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REZ-23-04 SUB-15-04 APP-03-07 P F CITY OF SPOKANE VALLEY HEARING EXAMINER RE: Rezone from the UR-3.5 Zone to the UR-7* ) Zone; Preliminary Plat of Ponderosa Estates ) North, in the UR-7* Zone; and SEPA ) Appeal of Mitigated Determination of ) FINDINGS OF FACT, Nonsignificance (MDNS); ) CONCLUSIONS OF LAW, AND DECISION Applicant: Landworks Development LLC ) Appellant: Ponderosa Properties HOA ) ) File Nos. REZ-23-04/SUB-15-04/APP-03-07 ) ) I. SUMMARY OF DECISION Hearing Matter: Consolidated applications for a rezone from the UR-3.5 zone to the UR-7* zone, and for a preliminary plat in the UR-7* zone; and SEPA appeal of MDNS issued for applications. Summary of Decision: Deny applications, based on inadequacy of public emergency/fire access for project. Deny SEPA appeal. H. FINDINGS OF FACT A.. Background Information 1. The subject applications seek approval of a zone reclassification from the Urban Residential- 3.5 (UR-3.5) zone to the Urban Residential-7* (UR-7*) zone, for 14.6 acres of a 15.2-acre site; and approval of the preliminary plat of Ponderosa Estates North, to subdivide the site into 45 lots for single-family dwellings, and approximately 2.9 acres of common open space, in the UR-7* zone. 2. The site is situated in the North 1/2 of Section 32, Township 25N, Range 44 EWM of Spokane County, Washington. The site is addressed at 3310 S. Ridgeview Drive, Spokane Valley, Washington. 3. The site is currently referenced as County Assessor's tax parcel nos. 45321.9113 and 45322.9115. The property is legally described as Tract 3 of Short Plat No. SP-945-94, per short plat recorded in Book 11, Page 57 of Short Plats, records of Spokane County Auditor. 4. The applicant is Landworks Development LLC, c/o Bruce Howard, 721 N. Pines Road, Spokane Valley, WA 99206. The site owner is Ponderosa Properties LLC, c/o Bryan Walker, 721 N. Pines Road, Spokane Valley, WA 99206 HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 1 i I o 1 5. On November 5, 2004, the applicant submitted complete applications to rezone 14.6 acres 1 of the site from the UR-3.5 zone to the UR-7* zone, and to subdivide the 15.2-acre site into 49 lots for the development of single-family dwellings. The .6 acres of the site not included in the rezone application are already zoned UR-7*. 6. On March 7, 2007, the applicant submitted a revised preliminary plat map; which reduced the number of lots to 45, and constitutes the preliminary plat map of record for the project. 7. On April 20, 2007, the City Community Development Department-Planning Division ("City Planning Division") issued a Mitigated Determination of Nonsignificance (MDNS) for the rezone and preliminary plat applications. 8. On May 4, 2007, the Ponderosa Properties Homeowner's Association timely appealed the MDNS to the Hearing Examiner. Such association is composed of the owners of eight (8) acreage parcels that abut or lie near the site on the west, north and northwest. 9. On May 24, June 4, June 15 and June 19 of 2007, the Hearing Examiner held a consolidated public hearing on the applications and the appeal of the MDNS. 10. On July 20, 2007, the Hearing Examiner addressed a letter to the persons participating in the public hearing; advising that the Examiner desired to reopen the record to consider certain documents necessary for a proper adjudication of the matter, and requesting that any objections to or comments on the documents be submitted by July 27, 2007. The Examiner received no response to the letter. 11. The Examiner's letter dated July 20, 2007 erroneously referred to the appeal number assigned to the current MDNS appeal as "APP-02-07"; and erroneously stated that a drainage easement recorded on November 3, 1994 was recorded on"November 3, 2004". 12. The Examiner conducted a site visit on May 23, 2007, and also visited the site after the public hearing. 13. The notice of hearing requirements for the applications, and the appeal of the MDNS, were met by the City Planning Division and the parties. 1 14. The following persons testified at the public hearing(s): i Karen Kendall, Assistant Planner Stacy Bjordahl iE Spokane Valley Planning Dept Attorney at Law 11707 E. Sprague, Suite 106 1100 US Bank Building Spokane Valley, WA 99206 422 West Riverside Avenue Spokane, WA 99201-0300 i • HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 2 Tamara Murock Karin Divens Attorney at Law WDFW 7 S. Howard, Suite 220 2315 N. Discovery Place Spokane, WA 99201 Spokane Valley, WA 99216 Ron Oman Richard Behm. 4337 S. Fan 3626 S. Ridgeview Drive Spokane, WA 99206 Spokane Valley, WA 99206 Dorothy Trechter Margaret Mortz 3504 S. Ridgeview Drive 3420 S. Ridgeview Spokane, WA 99206 Spokane Valley, WA 99206 Russ Shane, Captain Susan Schmidt Spokane County Sheriff's Office 3808 S. Sundown Drive 1100 W. Mallon Spokane Valley, WA 99206 Spokane, WA 99260 Janice Cooperstein Marilyn Finley 9716 E. 45t1 Avenue 3415 S. Sundown Drive Spokane Valley, WA 99206 Spokane Valley, WA 99206 Larry Rider, Assistant Chief Walt Edelen Spokane Valley Fire Department 210 N. Havana 10319 E. Sprague Spokane, WA 99202 Spokane Valley, WA 99206 John Holman Henry Allen Spokane Valley Engineering Division Spokane Valley Engineering Division 11707 E. Sprague, Suite 106 11707 E. Sprague, Suite 106 Spokane Valley, WA 99206 Spokane Valley, WA 99206 Mike Magruder Shawn Taylor 3315 S. Ponderosa Lane 3209 S. Ponderosa Lane Spokane Valley, WA 99206 Spokane Valley, WA 99206 Steven Tolliver Eberhard Schmidt 3117 S. Bascetta Lane 3808 S. Ponderosa Lane Spokane Valley, WA 99206 Spokane Valley, WA 99206 Mike Connelly, City Attorney Buck Finley 11707 E. Sprague, Suite 106 3415 S. Sundown Drive Spokane Valley, WA 99206 Spokane, WA 99206 it HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 3 Dave Olson Chuck Hafizer 8808 E. 44x1 Avenue 4710 S. Woodruff Spokane, WA 99206 Spokane Valley, WA 99206 Gail Stiltner Tracey Fish 10119 E. 44th Avenue 3421 S. Ridgeview Drive Spokane Valley, WA 99206 Spokane Valley, WA 99206 Nancy Deming Gabe Gallinger 3911 S. Woodruff Court 721 N. Pines Road Spokane Valley, WA 99206 Spokane Valley, WA 99206 Lisa Dickenson John Boyd 818 W. Riverside, Suite 631 4024 S. Forest Meadow Drive Spokane, WA 99201 Spokane Valley, WA 99206 Steve McNutty Lally Dawes 4106 S. Hollow Court 725 W. Chelan Spokane Valley, WA 99206 Spokane, WA 99205 David Noll Tia Lesser 3606 S. Schafer Road 3404 S. Ridgeview Drive Spokane, WA 99206 Spokane Valley, WA 99206 Todd Whipple 2528 N. Sullivan Spokane Valley, WA 99216 15. The Hearing Examiner heard the proposal pursuant to Chapter 10.35 of the City of Spokane Valley Municipal Code (SVMC), the City Hearing Examiner Rules of Procedure, and the City Local Environmental Ordinance. B. Items in Record 16. The Hearing Examiner takes notice of the City of Spokane Valley Interim Comprehensive Plan, Comprehensive Plan, Interim Zoning Code, Phase 1 Development Regulations, Interim Subdivision Ordinance, Interim Application Review Procedures for Project Permits, Environmental Ordinance, Interim Critical Areas Ordinance, Critical Areas maps, Guidelines for Stormwater Management, Standards for Road and Sewer Construction, and Municipal Code; other applicable development regulations; and prior land use decisions in the area. 17. The record includes the documents in File Nos. REZ-23-04/SUB-15-04 and APP-03-07 at the time of the public hearing(s), the documents and testimony submitted at the public hearing, the HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 4 Examiner's letter to the parties dated July 20, 2007, the documents referenced in the Examiner's letter dated July 20, 2007, and the items taken notice of by the Examiner. 