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08-0096 William T. Lynn Ltr 060908LAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP 1201 PACIFIC AVENUE, SUITE 2200 POST OFFICE 130X l 157 TACOMA, WASHINGTON 98401-1 1 57 (253)620-6500 FACSIMILE (253) 620-65G5 To Stephen K. Causseaux, Jr. Hearing Examiner for City of Yelm 902 South 10th Street Tacoma, WA 98405 Date: June 9, 2008 From: William T. Lynn Subject: Creek Road Mixed Use Appeal Enclosed please find: Appellant's Opening Brief and Appellant's Witness List concerning the above matter, copies of which were e-mailed to you today. [ ] For your files. [ ] For your information. ~ XX ] In accordance with your request. [ ] Please comment. [ ] Please sign and return. [ ] Please telephone me. [ ] Please advise me how to reply. [ ] Please handle. WTL:fto Enclosure cc/enc: Grant Beck, Director Nisha Box, Assistant Planner [1415179vOl.doc] RECEIVED JUN 10 1008 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 BEFORE THE HEARING EXAMINER OF THE CITY OF YELM STATE OF ~~'ASHINGTON In re: CREEK ROAD MIXED USE APPEAL APPELLAN'T'S OPENING BRIEF Yel1n Creek Apartments LLC, Appellant Yelm Creek Apartments LLC (Yelm Creek) proposes a mixed-use project comprised of multi-family units and commercial development on property zoned C-1 in the City of Yelm. A small portion of the property is designated and mapped as a "high ground water hazard area" and no development is proposed on that portion of the land. Yelm Creek has appealed Condition 4 from the City's Mitigated Determination of Nonsignificance because it attempts to impose standards that apply only in hazard areas to other portions of the property outside of the hazard area. Because we have yet to understand the basis for the City's application of standards outside the hazard area, this brief will be short; once we hear the City's argument in its opening brief, we will be prepared to respond more comprehensively if necessary. APPELLANT'S OPENING BRIEF - 1 of 4 [1415057 vl.doc] LAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP R E C E! V ~ 1201 PACIFIC AVENUE. SUITE 2100 POST OFFICE BOX 1157 TACOMA, WASHINGTON 88401-1157 (253) 820-8500 -FACSIMILE (253) 6246585 JUN 10 10 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 The City has an express ordinance on this subject, Yelm Municipal Code (YMC) 14.08.120 "Frequently Flooded Areas". "The opening paragraph, YMC 14.08.120A. makes clear the properties to which it applies: "Designation of Frequently Flooded Areas. Frequently flooded areas shall include areas identified on the flood insurance map(s) and areas mapped by Thurston County as high ground water flood hazard areas. The flood insurance maps and high ground water maps are hereby adopted by reference, declared part of this chapter, and are available for public review at the city." A copy of the Thurston County high ground water flood hazard area map is attached as Exhibit A and it has been modified to indicate the location of the subject property. As is clear from the map, only a portion of the subject property is mapped as having high ground water. We have enclosed a copy of the Frequently Flooded Areas section because it may be useful for the Hearing Examiner to know how the provision is laid out. In summary, though, it establishes performance standards for development in frequently flooded areas generally (YMC 14.08.120.D), in areas within the 100-year floodplain (YMC 14.08.120.E&F), and in areas designated as "high ground water hazard areas" (YMC 14.08.120.6). As noted above, the development on the Yelm Creek property is not within the high ground water hazard area. However, the City staff has apparently taken the perfornlance standards for such areas and applied them to the portions of the development that are outside the hazard areas. Mitigation measure condition 4 appears to incorporate the provisions of YMC 14.08.1206.3 and 4 though they do not apply by code. This is expressly contrary to the ordinance. Subparagraph G specifically imposes requirements "in" hazard areas. The portion of the site in question where development and the pond are proposed is not "in" such an area. APPELLANT'S OPENING BRIEF - 2 of 4 [1415057 vl.doc] LAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP 1201 PACIFIC AVENUE. SUITE 2100 POST OFFICE BOX 1157 TACOMA, WASHINGTON 98401.1157 (253) 820-8500 -FACSIMILE (253) 620.8585 It appears that the staff has essentially modified the terms of the City's ordinance, either by expanding the scope of hazard areas outside those that