APP-02-07_HE_06212007 CITY OF SPOKANE VALLEY HEARING EXAMINER
RE: Appeal of Determination of Significance, for )
South Terrace Preliminary Plat/PUD and )
Rezone from UR-3.5 Zone to UR-7*Zone; ) FINDINGS OF FACT,
Appellant: Brian Main and South Terrace ) CONCLUSIONS OF LAW,
Spokane LLC ) AND DECISION
)
File No. APP-02-07 )
File No. REZ-14-05/SUB-10-05/PUD-04-05 )
)
I. SUMMARY OF DECISION
Hearing Matter: Environmental appeal of a Determination of Significance (DS) issued for
consolidated applications for a preliminary plat, PUD Overlay zone and rezone.
Summary of Decision: Grant appeal, and require the responsible official for the City to
withdraw the DS and issue a new threshold determination(DNS or MDNS). Conclude that
unauthorized improvements were made to site that moderately increased the off-site analyzed
floodplain, and that require correction.
H. FINDINGS OF FACT
Procedural Information
1. On April 29, 2005, Brian Main and South Terrace Spokane LLC ("STS LLC") submitted
consolidated a pp lications for the preliminary p lat of South Terrace, a Planned Unit Development
(PUD) Overlay zone, and a rezone from the Urban Residential-3.5 (UR-3.5) zone to the Urban
Residential-7* (UR-7*) zone; to allow the division of a 16.7-acre site into 80 lots for single-
family dwellings, and approximately 2.5 acres of common open space, in the UR-7* zone.
2. On July 8, 2005, a revised preliminary plat map was submitted for the project. On July 12,
2005, the City Community Development Department issued a Determination of Completeness
for the proposal.
3. On February 27, 2006, a revised preliminary plat map was submitted; which is the
preliminary plat map of record for the project.
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4. On April 20, 2007, Marina Sukup,the Director of the Community Development
Department, issued a Determination of Significance (DS) for the project; pursuant to the City's
Local Environmental Ordinance. The determination was based on issues relating to location of a
100-year floodplain on the site and adjacent land.
5. On May 2, 2007, Brian Main and STS LLC filed an environmental appeal of the DS with
the City Community Development Department.
I E Findings, Conclusions and Decision APP-02-07 Page 1
6. On June 21, 2007, the Hearing Examiner conducted a public hearing on the appeal. The
notice requirements for the public hearing were met. The Examiner conducted site visits on June
20, 2007 and September 10, 2007.
7. The following person testified at the public hearing:
Karen Kendall Brian McGinn
Spokane Valley Planning Dept. Winston& Cashatt
11707 E. Sprague Suite 106 601 W. Riverside Avenue, Suite 1900
Spokane Valley, WA 99206 Spokane, WA 99201-0695
Mike Connelly Jerry Storhaug
City of Spokane Valley 510 Third Avenue
11707 E. Sprague, Suite 106 Spokane, WA 99208
Spokane Valley, WA 99206
8. The Examiner heard the appeal pursuant to Chapter 10.35 of the City Municipal Code
(Hearing Examiner Ordinance), the City's Local Environmental Ordinance, and the City Hearing
Examiner Rules of Procedure.
9. During the public hearing, the City Community Development Department objected to
portions of the testimony of Jerry Storhaug, the appellant's engineering consultant, and certain
documents submitted by the appellant; that were not considered by Marina Sukup when she
issued the DS for the proposal. The Examiner overrules such objection, for the reasons cited in
the Conclusions of Law set forth below.
10. The Hearing Examiner left the record open after the hearing until June 29, 2007, to allow
the parties to submit additional briefing materials. On June 29, 2007, the parties submitted
additional briefing materials to the Examiner.
Items in Record
11. The Hearing Examiner takes notice of the City of Spokane Valley Interim Comprehensive ij
Plan, Interim Zoning Code, Interim Subdivision Ordinance, Local Environmental Ordinance,
Floodplain Ordinance, Guidelines for Stormwater Management, Application Review Procedures
for Project Permits, Hearing Examiner Rules of Procedure, and Municipal Code; other applicable
development regulations; and prior land use decisions for the site and in the vicinity.
12. The record includes the documents in File No. APP-02-07 at the time of the public hearing,
the testimony and documents submitted at the appeal hearing, and the briefing materials
submitted by the parties on June 29, 2007.
BE Findings, Conclusions and Decision APP-02-07 Page 2
Description of Site
13. The site is located along the west side of Carnahan. Road, approximately 130 feet north of
14th Avenue, directly south of 10th Avenue extended west, and directly south of the southerly
terminus of Willamette Street; in Spokane Valley, Washington.
14. The site is currently referenced as County Assessor's tax parcel nos. 35233.0101,
35233.0203, 35233.0204, 35233.1307, 35233.1402 and 35233.9189.
15. The north half of the site, consisting of parcel no. 35233.9189, is un-platted. The south half
(and remainder) of the site consists of Blocks 1 and 2, and the north half('/2) of Blocks 13 and
14, of Woodland Terrace Addition; which plat was recorded in 1907.
16. Most of the west half of the site consists of a moderate to steep east-facing slope, and most
of the east half of the site consists of a relatively level to gently sloping alluvial terrace.
