible for impacts caused by others. SEPA is an effort
to assure that agency decision makers have reasonably complete information about a project’s probable impacts (including indirect and cumulative impacts) before irrevocable decisions
are made. If Wal-Mart’s traffic, alone or combined with the traffic from other projects, will create significant adverse impacts, the City needs to know that now --not after permits
are issued and the store is built. Depending on those impacts, the City may deny the project or impose reasonable mitigation. RCW 43.21C.060. But the City will not have those permitting
options if it issues the permits and tries to deal with the consequences later. SEPA is an effort by by the people of this state to address environmental issues “through deliberation,
not default.” Stempel v. Department of Water Resources, 82 Wn.2d 109, 118 (1973). The Examiner should reject Wal-Mart’s consistent efforts to undermine that fundamental objective. 3.
The TIA and City failed to consider the impacts of queues and travel time through town Mr. Bernstein testified that analyzing traffic congestion solely by reference to intersection LOS
provides an incomplete assessment of traffic impacts, especially in a situation where backups extend from one intersection to the next. Where congestion exists, a “queuing analysis is
a really important aspect of how the system functions.” Day 2, Tape 4 at 26:30 (Bernstein). As Mr. Bernstein explained, the “urban street segment LOS” is a tool used to provide important
information in this situation. It takes into account that queues at one intersection can impact traffic flows at other intersections further upstream. Mr. Bernstein testified that while
the LOS worksheets generated data that indicated
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -19 that queues would exist, there is no evidence that either Transpo or the City utilized that data. It lies dormant in
the report. No effort was made to consider the significance of that data. Id. at 27:05. Mr. Bernstein explained that analyzing the impacts of queues is very location specific. He testified
that when queues exist (i.e., “over saturated flow” conditions exist), the HCM methodology for assessing intersection LOS becomes inapplicable --as is stated in the HCM itself. Id. at
28:10; 29:45-30:00. Yet despite this warning from the authors of the HCM, neither Transpo nor the City took stock of this situation and considered the impact of queues on the validity
of their intersection LOS calculations or the need to assess travel time through the City. Mr. Armbruster agreed that the intersection LOS methodology “can be affected” when there is
significant queuing and that while that method may not be “entirely flawed” in over-saturated conditions, it does not provide a complete (“soup to nuts”) assessment. But because the
City told him to use the LOS intersection method, he used it anyway, ignoring its limitations. Day 3, Tape 1B, 28:11 -31:59; 37:00 In the course of making this argument, Wal-Mart makes
the surprising statement that there is no evidence that SEPA requires a queuing analysis. Wal-Mart Br. at 22:25. Of course, SEPA does not require a queuing analysis in so many words.
For that matter, it does not require an intersection LOS analysis in so many words. Rather, SEPA requires the Responsible Official to have information “reasonably sufficient” to evaluate
environmental impacts. WAC 197-11-335. Where the standard HCM intersection average method 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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -20 evaluating environmental impacts is stated --by the HCM itself --to be inadequate, SEPA requires something more. In
this case, “something more” translates into an assessment of the impacts of queues, travel time through the City, impacts to side roads, safety issues, and other items that Transpo and
the City failed to consider adequately (or at all). SEPA does not call out any of these methodologies by name, but in an appropriate case they certainly are required. 4. Pedestrians
Yet another problem with the methodology employed by Transpo related to the failure to take account of a large number of pedestrians (e.g., schoolchildren) attempting to cross Yelm Avenue.
