Toward Responsible Dev., Apps. v. City Of Black Diamond, Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

TOWARD RESPONSIBLE

DEVELOPMENT, a Washington No. 69418-9-1

not-for-profit corporation; CYNTHIA E.

and WILLIAM B. WHEELER; ROBERT DIVISION ONE

M. EDELMAN; PETER RIMBOS;

MICHAEL E. IRRGANG; JUDITH UNPUBLISHED OPINION

CARRIER; EUGENE J. MAY; VICKI

HARP; CINDY PROCTOR; ESTATE MO

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OF WILLIAM C. HARP, x-

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CITY OF BLACK DIAMOND; BD **

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LAWSON PARTNERS LLC 050510;

BD LAWSON PARTNERS LP 001251

BD LAWSON PARTNERS LP 050510;

BD LAWSON PARTNERS LP 059999;

BD LAWSON PARTNERS LP 091251

BD PARTNERS LP 05010; BD

PARTNERS LP 821004; BD VILLAGE

PARTNERS LP 050511; DIAMOND

STAR DEVELOPMENT LLC 247647;

DIAMOND STAR DEVELOPMENT LLC

247654; FRANKLIN DEVELOPMENT

LLC 1N0763; KING COUNTY DNRP

069800; PALMER COKING COAL CO

LLP 020445; and PLUM CREEK

TIMBER 353489,

FILED: January 27, 2014

Respondents.

Grosse, J. — Applying the "rule of reason," a Hearing Examiner properly

concludes that an environmental impact statement provides a reasonably

thorough discussion of the significant aspects of a Master Planned

Development's environmental impacts when, as here, the Hearing Examiner's

findings are supported by substantial evidence. Additionally, an agency may

No. 69418-9-1/2

properly rely on the use of phased review to defer further analysis of adverse

environmental impacts until the time of construction when, as here, specific

aspects of the project that would require such analysis are not yet determined.

Accordingly, we affirm.

FACTS1

In 1996, the city of Black Diamond (City) completed its first Growth

Management Act (GMA)2 Comprehensive Plan, which included a designation for

Master Planned Developments (MPD).3 In 2005, the City adopted MPD

ordinances. These ordinances established the MPD zoning district and the

standards and MPD permit requirements for parcelsthat exceed 80 acres.4

In 2009, the City adopted a new and updated Comprehensive Plan,

designating large areas of the City for MPDs.5 The City also enacted

development regulations in a 2009 MPD ordinance, codified in chapter 18.98 of

the City code (BDMC), that were consistent with the new Comprehensive Plan

and created an MPD permit and review process for large scale development

projects.6 This ordinance served to update the procedures, requirements, and

standards relating to application for, approval of, and amendment to the

conditions attached to an MPD, and also created an MPD zoning district, set the

standards and the permit process for the review of future MPD permit

1 Citations to the Administrative Record will be listed as "AR" citations.

2Chapter 36.70A RCW.

3 Ordinance No. 599.

4 Ordinance Nos. 05-779, 05-796.

5City of Black Diamond Comprehensive Plan, June 2009 ("Plan").

6 BDMC 18.98.010(B), 030(A).

2

No. 69418-9-1/3

applications, and contained generalized policy statements.7 The City also

adopted chapter 18.08 BDMC, which provided for additional procedures for

processing permits. These ordinances were not appealed or otherwise

challenged under the GMA.

In 2009, BD Village Partners and BD Lawson Partners (collectively Yarrow

Bay) sought approval from the City to build two MPDs on land that falls within the

City's urban growth area. Yarrow Bay submitted permit applications for two MPD

projects known as "The Villages" and "Lawson Hills." The Villages project

included 1,196 acres, proposed to be developed with a maximum of 4,800 low,

medium, and high density dwelling units, and a maximum of 775,000 square feet

of retail, offices, commercial and light industrial development, schools, and

recreation and open space.8 The Lawson Hills project contemplated a maximum

of 1,250 low, medium, and high density dwelling units on 371 acres, and a

maximum of 390,000 square feet of retail, offices, commercial and light industrial

development, schools, and recreation and open space.9

As required by the State Environmental Policy Act (SEPA), chapter

43.21 C RCW, Environmental Impact Statements (ElSes) were prepared by the

City under the direction of Steve Pilcher, the designated responsible official

overseeing their preparation. Initially, the City agreed that the draft ElSes could

be prepared by Yarrow Bay's consultants, but later retained Parametrix to peer

review the work performed by Yarrow Bay consultants. The final ElSes did not

7 See BDMC 18.98.005, .060.

8 AR 27160.

9 AR 27332-33.

No. 69418-9-1/4

include review of additional impacts such as traffic queue lengths at specific

intersections, mitigation project design, and the potential for an alternate, on-site

stormwater pond location. These impacts were instead to be deferred until later

stages of development and construction when more specific information about

them would be available.10

Once the final ElSes were completed, a public hearing was scheduled on

the two MDP permit applications. At the same time, the ElSes were appealed

and those appeal hearings were consolidated with the hearing on the MPD

permits. After extensive hearings, the Hearing Examiner issued two rulings for

each MPD: one that addressed the adequacy of the ElSes and one that made

recommendations to the Black Diamond City Council (Council) on the permits.

The Hearing Examiner concluded that each EIS provided an adequate analysis

of environmental impacts and recommended that the Council approve both The

Villages and Lawson Hills MDP permits subject to several conditions.11

The Hearing Examiner's recommendations were forwarded to the Council

for consideration. The Council voted unanimously to approve both permits

subject to a number of revised conditions and passed ordinances approving the

MPD permits.12 A citizens group, Toward Responsible Development (TRD), filed

a land use petition under the Land Use Petition Act (LUPA), chapter 36.70C, in

King County Superior Court appealing both the MDP permits and the Hearing

Examiner's determinations that the final ElSes were adequate. The superior

10 AR 1225-26, 1235-36, 2084-85, 2475, 2479-80.

11 AR 24770, 24770-988.

12 Ordinance Nos. 10-946, 10-947.

4

No. 69418-9-1/5

court affirmed the MDP permit approvals and upheld the adequacy of the ElSes.

TRD appeals.

ANALYSIS

To prevail on a LUPA petition, the party challenging a government entity's

land use decision has the burden of establishing that the land use decision was

error as set forth in RCW 36.70C. 130(1). Among these errors are that the

decision was a clearly erroneous interpretation of law, unsupported by

substantial evidence, or a clearly erroneous application of law to facts.13 These

are the claimed bases for TRD's challenges to the EIS determinations and the

ordinances. In reviewing such decisions, we give "deference to both legal and

factual determinations of local jurisdictions with expertise in land use

regulation."14 We also grant deference to the Hearing Examiner's determinations

under SEPA.15

I. Environmental Impact Statement

An EIS is reviewed under the "rule of reason" standard.16 The "rule of

reason" requires only a "'reasonably thorough discussion of the significant

aspects of the probable environmental consequences . . . .'"17 "The ElS'fs]

13 RCW 36.70C.130(1)(b),(c),(d).

14 City of Medina v. T-Mobile USA. Inc.. 123 Wn. App. 19, 24, 95 P.3d 377 (2004)

(recognizing deference standard in RCW 36.70C.130(1) (quoting Timberlake

Christian Fellowship v. King County. 114 Wn. App. 174, 180, 61 P.3d 332

(2002)).

15 RCW 43.21 C.090.

16 Klickitat County Citizens Against Imported Waste v. Klickitat County. 122

Wn.2d 619, 633, 860 P.2d 390 (1993).

17 Klickitat County Citizens. 122 Wn.2d at 633 (quoting Cheney v. Mountlake

Terrace. 87 Wn.2d 338, 344-45, 552 P.2d 184 (1976)).