Scattered pine trees, and other native vegetation are found along the east facing slope, and along
the north and east borders of the northerly portion of the site. The westerly 200-400 feet
represent the highest area of the site, and have a maximum slope of approximately 40%.
Scattered granite outcrops are found in the west and north central parts of the property. See
Exhibit 11B (geo-hazard evaluation report); and Exhibit 5 (2006 aerial map).
17. The site is currently undeveloped and devoid of aboveground structures. An approximately
1-acre pond is located in the southeast portion of the site, approximately 400 feet north of 14th
Avenue, and a short distance west of Carnahan Road.
18. In 2005, an underground stormwater piping system was extended through the site,
generally from south to north, and northwesterly to a drainage retention pond constructed at the
same time on land lying directly to the northwest. Extensive grading, excavation and filling
occurred on the site and adjacent land to the south, in conjunction with such installation. The
piping system serves new housing developed south of the site, and is also intended to serve the
lots in the current project.
19. City Critical Areas maps, adopted at the time the City was incorporated on March 31, 2003,
illustrate a DNR Type 5 stream extending northeasterly from the south border of the site, west of
Chronicle Street; and continuing along the west edge of the existing pond on the site before
terminating near the northwest corner of the pond. See City Ordinance No. 50.
20. Such maps also illustrate a wide band of erodible soils extending northerly through the
middle of the site. The maps do not illustrate any priority wildlife habitat or wetlands on the site.
21. In 2006, the Washington State Department of Natural Resources (DNR) revised its
"hydrolayer" to illustrate a DNR Type "F" stream extending northerly through the site, roughly
along the alignment illustrated on the preliminary plat map of record; and continuing off-site to
the northeast through the intersection of Eighth Avenue and Carnahan Road.
HE Findings, Conclusions and Decision APP-02-07 Page 3
22. The Federal Emergency Management Agency(FEMA) flood insurance rate map
("FIRM"), adopted under the City Flood Ordinance by reference, designates a 100-year
floodplain, in the form of an "un-numbered A zone" published in 1992, extending northerly
through a significant portion of the site and neighboring land located to the north and south.
Description of Preliminary Plat
23. The preliminary plat map of record illustrates division of the site into 80 urban-sized lots,
and approximately 2.5 acres of common open space divided into four (4) tracts. The common
open space includes a .9-acre tract reserved for the existing pond on the site. The density(net) of
the preliminary plat is approximately 5.6 dwelling units per acre.
24. The preliminary plat map illustrates a proposed road(13th Avenue) extending west into the
middle of the site from Carnahan Road, and curving northwesterly to the west boundary of the
site where it terminates in a cul-de-sac. The map illustrates a proposed road extending north
from the new road, and curving northwesterly through the site until it reaches Willamette Street
lying immediately north of the site. The street system for the preliminary plat does not connect
to Chronicle Road located to the south.
Development history for site
25. On March 11, 2003, Larry Dawes, a wildlife biologist retained by the owner of the site at
the time, Mike Shuler, submitted a"riparian evaluation" report in connection with a proposed
rezone of the south portion of the site, and adjoining land lying to the south and west located
north of 16th Avenue. The rezone was not acted on by County the Count before the site and
neighboring land became part of the City of Spokane Valley, at the time of incorporation on
March 31, 2003.
26. The Dawes report found that a drainage swale bisected the proposed rezone property and
the north half of the site from north to south, an intermittent stream was located in the swale
bottom, surface water from the swale was directed by a man-made ditch into the southwest
corner of the pond located on the current site, stormwater flowed through and out the northwest
corner of the pond by way of an excavated cat trail, and the drainage swale became narrower and
defined by the cat trail as it moved down gradient through the site. The report advised that the
swale/intermittent stream exited the northwest corner of the current site along the west boundary,
continued through an adjacent quarry site located to the northwest, and eventually flowed into
the City of Spokane's storm drainage system at Havana Street. See Exhibit 11, letter dated 3-11-
03 from Larry Dawes, and riparian letter and site plan maps attached to letter.
27. The Dawes report indicated that the pond on the site was created several years ago after a
borrow pit was excavated for mining purposes. During the mid-1980's, the City of Spokane
constructed a 30-inch sewer line along Carnahan Road. Drainage from the sewer line trench
flowed into the borrow pit, the land bordering the sewer line was graded so that surface water
could flow into the borrow pit, and stormwater from Carnahan Street sheet flowed into the
borrow pit.
HE Findings, Conclusions and Decision APP-02-07 Page 4
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28. The Dawes report indicated that the City of Spokane approved the excavation of a ditch to
direct surface water from the drainage swale into the borrow pit. The pit was eventually
converted into a stormwater detention pond in the mid-1980's, and enlarged to increase its
storage capacity. Land on both sides of the drainage swale was graded to direct drainage into
and through the swale.
29. The Dawes report advised that the County's DNR stream types map at the time designated
the intermittent stream/drainage swale located on the site and adjacent land as a"Type 5" water.
Dawes found that the watercourse met the definition of a Type 5 stream, as defined in. WAC 222-
16-030 at the time; since it was without a well-defined channel, had natural sinks and was a
drainageway with short periods of spring and storm runoff.