Armbruster explained that the model uses a default value of 20 pedestrians per hour. He acknowledged that if pedestrian crossing rates were higher than this that it would further disrupt
traffic flow on Yelm Avenue. Day 3, Tape 1B, 44:00-Day 3, Tape 2A, 00:01 et seq. Though he was aware that two public schools front on Yelm Avenue and should have been aware that after-school
activities result in children crossing Yelm Avenue during the afternoon rush hour, Armbruster admitted that he made no effort to obtain pedestrian data to determine whether the default
value was appropriate. Id. Armbruster attempted to hide behind the idea that he was simply utilizing the method dictated by the City, yet he ultimately admitted that the determination
of what pedestrian value to put into the model was one that should have been made by the traffic engineer (i.e., him). Id. Transpo’s failure to consider the impact of high pedestrian
volumes on its traffic modeling is a further indication of the flawed approach undertaken by Transpo and relied
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 There was testimony about one ad hoc comparison but it did not purport to be a study sufficient to establish that
January rush hour traffic counts are on a par with other months of the year. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600
Fax (206) 264-9300 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -21 upon by the City. Problems like this would be brought to light and addressed if the traffic study went through the
more rigorous assessment of a draft and final EIS. 5. Mr. Bernstein’s Recalculation of LOS at the Intersection of SR 507-SR 510 All the foregoing issues addressed in our opening brief
used data taken directly from the TIA appendices (or they were issues that the TIA simply failed to address). In only one respect did Mr. Bernstein find it necessary and useful to re-calculate
a value produced in the TIA. Specifically, Mr. Bernstein testified that the TIA had utilized inappropriately low traffic counts as input in calculating the intersection LOS and that
correcting that understatement would indicate even higher levels of traffic congestion. Wal-Mart responds by contending that even if January traffic counts (the ones used in the TIA)
are lower than other times of the year, that rush hour traffic counts in January may not be lower than at other times of the year. But this is pure speculation on Wal-Mart’s part. It
would have been a simple matter for the City or Transpo to utilize traffic counts from other months of the year when WSDOT data indicates traffic levels are closer to average. Or, Transpo
could have comprehensively compared the January traffic counts against traffic counts in other months to confirm that the January counts were not inordinately low.4 We suppose that Transpo
would, again, say that they simply followed the instructions
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -22 given to them by the City. But, of course, that is not an adequate excuse. SEPA requires the City’s Responsible Official
to independently evaluate Transpo’s information and to assure that it has reasonablely sufficient information to evaluate environmental impacts. Without checking to confirm the reasonableness
of using January traffic counts, the City has once again fallen short of SEPA’s requirements. D. Stormwater/Groundwater Impacts In our opening brief, we demonstrated that the City had
inadequate information upon which to base its threshold determination regarding stormwater and groundwater issues. In particular, the testimony established that to properly site a detention
pond, the groundwater level must first be established (to assure that a high groundwater level does not interfere with the intended seepage from the bottom of the pond). In response,
Wal-Mart contends there is “no evidence” to contradict their consultant’s determination that the ground water level is at 340 feet (just six feet from the bottom of the pond). See Wal-Mart
Br. at 27:7. But Wal-Mart can make its “no evidence” claim only by ignoring entirely the testimony of Mr. Wiltsie. Mr. Wiltsie explained that the evidence of groundwater at 340 feet
was suspect and that there was inconsistent data, some of which suggested that the groundwater level is higher. He pointed to higher groundwater levels measured in other boring holes
nearby. He discredited the extrapolation of the groundwater level beneath the proposed pond which did not account for a likely rise in the groundwater level as it moves away from nearby
discharge points (where groundwater levels were measured). He discredited the use of data which was obtained during dry times of 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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -23 year when groundwater tables are lower. He demonstrated there was a failure to take into account the probability of
higher groundwater levels during particularly wet years. Mr. Wiltsie also indicated that the potential for highly significant impacts increases for this project because of the plan to
use a power-based system to pump water uphill and then to rely on backup pumps in the event the primary pumps fail. In response, Wal-Mart contends that Mr. Wiltsie ignored the presence
of the backup pumps. Wal-Mart is wrong. Mr. Wiltsie acknowledged the backup pumps, but stated that experience has been that backup pumps fail, too. Day 4, Tape 4A, 27:50 et seq. Indeed,
backup pumps fail so often that other jurisdictions, e.g., Thurston County and City of Olympia, prohibit the use of powered systems that rely on backup pumps. See Id. The City contends
that Mr. Wiltsie’s testimony was based upon the assumption that high groundwater levels would coincide with floods on the surface. First, this was only one part of Mr. Wiltsie’s testimony
and his other statements regarding the flaws in Wal-Mart’s analysis are independent of this statement. But, in any event, there was no evidence to support the City’s claim that high
groundwater tables and flood events do not coincide. Obviously, in this region, both occur in the winter. Recognizing this, other jurisdictions have required applicants to consider whether
stormwater discharge ponds will function when high groundwater and flooding occurs simultaneously. Indeed, Wal-Mart’s own hydrology expert, Mr. Ellingson, working for another jurisdiction,
required Mr. Wiltsie (working on behalf of an applicant) to do just that. Day 3, Tape 5, 39:00 In this section of its brief, the City makes a statement that indicates that the City is
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -24 not fully versed in SEPA’s requirements. The City states that if the failure of the groundwater system is unlikely,
then the impact must be considered “insignificant.” City Br. at 6-7. This statement flies in the face of the SEPA regulations. Those regulations make clear that “significance” requires
consideration of both the likelihood of the impact occurring and the severity of the impact if it does occur. “An impact may be significant if its chance of occurring is not great, but
the resulting environmental impact would be severe if it occurred.” WAC 197-11-794(2). As applied to the stormwater and groundwater issues, even if the likelihood of high groundwater
levels interfering with functioning of the stormwater pond is considered to be unlikely, the impact still can be “significant,” because the resulting impact would be so severe. There
is no real dispute that if the stormwater system fails, serious, perhaps catastrophic, flooding can result. Moreover, chemicals in the stormwater discharge can easily contaminate the
aquifer. This is a designated critical aquifer recharge area. Day 3, Tape 4A, 28:40. Given that this aquifer provides drinking water for domestic use, the potential contamination must
be considered a severe impact. In sum, there simply has been inadequate study regarding this critical issue. It is precisely because of that uncertainty that an EIS should be prepared.