5

No. 69418-9-1/6

purpose is to facilitate the decision-making process; it need not list every remote,

speculative, or possible effect or alternative,'"18 nor evaluate every scenario or

conduct a "'worst case analysis.'"19 Courts review an EIS "as a whole"20 and

"examine all of the various components of [the] agency's environmental analysis .

. . to determine, on the whole, whether the agency has conducted the required

'hard look.'"21 We review SEPA determinations in a land use petition under the

clearly erroneous standard as set forth in RCW 36.70C.130(1)(d).

TRD challenges the adequacy of the ElSes on several grounds. It

contends that the Hearing Examiner erred by analyzing the MPDs as nonproject

programmatic actions, rather than project actions, by relying on phased review to

defer some detailed analysis until the time of construction, and by concluding that

the ElSes adequately addressed the impacts on Lake Sawyer and traffic. TRD

further contends that the ElSes failed to adequately respond to agency

comments on the draft ElSes.

A. Project vs. Programmatic Action

TRD contends that the Hearing Examiner erred by characterizing the

ElSes as "programmatic" rather than project specific and by applying a less

18 Gebbers v. Okanogan County Public Utility Dist. No. 1. 144 Wn. App. 371, 183

P.3d 324 (2008) (citing Klickitat County Citizens, 122 Wn.2d at 641).

19

East County Reclamation Co. v. Biornsen. 125 Wn. App. 432, 442 n.9, 105

P.3d 94 (2005) (quoting Solid Waste Alternative Proponents (SWAP) v.

Okanogan County. 66 Wn. App. 439, 447-48, 832 P.2d 503 (1992)).

20 Save Lake Washington v. Frank. 641 F.2d 1330, 1336 (9th Cir. 1981).

21 Webster v. U.S. Dep't of Agriculture. 685 F.3d 411, 421-22 (4th Cir. 2012) (first

and second alterations in original) (quoting National Audubon Soc'v v.

Department of Navy. 422 F.3d 174, 186 (4th Cir. 2005).

6

No. 69418-9-1/7

rigorous review standard. The Washington Administrative Code (WAC) 197-11-

442 addresses the contents of ElSes on nonproject proposals:

(1) The lead agency shall have more flexibility in preparing EISs

on nonproject proposals, because there is normally less detailed

information available on their environmental impacts and on any

subsequent project proposals. . . .

(2) The lead agency shall discuss impacts and alternatives in

the level of detail appropriate to the scope of the nonproject

proposal and to the level of planning for the proposal....

(3) If the nonproject proposal concerns a specific geographic

area, site specific analyses are not required, but may be included

for areas of specific concern. The EIS should identify subsequent

actions that would be undertaken by other agencies as a result of

the nonproject proposal, such as transportation and utility systems.

WAC 197-11-704 distinguishes between "project" and "nonproject" actions as

follows:

(a) Project actions. A project action involves a decision on a

specific project, such as a construction or management activity

located in a defined geographic area. Projects include and are

limited to agency decisions to:

(i)License, fund, or undertake any activity that will directly

modify the environment, whether the activity will be conducted

by the agency, an applicant, or under contract.

(ii)Purchase, sell, lease, transfer or exchange natural resources,

including publicly owned lands, whether or not the environment

is directly modified.

(b) Nonproject actions. Nonproject actions involve decisions on

policies, plans, or programs.

(i)The adoption or amendment of legislation, ordinances, rules,

or regulations that contain standards controlling use or

modification of the environment;

(ii)The adoption or amendment of comprehensive land use

plans, or zoning ordinances;

(iii)The adoption of any policy, plan or program that will govern

the development of a series of connected actions (WAC 197-11-

060), but not including any policy, plan, or program for which

No. 69418-9-1/8

approval must be obtained from any federal agency prior to

implementation;

(iv)Creation of a district or annexations to any city, town, or

district;

(v)Capital budgets; and

(vi)Road, street, and highway plans.

The Hearing Examiner concluded that review of the MPDs amounted to a

project action:

The parties appear to agree that the MPD review is a nonproject as

opposed to a project action. The [Hearing] Examiner also agrees

that MPD review qualifies as nonproject action because it involves

"regulations that contain standards controlling use or modification of

the environment" as opposed to "a construction or management

activity located in a defined geographical area." See WAC 197-11-

704(2)(a) and (b). An agency has more flexibility in preparing an

EIS on a nonproject action "because there is normally less detailed

information available on their environmental impacts and on any

subsequent project proposals." WAC 197-11-442. The SEPA

Appellants have pointed out that the MPD does have some

characteristics of a project action due to the specificity of

improvements proposed and, in a broader sense, because the

review is treated as a quasi-judicial proceeding. This is quite true,

but hybrid actions are covered in the nonproject regulations that

specify that the level of detail must be appropriate "to the scope of

the nonproject proposal and to the level of planning for the

proposal.["] ]d. Given these requirements, the level of detail is

expected to be comparatively high for project specific impacts.22

We agree with the Hearing Examiner's characterization of the MPD permit

approval as a nonproject action, or at the very least, a hybrid action. As Yarrow

Bay points out, the MPD permits are not permits for clearing, grading,

subdivision, or construction of any kind; rather, they are initial project permits that

set forth a site plan for development. Accordingly, the Hearing Examiner did not

err by treating the action as "nonproject" and applying a more flexible standard.

22 AR 24594.

8

No. 69418-9-1/9

TRD also contends that the MPD permits should be treated as project

actions based on this court's determination in an earlier related appeal that the

MPD permits were "project permit approvals." This earlier decision involved

TRD's appeal of the MPD permits to the Growth Management Hearings Board

(Board) under the GMA,23 which was filed at the same time it filed the current

LUPA appeal in superior court.24 This court held that the Board lacked

jurisdiction to review the permits under the GMA because they did not qualify as

decisions involving comprehensive plans and development regulations, to which

the Board's jurisdiction was limited. Rather, this court concluded they were

approvals of a "project permit" under RCW 36.70B.020(4), which specifically

excludes decisions involving comprehensive plans, subarea plans, and

development regulations, and is defined as

any land use or environmental permit or license required from a

local government for a project action, including but not limited to

building permits, subdivisions, binding site plans, planned unit

developments, conditional uses, shoreline substantial development

permits, site plan review, permits or approvals required by critical

area ordinances, site-specific rezones authorized by a

comprehensive plan or subarea plan, but excluding the adoption or

amendment of a comprehensive plan, subarea plan, or

development regulations except as otherwise specifically included

in this subsection.[25]

23 BD Lawson Partners. LP v. Central Puget Sound Growth Momt. Hearings Bd..

165 Wn. App. 677, 269 P.3d 300 (2011), review denied, 173 Wn.2d 1036, 277

P.3d 669 (2012).

24 The LUPA case was stayed pending the GMA appeal.

25 As this court explained, because the permit approvals did not amend

development regulations or the City's comprehensive plan but were processed

as permits consistent with the 2009 MPD ordinances, the only way the permits

could violate the GMA is if the MPD ordinance violated the GMA. BD Lawson.

165 Wn. App at 689. Noting that these regulations were never challenged under

the GMA, this court agreed with Yarrow Bay that "any challenge under the GMA

9

No. 69418-9-1/10

But that determination decided the issue of jurisdiction over review of the MPD

permits; it does not address the issue here, which is whether a more flexible

standard applies to review of an EIS for an MPD permit. As discussed above,

this depends on whether the MPD permit is characterized as a "project" or

"nonproject" action as defined in the specific regulations relating to EIS review,

and the Hearing Examiner properly reviewed it as a nonproject action.