30. The Dawes report concluded that the Type 5 stream was not entitled to be protected with
the standard 25-foot wide riparian buffer required for such stream type, under the provisions of
the County Critical Areas Ordinance at the time, because it did not have a hydrologic connection
to a DNR Type 1-4 water as required by such ordinance.
31. In approximately February of 2005, the appellant submitted an application for a grading
permit to the City Community Development Department; to allow road improvements to
Chronicle Road and 15th Avenue on land lying south of the site, and to install a master
stormwater system in the Chronicle Road right of way north to the site, and through the site as
described above. Such project included the proposed extension of a gravel maintenance road
west into the site from Carnahan Road, along the 12th Avenue right of way; and along the
alignment of the master stormwater system through the site; and also included construction of a
drainage pond on the land lying directly northwest of the site. The grading permit proposed the
use of approximately 50,000 cubic yards of soil for excavation, grading and fill. See exhibit#4
attached to Exhibit 16.
32. The road and stormwater drainage project referenced in the grading permit application are
described in detail in engineered plans submitted by Storhaug Engineering to the City dated
March 8, 2005; with a revision dated June 2, 2005 for a portion of the project. See exhibit#3 to
Exhibit 14.
33. The appellant submitted an environmental checklist for the road and stormwater drainage
project ("stormwater environmental checklist"); which was prepared by John Konen of Storhaug
Engineering, and signed by appellant Brian Main on February 3, 2005. See Exhibit 8. The
checklist advised that the stormwater plan anticipated using and enhancing the existing ravine
and pond area extending from 12th to 16th Avenue, to more adequately handle existing
stormwater in the drainage basin; and that a piped stormwater collection system would be
installed in Chronicle and 13th Street, to accommodate increased flow from the proposed
development of 40 platted lots located south of the site, and eliminate temporary drainage
retention structures developed to serve new development west of the ravine (south of the site).
The checklist indicated that pre-development runoff from the ravine area would be directed to
the existing pond on the site "...generally following current drainage patterns..."
HE Findings, Conclusions and Decision APP-02-07 Page 5
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The checklist indicated that pre-development runoff from the ravine area would be directed to
the existing pond on the site "...generally following current drainage patterns..."
34. The stormwater environmental checklist advised that the stormwater system would
continue northwest from 12th Avenue, near its intersection with the Chronicle Road right of way,
and extend to the retention pond planned on land located directly northwest of the site. The
checklist indicated that a future request would be submitted to develop a PUD on the site, the
PUD would discharge stormwater generated by the PUD into the portion of the stormwater
system lying north of the 12th Avenue right of way, and the PUD would utilize the stormwater
pipe route north of l2th Avenue for a future public road connection between 12th Avenue and
Willamette Street.
35. The stormwater environmental checklist indicated that the grading plan submitted by
Storhaug Engineering was intended to define grading for the Chronicle Street and 15th Avenue
improvements, excavations needed to accommodate the piped stormwater system, and
excavation of the retention pond proposed northwest of the site. The checklist represented that
the grading plan would include rework of the drainage channel extending from 14th Avenue to
the pond, filling along the west edge of the pond and adjoining hillside to accommodate future
building sites, roughly 44,000 cubic yards of cutting and 5,500 cubic yards of filling, the use of
native materials for fill areas, and the stockpiling of any excavated material left over for use in
future development phases.
36. The stormwater environmental checklist indicated that an intermittent stream/drainage
channel extends through the center of the stormwater project area; and that drainage from the
stream flows into the existing p and on the site at its southwest corner, and then outflows
northerly to the floor of the Spokane Valley. The checklist advised that the excavation/grading
work and installation of the stormwater system would occur within 200 feet of the existing
intermittent stream/drainage channel and the manmade pond, and that the existing pond would
retain its current configuration and shape. The responses on the checklist did not disclose that
such work would occur over or in the stream/drainage channel, or estimate the amount of fill that
would be placed in or removed from surface water; as requested by the checklist. See p. 8 of
checklist in Exhibit 11.
37. The stormwater checklist advised that the ravine, existing pond and portion of the site
extending from 12th Avenue northwest to Willamette Street were located within the 100-year
floodplain delineated by FEMA, Storhaug Engineering had prepared a comprehensive flood
study of the natural drainage channel to initiate a map amendment to the FEMA floodplain
delineation of the channel and existing pond located on the site, and Storhaug Engineering had
submitted new calculations and profiles to the City for review of the boundaries of the 100-year
floodplain in preparation of the map amendment.
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38. The stormwater environmental checklist advised that the new floodplain delineation
"...reduces the width of the floodplain adjoining the ravine, confines the lower floodplain to the
existing pond area, and defines the overflow north of 12th Avenue." The checklist stated that
portions of the grading, excavation and utility installations would occur within the redefined
HE Findings, Conclusions and Decision APP-02-07 Page 6
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A floodplain, and that the future road systems and stormwater piping system had been designed to
conform to the new floodplain delineation.
39. On approximately February 15, 2005, Jerry Storhaug submitted a floodplain analysis to the
City Department of Community Development. See exhibit#24 attached to Exhibit 14. A copy
of such maps is not included in the record.
