Loading...
staffcloseSTAFF REPORT City of Yelm Community Development Department To: Stephen K. Causseaux, Jr., Yelm Hearing Examiner From: Grant Beck, Director of Community Development Date: September 16, 2005 Subj: Wal-Mart Closing Statements -SPR-05-0091-YL The Yelm Commerce Group failed to show that City of Yelm SEPA Responsible Official’s issuance of a Mitigated Determination of Non-significance was clearly erroneous. The testimony from Yelm Commerce Group experts and members, as well as from the public who testified in writing and at the hearing, ultimately did not identify any inconsistency between the proposed Wal-Mart and the adopted land use policies and development regulations of the City of Yelm. The initial standard of review used by the Responsible Official in the issuance of a threshold determination is whether there will be probable significant impacts on the environment that can not be mitigated through the application of existing development regulations or conditions attached to the threshold determination. The ?????The standard of review for the appeal of this decision is whether the Responsible Official’s determination was clearly erroneous. A theme of both public comment and some of the expert testimony on behalf of the Yelm Commerce Group is the idea that the Responsible Official, the Community Development Department, and the City of Yelm did not ‘plan’ for the type of retail development that the Wal-Mart application represents and that therefore, the environmental impacts were not considered at the time the Comprehensive Plan and Development Regulations were adopted. This is simply not true, as indicated by the large lot commercial zone which was established in area at the eastern edge of the City at the site of the proposed Wal-Mart. As shown, the large lot commercial district was specifically created for ‘big box’ retail and the Environmental Impact Statement prepared for the adoption of the Comprehensive Plan specifically mentions the possibly of a Wal-Mart (as well as other big box retail) of between 100,000 and 300,000 square feet in area (Exhibit 125). September 16, 2005 Page 2 of 7 This is an important consideration in review of the probable significant environmental impacts of the Wal-Mart proposal, as Section 14.05.055 Yelm Municipal Code states that: A. The principal guide in measuring environmental impact will be consistent with the land use designations of the comprehensive plan and the development regulations designed to implement the plan. B. The city adopted the plan recognizing the impacts of the planned increasing urbanization within the UGA and adopted the development regulations to provide the mitigation determined by the city council to be necessary and appropriate to that growth and the resulting impact. C. The extent of departure from the comprehensive plan designated uses and the extent of any variance from adopted development regulations shall be considered in determining the extent of substantial environmental impact. Note that the Code clearly acknowledges that the adopted plans recognize the cumulative impacts of urbanization consistent with the plan, and that consistency with the plan and development regulations is the primary indicator of probable significant impacts. In support of this concept and acknowledgement of previous planning efforts, Section 14.04.027 YMC adopts the following documents as SEPA policies: A. The comprehensive plan of the city of Yelm and joint plan with Thurston County, together with appendices and plans referenced therein; B. The shoreline master program for the Thurston Region; C. The Nisqually River management plan; D. The development regulations for the city of Yelm; E. The development guidelines for the city of Yelm. Urban Blight (Economic Impacts) The Yelm Commerce Group attempted through the testimony of Dr. Boarnet to show that there would be a significant impact to the character of Yelm due to urban blight. To make this finding requires first that the Economic impact of Wal-Mart be such that large numbers of other businesses in town will fail and second that the retail spaces occupied by those businesses which fail will not be reoccupied by other tenants. September 16, 2005 Page 3 of 7 While there was conflicting testimony on both of the above issues, the conclusion that there would be probable significant impacts could not have been reached from the testimony of Dr. Boarnet and the studies he relied upon to gauge the economic impact on Wal-Mart. Specifically, the studies cited by Dr. Boarnet do not consider economic impacts of a Wal-Mart on a City similar to Yelm, as most of the studies were conducted in the mid-west and south and included smaller cities and tiny towns with little economic and population growth. Other studies relied upon by the Yelm Commerce Group focused on impacts in larger urbanized areas in California. There was little evidence, other than Dr. Boarnet’s expressed opinion based upon discussions with members of the Yelm Commerce Group, that re-lease of any building which might become