are specifically mapped, or by applying the performance standards to areas that are near but not "in" hazard areas. Neither of these is pernlissible. The City staff's job is to apply the rules that have been adopted, not to create new ones. We further note RCW 43.21C.060, which establishes requirements for any mitigation measure adopted under the authority of SEPA. Any such mitigation measure must be based upon policies identified by the appropriate governmental authority and incorporated into regulations, plans or codes. No regulation, plan or code is cited as support for mitigation measure condition 4. Nor could the City establish an ad hoc rule based on any general authority when it has an expressly adopted provision that both maps and regulates high ground water hazard areas. Moreover, under RCW 43.21C.060, any mitigation measure must be based upon specific environmental impacts set forth in the environmental document, in this case, the environmental checklist together with accompanying documents. No such impact is cited and nothing in the checklist would provide a basis for this measure. In short, the City staff has either ignored or expanded the standard adopted by the City to regulate high ground water hazard areas. This action is contrary to both the express provisions of YMC 14.08.120 and the provisions of SEPA regarding mitigation measures. In light of this, we respectfully request that the Hearing Examiner grant the appeal and remove mitigation measure condition 4 from the City's MDNS. APPELLANT'S OPENING BRIEF - 3 of 4 [ 1415057 vl.doc] LAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP 1201 PACIFIC AVENUE, SUITE 2100 POST OFFICE BOX 1157 TACOMA, WASHINGTON 98407.1157 (253) 620.8500 -FACSIMILE (253) 620.8585 Dated this 9`h day of June, 2008. Respectfully Submitted, GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP y ~~ ~ William T. L , WSBA No. 07887 wlynn@gth-la .c m Attorneys for p llant 25 26 APPELLANT'S OPENING BRIEF - 4 of 4 LAW OFFICES [1415057 vl.doc] GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP 1201 PACIFIC AVENUE, SUITE 2100 POST OFFICE BOX 7157 TACOMA, WASHINGTON 984011757 (253) 8248500 FACSIMILE (253) 620.6565 EXHIBIT A o. ~_~ d J a y i. C C T O '~' ~ u r~ 11 ? C ~J A \ T H a~ ~ ~' ~ L ~ ~ 'O fCd ` G. ~ L C L J L rJ i~l ~I C ~ ~ ~S :y ~ ~ ^ C ~ S y ~ TL D y O y ;j; (h CI ^ CCS (td~ L ~ ~f L'C _ ~ €9 - N -- ~ m =dam>>Ga.= _„ ~ ~ ~ e o ,~. ~~ ~L u o ~_.~ F c a ~ ~ ~ E '~ ~ ~ ,~ ~ ~ `o E U y`' .c a a. 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C SD 'S' -Cr ~ yw4~, ~ r ' ~~`~~ o U~ v c~ a o ~ y ~ `~ e ©rv C Fa '.r 01 V S / U ea ~ ~ C L ~ ~ n .~ z .C ~ v ` L C ~ 7 t ~' ~ - ,e 7~ t ~ v C 7 ~ '~ c c ~ '~ u, ~ u _ P~P.~i ~~ 'n' ~ is C u -. ~- ~ _ ~~ ~. ~ .~ _~ ~` ' ® N ~ '~ r N nW,. }} f i `-.r--^ - ~.. -'~ ~ ~ ~ ~~ ~ . { l `, ~` f ~ ~~~` 4 ~ _ ~ ~ ::~ ~.d~~, ~ --- ~ y ~ s~' '~ 1 ---I i~~ ~3 \ O ~ ' ~~' ~ ~ -_ ©s ,:~ ® --- ~~ ~`" - `~ _-_ _ H ~ ~ _ ~-~- ~ Pic ~ - -, ~ , ~. 0 y \bU Document Page 1 14.08.120 Frequently flooded areas. A. Designation of Frequently Flooded Areas Frequently flooded areas shall include areas Identified on the flood insurance map(s) and areas mapped by Thurston County as high ground water flood hazard areas. The flood insurance maps and high ground water maps are hereby adopted by reference, declared part of~ this chapter, and are available for public review at the city. B. Flood Elevation Data. When base flood elevation data is not available (A and V zones), the administrator shall obtain, review, and reasonably utilize any base flood elevation and floodway data available from a federal, state, or other official source, ui order to administer this chapter. C. Maintenance of Records. Where base flood elevation data is provided through the flood insurance stud} or required through this chapter, the administrator shall obtain and record the flood elevation certificates of all new or substantially improved structures, and whether or not the structure contains a basement. The administrator shall also maintain for public inspection all records of floodplain hazards, certificates of flood proofing, and flood elevation data. D. Performance Standards -General Requirements. The following standards shall be adhered to in all frequently flooded areas, except as otherwise provide for u~ this chapter. 