40. On March 18, 2005, the City issued a Mitigated Determination of Nonsignificance
(MDNS) for the road and stormwater project. On March 23, 2005, the City Community
Development stamped the road and stormwater plans as "accepted".
41. On April 4, 2005, Jerry Storhaug, the applicant's engineering consultant, submitted a"no-
rise" certification for the road and stormwater project; which certified that the project would not
impact the 100-year flood elevations, floodway elevations or floodway widths "...on the areas
shown on the floodplain maps included in the referenced materials below at published
sections..." in the 1992 floodplain study and at unpublished cross sections in the vicinity. The
certification references applicable revisions and supplemental information to the FEMA map;
and accordingly appears to be based on the revised floodplain delineation submitted by Storhaug,
and not the 100-year floodplain shown on FEMA maps. See exhibit#33 attached to Exhibit 14.
42. The City Community Development Department retained Marianne Barrentine, a floodplain
expert employed by Spokane County, to review the initial floodplain analysis and data submitted
by Storhaug Engineering. On April 20, 2005, Barrentine advised the City that after reviewing
the topographic data and extensive floodplain analysis provided by Storhaug Engineering, and
after walking the site with Jerry Storhaug, she concluded that "...the main portion of the
floodwaters goes toward 8t'' and Carnahan and further to the northeast and does not impact the
proposed drainage pond area...". [emphasis added]
43. On April 29, 2005, the applicant submitted the application for the current South Terrace
project, along with a completed but unsigned environmental checklist. See Exhibits 2 and 8.
On June 9, 2005, the appellant submitted an environmental checklist for the current project
prepared by appellant Bill Main, and signed by Main on April 27, 2005. The signed checklist
appears to be a duplicate of the unsigned checklist; except for a few changes on the first page,
and the signatures on the last two pages of the signed checklist. See Exhibit 11.
44. The project environmental checklist includes many of the same answers as the stormwater
environmental checklist; and in some cases it cannot be distinguished whether the answers in the
project checklist apply to the 16.7-acre site or only to the adjacent land lying to the south also
addressed in the stormwater checklist. The project checklist does state that filling and grading
will be utilized for roadwork, utility installation and building pads for the current project; and
that exact quantities of cut and fill are unknown, but grading will be conducted to balance cut
and fill.
45. On May 4, 2005, the Community Development Department issued grading and floodplain
permits to Mike Schuler for 30,000 cubic yards of grading, for the road and stormwater system
project.
HE Findings, Conclusions and Decision APP-02-07 Page 7
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46. In September of 2005, Storhaug Engineering prepared a floodplain analysis based on
topographic surveys that extended through the summer of 2004. The analysis also took into
account observations that a significant stormwater event occurred in the area on May 21, 2004;
and that neglible flows were observed within the main channel of the Glenrose Creek drainage
that extended northerly through the site and adjacent land to the south, despite the event
appearing to be at least a 25-year storm event,. See exhibit #31 attached to Exhibit 14.
47. The September of 2005 analysis found that the 100-year floodplain designated by FEMA
maps in the area north of the 12th Avenue right of way was incorrect, floodwaters from the area
lying south of l4`11 Avenue would flow through an existing culvert in 14`1i Avenue (lying just
west of Chronicle Road) or over the top of 14t1i Avenue toward the existing pond on the site, and
a"majority" of the floodwaters would sheet flow over such right of way and continue north into
a field lying north of the south half of the site.
48. The September of 2005 floodplain analysis found that a relatively small volume of
floodwaters would be conveyed in a drainage "ditch" that extended northwesterly from the 12th
Avenue right of way(i.e. northwest of the existing pond), continued along the west edge of the
north half of the site, and terminated before reaching the north boundary of the site. The
floodplain located along the ditch is illustrated on the analyzed("existing conditions") floodplain
delineation map dated September 12, 2005. See exhibit#31 attached to Exhibit 14, including
delineation of ditch in Section 7, and illustration of floodplain along ditch in attached maps.
49. The September of 2005 analysis delineated a proposed modification to the delineated
"existing" floodplain; which included the proposed re-grading of portions of the land lying
between 14tH Avenue and the 12t1i Avenue right of way, the installation of culverts under the
proposed 13t1i Avenue in the current project to convey stormwater under the proposed road, and
the construction of a 20-foot ditch to convey stormwater from the culverts into the existing pond
on the site. See exhibit#31 to Exhibit 14, including attached maps. Such regrading and culvert
work is not illustrated on the stormwater system plans submitted on March of 2005.
50. Considering the date the maps in the September of 2005 analysis were generated, they
appear to include any changes to the floodplain anticipated to result from construction of the
stormwater system through the site and adjacent land. A portion of the stormwater system
construction plan is illustrated on the proposed grading floodplain delineation map (drawing 4 of
4, dated 10-25-04) attached to the analysis.
51. The analyzed (existing conditions) floodplain generated by the September of 2005 analysis
illustrated a significant narrowing of the floodplain in the south half of the site, retention of the
floodplain along the drainage ditch lying north of 12th Avenue on the site, and no increase in the
analyzed(existing conditions) floodplain lying northeast and offsite of the south half of the site
with the proposed modifications.