18. On August 13-14, 2007, the Hearing Examiner received correspondence from Mike Thompson, Chief of Spokane County Fire District 1, and Ozzie Knezovich, Spokane County Sheriff; regarding Fire District 1 Resolution 2007-284, as it relates to the current project. Such items are excluded from the record, for the reasons cited in the Examiner's emails to Chief Thompson and Sheriff Knezovich dated on August 14-15, 2007. C. Description of Site 19. The site is approximately 15.18 acres in size, irregular in shape and undeveloped. The topography of the site ranges from relatively flat to rolling, with a maximum slope of approximately 37%; and generally slopes from west to east. 20. Ponderosa Lane, a private road, extends westerly through the south end of the site from Woodruff Road, within an existing 60-foot easement, and curves to the north through abutting property to the west. Ponderosa Lane is paved to a width of 20 feet, and is gated west of the culverts underlying the road on the site. 21. A wetland area of approximately 12,000 square feet is located in the northwest portion of the site; and extends west of the site along a seasonal stream. The site slopes moderately upward from the wetland toward the south border of the site; which area of the property is covered by grasses, shrubs and scattered mature pine trees. 22. The site slopes more steeply upward between the wetland and the north property line, at a slope ranging from 15-40%; and with mature pine trees and exposed granite bedrock found on most of the slope. A seasonal stream/drainage way extends easterly into the wetland from the land lying west of the site. 23. A small ridge or manmade embankment, several feet in height, extends southeasterly from the southeast toe of the northwest slope on the site, east of the wetland; and traps water reaching the wetland from the south and west. 24. The northeast portion of the site is relatively flat in topography, contains a small grove of pine trees and scattered pine trees in its western portion, and generally consists of an open grass- covered field in its eastern portion. 25. A seasonal stream/drainage way extends northeasterly into the site, at its southeast corner, passes under Ponderosa Lane through four 36-inch culverts, extends northerly through the site and adjacent land to the east, and widens out before reaching the south side of the wetland. Scattered mature pine trees, native vegetation and noxious weeds are found along the stream/drainage way leading to the wetland. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 5 26. A seasonal stream/drainage way extends easterly from the wetland, through a narrow breach in the embankment, continues easterly through the north portion of the site, crosses the east border of the northeast part of the site, and flows through culverts underlying Bascetta Lane. The west part of the seasonal stream/drainage way meanders through and alongside a narrow grove of pine trees and native vegetation; while the east part extends through an open field before reaching Bascetta Lane. 27. On April 27, 1994, Spokane County approved a preliminary short plat to divide the site into three (3) tracts of land. The final short plat was recorded on October 28, 1994. See decision in County File No. SHP-945-94, and final short plat map. Two (2) of the short plat tracts, located directly east of the south portion of the site, respectively, are not part of the current site. D. Description of Preliminary Plat 28. The preliminary plat map of record illustrates 45 single-family lots, ranging from 6,289 square feet to 20,207 square feet in size; and five (5) common open spaces tracts, totaling approximately 2.89 acres in area. The average lot size in the preliminary plat is approximately 9,400 square feet. 29. The density(net) of the preliminary plat is approximately 3.36 dwelling units per acre. This is determined by dividing the number of dwelling units (45 units) by the difference between the gross area of the site (15.18 acres) and the sum of the areas in the preliminary plat reserved for public and private roads, exclusive of private driveways (1.8 acres). See definition of"density" in Section 14.300.100 of the City Interim Zoning Code; as amended in the former County Zoning j Code by County Resolution No. 3-0022, prior to incorporation of the City. 30. The Staff Report and the preliminary plat map incorrectly calculate the density(net) of the preliminary plat; by erroneously subtracting the area of the preliminary plat reserved for critical areas, or common open space, respectively, from gross acreage, in determining the net acreage of the preliminary plat for the calculation of density(net). 31. The preliminary plat map illustrates the extension of Ridgeview Drive to the north boundary, as a public road; an internal public road(331d Court) and an internal private road(34th Lane) extending east from the extension of Ridgeview Drive, each terminating in cul-de-sacs; an internal private road(Woodruff Lane) extending north from Woodruff Road for some distance, before terminating in a cul-de-sac; and four(4) internal private driveways, each serving 2-3 lots, that connect to the internal public or private roads. 32. The preliminary plat map illustrates two (2) segments of a 40-foot wide drainage channel easement in the south end of the site; which easement was dedicated to Spokane County and recorded in 1994 when the site was short platted. 33. The southerly segment of the 40-foot wide drainage easement extends from the south border to the east border of the south end of the site; from a 30-foot wide drainage easement located off-site to the south. The northerly segment of the on-site drainage easement extends HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 6 from the east boundary of the site, from a point lying approximately 120 feet north of the southerly segment, to a point lying near the south finger of the on-site wetland. 