OFFICE OF THE HEARING EXAMINER FOR THURSTON COUNTY

Transcription

1 OFFICE OF THE HEARING EXAMINER FOR THURSTON COUNTY In the Matter of the Application of ) ) No. AAPL Keith Jorgensen ) ) FINDINGS, CONCLUSIONS For Approval of an Administrative Appeal ) AND DECISION ) SUMMARY OF DECISION The Administrative Appeal of a SEPA Mitigated Determination of NonSignificance is DENIED and the MDNS remains as issued. BACKGROUND On April 4, 2000, pursuant to the State Environmental Policy Act (SEPA), Thurston County Department of Development Services issued a Mitigated Determination of NonSignificance (MDNS) for a permit to harvest timber on a 4.10 acre lot. The property is located at 196 th Ave. Southwest, on the east side of Sargent Road, Thurston County, Washington. Dale Jorgensen is Applicant and owner of the property. On April 18, 2000, Keith Jorgensen (Appellant) submitted a letter of comment and subsequently filed a timely appeal of the MDNS on April 25, SUMMARY OF RECORD Hearing Date A hearing on the appeal was held before the Hearing Examiner on July 10, Witnesses At the July 10, 2000 hearing, the following individuals presented testimony under oath. Cynthia Wilson, County Planner Kevin Yamamoto, Appellant s Representative Steve Hatton, Applicant s Representative Exhibits At the hearing of this appeal, the following exhibits were admitted: EXHIBIT 1 Development Services Staff Report Attachment a Notice of Public Hearing

2 Attachment b Attachment c Attachment d Attachment e Attachment f Attachment g Attachment h Attachment i Attachment j Attachment k Attachment l Appeal of an Administrative Decision Application April 4, 2000 Mitigated Determination of NonSignificance Vicinity Map Site Plan Boundary Line Adjustment (BLAD ) Map May 24, 2000 Pre-Hearing Order June 20, 2000 Statement of Appeal Forest Practice Application Environmental Checklist January 12, 2000 Transmittal Memorandum with Development Review Comments June 24, 1999 Legal Lot Determination Letter from Linda Whitcher Upon consideration of the testimony and exhibits submitted at the above referenced hearing and documents filed on appeal, the following Findings and Conclusions are entered by Hearing Examiner: FINDINGS 1. Pursuant to a SEPA Review, Thurston County, the lead agency, issued an MDNS for a Forest Practice Conversion Permit to log a 4.10 acre parcel zoned Arterial Commercial (AC). The property is located at 196 th Ave. Southwest, on the east side of Sargent Road, Thurston County, Washington. The Appellant appealed the threshold determination and requested withdrawal of the MDNS and issuance of a Determination of Significance (DS) or a reassessment of the MDNS. Exhibit 1, Testimony of Cynthia Wilson. 2. The subject property, covered with alder, maple, fir and cedar trees, is located within the Grand Mound Urban Growth Area. It is surrounded by a variety of land uses, including residential, agricultural, and commercial. Exhibit The Thurston County Forest Lands Ordinance (TCFLO) allows cutting of timber with a permit from Thurston County. As part of compliance with the ordinance a Forest Practice AAPL Page 2

3 Application was filed by the Applicant with Thurston County to harvest timber on Parcel B of Tax Parcel No Exhibit 1, Testimony of Cynthia Wilson. 4. After submittal of a checklist by the Applicant and review of the proposed activity, the County issued a MDNS on April 4, A letter of comment on the MDNS was submitted by Keith Jorgensen on April 18, 2000 who subsequently filed a timely appeal on April 25, Exhibit The Appellant s letter of comment dated April 18, 2000 alleges that the MDNS is inconsistent in regard to grading and stumping of the site. The Applicant s Forest Practice Application in the section designated Logging Site Map indicated that there are areas that will be stumped and graded. However, page two of the Environmental Checklist at 1 Earth (e) indicated that no grading is proposed with this proposal. Further, on page four of the Checklist at 3 Water (c), there is a statement that no storm water runoff will be generated with this proposal. The Appellant argued that the information relating to stumping was contradictory and vague and that the Applicant s conclusion on water runoff was not supported by adequate information. Exhibit 1, Attachment b & Testimony of Kevin Yamamoto. 6. The County argued that erosion control and stormwater requirements are included in Conditions #1, 2 and 5 of the MDNS. Condition #1 of the MDNS sets forth that stumping and grading are not permitted without a grading permit and additional stormwater information. The additional stormwater information may require an Engineered Drainage Plan. Exhibit 1, Attachment c. At the hearing, the Appellant s representative conceded that Condition #1 of the MDNS adequately addresses the issues stated in Finding of Fact No. 5. Testimony of Kevin Yamamoto. 7. The Appellant argued that the Applicant should submit additional information regarding future development plans so that the County can effectively evaluate the environmental impact. In was argued that this inquiry should not be limited by the constraints of a set rule, but rather include all relevant environmental information needed for a proper review. As support the Applicant submitted that King County v. Washington State Boundary Review Board for King County, 122 Wash. 2d 648 (1993) requires the Applicant to completely disclose environmental consequences of a project. Testimony of Kevin Yamamoto. 8. The Applicant s representative testified that the Environmental Checklist was submitted in good faith and the Applicant answered the questions to the best of his knowledge. While the Applicant intends to develop the site in the future, the nature of that development is not known at this time. However, there is no low or restriction preventing cutting of timber on site the cut timber will be sold. Testimony of Steve Hatten. 9. The County submitted that the impacts of unspecified future development ere considered in the MDNS. The County could not consider a specific plan because no has been presented by the Applicant. While the County concluded that any unspecified future commercial AAPL Page 3