52. The analyzed(existing conditions) floodplain and improved floodplain maps dated
February 2, 2006, attached to the affidavit of Jerry Storhaug submitted at the public hearing,
appear identical to the maps generated in the September of 2005 analysis, except that the maps
HE Findings, Conclusions and Decision APP-02-07 Page 8
eliminate the floodplain associated with the drainage ditch that extended northwest of the 12th
Avenue right of way.
53. In July of 2006, Storhaug Engineering prepared a revised floodplain analysis, which took
into consideration additional topographic surveying performed in June of 2006 "...due to the
ongoing construction in the area." This included the previous construction of the road and
stormwater system on the site and adjacent land to the south; for which the City issued a grading
and floodplain permit in May of 2005. See exhibit #32 to Exhibit 14. The floodplain analysis
was submitted to FEMA on approximately July 12, 2006, as part of the appellant's request
("MT-2" form) to modify the flood insurance rate map (FIRM) for the area; as required by the
City Community Development Department. See exhibit #24 to Exhibit 14.
54. The analyzed ("existing conditions") floodplain map generated on July 7, 2006 shows some
narrowing of the floodplain in the south half of the site; elimination of the floodplain extension
along the drainage ditch located north of 12th Avenue on the site, and some off-site widening of
the floodplain located immediately northeast of the southeast corner of the north half of the site,
compared to the analyzed(existing conditions) floodplain generated by the September of 2005
analysis. See maps attached to exhibit#31 of Exhibit 14.
55. The July of 2006 floodplain analysis also delineated a proposed modification of the
analyzed("existing conditions") floodplain, determined by such analysis, for substantially the
same ditching and culvert project (13h Avenue "crossing analysis") addressed in the September
of 2005 analysis. The proposed modifications floodplain map dated July 7, 2006 shows a
significant reduction in the floodplain located in the south half of the site, but not to the extent
illustrated by the proposed modifications map generated by the September of 2005 analysis; and
also showed the same floodplain north of the 12tH Avenue right of way as the analyzed(existing
conditions) floodplain map dated September 12, 2005.
56. A comparison of the floodplain maps generated by the September of 2005 analysis with the
maps generated by the July of 2006 analysis creates a strong inference that construction of the
stormwater piping system eliminated the floodplain delineated by the September 12, 2005 maps
along the drainage ditch located on the site northwest of the existing pond(north of the 12111
Avenue right of way), and impermissibly increased the width of the analyzed(existing
conditions) floodplain in the area lying immediately northeast of the northeast corner of the south
half of the site (north of the 12thi Avenue right of way). This is between points 8200 and 8300
along the floodplain illustrated on the maps.
57. The analyzed(existing conditions) floodplain map and the proposed modifications
floodplain map generated on June 20, 2007, which were submitted by Storhaug Engineering at
the public hearing, appear to show the same floodplain boundaries as the floodplain maps
generated on July 7, 2006. See Exhibit 15.
58. The 2004 aerial map of the site, and the preliminary plat map of record, show a much larger
area of the site vegetated with trees and native vegetation than the 2005 and 2006 aerial maps of
the site; generally along the alignment of the stormwater system extended through the property in
2005. See Exhibits 3-5.
HE Findings, Conclusions and Decision APP-02-07 Page 9
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59. On-site observations by City staff and Federal Emergency Management Administration
(FEMA) staff indicate that a substantial portion of the drainage channel lying north of 12u'
9 Avenue has been filled in. See Exhibits 19, 20 and Staff Report. This is consistent with the
Hearing Examiner's site visits.
60. The filling in of the drainage ditch on the site, and the corresponding elimination of the
ditch's associated floodplain and increase in the off-site analyzed 100-year floodplain, are not
consistent with the appellant's answers stated on the stormwater and project environmental
checklists, the "No Rise" certification submitted for the stormwater system on April 14, 2005,
the modified floodplain maps generated by Storhaug Engineering for City review at the time the
grading and floodplain permits were issued by the City on. May 4, 2005, and the location of
grading illustrated on the road and stormwater system plans submitted to the City in March of
2005.
61. The record indicates that the appellant submitted partial and complete as-builts for the
drainage system on December 12, 2005; which are insufficient to identify the location of fill and
excavations, or the changes in topography resulting from construction of the stormwater system
through the site. See p. 3 of environmental checklist review in Exhibit 9, and p. 6 of Staff
Report. The partial as-builts are not contained in the record.
62. The filling in of the drainage ditch, and elimination of the floodplain along the ditch,
appears to be intended to facilitate development of the current project; considering the several
lots proposed in the path of the drainage ditch and floodplain.
63. The appellant contended that FEMA had accepted the floodplain analysis submitted by the
appellant prior to its letter to Storhaug Engineering dated March 5, 2007; except regarding the
issue of"tie-in" of the revised floodplain boundaries to the FEMA designated floodplain located
downstream and north of the site; and except for the submittal of appropriate documentation that
the current project will not harm an endangered species. This contention was based on a
comparison of the information requested in FEMA's letter dated December 19, 2006, and the
information requested in FEMA's March 5, 2007 letter; as well as the testimony and affidavit
submitted by Jerry Storhaug at the appeal period, asserting that he had been so advised by the
FEMA engineers who reviewed the data submitted by Storhaug Engineering.