34. The common open space in the preliminary plat accommodates the wetland, most of the 75- foot wide buffer specified for the wetland, a portion of the south segment of the 1994 drainage easement, the north segment of the 1994 drainage easement, a proposed drainage channel extending from the proposed extension of Ridgeview Drive northeasterly to the east boundary of the northeast part of the site, and proposed stormwater ponds/drainage facilities. 35. The preliminary plat map illustrates an encroachment of approximately 3,750 square feet to 4,000 square feet on the wetland buffer, by two private driveways; based on the scale illustrated on the map. • E. Critical Areas located on Site 36. The current City Critical Areas maps were adopted at the time the City was incorporated on March 31, 2003. Such maps illustrate a DNR Type 5 seasonal stream extending easterly into the on-site wetland from adjacent land lying to the west. See Exhibit#25; and colorized maps produced on 1-14-04. 37. Such maps illustrate an area of"open water" at the location of the on-site wetland; and illustrate an erodible soils geo-hazard in the south, northwest portion and southeast corner of the north portion of the site. The northwest portion of the site contains slopes exceeding 30%, which feature represents a geo-hazard under the City Critical Areas Ordinance. 38. Such maps do not illustrate any priority wildlife habitat or 100-year floodplain areas on the site. 39. Washington State Department of Fish and Wildlife (WDFW) maps, which are used by local governments to identify priority habitats and species on their critical areas maps, currently indicate the presence of Elk priority wildlife habitat in the south portion of the site. The City Comprehensive Plan shows the same habitat designation, on a map dated June 19, 2006. See Comprehensive Plan, map 8.3. l� 40. The City Comprehensive Plan shows the site, and the entire City area, in a"critical aquifer recharge area" of"high" susceptibility to groundwater contamination. 41. The "hydrolayer" maintained by the Washington State Department of Natural Resources (DNR), which maps DNR stream types on forested land throughout the state, currently illustrates a DNR Type "F" (Type 3) stream extending northerly into the site and the on-site wetland from the south; and also extending easterly from the wetland through the northeast portion of the site, and beyond to Chester Creek. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 7 42. The DNR hydrolayer also shows a DNR Type "Ns" (Type 5) stream extending easterly into the on-site wetland, from the land lying west of the site, and merging into the DNR Type "F" stream at the point it turns east on the site. 43. On June 8, 1994, a wetland delineation report was submitted for the previous short plat of the site to Spokane County; prepared by wetland specialists Michael Folsom and Robert Quinn. The report delineated the wetland located on the site, and a portion of its extension along the stream/drainage lying west of the site, as a category III wetland; and recommended a 50-foot wide buffer for the wetland. The wetland delineation and 50-foot wetland buffer are illustrated on the final short plat map recorded for the site in 1994. 44. On March 11, 2005, Larry Dawes, the applicant's wetland/wildlife biologist consultant, submitted a report for the current project which reaffirmed the 1994 wetland delineation report prepared for the site. The report also concluded that the streams/drainage ways passing through the site do not constitute DNR stream types entitled to protection under the City Interim Critical Areas Ordinance. 45. On January 8, 2006, Lany Dawes submitted a wetland buffer mitigation plan to mitigate an encroachment of approximately 2,600 square feet on the 75-foot buffer required for the on-site wetland, by the roadway system illustrated on the original preliminary plat map submitted on November 5, 2004. The mitigation plan was not updated for the preliminary plat of record submitted on March 7, 2007. F. Land Use Designations for Site, Surrounding Conditions 46. The site, and neighboring land lying to the east and south, are located in the City and designated in the County Urban Growth Area(UGA). Such land is zoned UR-3.5 by the City Interim Zoning Code; except for the .6-acre portion of the site currently zoned UR-7*, and some land zoned UR-7* lying approximately 500 feet south of the site. 47. The land lying north and west of the site is situated in the unincorporated area of Spokane County, located outside the UGA boundary, and zoned Rural Conservation(RC) by the County Zoning Code. 48. The County's RC zone imposes a minimum lot size of 20 acres and a maximum residential density(net) of one (1) dwelling unit per 20 acres; unless lots are clustered in an approved rural cluster development. In a rural cluster development, lots as small as one (1) acre are permitted, provided the overall density(net) of the development does not exceed one (1) dwelling unit per 10 acres in size, 70% of the development is retained in open space, and other rural cluster standards are met. 49. In 1991, the County reclassified the zoning of the site, and neighboring land located to the east and south, to the UR-3.5 zone of the County Zoning Code; except for the portion of the site, and the land to the south currently zoned UR-7*, which land was reclassified in the same zoning HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 8 action to the Semi-Rural Residential-5 (SRR-5) zone; all pursuant to the Program to Implement the Spokane County Zoning Code. 50. In 2002, the County adopted UGA boundaries, a new comprehensive plan, and the County Phase I Development Regulations to implement the new comprehensive plan. The County's new comprehensive plan designated the entire site, and neighboring land lying east and south of the site, in the Low Density Residential category; and designated the land lying west and north of the site in the Rural Conservation category. 51. The County Phase I Development Regulations reclassified the .6-acre portion of the site zoned SRR-5, and the above-referenced land to the south, to the UR-7* zone of the County Zoning Code; retained the UR-3.5 zoning of the site and neighboring land located to the east and south; and reclassified the zoning of the land lying west and north of the site to the Rural Conservation(RC) zone. 52. On March 31, 2003, the City was incorporated; which included the site and the land lying east and south of the site. Upon incorporation, the City adopted by reference the County Comprehensive Plan, County Zoning Code, County official zoning maps, County Phase I Development Regulations and other County development regulations; with certain revisions. 