4 development would probably not have an adverse environmental impact, when specifics are provided, it will review the specific proposal. Any future permits for the subject property would be subject to SEPA involvement. Testimony of Cynthia Wilson. 10. There are no required landscaping requirements for the issuance of a Forest Practice Permit. Thurston County does not require the retention of trees through a Forest Practice Application for an unknown future development on site. Exhibit 1, Testimony of Cynthia Wilson. 11. There are no Critical Areas as defined in the CAO on this property. Exhibit 1, Testimony of Cynthia Wilson. 12. Written notice of the public hearing was sent to parties of record on June 27, 2000 and published in The Olympian on June 30, 2000, at least ten days prior to the hearing. Exhibit 1. CONCLUSIONS Jurisdiction Pursuant to Chapter 35A.63 of the Revised Code of Washington, Thurston County Municipal Code (c), and Thurston County Municipal Code (b), the Hearing Examiner has jurisdiction to hear and decide the appeal of this administrative decision. General law review of The State Environmental Policy Act The State Environmental Policy Act (Chapter 43.21C RCW or SEPA ) specifies the environmental review requirements the County must follow when it considers proposals that may have an impact on the environment. One purpose of the act is to insure that presently unquantified environmental amenities and values will be given appropriate consideration in decision making along with economic and technical considerations. Every proposal that may impact the environment (unless it is exempt from the act) must undergo some type of environmental review. RCW 43.21C.030 (b). In implementing SEPA the County must base the review on the standards of 43.21C RCW and the regulations of the Washington Administrative Code (WAC). Environmental review consists of a range of proposed activities, alternatives, and impacts to be analyzed in an environmental document. WAC (1). A Forest Practice Conversion Permit is an activity subject to approval. Therefore, the County must make a threshold determination as to whether an EIS should be required. If the proposal would have no probable significant, adverse impacts on the environment, the County may issue a determination of NonSignificance (DNS), and no EIS is required. If the proposal could be clarified or changed to avoid identified probable significant adverse impacts, the County may issue a mitigated determination of NonSignificance (MDNS). If the checklist reveals that the proposal is a major action that would have a probable significant adverse environmental impact, and it cannot be changed to mitigate those impacts, the County must issue a Determination of Significance (DS) and an EIS must be prepared. An environmental impact statement is required to analyze only those probable adverse environmental impacts which are significant. See, RCW 43.21C.031; AAPL Page 4