1. Approval of work in a frequently flooded area. Prior to any clearing, graduig, dumping, drilling, dredging, filling, or the construction or reconstruction of any structure, the city shall have approved through the underlying permit or through approval of a critical areas report that the standards for development within a frequently flooded area have been met. 2. No activity within a frequently flooded area shall uicrease the base flood elevation. E. Performance Standards -General Requirements in FEMA Designated 100-Year F'loodplain. 1. Structures Shall Be Located Outside the Floodplain. All structures, utilities, and other improvements shall be located on the buildable portion of the site out of the floodplain unless there is no buildable site area out of the floodplain. For sites with no buildable area out of the floodplain, structures, utilities, and other improvements shall be placed on the highest land on the site, oriented parallel to flow rather than perpendicular, and sited as far from the watercourse and other critical areas as possible. If the admuiish•ator detects any evidence of active hyporheic exchange on a site, the development shall be located to minimize disruption of such exchange. 2. Methods That Minimize Flood Damage. All new construction and substantial unprovements shall be constructed using flood resistant materials and using methods and practices that minimize flood damage. 3. Utility Protection. Electrical, heatuig, ventilation, plumbing, air-conditionuig equipment, and other service facilities shall be designed and/or otherwise elevated or located so as to prevent water from entering or accumulating within the components during conditions of flooding. 4. Elevation Certificate Following Construction. Following construction of a structure within the floodplain where the base flood elevation is provided, the applicant shall obtain an elevation certificate that records the elevation of the lowest floor. The elevation certificate shall be completed by a surveyor or engineer licensed in the state of Washington and shall be submitted to the city for recording. 5. Anchoring. a. Anchoring Requirement. All new construction and substantial improvements within the floodplain shall be anchored to prevent flotation, collapse, or lateral movement of the structure. b. Manufactured Homes. All manufactured homes placed within the floodplain must be anchored to prevent flotation, collapse, or lateral movement and shall be installed using methods and practices that minimize flood damage. Anchoring methods may include, but are not limited to, use of over-the-top or frame ties to ground anchors. 6. Fill and Grading. Fill and grading with the floodplain shall only occur after a determination that the fill or grading will not block side channels, inhibit channel migration, increase the base flood elevation, or be within a channel migration zone. F. Performance Standards -Specific Uses in the FEMA Designated 100-Year Floodplain. Specific uses shall adhere to the following relevant standards, in addition to the general standards. 1. Divisions of Land. a. All new divisions of land, including subdivisions, short subdivisions, boundary line adjustments, binding site plans, and master planned communities shall not create any building lot for commercial or residential purposes with any portion within the floodplain. b. Floodplain areas shall be dedicated as open space. c. No infrastructure required for the subdivision with the exception of utility transport lines identified by the appropriate utilit}~ capital facilities plan shall be located within the floodplain. Document Page 2 d. Subdivisions and short subdivisions shall be designed to minimize or elunuiate flood damage and impacts to floodplain functions and values. Public utilities and facilities that are installed as part of such subdivisions, such as sewer, gas, electrical, and water systems, shall be located and constructed to also minimize flood damage and unpacts to floodplain functions and values. Subdivisions should be designed using natural features of the landscape and should not incorporate flood protection changes. e. Subdivisions and short subdivisions shall have adequate natural surface water drainage to reduce exposure to flood hazards; and f Subdivisions and short subdivisions shall show the 100-year floodplain, floodway, and channel migration zone on the preliminary and final plat and short plat maps and designate such areas as "no build," when applicable. Utilities. a. hfiltration of Flood Waters. All new and replacement water supply systems shall be designed to minunize or eliminate infiltration of flood waters urto the systems. b. Sanitary Sewage Systems. New and replacement sanitary sewage systems