B. Phased Review

TRD further contends that the Hearing Examiner erred by considering the

ElSes as part of a "phased" environmental review and allowing the deferral of

certain detailed environmental analyses until the time of actual construction. The

EIS regulations provide for "phased review" as follows in WAC 197-11-060(5):

(b) Environmental review may be phased. If used, phased review

assists agencies and the public to focus on issues that are ready

for decision and exclude from consideration issues already decided

or not yet ready. Broader environmental documents may be

followed by narrower documents, for example, that incorporate prior

general discussion by reference and concentrate solely on the

issues specific to that phase of the proposal.

(c) Phased review is appropriate when:

(i)The sequence is from a nonproject document to a

document of narrower scope such as a site-specific analysis

(see, for example, WAC 197-11-443); or

(ii)The sequence is from an environmental document on a

specific proposal at an early stage (such as need and site

to the 2010 permits approved consistent with the 2009 ordinances constitutes an

impermissible collateral attack on the 2009 ordinances," and concluded, "TRD's

challenge to the City's permit approval must be under LUPA in superior court, not

under the GMA before the Board." BD Lawson. 165 Wn. App. at 690.

10

No. 69418-9-1/11

selection) to a subsequent environmental document at a

later stage (such as sensitive design impacts).

(d) Phased review is not appropriate when:

(i) The sequence is from a narrow project document to a

broad policy document;

(ii) It would merely divide a larger system into exempted

fragments or avoid discussion of cumulative impacts; or

(iii) It would segment and avoid present consideration of

proposals and their impacts that are required to be evaluated

in a single environmental document under WAC 197-11-

060(3)(b) or 197-11-305(1); however, the level of detail and

type of environmental review may vary with the nature and

timing of proposals and their component parts.

(g) Where proposals are related to a large existing or planned

network, such as highways, streets, pipelines, or utility lines or

systems, the lead agency may analyze in detail the overall network

as the present proposal or may select some of the future elements

for present detailed consideration. Any phased review shall be

logical in relation to the design of the overall system or network,

and shall be consistent with this section and WAC 197-11-070.

Our courts have approved of phased review in cases where it is difficult to

assess the full impact of a project at the time. For example, in Cathcart-Maltbv-

Clearview Community Council v. Snohomish County, the court held that even

though the EIS was a "bare bones" presentation of impacts, a large scale

residential development project was an appropriate candidate for phased review:

Given the magnitude of the project, the length of time over which it

will evolve, and the multiplicity of variables, staged EIS review

appears to be an unavoidable necessity. At this point, an

exhaustive EIS is impracticable in light of the difficulty of

determining in the abstract, for a period of 25 years, such things as

the rate at which the project will develop, the particular location of

the housing units, the growth of the tax base which will support the

needed public services, the evolution of transportation

technologies, and the evolving socioeconomic interests of the

prospective population.1261

26 96 Wn.2d 201, 208, 210, 634 P.2d 853 (1981).

11

No. 69418-9-1/12

But the court also made clear that approval of the initial EIS "does not relieve the

developers from ultimately complying with all SEPA requirements."27 Rather,

"[a]s the data becomes available or, at the latest, when sector plan approval is

sought, the secondary and cumulative impacts on the entire affected area . . .

must be quantitatively assessed and the costs of mitigating them identified."28

Similarly here, phased review is appropriate. The approved deferred

environmental review applies to those aspects of construction that can only be

adequately analyzed after additional detail is known. This includes construction

traffic impacts, traffic queue lengths at not yet constructed intersections, and the

potential for an alternate, on-site stormwater pond location.29 When this

information becomes available, Yarrow Bay must comply with all SEPA

requirements and provide a supplemental EIS that quantitatively assesses the

secondary and cumulative impacts on the entire affected area and identify the

27 Cathcart. 96 Wn.2d at 211.

28 Cathcart. 96 Wn.2d at 211(citation omitted).

29 See testimony at AR 2474-75 (potential impacts from construction hauling best

addressed at project stage); AR 1219 (not reasonable or cost effective to assess

queue length calculations for project build-out in the year 2025); AR 1226

(needed turn lanes can be identified, not appropriate at this stage to assess

sizing and length of turn lanes when construction not until 5, 10, 15 years, makes

sense when it is closer to design and construction); AR 2084 (if off-site

stormwater infiltration pond not permitted, potential impacts of an alternate on-

site pond would require additional analysis after specific locations are

determined); AR 2474 (potential impacts of constructing sewer system more

accurately assessed at project specific phase).

12

No. 69418-9-1/13

costs of mitigating them.30 TRD fails to show that the Hearing Examiner's

approval of the use of phased review is clearly erroneous.

C. Lake Sawyer Impacts

TRD contends that the ElSes failed to adequately address the impacts of

the MPDs on Lake Sawyer, which has a history of water quality issues. Lake

Sawyer's water quality problems were caused in part by failing septic systems in

the Lake Sawyer watershed and, in 1981, the City responded by constructing a

sewage treatment plant that discharged treated effluent into wetlands. The

effluent, however, ultimately reached Lake Sawyer, causing phosphorous levels

to increase and create algae blooms that rendered the lake unusable by the

public. The problem was eventually corrected in 1992 but it took several years

for water quality to reach acceptable levels of phosphorous.31

As a result, the Washington State Department of Ecology (DOE) listed

Lake Sawyer as an impaired water body subject to the federal Clean Water Act,

which requires that a limit be set for the amount of phosphorous allowed into the

water. This limit is known as the total maximum daily load (TMDL). In 1993, the

Environmental Protection Agency (EPA) set the TMDL for phosphorous in Lake

Sawyer at 715 kilograms per year, an in-lake concentration of 16 micrograms/L32

In 2000, King County prepared the Lake Sawyer Management Plan

(LSMP), which sought to complete a study begun in 1989 through 1990 to

30 Cathcart. 96 Wn.2d at 211; see also WAC 197-11-405(4)(a),(b) (requiring a

supplemental EIS when there are either "substantial changes" to a proposal or

"significant new information" indicating probable environmental impacts).

31 AR 24669.

32 AR 20760.

13

No. 69418-9-1/14

assess the impact of the water treatment plant diversion on water quality, update

the lake's nutrient and water budgets, and evaluate restoration alternatives to

protect water quality. It also included a detailed projection of phosphorous levels

at full build-out of the Lake Sawyer watershed, with and without recommended

mitigation. The LSMP showed a phosphorous concentration of 31 micrograms/L

for build-out with "watershed controls" and 37 micrograms/L for build-out with

"internal load control."33

In 2009, DOE released a follow-up plan, the Lake Sawyer Total

Phosphorous Maximum Daily Load Water Quality Implementation Plan

(Implementation Plan), which provided for corrective actions to address sources

of phosphorous pollution in the lake and the surrounding watershed.34 The

Implementation Plan also contemplated the City's adoption of the 2005

Stormwater Management Manual for Western Washington and concluded that

the adoption of the manual and a monitoring program would result in meeting the

TMDL.35 The Implementation Plan also included data showing that phosphorous

levels had actually decreased by 2007, approximately 50 percent below the

TMDL.36

The ElSes discussed the phosphorous levels in Lake Sawyer as follows:

Historically, untreated sewage from septic tanks and drainfields

drained to Lake Sawyer, partially contributing to existing elevated

phosphorous concentrations in the lake. In 1992, all wastewater

discharge from Black Diamond's lagoons to Lake Sawyer was

33 AR 24670.

34 AR 24670.

35 AR 24671.

36 AR 15399 (figure 5 shows a graph indicating levels in 2007 at .08 micrograms).

14

No. 69418-9-1/15

terminated, although numerous septic drainfields still surround the

lake. In 1993, the EPA set a maximum mean summer total

phosphorous concentration limit of 16 ug/L (.016 mg/L). Although

the Department of Ecology has determined that some short term

noncompliance with the total phosphorous concentration limit may

exist, it has concluded that Lake Sawyer appears to be meeting the

limit as a long term average. Existing elevated total phosphorous

concentrations in the lake stem from several sources: release from

sediments during seasonal turnovers (19 percent); flow from Rock

Creek basin (35 percent); flow from Ravensdale Creek basin (17

percent); the immediate Lake Sawyer subbasin (12 percent); septic

tanks (8 percent); and input from aquatic plants, groundwater, and

the air (9 percent).