5 WAC ; WAC In the instant case the County issued an MDNS. As part of mitigation, SEPA does not require that all adverse impacts be eliminated. If it did, no change in land use would ever be possible. Maranatha Mining v. Pierce County, 59 Wash.App. 795 (1990). The impacts must be likely, and not merely conjectural. WAC General fears or complaints about the impacts of a proposed project on a neighborhood are not sufficient to overturn an agency decision. Kenart & Associates v. Skagit County, 37 Wash.App. 295 (1984). Standard of Review Clear error is the standard of review applied by the courts to review decisions based on SEPA. Cougar Mt. Assocs. v. King County, 111 Wn.2d 742, 749, 765 P.2d 264 (1988). The Hearing Examiner adopts this same standard for review of the actions of the County s Responsible Official. Under this standard of review, a reviewing body does not substitute its judgment for that of the administrator and may find the decision clearly erroneous only when it is left with the definite and firm conviction that a mistake has been committed. Id. at 747 (quoting Polygon Corp. v. Seattle, 90 Wn.2d 59, 69, 578 P.2d 1309 (1978)). The Hearing Examiner must accord substantial weight to the County s decision to issue a MDNS. RCW 43.21C.090. The Appellant has the burden of proving that the County s decision was clearly erroneous. Leavitt v. Jefferson County, 74 Wash.App. 668 (1994). Conclusions Based on Findings 1. The Appellant has not met his burden of proof to demonstrate that an adverse environmental impact is either probable or significant. Findings of Fact The Appellant argues that the MDNS is defective and that an Environmental Impact Statement (EIS) should be prepared or that the MDNS be reissued after more information has been submitted. This argument fails because SEPA provides that an environmental impact statement is required to analyze only those probable adverse environmental impacts which are significant. RCW 43.21C.031(emphasis added). The State Department of Ecology, charged with administering the provisions of SEPA, has defined probable to mean: Likely or reasonably likely to occur, as in a reasonable probability of more than a moderate effect on the quality of the environment. Probable is used to distinguish likely impacts from those that merely have a possibility of occurring, but are remote or speculative. This is not meant as a strict statistical probability test. WAC The Department of Ecology has also defined significant as follows: (1) 'Significant' as used in SEPA means a reasonable likelihood of more than a moderate adverse impact on environmental quality. AAPL Page 5

6 (2) Significance involves context and intensity and does not lend itself to a formula or quantifiable test. The context may vary with the physical setting. Intensity depends on the magnitude and duration of an impact. The severity of an impact should be weighed along with the likelihood of its occurrence. An impact may be significant if its chance of occurrence is not great, but the resulting environmental impact would be severe if it occurred. WAC The Applicant s representative testified that the Environmental Checklist was completed in good faith. The Applicant submitted that he will develop the site in the future but does not know what development will occur on site. Findings of Fact 8. Without specific site development plans the County can not predict whether there is any probable future environmental impact. Findings of Fact 9. The County cannot simply deny the permit or require a detailed environmental review because of some future unknown development. If future impacts are not known, it can not be assessed whether they would be significant. The impacts must be likely, and not merely conjectural. WAC General fears or complaints about the impacts of a proposed project on a neighborhood are not sufficient to overturn an agency decision. Kenart & Associates v. Skagit County, 37 Wash.App. 295 (1984). The adverse impact of the forest practice conversion will be mitigated through conditions and any new permits issued on the subject property are subject to SEPA review. Findings of Fact 9. At that time the specific impacts will be identified and mitigated. This insures that neither a probable or significant environmental impact will occur without the proper environmental review procedures. 2. The Appellant has failed to meet the burden of proving that the City s decision was clearly erroneous. Findings of Fact The Appellant argued that future development plans should be assessed in the MDNS. Findings of Fact 7. However, it is difficult to determine the extent of this inquiry. How far temporally and spatially should SEPA regulations apply to the subject property? Mr. Yamamoto stated that it was difficult to acknowledge a set limit, but if the information is available to the Applicant, then it should be disclosed. 1 Findings of Fact 7. Mr. Hatten testified that this was done; all relevant known information was submitted on the Environmental Checklist. Findings of Fact 8. 1 The Appellant relies on King County v. Washington State Boundary Review Board for King County, 122 Wash. 2d 648 (1993) to argue that an Applicant must completely disclose environmental consequences. That case dealt with annexation of a large land area and not a specific permit such as the Forest Practice Conversion Permit. The Case is not binding precedence for the instant appeal. AAPL Page 6

7 3. The Hearing Examiner must accord substantial weight to the County s decision to issue a MDNS. RCW 43.21C.090. Therefore, the Hearing Examiner should also accord substantial weight to the process that the County has used to arrive at this decision. The limits of inquiry regarding future development plans are determined by County regulation and deference should be paid to them. DECISION Based upon the preceding Findings and Conclusions, the testimony and evidence submitted at the July 10, 2000 hearing, and the arguments filed in support of and against the appeal, the Appeal of an Administrative Decision is DENIED and the Department s MDNS remains as issued. 2 Decided this 3 rd day of August James M. Driscoll Hearing Examiner for Thurston County Property owners affected by this decision may request a change in valuation for property tax purposes from the Thurston County Assessor. TCC (3)(j) \\TCBLDG1B\DATA1\DEV_SVCS\ZONING.LU\DECISION\APPEAL.ADM\ doc 2 The Hearing Examiner understands and appreciates the Appellants concern regarding the removal of timber by logging the site. It is the Examiner s personal opinion that this activity will not necessarily be an aesthetic benefit to the Appellant or surrounding property owners. However, as stated in this document, by law the Applicant is allowed to proceed. AAPL Page 7