64. The applicant submitted a biological assessment prepared by Larry Dawes to FEMA, prior
to the deadline required for the submittal of the additional information. The assessment
concludes that the project will not impact any threatened or endangered species. FEMA's letter
dated April 19, 2007, which terminated review of the appellant's CLOMR request, does not
reference the receipt of the assessment.
65. The appellant's legal counsel indicated in its December 13, 2006 letter to the City Attorney
that the "authorized" grading work conducted on the site was minor in scope and limited in area;
and the appellant could, if it was established that the grading of the site resulted in alteration of
the floodplain and was not authorized, return the topography of the site to its pre-graded
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o condition; to eliminate any concern that the floodplain had been altered. See exhibit #22 to
Exhibit 14.
66. In approximately December of 2005, the appellant submitted a conceptual drainage report
for the project, at the request of the City Community Development Department. The drainage
report provides for the construction of drainage improvements that connect to the stormwater
system extended through the site in 2005, to dispose of the drainage generated by development
of the current project. The report indicates that the off-site stormwater reaching the site flows
into the existing pond on the site and discharges off-site to the north. The report did not
acknowledge that a portion of the off-site stormwater reaching the site overflowed from the
existing pond into the drainage ditch lying north of the 12`x'Avenue right of way on the site, and
infiltrated into the ground on the site; before the site was graded in 2005.
67. The appellant submitted a document from the State DNR which concluded, after a field
investigation, that a defined channel for a mapped Type "F" stream did not exist on certain land
located in the area of the site, lying south of an old rock pit, or on adjoining land south of such
property. See exhibit #25 to Exhibit 14. The document does not adequately identify the location
of the property, to determine whether the letter refers to any part of the current site.
III. CONCLUSIONS OF LAW
1. The current version of WAC 222-16-030 makes the State Department of Natural Resources
(DNR) responsible for preparing "fish habitat typing maps" for the "forested areas of the state";
' based on the permanent typing system set forth in such regulation, and using a model intended to
differentiate between fish habitat and non-fish habitat streams. DNR is required to update such
maps every five (5) years based on certain protocols; with some allowance for interim changes
based on use of an on-site "interdisciplinary team", and for a dispute resolution process that
involves DNR, WDOE, the contesting parties, etc.
2. DNR lacks authority to make stream classifications on non-forest lands, or where DNR has
reached agreement with a local government allowing it to approve forest practice conversions
that change forest land to a different use. This includes the current project. The City is
responsible for determining the stream type on the site for the current project, based on the
version of the City Critical Areas Ordinance (CAO) in place at the time the current application
was submitted. This issue is discussed in detail in the Hearing Examiner's recent decision in File
No. REZ-23-04/SUB-15-04/APP-03-07.
3. The City adopted the Spokane County CAO and maps by reference at the time of
incorporation on March 31, 2003. See City Ordinance No. 50. The City has not amended the ■
City CAO since its initial adoption. Under the City CAO, the City's critical areas maps are not
regulatory, and can be overruled by a field investigation by a qualified investigator, as
determined by the City.
4. The provisions of the County Critical Areas Ordinance in effect at the time Larry Dawes
prepared his riparian evaluation and riparian specialist letter on March 11, 2003 are identical to
the current City CAO, which ordinance was in place when the current application became
HE Findings, Conclusions and Decision APP-02-07 Page 11
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complete. Based on Larry Dawes report, the Glenrose Creek drainage on the site and adjacent
land to the south appears to be a Type 5 stream under the City CAO; and to not require a buffer
under the City CAO, because it does not connect downstream to a DNR Type 1-4 stream.
5. Pursuant to Section 10.20.360.A of the Spokane Valley Municipal Code (SVMC), a
floodplain development permit must be obtained before construction or development can occur
within the 100-year floodplain on the site. The application for such permit must describe the
extent to which a watercourse will be altered or relocated as a result of the proposed
development, among other requirements. The Glenrose drainage that extends through the site
and adjacent land, including the drainage ditch located north of the 12th Avenue right of way,
comprises a"watercourse" within the meaning of the City Floodplain Ordinance.
6. Pursuant to SVMC#10.20.360.D.4,the City Floodplain Administrator(i.e. Director of City
Community Development Department) may require a developer to provide "maintenance"within
an altered or relocated watercourse, so that the flood-carrying capacity is not diminished. Prior
to such alteration or relocation, the Floodplain.Administrator must notify "adjacent
communities" and the State Department of Ecology of such action; and submit evidence of such
notification to the Federal Insurance Administration.
7. Pursuant to SVMC#10.20.380, floodplain areas in the Glenrose area(west of Carnahan
road, south of Eighth Avenue) cannot be covered by impervious surfaces or fill unless an
engineering study is prepared by a professional registered civil engineer that shows no impact to
the ability of floodplain to infiltrate, store and release floodwaters.
8. Pursuant to Section 10.20.380.F of the Spokane Valley Municipal Code (SVMC), the
appellant is required to submit base flood elevation data generated by a civil engineer for the
current preliminary plat application, locate and construct public utilities and facilities on the site
to minimize or eliminate flood damage, and provide adequate drainage for the preliminary plat to
reduce exposure to flood damage.