53. The City Interim Comprehensive Plan and City Phase I Development Regulations, respectively, retained the comprehensive plan designations and zone classifications adopted by the County Comprehensive Plan and Phase I Development Regulations. The site is designated in the Low Density Residential category of the City Interim Comprehensive Plan. 54. On May 10, 2006, the City implemented its current Comprehensive Plan, which contained new land use categories, policies and text. See City Ordinance No. 06-010. The City Phase I Development Regulations were updated to specify the zones in the City Interim Zoning Code that implemented the new land use categories in the Comprehensive Plan, for rezone purposes. See City Ordinance No. 06-011. 55. The Comprehensive Plan designates the site and neighboring land in the City in the Low Density Residential category, with a few exceptions for land reserved for public/quasi-public uses. The City is in the process of adopting new area-wide zoning to implement the Comprehensive Plan. 56. The site and other neighboring land in the City are located in the Aquifer Sensitive Area (ASA) Overlay zone of the City Interim Zoning Code. 57. The land lying south and southeast of the site is developed with residential subdivisions containing urban-sized lots 10,000 square feet or larger in size. The land lying to the east and southeast, east of Bascetta Lane, consists of cultivated fields mostly owned by Redeemer Lutheran Church. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 9 58. The unincorporated land lying west and northeast of the site consists of single-family homes on parcels five (5) acres in size or greater. The unincorporated land lying directly north of the site consists of a 10-acre parcel of undeveloped farmland 59. A Union Pacific railroad line, located within a 100-foot wide railroad right of way, parallels the west side of Dishman-Mica Road in the area; lies approximately 1,000 feet east of the site; and experiences light rail usage. At-grade, signalized crossings of the railroad are located along Schafer Road and Bowdish Road, south of Dishman-Mica Road. 60. At-grade, un-signalized crossing of the railroad are located at the west end of 28th Avenue, approximately one-fourth(1/4) mile north of the site; and along 24th Avenue, further to the north and west of Dishman-Mica Road. A private road extends westerly from the railroad crossing at 28th Avenue for some distance. See off-site basin map for revised conceptual drainage plan, FIRM floodplain map; County Assessor map for the S 1/2 of Section 29, and testimony submitted at public hearing. 61. Redeemer Lutheran Church is located southeast of the site, along the west side of Schafer Road southwest of the railroad line. 62. Ponderosa Elementary School is located approximately one-fourth(1/4) mile southeast of the site, at the northeast corner of the intersection of Cimmaron Drive and Woodruff Road. Sidewalk is located along the school frontage with such roads. 1 63. A fire station operated by County Fire District 8 is located approximately 1.2 miles southeast of the site, at the southwest corner of the intersection of 44th Avenue and Bates Road. County Fire District 8 generally covers the area lying south of 44th Avenue. County Fire District 1, also referenced as the "Spokane Valley Fire Department", generally covers the area lying north of 44th Avenue. 64. The current City Arterial Street Plan designates Dishman-Mica Road(northwest of Schafer Road/University Road) and 32m Avenue as Principal Arterials; Dishman-Mica Road(southeast of Schafer Road/University Road), University Road and Bowdish Road (north of Dishman-Mica Road) as Minor Arterials; and Schafer Road, Bowdish Road(south of Dishman-Mica Road), Sands Road, Bates Road and Holman Road as Collector Arterials. All other city roads in the Ponderosa area are considered Local Access streets. See Comprehensive Plan, map 3.1. 65. The public roads in the vicinity are paved and curbed, but lack sidewalks; except for the existing sidewalk located along the east side of Woodruff Road between the site and Ponderosa Elementary School, and the sidewalks lying adjacent to the school. Bascetta Lane consists of a 16-foot wide paved private road, located within a 60-foot wide private easement. 66. The land lying west and southwest of the site, and the City boundaries, rises up to Brown's Mountain and Tower Mountain, and features mountainous terrrain. The Iller Creek Conservation Area is located approximately one (1) mile southwest of the site. The Dishman Hills Natural Area HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 10 5 is located less than one (1) mile northwest of the site, on mountainous land lying west of Dishman-Mica Road and south of Appleway Avenue. 67. Chester Creek is located between the railroad and Dishman-Mica Road in the area, and is most evident south of Schafer Road. City floodplain maps designate the area along both sides of the railroad in the area, west of Dishman-Mica Road, in a 100-year floodplain. The floodplain reaches west to Bascetta Lane, approximately 500 feet southeast of the north portion of the site. 68. City Critical Areas maps designate Chester Creek as a Type 4 stream; and show the creek terminating a few hundred feet north of Schafer Road, along the east side of the railroad line, in a possible wetland area straddling both sides of the railroad. The current DNR hydrolayer designates Chester Creek as a Type "F" stream along the west side of the railroad line in the area, for considerable distances to the north and south. 69. The seasonal stream/drainage way that enters the site from the southwest extends upstream through the subdivision lying south of the site, within a 30-foot wide drainage easement; and has been modified from its natural state. See existing site plan of record submitted on 11-05-04 in current file. This includes an extension under Sunderland Road, approximately 500 feet south of the site, through four (4) 36-inch culverts. 70. The seasonal stream/drainage way continues upstream to the south, through undeveloped farmland, until it reaches the "Phillips farm"; which lies north of 44th Avenue, southeast of the terminus of Sunderland Road and 42 11d Avenue. The stream/drainage branches out upstream into two tributaries, one extending south across 44th Avenue into the Iller Creek area, and one generally staying north of 44th Avenue. 71. City Critical Areas maps designate the southerly stream/drainage as a Type 4 stream, but show no typed stream lying north of the culverts passing under Sunderland Road. The DNR hydrolayer shows the southerly stream/drainage, downstream all the way to the site; and its two upstream tributaries; as Type "F" streams. 