King County completed the Lake Sawyer Management Plan in

2000 and concluded that the lake is currently mesoeutrophic. The

Lake Sawyer Management Plan has a goal of maintaining the

lake's mesoeutrophic state while accommodating future population

growth through 2030.[37]

Nutrients of concern in stormwater consist largely of nitrogen and

phosphorous and often originate from fertilizers used on lawn and

landscaping, and from exterior use of detergents. Nitrogen and

phosphorous can also enter waterbodies from erosion during

construction and from bed movement in streams. Lake Sawyer

currently has a 303(d) listing for phosphorous, and both it and

Jones Lake are potential candidates for eutrophication based on

increased nutrients resulting from development.1 8]

The Hearing Examiner found that the ElSes failed to adequately disclose

potential phosphorous impacts to Lake Sawyer,39 but concluded that the LSMP

and Implementation Plan "[p]rovide a [h]ighly [credible and [thorough [r]eview of

[p]hosphorous [i]mpacts and [c]ontrol for [development in the [e]ntire Lake

Sawyer Watershed,"40 both MDP projects are within the phosphorous loading

37 AR 20760.

38 AR 20768.

39 AR 24671.

40 AR 24669 (boldface omitted).

15

No. 69418-9-1/16

assumptions employed by the LSMP,41 and both MDPs adequately mitigate

phosphorous impacts to Lake Sawyer.42

TRD first contends that the Lake Sawyer analysis was inadequate

because it failed to disclose the potential impacts of phosphorous loading into

Lake Sawyer. The Hearing Examiner found that this information was lacking but

concluded that this omission alone was not a basis to invalidate the entire EIS:

Neither [T]he Villages EIS or the Lawson Hills EIS adequately

identifies the impacts associated with reaching eutrophic status,

e.g., the health hazards, beach closures, harm to endangered fish

and aesthetic blight. . . . These omissions are difficult to justify

given that 65% of [T]he Villages sand [sic] 100% of Lawson Hills

drains into Lake Sawyer.

Given the prominence that Lake Sawyer water quality plays in the

Black Diamond community, the significance of phosphorous

impacts and the uncertainty in the science backing [sic]

Implementation Plan, it was unreasonable for the EIS to fail to warn

of the specific problems that could arise from phosphorous

contamination of Lake Sawyer. Given the large amount of

development involved in the MPD proposals, the information on

specific impacts could spur decision makers into advocating for

updated modeling [sic] the LSMP or a greater commitment to

implementing the regional mitigation measures identified in the

Implementation Plan. Given the overall scope and context of the

EIS, the failure to include these specific impacts cannot by itself

justify a finding of inadequacy for the entire document, especially

given that the reference to eutrophication in both documents does

provide inquiry notice to persons concerned about water quality.[43]

TRD fails to show that the Hearing Examiner's conclusion was clearly erroneous.

Applying the rule of reason, it was not error to conclude that omission of the full

extent of these impacts cannot alone justify invalidating the entire EIS. At the

41 AR 24673.

42 AR 24674.

43 AR 24672.

16

No. 69418-9-1/17

very least, it did identify Lake Sawyer as a "potential candidate[] for

eutrophication based on increased nutrients resulting from development."44

TRD further contends that the ElSes' failure to provide information about

the actual quantity of phosphorous that likely will reach the lake at full build-out of

the MPDs renders the ElSes inadequate because this information is "essential" in

assessing the projects' impacts on Lake Sawyer, which TRD contends is "at a

tipping point."45 But as the Hearing Examiner concluded:

On the utility of additional information, Mr. Zisette testified that the

Applicant failed to determine how much phosphorous the MPDs

would add to Lake Sawyer. He noted that the Applicant could have

easily made this determination since it had data on both projected

stormwater volumes and phosphorous concentrations. The

Applicant did not rebut this testimony and the Examiner finds that

the phosphorous loading would not have been unreasonably

difficult to compute. However, this additional information would not

have provided anything of significant use to the decision maker. As

ably demonstrated by Mr. Zisette, there is no question that under

the modeling of the LSMP that the MPD phosphorous loading

would exceed TMDL, no matter what amount of phosphorous was

generated by the projects'461

Of course, with more work the Applicant could recalibrate the LSMP

model to include current lake conditions, the Applicant's

adjustments to the drainage basins and the benefits of the 2005

stormwater manuals. In short, the Applicant would prepare its own

LSMP. The resulting information could indicate how close the

MPDs will bring Lake Sawyer to TMDL and what the Applicant's

proportionate share of phosphorous loading would have to be in

order to keep full build-out below TMDL. The price of this additional

information is to hold the Applicant to a different standard than the

watershed standards developed in the LSMP and the

Implementation Plan [T]he reliance of the Applicant upon the

LSMP, instead of its own calculations, provides a reasonably

44 AR 20768.

45 Appellant's Brief (AB) at 47 (boldface omitted).

46 AR 24678.

17

No. 69418-9-1/18

thorough discussion of stormwater impacts to Lake Sawyer as

required for an adequate EIS.[47]

Again, applying the rule of reason, TRD fails to show that the Hearing

Examiner's conclusion was clearly erroneous. The analysis reasonably

disclosed that phosphorous loading resulting from MPDs would exceed the

TMDL and identified reasonable mitigation measures in line with DOE standards.

While it certainly failed to identify by precisely how much the TMDL would be

exceeded, this lack of specific information alone does not render the entire EIS

inadequate. Indeed, WAC 197-11-080(3)(a) and (b) permits agencies to proceed

in the absence of "vital information" when information relevant to adverse impacts

is either "essential to a reasoned choice among alternatives, but is not known,

and the costs of obtaining it are exorbitant" or "important to the decision and the

means to obtain it are speculative or not known," and provides that in such

cases,

the agency shall weigh the need for the action with the severity of

possible adverse impacts which would occur if the agency were to

decide to proceed in the face of uncertainty. If the agency

proceeds, it shall generally indicate in the appropriate

environmental documents its worst case analysis and the likelihood

of occurrence, to the extent this information can reasonably be

developed.

Nor has TRD challenged any findings as unsupported by substantial

evidence. While TRD claims that Lake Sawyer is at the "tipping point" to

becoming eutrophic (i.e., exceeding 24 micrograms/L),48 the Hearing Examiner's

findings acknowledge "there is still a great deal of uncertainty in predicting

47 AR 24678.

48 AR 24677.

18

No. 69418-9-1/19

phosphorous loading," noting that the modeling in the LSMP shows levels 84

percent above the TMDL, while the most recent data shows it could be as much

as 50 percent below the TMDL.49 The Hearing Examiner's findings further note

that while the EIS relies on the phosphorous loading estimates in the LSMP, "the

preponderance of evidence in the record establishes that the LSMP significantly

overstates the amount of phosphorous generated by the proposed

development."50

The Hearing Examiner found that "[t]he record identifies three factors and

potentially one more factor that markedly skew the LSMP assumptions to

overstate MPD phosphorous loading. No factor was offered into the record to

that [sic] understates phosphorous loading."51 The Hearing Examiner further

found that "[tjhere is nothing to suggest in the record that the MPD proposals,

alone, will push the phosphorous concentration beyond the 24 micrograms/L

given the current conditions of Lake Sawyer."52 The Hearing Examiner noted

that TRD's expert testified that as little as a 5 percent increase could push the

lake into eutrophic status, but did not explain the basis for his assumption or

whether it considered the current state of the lake, as all of his calculations had

been based on that identified in the LSMP.53

49 AR 24671; AR 24673 (the Implementation Plan shows the 2007 phosphorous

concentration at 8 to 9 micrograms/L).