shall be designed to minimize or eliminate infiltration of flood waters into the systems and discharges from the systems into flood waters. c. On-Site Waste Disposal Systems. On-site waste disposal systems shall be located to avoid impairment to them or contamviation from them during flooding. New on-site sewage disposal systems are prohibited withui the floodplain. Residential Construction on Lots Created Prior to 1999. a. Must be Above Base Flood Elevation. New construction and substantial improvement of any residential structure shall have the lowest floor, including basement, elevated one foot or more above the base flood elevation. b. Areas Below the Lowest Floor. Fully enclosed areas below the lowest floor that are subject to flooding shall only be allowed when designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect or must meet or exceed the following minimum criteria: i. A muiunum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooduig shall be provided; ii. The bottom of all openings shall be no higher than one foot above grade; and iii. Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters. c. Manufactured Homes Must Be Elevated. All manufactured homes to be placed or substantially improved shall be elevated on a permanent foundation such that the lowest floor of the manufactured home is elevated one foot or more above the base flood elevation and be securely anchored to an adequately anchored foundation system to resist flotation, collapse, and lateral movement. Nonresidential Construction on Lots Created Prior to 1999. a. Above Base Flood Elevation. Ne~v construction and substantial improvement of any commercial, industrial, or other nonresidential structure shall either have the lowest floor, including basement, elevated one foot or more above the base flood elevation, or, together with attendant utility and sanitary facilities, shall: i. Be floodproofed so that below one foot or more above the base flood level the structure is watertight with walls substantially impermeable to the passage of water; ii. Have structural components capable of resisting hydrostatic and hydrodynamic loads and effects of buoyancy; and iii. Be certified by a registered professional engineer or architect that the design and methods of construction are in accordance with accepted standards of practice for meeting provisions of this subsection based on their development and/or review of the structural design, specifications, and plans. b. Areas Below the Lowest Floor. Fully enclosed areas below the lowest floor that are not floodproofed shall be designed to automatically equalize hydrostatic flood forces on exterior walls by allowing for the entry and exit of floodwaters. Designs for meeting this requirement must either be certified by a registered professional engineer or architect, or must meet or exceed the following minimum criteria: i. A minimum of two openings having a total net area of not less than one square inch for every square foot of enclosed area subject to flooding shall be provided; httn•//nt5 cnhhc ~nm/rai_hin/nm icani rlll7rliantTTl=77(11 (1~77Rrinfnhaca=~rPlm „f"R,rA~nr,t ~ionnno Document Page 3 ii. The bottom of all openings shall be no higher than one foot above grade; and iii. Openings may be equipped with screens, louvers, or other coverings or devices; provided, that they permit the automatic entry and exit of floodwaters. G. Performance Standards -General requu•ements in High Ground Water Hazard Areas. 1. Flood Elevations. The base flood elevation for high ground water flood hazard areas corresponds to the elevation of the outer edge of the high ground water flood hazard area. 2. Deluieation of the Base Flood Elevation. Applicants shall submit to the approval authority hydrologic and hydrogeologic studies as necessary to delineate the high ground water flood hazard area and the base flood elevation. 3. No development shall locate within 50 feet, measured on a horizontal plane, from the outer edge of the high ground water hazard area or extending to a ground elevation tvvo feet above the base flood elevation, whichever is less. 4. The bottom of any infiltration facility for stomiwater discharge shall be located at least 6 feet above the base flood elevation. H. Uses and Activities Prohibited From Frequently Flooded Areas. 1. Critical Facilities. Critical facilities are prohibited from frequentl}~ flooded areas to prevent damage to such facilities, to avoid costs that will be incurred by the public, and to maintain functionality of such facilities during flood events. 