9. Pursuant to SVMC Section 10.20.380.I.2,the proposed preliminary plat may not increase
the water surface elevation of the base flood by more than one (1) foot at any point.
10. The appellant prepared and submitted base flood elevations for the site as topographically
surveyed through the summer of 2004, before the master stormwater system was extended
through the site and adjacent land. The 100-year floodplain for the site and neighboring land
generated from such elevations is illustrated on the "Analyzed Floodplain Delineation" map
(drawing no. 3 of 4) dated September 12, 2005, attached to exhibit#31 of Exhibit 14. The
floodplain included a narrow extension along both sides of the drainage ditch that extended
northwest of the 12th Avenue right of way on the site.
11. On May 4, 2005, the City approved permits for construction of the master stormwater
system; based on the appellant's certification that there would be no off-site increase in the 100-
year floodplain area, representations in the stormwater environmental checklist (by omission)
that no work would be done in or over the surface water body on the site (including the drainage
ditch), and submitted stormwater plans that do not show the filling in of the drainage ditch.
HE Findings, Conclusions and Decision APP-02-07 Page 12
12. During or after the extension of the stormwater system through the site in 2005, the
appellant's contractor filled in a substantial portion of the existing drainage ditch located north of
the 12"'Avenue right of way. This eliminated the 100-year floodplain extension along the ditch,
increased the off-site floodplain area abutting the southeast corner of the north half of the site,
was not authorized by the permits issued by the City, and was done to benefit the current project.
13. The floodplain analysis and maps submitted by the appellant to FEMA in July of 2006 did
not disclose that the drainage ditch had been filled in, the floodplain delineated along the ditch
had been eliminated, and the 100-year analyzed (existing conditions) floodplain had been
widened off-site.
14. Pursuant to SVMC #10.20.380.1.5, where development increases the surface water
elevation of the base flood at any point off-site, the owner of the off-site land must provide
written notarized approval of such change. There is no evidence of such authorization in the
record by the owner(s) of the land impacted by the widened floodplain.
15. The summary adopted by FEMA Region 10 for administering Section 60.3(a)(4) of the
Code of Federal Regulations (CFR) recommends that a local government administering such
provisions through local floodplain ordinances require the submittal and approval of a
"CLOMR" for large scale proposals before they are built, to assure that FEMA will recognize it
for a map change when construction is complete. This advisory is based in part on a"1978
FEMA Guide for Ordinance Development". See exhibit#20 to Exhibit 14.
16. While obtaining a CLOMR from FEMA may be advisable for certain large developments,
the City Floodplain Ordinance does not authorize the City to impose such requirement on the
current application, or the downstream floodplain "tie-in"requirement that FEMA imposed on
the CLOMR submitted by the appellant. The City Floodplain Ordinance could be revised to
include such authority.
17. CFR 65.12 requires the submittal of a CLOMR when a local government proposes to
permit encroachments upon the floodplain when a regulatory floodplain has not been adopted,
which will cause base flood elevations to increase beyond certain levels.
18. The appellant should be required to revise the project, or the topography of the site, so that
the off-site floodplain is not expanded beyond that illustrated on the September 12, 2005
analyzed(existing conditions) floodplain map; or a written notarized authorization obtained from
the owner of the off-site land to allow such expansion. This does not necessarily require that the
drainage ditch and its associated floodplain be restored.
19. The appellant should be required to submit topographical information and as-builts to the
City, upon request, to show the effect of the excavation and grading on the drainage ditch and its
associated floodplain. The appellant should also supply more specific information to the City
regarding the excavation, grading and filling on the site planned for the project, if requested by
the City.
HE Findings, Conclusions and Decision APP-02-07 Page 13
20. The City adopted the 1998 edition of the Spokane County Guidelines for Stormwater
1 Management by reference, as amended by City Ordinance No. 05-013, as drainage regulations
for new development. Such regulations are referenced below as the "Guidelines"
21. The Guidelines generally restrict the quantity of water leaving a development site that
drains into a critical drainage or flood prone area, to the pre-development level. The Guidelines
prohibit drainage from being diverted in the development and released to a downstream property
at points not receiving drainage prior to the development; and prohibit flow from being
concentrated onto downstream properties where sheet flow previously existed.
22. The Guidelines require the drainage report submitted for a development to include a
downstream analysis, to ensure that the drainage plan does not aggravate an existing drainage
problem or create a new problem; in terms of magnitude, frequency or duration. Development in
and around a 100-year floodplain must comply with the City's floodplain ordinance.
23. The Guidelines require drainage facilities to be designed for various 24-hour storm events.
On-site runoff facilities must be designed for a 10-year (24-hour) storm event. Where off-site
runoff contributes to a drainage facility, a 50-year storm event must be designed for. Where a
detention system(a stormwater storage facility with a surface discharge) is proposed, the rate of
runoff cannot exceed the pre-development rate for the 2-year, 10-year and 50-year storm events.
A detention facility must have an emergency overflow structure that is designed to accommodate
a 100-year storm event, generated under development conditions.
24. The Guidelines require that when runoff from a portion of a development site does not flow
through the detention facility, and is not retained anywhere else on site, the "bypass area" must
drain into the same channel as where the detention pond drains and cannot exceed the pre-
development level.