72. City Critical Areas maps show a short Type 4 stream flowing southeasterly into the southerly stream/drainage, north of the point where the stream/drainage divides near 44th Avenue. The DNR hydrolayer shows such water body as a Type "Np" stream, and as extending further uphill to the southwest. G. 1991 Firestorm 73. In October of 1991, a significant wildfire/firestorm event occurred in various parts of Spokane County; including a 3-mile long by 1-mile wide area located in the south Ponderosa area. This resulted in the destruction of 14 homes in the south portion of the Ponderosa area, along Ferret Drive. The fire threatened the destruction of 105 additional homes in the south end of the Ponderosa area and the nearby Painted Hills area; with the fire reaching as far north as 48th Avenue. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 11 74. The Ponderosa firestorm occurred during the day, on a weekday when many residents were still at work; and was caused by a downed power line on Brown's Mountain. The fire grew to 1,587 acres in only four(4) hours, and forced the evacuation of over 2,500 residents in the Ponderosa area to Dishman-Mica Road. Residents received word to leave their homes 1.5 hours after the fire started, and 30 minutes later flames raced up a slope to reach the first homes that were damaged. See Exhibit#40, p. 1,232-1,233, 1,236 and 1306. H. Development Projects in Ponderosa Area reviewed after 1991 Firestorm 75. In 1992, the Spokane Board of County Commissioners denied a proposed rezone and preliminary plat for the south portion of the site, and abutting land to the west; due to "...unmitigated traffic impacts". This occurred despite the sponsor proposing construction of another access out of the area, to improve public access out of the Ponderosa area in times of emergency. See Exhibit#34, exhibit 6A, finding of fact#18 of Board decision in File No. PE- 1695-92/ZE-3-93. 76. In 1993, the Board of County Commissioners denied a proposed rezone and preliminary plat (Broadmoor Estates No. 2), for the south 5.2 acres of the site zoned UR-3.5, and 10 acres abutting to the west zoned SRR-5; for the purpose of developing 17 lots for single-family dwellings in the UR-3.5 zone. The Board's denial was based on major concerns for public safety arising out of the 1991 firestorm event; including public egress out of the area and timely emergency response to the area. 77. The Broadmoor Estates No. 2 decision found that the circuitry of the road system in the Ponderosa area before it reached Dishman-Mica Road, via either Schafer Road or Bowdish Road, rendered public access to and from the area inadequate; the property and the Ponderosa area were prone to further wildfire emergencies; and approval of the project would only exacerbate the problems with access and emergency response. See Exhibit#34, exhibit 6A, Board decision in City File No. PE-1695-92/ZE-3-93 and preliminary plat map. 78. In 1994, the County Planning Department approved a preliminary short plat to divide the site, and certain adjacent land to the east, into three (3) tracts. The County Engineering conditions adopted by the decision noted that previous land use actions had identified the alignment of Ridgeview Drive as the future connection to 24th Avenue, due to the 1991 firestorm in the area, and other similar traffic concerns; and found that such connection would help alleviate such concerns and provide additional circulation to the Ponderosa area. 79. The 1994 short plat decision for the site required the sponsor to enter into a written, recorded agreement to preserve a corridor for the extension of Ridgeview Drive, at such time as requested by the County Engineer, or in conjunction with a future land use action; but did not require the dedication of Ridgeview Drive through the short plat. See City File No. SP-945-94, decision dated 4-27-94, County Engineering condition#18. The final short plat recorded in 1994 did not provide for the extension of Ridgeview Drive through the site, or divide such area of the site into lots. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 12 I l I I 80. In 1995, Spokane Board of County Commissioners conditioned the development of 25 parcels of land located in the southeast portion of the Ponderosa area, at the south end of Ponderosa Drive (divided through the certificate of exemption process), on the extension of a paved private road from Pierce Road southerly to Hallett Road; in order to provide access from such development to Dishman-Mica Road, in the event of a wildfire. See Exhibit #35, including reference to County Resolution No. 95-0573A. Such access was never constructed. 81. Between 1993 and 2000, Spokane County approved certificate of exemptions to create the 5-acre and 10-acre tracts lying west, north and northwest of the site. All such divisions relied on the extension of Ponderosa Lane through the site and the tracts lying west of the site. See appeal application, exhibit "C". 82. In 2001, the Spokane County Hearing Examiner required the preparation of a supplemental environmental impact statement (SEIS) for the preliminary plat/PUD of Mica View Estates. Such project proposed to divide 54 acres of land located in the southeast portion of the Ponderosa area, approximately 1.5 miles southeast of the site, into 83 lots for single-family dwellings, in the UR- 3.5 zone. Such property is located between Ponderosa Drive and the elevated railroad right of way of the Union Pacific Railroad, west of Dishman-Mica Road. See Exhibit#35, at exhibit#9; and County decisions in File No. PE-1746-94/PUDE-1-94. 83. The SEIS requirement for the Mica View Estates project was based in part on County Fire District No. 8's opposition to such project, unless a new public access road was extended to Dishman-Mica Road. The district was concerned that the road system serving the Ponderosa area was unable to safely handle a major evacuation such as the 1991 firestorm event, including getting residents out of the area and emergency vehicles into the area; and that increased development would worsen the situation. 1 84. The SEIS requirement for the Mica View Estates project was also based on the need to evaluate the feasibility of constructing and funding the extension of a public road under the adjacent railway line, to Dishman-Mica Road, in the event the average daily traffic capacity of Bates Road was exceeded; as well as to consider the feasibility of constructing an at-grade crossing of the railroad line, for emergency/fire access, northeast of such project between Sands Road and Dishman-Mica Road. 85. In 2002, a 12-foot wide, paved road was extended across the railroad line, at grade, near the Mica View Estates project, approximately 1.5 miles southeast of the site; from Sands Road to Dishman-Mica Road, between 47`h Avenue and 48th Avenue. The primary purpose of the crossing was to provide access for fire/emergency vehicles. Such crossing is gated and locked at both ends, and signed as a restricted railroad crossing. f r 86. County Fire District 8 has keys to the locked gates at such railroad crossing, and is authorized to access the road during emergency conditions and for training purposes. Such access is currently regarded by Fire District 8 as an ingress point for second response units, coming from the Valleyford fire station located several miles southeast of the site. The access can potentially be used for limited emergency evacuation of the Ponderosa area, should other access HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 13 routes out of the Ponderosa area become blocked or congested. See Exhibit #41, p. 170; Finding of Fact#36 in decision dated 8-5-06, in County File No. PE-1940-04; and Finding of Fact #94 in decision dated 4-11-03, in County File No. PE-1746-94/PUDE-1-94; and Exhibit #34. 