1f such a prohibition is unreasonable, an allowance for critical facilities in frequently flooded areas with the following specific conditions: a. Construction of new critical facilities shall be permissible within frequently flooded areas if no feasible alternative site is available. b. Critical facilities constructed within frequently flooded areas shall have the lowest floor elevated three feet or more above the level of the base flood elevation (100-year flood). c. Floodproofing and sealing measures must be taken to ensure that toxic substances will not be displaced by or released into flood waters. d. Access routes elevated to or above the level of the base flood elevation shall be provided to all critical facilities to the extent possible. 2. Wells Used for Potable Water. Water wells shall be located on high ground and are prohibited from beuig within the floodway. 3. On-Site Sewage Disposal Systems. On-site sewage disposal systems are prohibited from the floodway, the channel migration zone, and the 10-year floodplain elevation. (Ord. 833 § 1, 2005; Ord. 555 § 3, ] 995). 14.08.130 Geologically hazardous areas. A. Designation of Geologically Hazardous Areas. Geologically hazardous areas unclude areas susceptible to erosion, sliding, earthquake, or other geological events. They pose a threat to the health and safety of citizens when uicompatible development is sited in areas of significant hazard. Such uicompatible development may not only place itself at risk, but also may increase the hazard to surrounding development and i-se. B. Designation of Specific Hazard Areas 1. Erosion Hazard Areas. Erosion hazard areas are at least those areas identified by the U.S. Department of Agriculriire's Natural Resources Conservation Service as having a "moderate to severe," "severe," or "very severe" rill and inter-rill erosion hazard. Erosion hazard areas are also those areas impacted by shore land and/or streambank erosion and those areas within a river's channel migration zone. 2. Landslide Hazard Areas. Landslide hazard areas are areas potentially subject to landslides based on a combination of geologic, topographic, and hydrologic factors. They include areas susceptible because of any combination of bedrock, soil, slope (gradient), slope aspect, structure, hydrology, or other factors. Examples of these may include, but are not limited to, the following: a. Areas of historic failures; b. Areas with all three of the following characteristics: i. Slopes steeper than 15 percent; ii. Hillsides intersecting geologic contacts with a relatively permeable sediment overlying a relatively impermeable sediment or bedrock; and iii. Springs or ground water seepage; c. Areas that have shown movement during the Holocene epoch (from 10,000 years ago to the present) or that are underlain or covered by mass wastage debris of that epoch; httn•//nt5 crhhc rnm/rai_hin/nm icani r111~rlir~ntTTl=77"x(11 tl'277R~infnhae~=~~alm nfnRrrannrrl ~iai~nnQ J 1 2 3 4 BEFORE THE HEARING EXAMINER OF THE CITY OF YELM STATE OF ~~'ASHING'TON In re: CREEK ROAD MIXED USE APPEAL Yelm Creek Apartments LLC, Appellant APPELL~~1T'S WITNESS LIST COMES NOW Appellant by and through its attorneys of record, Gordon, Thomas, Honeywell, Malanca, Peterson & Daheim, and William T. Lynn, and hereby submits its witness list disclosing the following potential witnesses who may be called at the time of 5 6 7 8 9 10 11 12 13 14 15 hearing. 1. Timothy D. Holderman, P.E., Sound Engineering, Inc., 1102 Commerce Street, Suite 300, Tacoma, WA 98402; (253) 573-0040; 2. Eric Weber, Landau Associates, 950 Pacific Avenue, Suite 515, Tacoma, WA 98402; (253) 926-2493; and 3. Bradley P. Biggerstaff, GeoResources, LLC, 5007 Pacific Hwy. E., Suite 20, Fife, WA 98424-2648; (253) 896-1011. 16 17 18 19 20 21 22 23 24 25 26 APPELLANT'S WITNESS LIST -loft [1415165 vl.doc] LAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP 1201 PACIFIC AVENUE, SUITE 2100 POST OFFICE BOX 7157 TACOMA, WASHINGTON 98001.1157 (253) 6246500 -FACSIMILE (253) 820.8565 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Dated this 9`h day of June, 2008. Respectfully Submitted, GORDON, THOMAS, HONEYWELL, MALANCA, PETERSON & DAHEIM LLP By W,~... William T. , WSBA No. 07887 wlynn@gth- .com Attorneys for Appellant APPELLANT'S WITNESS LIST -2of2 [1415165 vOl.doc] LAW OFFICES GORDON, THOMAS, HONEYWELL, MALANCA. PETERSON & DAHEIM LLP 1201 PACIFIC AVENUE, SUITE 2100 POST OFFICE BOX 1157 TACOMA, WASHINGTON 98401-1157 (253) 620.6500 -FACSIMILE (253) 620-6585