25. The Guidelines require that any natural draws or channels on a development site that are
used to convey stormwater be placed in easements in the final plat. The easements must be wide
enough to contain the runoff from a 50-year storm event, plus a 30% freeboard.
26. The Guidelines require that drainage infiltration systems be designed to consider the effect
that ground seepage from the facility will have on the groundwater elevations both on-site and on
nearby down-gradient properties. This includes consideration of seasonal variations, such as
frozen ground conditions and seasonal high ground water, which may affect functional use of the
drainage systems.
it
27. The Guidelines require the submittal of a geotechnical site characterization study when the
subsurface disposal of stormwater is proposed,to demonstrate soil infiltration suitability.
28. The appellant should be required to demonstrate that the filling in of the drainage ditch on
the site, and any other excavation or filling not authorized by the permits issued for construction
of the stormwater system, did not increase the volume or location of pre-developed stormwater
discharged off-site. The City may also require an expanded analysis of the drainage sources
HE Findings, Conclusions and Decision APP-02-07 Page 14
1 reaching the existing pond on the site, based on legitimate concerns raised by its drainage
engineer. This may require revision of the conceptual drainage plan.
29. The off-site increase to the analyzed(existing conditions) floodplain resulting from the
filling in of the drainage ditch is relatively small, and the resulting deficiencies in the floodplain
analysis submitted by the appellant can likely be resolved through application of the City
Floodplain Ordinance, City Guidelines for Stormwater Management, and City Critical Areas
Ordinance (including geo-hazard provisions).
30. There is no competent evidence that the project will have any adverse impact on priority
wildlife habitat, or any endangered or threatened species.
31. The project will not have a significant impact on the elements of the environment
addressed in the Determination of Significance (DS) issued by the City.
32. The DS should be withdrawn; and the City Community Development Department should
be required to issue a Determination of Nonsignificance (DNS), or Mitigated Determination of
Nonsignificance (MDNS), for the project, consistent with this decision.
33. The Examiner has given substantial weight to the DS issued by the responsible official of
the City Department of Community Development, as required by paragraph 11.10.170 (9) of the
City's Local SEPA Ordinance and WAC 197-11-680(3)(a)(viii). However, based on the above
analysis such determination is clearly erroneous.
34. The City contended that the appeal hearing conducted by the Examiner must be limited to
the information considered by the responsible official in issuing the DS, i.e. a"closed record"
appeal, because this would preclude the Examiner from granting substantial deference to the
determination made by the responsible official. However, if the responsible official had issued a
DNS for the project, and the DNS was appealed, the Examiner would be required to consider the
DNS appeal along with the preliminary plat application in a consolidated open record hearing.
This includes the submittal of new information by the parties to the appeal. See paragraph
11.10.170(6), and WAC 197-11-535(1).
35. The City's Local SEPA ordinance, and RCW 43.21C.075(3)(c), provide for the creation of
a record, including the submittal of testimony under oath, for a SEPA appeal. This clearly
implies an open record hearing on any SEPA appeal. Accordingly, all the testimony and
documents submitted at the appeal hearing held on the current appeal should be included in the
record.
36. The preliminary plat map does not clearly show the location of the geo-hazards on the site,
i.e. the erodible soils, and the slopes equal to or exceeding 30%, on the site. This should be
corrected before the current project is scheduled for hearing.
37. Section 11.10.170 of the City Local Environmental Ordinance does not authorize an
administrative appeal of the Examiner's decision on the appeal of a DS to the City Council, even
HE Findings, Conclusions and Decision APP-02-07 Page 15
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though the Examiner's decision on the underlying rezone and preliminary plat applications are
subject to appeal to the City Council. See Section 11.10.170(4-5).
38. Pursuant to WAC 197-11-680 and Section 11.10.170(12) of the City's Local SEPA
Ordinance, any judicial appeal of the Examiner's decision on the appeal of the DS must be
consolidated with a judicial appeal of the final decision on the underlying rezone and preliminary
plat applications, reached by the Hearing Examiner or the City Council, as the case may be. See
Settle, The Washington State Environmental Policy Act(2006 edition), #20.01, p. 20-4 and 20-5.
39. Section 11.10.170(12) requires the Examiner to give official notice of the date and time for
commencing a judicial appeal. However, WAC 197-11-680(5)(d) provides that such official
notice shall not be given prior to a final decision on the underlying action. Accordingly, the
Examiner is not required to give official notice of this decision at the current time.
IV. DECISION
Based on the Findings of Fact and Conclusions of Law stated above, the Determination of
Significance (DS) issued by the Director of the City Community Development Department
appeal is hereby reversed. The Director is hereby ordered to withdraw the DS issued for the
project, and issue a Determination of Nonsignificance (DNS) or Mitigated Determination of
Nonsignificance (MDNS) consistent with this decision. Such determination is not limited to
addressing floodplain issues.
A copy of this decision was mailed to the parties of record to the appeal on September 19,
2007, including a certified mailing to the appellant/applicant.
DATED this 19th day of September, 2007
SPOKANE VALLEY HEARING EXAMINER
/ -0.d (1, a -,,,
Michae C. Dempsey, WSBA#8235 -
ix
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