50 AR 24673.

51 AR 24674.

52 AR 24677.

53 AR 24677.

19

No. 69418-9-1/20

Nor has TRD successfully challenged the Hearing's Examiner's finding

that the MPDs "meet the conditions for DOE's finding ofTMDL compliance."54 As

the Hearing Examiner concluded, "any conclusion that the MPDs would fail to

meet TMDL would be directly contrary to the findings of DOE, made in 2009, that

the MPDs would satisfy TMDL."55 And as the Hearing Examiner noted, the

appellants offered nothing to refute DOE's findings.56

D. Traffic Impacts

TRD contends that the ElSes' traffic analyses were inadequate by failing

to address safety impacts, increase in travel times, construction traffic impacts,

and the feasibility of implementing mitigation measures. TRD further contends

that the ElSes failed to adequately analyze alternatives. We disagree.

The Hearing Examiner recognized that the ElSes did not address a

number of potential impacts on traffic.57 The Hearing Examiner further found

that the ElSes did not provide much detail about alternatives 3 and 4, and

instead "merely noted the percentage increase posed by each alternative."

54 AR 24675.

55 AR 24678.

56 AR 24676 ("nothing was offered by the Appellants to explain why DOE would

reach such a conclusion if there was no reasonable basis for it.").

57 AR 24615, Findings of Fact (FF) 9 (EIS did not include a detailed analysis of

potential queue lengths resulted from increased traffic); AR 24615, FF 10 (EIS

did not address individual turning movement failures at the various "legs" of each

intersection); AR 24616-18, FF 14, 16 (EIS did not address safety concerns

including those faced by bicyclists and pedestrians); AR 24617-18, FF 15 (EIS

did not include an analysis or estimate of anticipated increases in travel times);

AR 24620, FF 19 (EIS did not assess traffic impacts posed by construction ofthe

proposed projects).

68 AR 24620, FF 20.

20

No. 69418-9-1/21

But the Hearing Examiner ultimately concluded that the traffic analysis was

adequate:

Although many facets of the transportation analysis could have

been better, the choices made by Parametrix are all within the

parameters of reasonably justified professional judgment,

especially given the substantial weight that must be given to the

SEPA Responsible Official's determination that the analysis is

adequate. The FEIS [(final EIS)] contains a reasonably thorough

discussion of the significant adverse transportation impacts of the

proposed project at the programmatic level of analysis. However,

the use of a regional model to project local traffic impacts, the

divergence in the effect of modeling assumptions, along with

concern related to the effect of the choice of models on potential

impacts and mitigation will lead the Hearing Examiner to

recommend additional mitigation measures based on the outcome

ofthis subsequent study in the MPD.I59]

TRD first contends that the ElSes' failure to address safety impacts

renders it inadequate. The Hearing Examiner concluded:

While the FEIS did not identify safety concerns as a probable

significant adverse impact, the Appellants did not present evidence

that these issues could be adequately addressed at this higher

level review. It is reasonable to conclude that decision-makers

would recognize that vehicle accidents will increase proportionately

with increased traffic volumes.1601

The Hearing Examiner also made findings recognizing the difficulty of predicting

safety impacts without evaluating the particular configuration of a high-accident

location.61 TRD does not assign error to these findings. Accordingly, they are

59 AR 24620.

60 AR 24620, FF 2.

61 Finding of Fact 14 cites Parametrix' expert John Perlic's testimony: "Mr. Perlic

noted while some of the safety impacts are mitigated by the improvements called

for in the FEIS, the randomness of the accidents makes it difficult to predict and

impose more specific mitigation that would decrease the risk. He further testified

there is no known way to analyze safety impacts except to evaluate the particular

configuration of a high-accident location." AR 24617.

21

No. 69418-9-1/22

verities on appeal and support the Hearing Examiner's conclusions. TRD fails to

show that the conclusions are clearly erroneous.

TRD also contends that the ElSes' traffic impact analysis was inadequate

because it failed to analyze travel times and instead only analyzed intersection

levels of service (LOS). The Hearing Examiner concluded that it was not

necessary for the ElSes to discuss anticipated increases in travel times due to

increased traffic and that the LOS analysis "is the more customary manner to

address traffic issues."62 The Hearing Examiner further concluded that the ElSes

contained "a reasonable discussion of the impacts resulting from increased traffic

volumes and decreased levels of service."63 As the City notes, these conclusions

are supported by substantial evidence, including testimony from TRD's traffic

expert, city ofMaple Valley's traffic expert, and Parametrix's expert.64

TRD further contends that the ElSes failed to disclose "the true extent of

LOS failures," by omitting an AM peak hour analysis and an analysis of individual

intersection legs. The Hearing Examiner concluded that "[u]se of the PM peak

hour analysis was sufficient to establish necessary mitigation for traffic

increases," citing testimony from Parametrix's expert that it is customary to use

the highest travel hour to account for worst-case traffic scenarios.65 The Hearing

Examiner also concluded that "[analysis of whole intersection failure was

sufficient to establish necessary mitigation," citing testimony from both TRD's

62 AR 2462, CL 3.

63AR24621,CL3.

64 AR 849, 878 (TRD expert Ross Tilghman); AR 1109 (City of Maple Valley

expert Natarajan Janarthanan); AR 1218, 1234 (John Perlic from Parametrix).

65AR24621,CL4.

22

No. 69418-9-1/23

expert and Parametrix's expert that "it is standard practice to analyze the entire

intersection because mitigation is tied to failure of whole intersection."66 The

Hearing Examiner further concluded that examining various legs of each

intersection is inappropriate for the EIS itself as this analysis is contained in the

Transportation Technical Report.67 TRD fails to show that the Hearing

Examiner's conclusions are not supported by substantial evidence and are

clearly erroneous.

Next, TRD contends that the ElSes were inadequate by failing to analyze

construction impacts. The Hearing Examiner recognized this omission but

concluded that "mitigation of such impacts is more appropriately handled at each

phase ofthe project."68 As the Hearing Examiner explained:

There is no evidence that addressing these impacts at this stage of

environmental review would result in a more effective mitigation.

SEPA allows the City to determine the appropriate scope and level

of detail of environmental review to coincide with meaningful points

in their planning and decision-making processes, and to focus on

issues that are ready for decision and exclude from consideration

issues already decided or not yet ready. WAC 197-11-060(5).

Construction impacts are such issues not ripe for consideration.

The City's Engineering and Construction Standards will require a

traffic control plan that will address the specific impacts prior to

commencement of construction.1691

TRD fails to show that this conclusion is clearly erroneous. As the Hearing

Examiner noted, no evidence was presented showing that addressing impacts at

66AR24621,CL5.

67AR24621,CL5.

68 AR 24624, CL 14.

69 AR 24624, CL 14.

23

No. 69418-9-1/24

this stage would result in more effective mitigation and TRD points to no such

evidence.

TRD also contends that the failure to include an analysis of the feasibility

of implementing mitigation measures renders the ElSes inadequate. The

Hearing Examiner concluded that it was not necessary for the ElSes to address

the feasibility of implementing mitigation measures, explaining:

SEPA requires the FEIS to discuss reasonable mitigation measures

that would significantly mitigate impacts, and indicate what the

intended environmental benefits of mitigation measures are for

significant impacts. WAC 197-11-440. The FEIS may discuss the

economic practicability of mitigation measures // there is concern

about whether a mitigation measure is capable of being

accomplished. Id. It need not analyze mitigation measures in detail

unless they involve substantial changes to the proposal causing

significant adverse impacts, and those measures will not be

subsequently analyzed under SEPA. Id. In this case, the measures

will be subsequently analyzed, and it would be premature to

attempt to analyze the feasibility of implementation of mitigation

measures at this juncture. Such an analysis is of limited use given

the multitude of other factors that could derail the project. Cost-

sharing arrangements may be addressed by development

agreements entered into between the developer and City.