87. On April 11, 2003, the County Hearing Examiner approved the preliminary plat/PUD of Mica View Estates, after finding that such project made appropriate provision for fire and emergency access into and out of the Ponderosa area; based primarily on the additional at-grade railroad crossing constructed near the project between Sands Road and Dishman-Mica Road. A final plat was recorded for such project on July 28, 2005; which provided for the extension of Bates Road southwest to Gertrude Drive. 88. The Mica View Estates decision required the sponsor, prior to final plat approval, to work with Fire District 8, the County Sheriff, the County Engineer and neighboring property owners to develop an emergency evacuation plan for such project and the Ponderosa area. 89. The Mica View Estates decision required the sponsor of such project to set aside the amount of$500 per lot, in an escrow account, payable to Spokane County on demand. This was for the exclusive purpose of constructing a railroad crossing in the vicinity of the plat, at an undetermined location; and was directed at alleviating impacts to Bates Road in the event that the average daily traffic capacity of Bates Road was exceeded. The decision also required the plat sponsor to provide updated traffic counts along Bates Road, prior to the approval of the 57th lot, with the possibility of off-site mitigation being required depending on the results. 90. On June 28, 2005, the Hearing Examiner approved the preliminary plat of Inveraiy, to divide 2.9 acres located along the east side of Schafer Road, near Dishman-Mica Road along the east side of the railroad, into 30 "divided duplex" lots (30 total units). The property is zoned Urban Residential-12 (UR-12) zone. The project has received fmal plat approval, and includes the installation of sidewalk along the frontage of the development with Schafer Road. See decision in File No. ZE-46A-90/SUB-05-05. 91. On August 5, 2005, the County Hearing Examiner approved the preliminary plat of Ponderosa Ridge; to subdivide 27.7 acres of land located approximately two-thirds (2/3) of a mile southeast of the site, at the southeast corner of the intersection of 44tH Avenue and Schafer Branch Road, into 100 lots for single-family dwellings, and 17.5 acres of common open space; in the UR-3.5 zone of the former County Zoning Code. See decision in File No. PE-1940-04. Such decision is currently on appeal before the Washington State Court of Appeals, Division III; after the Examiner's decision was affirmed by Spokane County Superior Court. 92. The Ponderosa Ridge decision found that fire access for the project was adequate; based largely on the fire evacuation analysis included in the traffic impact analysis (TIA), and submitted by the sponsor's traffic engineer, Todd Whipple; expert testimony provided by the sponsor's fire safety consultant, Claude Wells; and favorable review of the evacuation analysis by Spokane County. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 14 93. The Ponderosa Ridge project required the plat sponsor to assist County Fire District 8 in 0 developing an emergency evacuation plan for such project, if requested by the fire district. The decision also required that common areas be maintained in a manner that resisted the ignition and spread of fire; at least 30 feet of green space to be preserved around homes to buffer them from the threat of fire; covenants be established to restrict parking on streets, so as not to hinder access by emergency vehicles; and covenants be established that required home construction to be of fire resistive roofing and siding materials. 94. The Ponderosa Ridge decision deleted a condition of approval requested by County Engineering that would have required the plat sponsor to contribute a$500 per lot fee for the construction of a new railroad crossing in the vicinity of the project. This was based on findings that County Engineering had no current plans for a railroad crossing, had not established where and when the crossing would be constructed, provided no estimate of the cost or feasibility of constructing the crossing, and provided no basis for calculating the applicant's proportionate share of constructing the crossing; and based on the resulting conclusion that there was not a sufficient regulatory basis under SEPA, RCW 58.17.110, and the impact fee provisions contained in chapter 82.02 RCW to impose the requested per lot fee on the plat sponsor. 95. On August 9, 2007, the City Hearing Examiner was scheduled to hear an application for the preliminary plat/PUD of Ponderosa PUD, to subdivide 17 acres of land lying directly east of Ponderosa Ridge project, along the south side of 44th Avenue, into 81 lots for single-family dwellings and 10.3 acres of common open space; at a density(net) of 3.9 dwelling units per acre; along with a PUD Overlay zone request; in the UR-7* zone. Such project is functionally related to the Ponderosa Ridge project, and involves the same applicant. See File No. SUB-07-04/PUD- 04-04 96. The Hearing Examiner has served as the Spokane County Hearing Examiner since 1996; has served as the hearing examiner for the City of Spokane Valley since the City was incorporated in 2003; and issued the final decisions for the Mica View Estates, Ponderosa Ridge and Inverary projects in the Ponderosa area. I. Issues raised by Neighboring Property Owners and Public Agencies 97. The SEPA appeal filed by the Ponderosa Properties HOA contended that the project would have probable, significant adverse impacts on the association's land due to potential flooding, stormwater, drainage, and erosion impacts; and would significant adverse impacts on wildlife habitat using their land and the site, the wetland on the site, and the riparian area associated with the streams on the site. 98. The SEPA appeal alleges that the City Planning Division did not properly apply the City Interim Critical Areas Ordinance to the preliminary plat. This includes errors in the wetland and stream analysis submitted by the applicant's wetland specialist/wildlife biologist; conflicts with the habitat management plan applicable to the appellants' property lying west of the site; and alleged fF errors in the conceptual drainage plan submitted by the applicant's drainage engineer. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 15 1 99. Neighboring property owners expressed opposition to the project based on the above concerns; as well as concerns regarding housing density, lot sizes, impacts on neighborhood character, inadequate public and emergency access for the preliminary plat and the Ponderosa area in the event of wildfire, traffic safety and capacity, pedestrian safety, school capacity, mitigation of geo-hazards on the site, the justification for rezoning the site, loss of aquifer recharge, impacts on water pressure, and other concerns. 100. The Washington State Department of Fish and Wildlife (WDFW), Spokane County Conservation District, the Washington State Department of Ecology(WDOE), and the County Soil Conservation Service raised concerns such as the typing of the DNR streams designated on the site, delineation of the wetland, impacts to riparian and wildlife habitat, groundwater quality impacts, loss of aquifer recharge, and potential on-site flooding and floodplain impacts. 101. The Central Valley School District requested mitigation for the project, in the form of sidewalks within the development, and provision for safe waiting and bus boarding for students bussed to other districts along the perimeter of the site. The district also requested that the City evaluate the adequacy of the roadways in the Ponderosa area for ingress, egress and traffic associated with Ponderosa Elementary School; with regard to the added traffic generated by the project and other new developments in the Ponderosa area. 102. The Spokane Tribe of Indians, and the State Office of Archaeology and Historic Preservation, requested that an archaeological survey be performed for all areas of the site proposed for development, and for all construction and staging areas; based on various factors. J. Applicable Interim Comprehensive Plan Policies 103. Policy UL.9.1 of the Interim Comprehensive Plan recommends that residential densities (net) in the Low Density Residential category range from 1-6 dwelling units per acre. Policy UL.9.2 recommends that the County seek to achieve an average residential density(net) in new development of at least four (4) dwelling units per acre, through a mix of densities and housing types. Policy UL.8.1 recommends that mixed-income development be provided for in residential areas. 104. The density(net) of the preliminary plat, at 3.36 dwellings units per acre, is significantly lower than the density(net) of six(6) dwelling units per acre permitted in the UR-7* zone; and less than the density(net) of 4.35 dwelling units per acre permitted in the UR-3.5 zone; but is logical considering the common open space reserved on the site for critical areas and stormwater management, and location of the site on the periphery of the UGA. 105. Policy UL.5.4 of the Interim Comprehensive Plan encourages the preservation of healthy, attractive native vegetation, where appropriate, during land development; or the use of appropriate native plant materials in site landscaping. 106. Policy UL.2.12 of the Interim Comprehensive Plan recommends that the site characteristics of residential development, including existing trees, be enhanced and preserved through sensitive HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 16 site planning tools. Policy UL.2.15 encourages the planting of street trees in residential. subdivisions. 107. Policy H.3.2 of the Interim Comprehensive Plan recommends that the City ensure that the design of infill development preserves the character of the neighborhood. 108. Policies CF.6.3 and CF.7.2 of the Interim Comprehensive Plan recommend that the City prohibit the extension of water or sewer service to new development that will degrade the level of service below minimum level of service standards. 109. Policy UL.7.10 of the Interim Comprehensive Plan states that the phasing of land development shall be consistent with the established levels of service for the provision of public facilities and services within the UGA. Policy UL.7.12 states that new development within the UGA shall connect to public sewer. 110. Policies UL.2.20 and T.4a.12 of the Interim Comprehensive Plan encourage new residential developments to be arranged in a pattern of connecting streets and blocks, to allow people to get around easily by foot, bicycle, bus or car. Such policies indicate that cul-de-sacs or other closed street systems may be considered appropriate where topography or other physical limitations make connecting systems impractical, and under certain other circumstances. 111. Policy T.3e.1 of the Interim Comprehensive Plan recommends that the transportation network provide safe and convenient bicycle and walking access between housing, recreation, shopping, schools, community facilities and mass transit access points; and that obstructions and conflicts with pedestrian and bicycle movement be minimized. 112. Policy UL.2.11 of the Interim Comprehensive Plan promotes the linkage of developments with open space, parks, natural areas and street connections. Policy UL.2.14 recommends that separated sidewalks be required on public roads developed in new residential subdivisions 113. Policy T.3e.4 of the Interim Comprehensive Plan recommends that the City promote hard surface walkway systems, including but not limited to, concrete, asphalt and brick, as an alternative to sidewalks that are separate from roads; if they fit in with the characteristics of the neighborhood and private maintenance is assured. 114. Policy T.4a.13 and Policy UL.2.21 of the Interim Comprehensive Plan encourage the development of local access roads that are curvilinear, narrow, or use other street designs consistent with safety requirements, to discourage through traffic in neighborhoods; provided the design fits into the surrounding street systems and aids in implementing specific land use designs. 115. Policy T.4a.4 of the Interim Comprehensive Plan recommends that private roads be allowed inside residential developments as a principal means of access; provided adequate measures are in place to assure safe travel, emergency access and permanent private maintenance. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 17 s m 116. Policy T.4a.2 of the Interim Comprehensive Plan recommends that the capacity of existing roads be maximized to reduce the need for new or expanded roads; through the use of signalization, improved signage and other means. 117. Policy T.4a.9 of the Interim Comprehensive Plan states that adequate access to and circulation within all developments shall be maintained for emergency service and public transportation vehicles. Policy T.6.2 of the Comprehensive Plan advocates safe and effective traffic control or grade separation at railroad at-grade crossings. 