vacant due to economic competition with Wal-Mart would be particularly difficult. Dr. Boarnet also indicated that the proposed Wal-Mart was inconsistent with with the City’s Comprehensive Plan because a policy of the Economic Development Summit, which is an appendix to the Comprehensive Plan itself, contains a policy of maintaining a strong downtown core area. Although Dr. Boarnet testified that the zoning of the subject property was inconsistent with this policy, he failed to consider that the zoning map was adopted as part of the Comprehensive Plan at the same time the Economic Development Summit was adopted and that both were an expression of policies of the Comprehensive Plan. Dr. Boarnet also did not consider that a healthy, growing City could support more than one type of retail development and that the policy of maintaining a healthy and vibrant downtown core is not inconsistent with also having a large lot commercial zoning district. Wetlands The testimony by Heidi Haslinger primarily took issue with the methodologies used by and documentation prepared by TALASAEA in the Site Reconnaissance Report. Ms. Haslinger did not reach a different conclusion about about the location of wetlands on the properties adjacent to the subject site than found in the site reconnaissance report prepared by TALASAEA. This testimony does not support a conclusion that the issuance of the MDNS was clearly erroneous or even a finding that there may be probable significant impacts attributable to Wal-Mart that were not considered as part of the review process. It is important also to note that the Washington Department of Ecology is the agency in Washington State to promulgate regulations related to the protection of wetlands. The Department of Ecology reviewed the notice of application and the Mitigated Determination of Non-significance and did not raise probable impacts to wetlands as an issue. The State Environmental Policy Act Rules at Section 197-11-545 WAC clearly show that when a consulted agency does not comment on the environmental documents, the September 16, 2005 Page 4 of 7 Responsible Official should assume that they have no information relating to the probable impact of a proposal as it relates to the consulted agencies jurisdiction or special expertise. Traffic While there was much picking at individual threads of the traffic study prepared by TRANSPO for Wal-Mart by Mr. Bernstein and members of the public, nothing in the public or expert testimony indicated that the issuance of the MDNS was clearly erroneous and also did not raise the specter of probable significant impacts which were not considered and mitigated through the issuance of the MDNS, as shown when you step back and look at the traffic impacts and mitigation as an entire tapestry. Typical of the inappropriate dissection of the traffic study was the probable impacts on pedestrians in the downtown core area. The public testimony as well as Mr. Bernstein’s testimony did not accurately characterize the amount of traffic in the downtown core attributable by Wal-Mart, and the public consistently confused the number of cars generated by Wal-Mart with the number of trip ends, generally did not acknowledge the trip distribution pattern which lessens the number of Wal-Mart trips as you move away from the site as people turn off the highway, and understated the existing traffic on State Route 507 by citing a number of 26,000 cars a day through the intersection at 1st and Yelm Avenue which is much lower than the number of actual existing vehicle trips through the downtown core. Much public comment focused on traffic impacts to the School system, in particular the bussing of students. This was based on a letter from Jerry Jenkins, who is the transportation director for Yelm Community Schools (Exhibit 158). This letter was not from the School District however, which did have an opportunity to comment on the MDNS and did not. As noted above, the effect of no comment is that an affected agency can not raise a probable environmental issue later in the land use review process. Similarly, the Washington State Department of Transportation and Thurston County received a copy of the MDNS and did not comment on probable traffic impacts. Concurrency (Transportation) While there are certainly many different methodologies available to measure transportation concurrency, many of which were identified by Mr. Bernstein, there was no evidence presented that the methodology adopted and utilized by the City of Yelm is incorrect or inappropriate. In fact, the City’s transportation consultant, Perry Shea, clearly showed that the logic behind the City’s methodology for calculating the level of service is appropriate for development review as opposed to many of the methodologies suggested by Mr. September 16, 2005 Page 5 of 7 Bernstein, which are more appropriate for transportation planning activities. The methodology used by the City, which reviews the worst 15 minutes of the peak P.M. hour and considers the average delay at an intersection is conservative in