These issues are more appropriately addressed later as part of the

review of the specific project pieces when the City has the

permitting authority to condition the project on implementation of

mitigation measures. If level of service impacts mandate mitigation,

any development can only proceed if mitigation is actually

implemented. While SEPA does not require the FEIS to discuss

mitigation measures in detail in all instances, mitigation must be

reasonable and capable of being accomplished. If mitigation is

determined to be unfeasible at the time the project will be built, then

GMA concurrency will prevent the development from proceeding.

Consequently, any feasibility analysis at this point would only

speculate on whether the development will proceed to completion if

approved.1701

70

AR 24622-23, CL 10.

24

No. 69418-9-1/25

TRD fails to show that this conclusion is clearly erroneous. The Hearing

Examiner relies on the relevant regulations addressing mitigation in an EIS,71 and

TRD cites no contrary authority requiring the level of detail it urges.

Finally, TRD challenges the adequacy of the alternatives analysis in the

ElSes' discussion of traffic impacts, contending that it failed to address safety

impacts and did not disclose the number of intersections failing LOS standards.

The Hearing Examiner concluded:

While the FEIS gave short shrift to Alternatives 3 and 4, merely

noting the percentage increase posed by each alternative, failure to

go into more detail is not fatal to the validity of the FEIS. The SEPA

Responsible Official made a determination that the FEIS is

adequate. The FEIS provided sufficient information to enable the

decision-makers to making [sic] a reasoned choice among

alternatives. The issues that Appellants claim should have been

addressed in more detail with regard to each alternative, such as

safety, hours of commute analyzed, character and travel times are

discussed elsewhere herein, and were not necessary for the validity

oftheFEIS.[72]

TRD fails to show that this conclusion is clearly erroneous. An EIS need only

include "[reasonable alternatives" and they need not be discussed in detail.73

Here, the ElSes identified two specific scaled down alternatives and disclosed

the percentage of traffic increases attributable to both. TRD points to no

authority requiring the detail it seeks.

71 WAC 197-11-440(6)(a),(c)(iv) (An EIS need only "discuss reasonable

mitigation measures that would significantly mitigate," and "may discuss their

technical feasibility and economic practicability, if there is concern about whether

a mitigation measure is capable of being accomplished.") (emphasis added).

72 AR 24622, CL 9.

73 WAC 197-11-440(5)(b)(i) ("The word 'reasonable' is intended to limit the

number and range of alternatives, as well as the amount of detailed analysis for

each alternative.").

25

No. 69418-9-1/26

E. Noise Impacts

TRD further contends that the ElSes failed to adequately address impacts

of construction noise. The Hearing Examiner concluded:

The FEIS and its Technical Appendices reasonably disclose,

discuss, and substantiate the loudness of construction noise that

may be attributable to the proposed development.'741

The Applicant proved that the existing noise levels in the FEIS were

sufficiently accurate.'751

Although [The Villages] FEIS does not adequately address noise

impacts upon the Harp [property] and potentially the Proctor

property, this does not render the entire FEIS inadequate. The

noise appeal was limited to impacts upon the three residences

identified in Finding of Fact No. 1. Mitigation and further analysis of

noise impacts upon those properties can be handled under the

MPD conditions of approval without having any substantial impact

upon the noise analysis conducted in the EIS. Further the

information in the FEIS was sufficient to notify the decision maker

that noise impacts could be severe for some property owners, such

as the Harps and Ms. Proctor.'761

TRD contends that because the Hearing Examiner also concluded that the

ElSes should have included an assessment of the duration of the noise impacts

and mitigation,77 the Hearing Examiner should have found the ElSes inadequate.

But as the Hearing Examiner also concluded, mitigation and further analysis of

noise impacts "can be handled under the MPD conditions of approval without

having any substantial impact upon the noise analysis conducted in the EIS."

74 AR 24610, CL1.

75AR24611,CL3.

76 AR 24612, CL6.

77 See AR 24583, 24611.

78 AR 24612.

26

No. 69418-9-1/27

As the City contends, an EIS may properly take into account mitigation imposed

as part of project permit conditions.79 In fact, the Council followed the Hearing

Examiner's suggestions and imposed detailed noise mitigation and monitoring

conditions, including a requirement for development of a separate haul route and

a prohibition against hauling on certain existing streets in residential areas.80

F. Responses to Agency Comments

TRD further challenges the adequacy of the ElSes on the basis that they

failed to respond to critical agency comments of the draft EIS. TRD points to the

lack of adequate responses to King County's comments about (1) how a

proposed infiltration pond in a rural area may impact the regional Green River to

Cedar River trail corridor, (2) the draft EIS's deficient discussion of stormwater

impacts, (3) the draft EIS's failure to adequately address potential adverse

impacts to rural areas and resource lands per countywide planning policy and

county comprehensive plan, and (4) more detail about new local wastewater

infrastructure and impacts to local streams, wetlands, soil, public health, and to

comments from both King County and Washington State Department of

Transportation (WSDOT) about deficiencies in traffic analysis.

As a threshold matter, the City first notes that the Hearing Examiner found

that the SEPA appellants never raised the adequacy of the responses to agency

comments in their administrative SEPA appeals. Rather, the issue was first

79 See Edwardsen v. U.S. Dep't of Interior. 268 F.3d 781, 790 (9th Cir. 2001);

City of Sausalito v. O'Neill. 386 F.3d 1186, 1212-13 (9th Cir. 2004).

80 AR 27310-11,AR 27478.

27

No. 69418-9-1/28

raised in TRD's posthearing closing brief.81 Accordingly, the Hearing Examiner

concluded, "the failure to respond to DEIS [(draft EIS)] comments on its own is

not within the scope ofthe appeals ofthis decision."82 But the Hearing Examiner

did clarify that the issue can be a factor if related to an appeal issue that has

been timely presented and concluded that "[d]uring the course of this appeal the

SEPA [a]ppellants have raised the adequacy of [The Villages] FEIS responses

related to issues that they have properly presented, such as transportation and

Lake Sawyer waterquality."83 Thus, the issue is properly before this court.

The "rule of reason" applies to claimed failures to respond to agency

comments and inconsequential errors must be dismissed as harmless.84

Applying this rule of reason in Klickitat County Citizens, the court held that the

county's failure to respond to specific comments about handling of waste on a

draft EIS did not render the EIS inadequate, noting that the county did respond to

general comments on handling waste and made some changes to the final EIS

as a result.85

The Hearing Examiner concluded that "there is nothing in the record to

suggest that the City failed to address DEIS comment letters that raised

significant adverse environmental impacts that were not adequately addressed in

the EIS," but did note that the City's failure to use a localized model "certainly

81 AR 24634-35.

82 AR 24635 (Citing BDMC 18.08.210[(F)]: "no new substantive appeal issues

may be raised or submitted after the close of the time period for filing of the

original appeal.").

83 AR 24635.

84 Klickitat County Citizens. 122 Wn.2d at 637-38.

85 Klickitat County Citizens. 122 Wn.2d at 638.

28

No. 69418-9-1/29

detracts from the reasonableness of its discussion, but not enough to render it

inadequate."86 The Hearing Examiner noted that the city of Maple Valley did, in

fact, use a local model and the city's transportation engineer was highly qualified,

worked for the city instead of the applicant, and had good reason to use the

regional model.87 Applying the rule of reason, TRD fails to show that the Hearing

Examiner's conclusion was clearly erroneous. Additionally, as the City points

out, all of the agency comments were addressed in detail during the EIS appeal

hearing; thus, any failure to respond amounts to harmless error.