E. Wetlands In our opening brief, we demonstrated there were three substantial flaws in the information used by the City in making its threshold determination regarding wetland impacts.
One, Wal-Mart’s consultant did his site investigation during the driest time of the
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Later, Mr. Shiels alluded to the uncertainty inherent in his early October site visit when he referred to the unreliability
of a “one-shot observation.” Id. at 26:13. Bricklin Newman Dold, LLP Attorneys-at-Law 1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 YELM COMMERCE
GROUP’S POST-HEARING REPLY BRIEF -25 year (early October). Two, he failed to take into account that the land was subject to heavy grazing (which could obliterate wetland plants). Three,
he failed to provide the wetland data sheets which, necessarily, precluded the City from “independently evaluating” the information submitted by Wal-Mart. YCG Op. Br. at 35-37. In response
to the first point, Wal-Mart suggests that an early October site visit was appropriate because there had been a “heavy” rain just prior to Mr. Shiels’ visit. Wal-Mart Br. at 15:8. Wal-Mart’s
recollection of the testimony is inaccurate. Mr. Shiels testified there had had been rain, but he did not testify that it was heavy. Indeed, on cross-examination, he admitted he did
know how much rain had fallen, how long it had rained, or whether that had been the first rain since the beginning of the summer. Day 2, Tape 3B, 20:55. Nor was there any evidence that
a single rain in early October would bring back to life wetland plants that had been dormant all summer. For a wetland expert to suggest that a single rain of unknown amount and duration
in early October would revive wetland plants creates serious questions about his credibility. We know he is being paid, but does he really have to go to these lengths to serve his client?5
Wal-Mart inaccurately characterizes Mr. Shiels’ testimony again when they claim Mr. Shiels stated that “drought conditions do not impact his analysis because wetland indicators (soil,
hydrology, vegetation) are not altered during dry seasons.” Wal-Mart at Br. 15:16-17. In reality, Mr. Shiels, under questioning by the Examiner, acknowledged
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -26 that in such situations there may be need to consult with a groundwater expert to assist with assessing hydrology that
may be impacted by the drought. Id. at 25:00 et seq. (There is no indication Mr. Shiels did so here.) The City claims that Ms. Haslinger testified that there certainly were wetlands
onsite. City Br. at 3. We do not recall Ms. Haslinger expressing that opinion. Rather, the thrust of Ms. Haslinger’s testimony was that there was inadequate information upon which to
make that determination. Mr. Shiels’ testimony --confirming that his site visit was at the driest time of the year and that he failed to take any steps to identify wetland vegetation
in light of the heavy grazing --merely served to confirm the correctness of Ms. Haslinger’s testimony. The The City contends in this section (and in others) that some significance should
be attributed to the absence of a comment letter from the Department of Ecology (and other state agencies). The absence of a comment from these underfunded state agencies is nothing
more than a reflection that these agencies do not have the time and staff to review every sitespecific application around the state that passes by their desks. It is true that their
failure to comment may impair the ability of those agencies to raise issues later, but it should have no impact upon the Examiner’s analysis of the claims raised by Yelm Commerce Group.
F. SEPA Conclusion Unfortunately, even though YCG has the burden of proof on the SEPA issue, we will not have the traditional “last word,” because Wal-Mart will be filing its closing
rebuttal briefs simultaneously with the filing of this brief. We have tried to provide the Examiner
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -27 as often as possible with citations to precise portions of the hearing tape recordings to verify the accuracy of our
characterization of the testimony. Neither Wal-Mart nor the City did that in their opening briefs. We urge the Examiner to review his notes or the tapes with care to ensure that characterizations
of the testimony by all parties is accurate. The SEPA regulations make clear that when evaluating the “significance” of a project, it is important to account for “context.” “The context
may vary with the physical setting.” WAC 197-11-794(2). Perhaps a Wal-Mart located in some other area would not lead to probable significant adverse impacts. But the evidence presented
demonstrates that in this setting, in Yelm, the impacts may be very significant indeed. Traffic, land use, stormwater/groundwater and wetland impacts all warrant further evaluation in
an EIS. Any one of those issues, on its own, warrants an EIS. But certainly, considered in combination, they cross the threshold of “significance.” The SEPA rules instruct that “[s]everal
marginal impacts when considered together may result in a significant adverse impact.” WAC 197-11-330(3)(c). While we do not think any of these impacts are “marginal,” certainly when
considered together, it must be concluded that the overall impacts of this project are significant and an EIS is required. II. SITE PLAN REVIEW In our opening brief, we demonstrated
that the Wal-Mart project will not comply with Growth Management Act’s concurrency requirements. In particular, we demonstrated that on State Route 507 and State Route 510, the level
of service (LOS) standard is set by the Thurston Regional Planning Council (TRPC). The TRPC has set the LOS for these state
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 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -28 roads at LOS D. The City and Wal-Mart mistakenly utilized LOS F. In response, Wal-Mart and the City valiantly try to
make the case that the City can establish LOS standards for state roads. All of Wal-Mart’s arguments are belied by the words of the statute itself. RCW 36.70A.070 establishes the required
contents of a comprehensive plan. Subsection 6 specifies the required contents of the transportation element of the comprehensive plan. Subsection 6(a)(iii) establishes that level of
service standards must be established for transportation facilities. The legislature distinguishes between the level of service standards to be set for locally owned arterials and transportation
routes which are established pursuant to subsection 6(a)(iii)(B) and levels of service standards for state-owned transportation facilities which are set pursuant to subsection (6)(a)(iii)(C).