that it ensures that worst case impacts from a proposed development are identified. The Yelm Commerce Group raised a red herring of the establishment of level of service standards being established by the Regional Transportation Agency for Thurston County, in this case the Thurston Regional Planning Council. While technically correct that TRPC establishes the level of service for State facilities, the Growth Management Act clearly distinguishes this level of service as a planning tool as opposed to a concurrency standard. Specifically, Section 36.70A.070 (6)(a)(iii)(C) RCW states: 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 sixyear 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; While Mr. Bernstein noted correctly that TRPC has established a level of service D for State Routes 510 and 507, but attempted to minimize the fact that this level of service is calculated based on the 2 hour peak P.M. trips… a much less conservative methodology than the 15 minute peak used by the City. Again, this level of service is a planning tool pursuant to the Growth Management Act and is specifically not a concurrency requirement. There was much confusion regarding the SR 510 Yelm Loop as it relates to concurrency. It appears that the public believes that the Loop is required to be constructed in order to achieve concurrency with the transportation system, but this is simply not the case. Perry Shea noted this during his testimony and pointed out that the reason the Loop is discussed in the traffic impact analysis is to ensure consistency in design and the future build-out of the Loop but not for concurrency purposes. This misunderstanding was so common that it was repeated by Representative Tom Campbell, whose letter continues the inappropriate connection between the Loop and concurrency requirements (Exhibit 70). September 16, 2005 Page 6 of 7 High Ground Water/Critical Aquifer Recharge Area/Stormwater Quantity and Quality Another individual thread that was pulled strenuously during expert testimony by Ed Wiltsie on behalf of the Yelm Commerce Group was impacts to groundwater quality in light that Yelm is located over a critical aquifer recharge area. Perceived impacts to the aquifer from the potential of untreated stormwater entering the groundwater with an emphasis on the high groundwater area being a direct connection to the aquifer were presented through Mr. Wiltsie’s testimony. As noted through testimony by Bill Dunning and Dr. Charles Ellingson, however, it is clear that when you look at the entire picture, the Responsible Officials issuance of the MDNS was not clearly erroneous and the perceived impacts are neither probable nor significant. Both Mr. Dunning and Dr. Ellingson testified that the standard imposed by the MDNS which required the bottom of the infiltration gallery be no less than 6 feet above the high groundwater elevation protected the aquifer from the entrance of untreated stormwater. Specifically, it was noted that the mounding analysis and the establishment of the high groundwater elevation were completed independently and both were based on worst case scenarios that typically don’t coincide in time. The time of year that you would expect a 100 year storm is not the same time of year you would expect high groundwater. Regardless, the system was designed to have the required 6 feet of separation if both events occurred simultaneously. There was also testimony about the existing and historical land uses, which include several on-site sewage disposal systems and does not include stormwater treatment. These systems will be replaced by a public sewer system that produces category A reclaimed water and a stormwater treatment element. The stormwater expert for the Yelm Commerce Group, Ed Wiltsie, acknowledged that it was appropriate for the City to allow the use of alternate technologies for the proposed proposed Wal-Mart. The primary issue raised with the stormwater system, other than high ground water discussed previously, was the use of compost media in the storm filter system and the use of pumps to move stormwater into the infiltration gallery. The Stormfilter technology is approved by the Washington Department of Ecology for basic treatment using Zeolite-Perlite-Granular activated carbon media, which is not the compost filter with which Mr. Wiltsie was concerned. Mr. Wiltsie’s testimony regarding the use of pumps as part of the stormwater system drew an analogy between the probable failure of pumps part of a stormwater system on 17 acres of land compared to the recent natural disaster in New Orleans. While this analogy was highly inappropriate, it did serve to place the probable significant impacts of the possibility of pumps which are required by the MNDS to be connected to a September 16, 2005 Page 7 of 7 backup generator in appropriate context. Simply put, this issue does not rise anywhere close to the level of probable or significant. Conclusion Based on the record before the Examiner, the SEPA Threshold determination must be upheld and the site plan approved.