II. Permit Approval

TRD next challenges the ordinances approving the MPD permits,

contending that they are inconsistent with the Comprehensive Plan policies to

preserve small town character, violate City code standards for job creation and

walkability, and fail to provide adequate mitigation for adverse environmental

impacts.

TRD first contends the MPD proposals fail to preserve the City's small

town character and natural setting as mandated by the Comprehensive Plan

("Plan"). As TRD points out, BDMC 18.98.080.A.1 provides that an MPD permit

will not be approved unless it "complies with all applicable adopted policies,

standards and regulations," and BDMC 18.98.010.L lists as one of the purposes

of the MPD permit process:

[To] [p]romote and achieve the city's vision of incorporating and/or

adapting the planning and design principles regarding mix of uses,

86 AR 24635, CL 3.

87 AR 24635, CL 3.

29

No. 69418-9-1/30

compact form, coordinated open space, opportunities for casual

socializing, accessible civic spaces, and sense of community; as

well as such additional design principles as may be appropriate for

a particular MPD, all as identified in the book Rural By Design by

Randall Arendt and in the city's design standards.

TRD also points to references in the Plan to "fundamental principles to retain its

small town character," and "[r]etain the natural setting."88 TRD contends that the

MPD applications are contrary to these principles, noting that the development

areas will be cleared of all vegetation and graded, and will involve the excavation

of six million cubic yards of soil and fill. TRD contends that the result will be a

"classic, mega-suburban subdivision development pattern" and "big box retail

development" that is inconsistent with the historic small character of Black

Diamond and the principles of Rural by Design.89 TRD further contends that the

MPD proposal is not a continuation of the City's "incremental development," and

does not "control the scale and character" of the development as required by the

Plan because it seeks to quintuple the City's current size in 15 years, which is

wholly out of character and scale of the existing small town ambience.90

In its approval of the MPDs, the Council found that the purpose of BDMC

18.98.010.Lwasmet:

As detailed in Finding No. 2, the Land Use Plan map and the MPD

application, [T]he Villages MPD application proposes a mix of

residential and commercial type uses, with development located in

compact clusters separated by sensitive areas and open space.

88 AB at 79 (emphasis omitted).

89 AB at 80; see Plan at 7-49 (reference to "sustain[ing] historical community

character") (emphasis omitted). TRD cites Rural By Design's reference to

planning developments to "[f]it within the environment rather than on top of it,"

and "to nestle into rather than intrude upon its natural setting " AR 14081.

90 AB at 81-82; Plan at 5-10, 33.

30

No. 69418-9-1/31

Parks and schools are proposed to be located on site with a road

and trail network to link the residential portions of the project.

These will provide opportunities for interaction, socializing and a

sense of community. Stands of trees and natural areas are

proposed along the main spine road through the project. These

natural areas and extensive open space will help preserve rural

character.'911

The Council further found:

The proposed project is generally consistent with the vision

statement and the City's development regulations and policies.

Further, Page 5-13 of the Comprehensive Plan (Land Use element)

discuss the MPD Overlay plan designation. The Villages MPD is

also consistent with that section ofthe Comprehensive Plan.'921

The Council also concluded:

The most controversial policies at issue concern those pertaining to

preservation of small town character. Many parties of interest

argued that the Comprehensive Plan policies require preservation

of "rural" character. This is incorrect, and would be inconsistent

with the Growth Management Act, the City's Comprehensive Plan,

and implementing development regulations in any event. As the

Hearing Examiner's Recommendation explained, when it comes to

density, "the die has already been cast on this issue." The Growth

Management Act, [c]hapter 36.70A RCW, requires cities to

encourage urban densities in order to promote efficient use of

infrastructure and contain urban sprawl. . . . Under the GMA, cities

are not permitted to adopt Comprehensive Plan policies requiring

certain areas to remain "rural." See, e.g.. Final Decision and Order

in Robison v. Bainbridge Island. CPSGMHB No. 94-3-0025, at 22-

23. In Robison. the Board determined that the City of Bainbridge

Island's "Overriding Policy No. 1," which called for the City to

"preserve the rural character of the Island" violated RCW

36.70A.020(1) and (2), and remanded the policy to the City for

revision (the City excised the word "rural"). As the Board explained,

"Compact urban development is not 'rural' land use. . . . [BJecause

Bainbridge Island has chosen to be a city, it must remain cognizant

of its duty under the Act to plan for compact urban development

within its boundaries as it grows."'931

91 AR 27249.

92 AR 27249.

93 AR 27257 (internal citations omitted) (alteration in original).

31

No. 69418-9-1/32

The Council noted that it implemented the GMA's mandate to provide for

urban densities by adopting the MPD overlay provisions in the Plan, which state

that the MPD densities "are intended to be urban in nature" and "will be

established as part of the MPD approval process."94 The Council further noted

that the Plan states that all cities are included within the urban growth area that

are expected to accommodate urban growth in the next 20 years and that the

Plan proposed a "village" environment with residential and economic

development.95 The Council then concluded that it is "not in a position to deny

the MPD applications because their densities might be construed as damaging

'rural character,'" but noted that impacts created by those densities "may be (and

are) addressed through application of the MPD criteria and conditions of approval

imposed .. . ."96

The Council also concluded that the Plan's policies do not require

preservation of "rural character" even if it was permitted under the GMA. Rather,

the Council pointed out that the Plan refers to protection of "small town

character," which is accomplished by principles that include compact

development.97 Citing the Plan policies, the Council noted that "it calls for the

use of 'techniques that continue the character of compact form,' while design

guidelines will help the new, compact development feel like a rural community.

94 AR 27257 (emphasis omitted).

95 AR 27257.

96 AR 27258.

97 AR 27258.

32

No. 69418-9-1/33

This does not mean that the Plan is calling for protection of 'rural character' by

limiting density."98

As to the policies referenced above by TRD requiring preservation of

community character, historic character, natural setting, rural community, small

town character, and existing historical development, the Council concluded,

"None require rural densities or suggest that they supersede the more specific

comprehensive plan policies and state mandates requiring urban densities within

the City."99 Rather, the Council recognized that MPD regulations must be applied

to harmonize the urban density requirement with maintaining small town

character.100 While the Council noted that the MPD regulations provide

examples of how to accomplish this, including reference to Rural by Design, it

recognized that it "must apply these specific standards, and may not impose

conditions upon the MPDs on some vague 'feeling' that they are necessary to

protect small town or rural character, because such terms are highly subjective

and difficult to assess."101

TRD fails to show that the Council's determinations were not supported by

substantial evidence or were clearly erroneous. The City was entitled to

deference in construing its own Plan and what is consistent with that Plan.102 As

the Council's findings and conclusions demonstrate, the MPD approvals were

98 AR 27258.

99 AR 27258.

100 AR 27258.

101 AR 27259.

102 Phoenix Dev. Inc.. v. City of Woodinville. 171 Wn.2d 820, 838, 256 P.3d 1150

(2011).

33

No. 69418-9-1/34

consistent with Plan policies. And while TRD claims that the MPDs are contrary

to the Plan's "incremental development" policies, the Plan itself expressly

projects at least a quadrupling of the City's population by 2025.103

TRD next contends that the ordinances approving the MPDs are invalid

because they violate City code job creation requirements set forth in BDMC

18.98.120.C, which provides:

The MPD shall, within the MPD boundary, or elsewhere within the

city, provide for sufficient properly zoned lands, and include

sufficient incentives to encourage development as permit

conditions, so that the employment targets set forth in the

comprehensive plan for the number of proposed residential units

within the MPD, will, with reasonable certainty, be met before full

build-out of the residential portion of the MPD.