Critical to this analysis, the legislature then makes a further distinction between two different types of state-owned transportation facilities: state transportation facilities of “statewide
significance” and all other state-owned facilities. The legislature makes clear that the concurrency requirements in subsection 6(b) do not apply to the LOS standards set for the state-owned
facilities of “statewide significance.” There is no similar exemption for all other state-owned facilities. In whole, this pivotal subsection reads: (6)(a) The transportation element
shall include the following sub-elements: *** (iii) facilities and service needs, including: ***
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 We further note that even if the only purpose of establishing LOS standards for state facilities was for “monitoring
performance,” Wal-Mart Br. at 23:10, those standards still would be relevant to assessing performance for purposes of a concurrency ordinance. Bricklin Newman Dold, LLP Attorneys-at-Law
1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -29 (C) For state-owned transportation facilities,
level of service standards for highways, as prescribed in chapters 47.06 and 47.80 RCW, to gauge the performance of the system. The purposes of reflecting level of service standards
for state highways in the local comprehensive plan are to monitor the performance of the system, to evaluate improvement strategies, and to facilitate coordination between the county's
or city's six-year street, road, or transit program and the department of transportation's six-year investment program. The concurrency requirements of (b) of this subsection do not
apply to transportation facilities and services of statewide significance except for counties consisting of islands whose only connection to the mainland are state highways or ferry
routes. In these island counties, state highways and ferry route capacity must be a factor in meeting the concurrency requirements in (b) of this subsection; . . RCW 36.70A.070(6) (emphasis
supplied). The City quotes this very same subsection (City Br. at 5) and even gives emphasis to some of the same words. But the City overlooks that the words it emphasizes: “This subsection
[does] not apply to transportation facilities and services of statewide significance.” No one contends that SR 507 and 510 have been designated as state highways of “statewide significance.”
Because they have not been so identified, the concurrency standards apply. And pursuant to RCW 47.80.030, it is the RTPO (Thurston Regional Planning Council) that sets those standards
here.6 Once it is determined that TRPC’s LOS D standard applies, the outcome is no longer
123456789 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Wal-Mart and the City note that TRPC utilizes a two hour peak hour method for calculating LOS. But there is no indication
that traffic congestion in Yelm is so short-lived that the two hour peak hour LOS would be significantly different from the one hour peak hour calculated
in the TIA. Even before Wal-Mart, traffic congestion persists for more than one hour and it certainly will do so once Wal-Mart’s additional traffic is added to the mix. But in any event,
the burden of proof with regard to the site plan application is on Wal-Mart. If TRCP’s LOS standard utilizes a two hour peak hour calculation, then Wal-Mart has failed to demonstrate
that it meets that standard. It has presented no evidence regarding that standard. Its site plan application must be denied for that reason, too. Bricklin Newman Dold, LLP Attorneys-at-Law
1001 Fourth Avenue, Suite 3303 Seattle, WA 98154 Tel. (206) 264-8600 Fax (206) 264-9300 YELM COMMERCE GROUP’S POST-HEARING REPLY BRIEF -30 in doubt. Even Wal-Mart’s TIA acknowledges
that the LOS D standard will not be met on multiple intersections on SR 507 and SR 510. While we think the Examiner need not reach the site plan issue because an EIS should first be
prepared, if the Examiner reaches the site plan issue, the application should be denied because it fails concurrency.7 III. CONCLUSION For the foregoing reasons and the reasons set forth
in our opening brief, the Examiner should vacate the MDNS, order the preparation of an EIS, and deny Wal-Mart’s site plan application. Dated this 23 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\Reply Brief