The Comprehensive Plan states:

The City's employment target is to provide one job per household

within the City by the year 2025, which would translate to a jobs

target of approximately 6,534 jobs. However, employment

projections used in this update are more conservative in order to

recognize that the City's population will need to grow first so it

provides a larger market base that can attract and support a higher

level of commercial development, including the services needed by

a larger population.'1041

TRD contends that the Council erroneously relied on a jobs per household

target of 0.5 per household, rather than one per household as required by the

Comprehensive Plan. The Council acknowledged the Plan's reference to the

target of one job per household by 2025, but pointed out that the Plan also

recognized that these projections are more conservative and that the Plan's

"[e]mployment [t]argets" as shown in Table 5-3 for 2025 show a jobs per

103 AB at 81-82; Plan at 5-29.

104 Plan at 3-11,3-12.

34

No. 69418-9-1/35

household ratio of 0.468.105 Thus, the Council concluded that the Plan's jobs per

household target is actually 0.5 per household:

Given the Comprehensive Plan's acknowledgement that more

conservative targets are being utilized to recognize that population

growth must precede employment growth, and in light of the

"Employment Targets" specified in Table 5-3 and on page 3-12, the

jobs per household target specified by the Comprehensive Plan is

0.5 jobs per household. Applying this standard to [T]he [Vjillages

MPD, the MPD should include sufficient land either within the MPD

boundary or City as a whole, to provide approximately 2,400 jobs

(4,800 x 0.5 = 2.400).'1061

The Council then concluded that the code requirement was met:

Because [T]he Villages MPD is projected to generate 1,365 jobs

within [T]he [VJillages MPD boundary, because the City has

sufficient zoned land within the City as a whole for 5,761 jobs and

because the conditions of approval contain incentives for

development of the retail/commercial/light industrial areas, the

criterion in BDMC 18.98.120[.]C is met.'1071

TRD fails to show that this conclusion was clearly erroneous or unsubstantiated

by the record. As the Council explained, the 0.5 jobs per household target is

based on projections set forth in the Plan. As noted above, the City is entitled to

deference in interpreting its own Plan and TRD fails to show that this was an

unreasonable interpretation.

TRD also argues that approval of the MPD permits violates the walkability

standard required by BDMC 18.98.080.A.14, which provides: "School sites shall

105 AR 27271, CL 40(B) ("[T]he Comprehensive Plan includes the City's updated

projection for 2,677 new jobs by the year 2025. Table 3-9 characterizes this as

0.5 jobs per household by the year 2025. This is roughly consistent with the

Comprehensive Plan's "Employment Targets" shown on Table 5-3, for a year

2025 jobs target of 2,952 jobs (2,525 new jobs) which, when divided by the

household target of 6,302 households, is jobs per household ratio of 0.468.").

106 AR 27271, CL 40(D).

107 AR 27272, CL 40(G).

35

No. 69418-9-1/36

be identified so that all school sites meet the walkable school standard set for in

the comprehensive plan." TRD contends that despite the Council's recognition

that the Plan calls for a half mile walkability standard, it did not impose this

requirement for the MPDs. To ensure compliance with BDMC 18.98.080.A.14,

the Council imposed a condition to require that "where reasonable and practical,

all schools should be located within a half-mile walk of residential areas."108 The

Council noted that the Plan contains no specific "walkable" standard but instead

refers to the "ten-minute walk" concept and a goal for 80 percent of City residents

to have no more than a half-mile walk from commercial services, employment, or

access to transit.109 TRD fails to show that this conclusion is clearly erroneous or

unsubstantiated by the record. The Council's characterization of the Plan's

references to walkability standards is accurate and does not require a half-mile

walkability standard as TRD contends.

Finally, TRD challenges the MPD permit ordinances on the basis that the

Council improperly concluded that significant adverse impacts on Lake Sawyer

and traffic would be mitigated. TRD argues that Yarrow Bay was required to

show that the MPDs would not cause an increase in phosphorous pollutants

reaching Lake Sawyer, referring to the Plan's policy NE-6, which provides:

The special protection measures noted in NE-5 should evaluate

and define "high risk" uses and address the siting of such uses in

sensitive aquifer recharge areas. The protection measures should

also evaluate and include measures to reduce pollutants loads,

including phosphorous discharged to Lake Sawyer/1101

108 AR 27268, CL 40(B).

109 AR 27268, CL40(A).

110 Plan at 4-25.

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No. 69418-9-1/37

But as the City notes, this policy is not a requirement for MPD permit approval as

TRD suggests; it is a requirement that the City adopt special protection measures

in areas highly susceptible to groundwater contamination as identified in policy

NE-5[111] and to evaluate and reduce phosphorous loading into the lake. As

discussed above, the City has taken such measures (e.g., adoption of

stormwater management manual and monitoring program).

The Council's findings and conclusions further establish that the code

requirements for MPD permit approval were satisfied. BDMC 18.98.080.A.2

provides that a permit may not be approved unless "[significant adverse

environmental impacts are appropriately mitigated." The Council concluded that

the MPDs satisfied the permit requirement to "identify significant environmental

impacts and ensure appropriate mitigation" as follows:

The MPDs have been subject to extensive and intensive

environmental review. The FEIS is supported by hundreds of

pages of environmental analysis. The bulk of the hearings on the

MPDs was comprised of the testimony of numerous experts

addressing the appeals of the FEIS. Through this process several

areas of improvement were identified, resulting in Hearing

Examiner recommendations for and Applicant offers of extensive

additional mitigation, including additional future impact analysis and

mitigation. That mitigation, and the requirements for future

analysis, are incorporated into the conditions of MPD approval in

Exhibit C below. New conditions addressing traffic and noise in

particular, will help ensure that all significant environmental impacts

are appropriately mitigated.'1121

111 NE-5 provides that such measures must "require businesses that use

hazardous chemicals to have containment facilities to capture potential chemical

spills, and require the use of best management practices for applying pesticides

and fertilizers for business residential and recreational uses." Plan at 4-26.

112 AR 27246, CL 9.

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No. 69418-9-1/38

The Council also concluded that BDMC 18.98.020.B was satisfied, which

requires "[protection of surface and groundwater quality both on-site and

downstream, through the use of innovative, low-impact and regional stormwater

management technologies."113 The Council's findings cite the City's adoption of

the 2005 Ecology Stormwater Management Manual for Western Washington,

and the MPD application's stormwater management plan which includes

incorporation of low-impact development (LID) techniques.114 The Council's

findings of fact and conclusions of law also refer to its imposition of several

conditions of the MPD permit approval, including: requiring identification of

mechanisms to integrate LID into the overall design of the MPD; requiring

incorporation of additional innovative techniques (e.g., requiring new

phosphorous treatment technology if authorized for use by DOE in meeting

stormwater manual requirements);115 requiring Yarrow Bay to identify estimated

maximum annual volume of total phosphorous that will be discharged in runoff

from the MPD site and that will comply with TMDL for Lake Sawyer, and if the

discharged amount exceeds the maximum, to make changes to reduce

discharge below the maximum;116 imposing monitoring requirements;117 and

imposing restrictions on roof types.118 Again, TRD fails to show that these

conclusions are clearly erroneous or are unsubstantiated by the record.

113 AR 27251, CL 18 (boldface and italics omitted).

114 AR 27251, CL 18(B).

115AR27251,CL18D(i).

116AR27251,CL18(D)(ii).

117 AR 27252, CL 18 (D)(v).

118 AR 27252, CL 18 (D)(iv).

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No. 69418-9-1/39

TRD's contention that traffic and noise impacts were not adequately

mitigated is likewise without merit. TRD essentially reasserts its challenges to

the ElSes on this basis, which as discussed above, lack merit.

We affirm.119

<r=p<\* \3=^ 1

WE CONCUR:

fex.^n

119 The respondents' motion to dismiss and appellants' motion to strike are

denied. As the prevailing parties, the respondents are awarded their fees

pursuant to RCW 4.84.370.

39