118. Policy CF.12.2 of the Interim Comprehensive Plan recommends that provision be made in residential and commercial developments for road access that is adequate for residents, fire district ingress and egress, and water supply for fire protection. 119. Policy CF.12.3 of the Interim Comprehensive Plan recommends that defensible space be provided between structures and adjacent fuels, and that fire-rated roofing materials be used on buildings in forested areas. 120. Policy CF.12.6 of the Interim Comprehensive Plan recommends that comprehensive emergency management plans consistent with all elements of the Interim Comprehensive Plan be identified and implemented. 121. Policy T.2.2 of the Interim Comprehensive Plan recommends that transportation improvements needed to serve new development be in place at the time new development impacts occur, or that a financial commitment, consistent with the County's Capital Facilities Plan, be made to complete the improvement within six(6) years. 122. Policy T.10.5 of the Interim Comprehensive Plan states that impact mitigation fees and user- based fees shall be considered as a source of funding for all transportation improvements required because of new development. 123. Policy T.10.6 of the Interim Comprehensive Plan states that transportation impact fees shall be based on cumulative impacts from land uses within a traffic basin, with a proportionate share allocated based on a reasonable relationship between trips generated by any proposed land use and the improvements required. 124. Policy P0.3.3 of the Interim Comprehensive Plan recommends that new development mitigate a portion of its direct impacts on the availability of parks, open space and recreation facilities; using methods such as the dedication of land, donation of labor, donation of equipment and materials, or entering into an agreement with the County to provide for payment of a fee. 125. Policy CF.9.6 of the Interim Comprehensive Plan encourages the expansion of school facility capacity at a comparable rate with that of private residential development and demographic trends. Policy CF.9.7 recommends that the adequacy of school facilities be considered when reviewing new residential development. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 18 126. Chapter 10 of the Interim Comprehensive Plan contains numerous policies protective of g I designated critical areas; including wetlands, critical aquifer recharge areas, fish and wildlife conservation areas, frequently flooded areas and geologically hazardous areas. Such policies are implemented through the City Critical Areas Ordinance, Floodplain Ordinance, Guidelines for Stormwater Management, and ASA Overlay zone. 127. Policy NE.10 of the Interim Comprehensive Plan states that the cumulative effects of land use activities on critical areas should be considered in land use decisions. Policy NE.24.3 recommends that development proposals and their design consider the retention and maintenance of critical fish and wildlife habitat areas, and provide buffers to protect corridors and water habitats. 128. Policy NE.26.4 of the Interim Comprehensive Plan states that activities allowed within designated priority wildlife habitat and conservation areas should not compromise the quality or function of the habitat; and that compatible uses therein may include rangeland, forest production, open space and passive recreation. 129. The Interim Comprehensive Plan contains numerous policies protective of areas with a critical recharging effect on aquifers used for potable water in the county, to prevent impacts from contaminants. Policy NE.17.4 recommends that changes in land use be evaluated for both positive and negative impacts on groundwater quality, especially in moderate and highly susceptible critical aquifer recharge areas. 130. Policy NE.17.5 of the Interim Comprehensive Plan recommends that development having ment havin a significant negative impact on the water quality of an aquifer provide measurable and attainable mitigation for the impact. Policy NE.21.2 recommends that additional studies be conducted, where appropriate, to better define the extent of contamination, physical extent, water capacity, background water quality and the rate of flow of water in county aquifers. 131. Policy NE.32.2 of the Interim Comprehensive Plan recommends that residential development in geo-hazard areas minimize the disruption of existing topography and vegetation; and incorporate opportunities for phase clearing and grading. Policy NE.32.3 recommends that construction in such areas minimize the risk to the natural environment or structures, and not increase the risk to the site or adjacent properties that may be potentially affected. 132. Policy NE.32.5 of the Interim Comprehensive Plan recommends that site alteration, grading and filling in geo-hazard areas be the minimum necessary to accomplish approved designs and plans. Policy NE.32.8 recommends that development not be allowed in such areas without appropriate mitigation. 133. Policy NE.32.7 5 of the Interim Comprehensive Plan states that construction and development in geo-hazard areas should have negligible effects on the quality and quantify of affected surface and groundwater; and that mitigation measures acceptable to the appropriate regulatory agency should be provided. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 19 134. Policy NE.32.10 of the Interim Comprehensive Plan recommends that land use regulations consider density transfers, bonus density, nature belt preservation and other innovative techniques to retain geo-hazard areas whenever possible; and to facilitate implementation of the goals and policies for such areas. Policy NE.14.8 contains similar recommendations for wetlands. 135. Policy NE.14.2 of the Interim Comprehensive Plan recommends that land use decisions and activities be consistent with existing wetland regulations. Policy NE.15.11 recommends that new development and land use activities that would significantly impact native or other appropriate vegetation, cause substantial erosion or sedimentation, or adversely impact aquatic life or the biophysical capabilities within a wetland habitat be avoided. 136. Policy NE.15.8 of the Interim Comprehensive Plan recommends that the existing surface water quality and quantity of wetlands be protected, where new development would impact a wetland or wetland buffer. Policy NE.15.6 recommends protection of the water quality and quantity within wetlands, by preventing overuse of surface and groundwater beyond recharge capabilities. 137. Policies NE.15.4 and NE.15.10 of the Interim Comprehensive Plan recommend that new development and land use activities design roads, trails and other circulation systems and facilities to protect wetlands from erosion; and reduce the amount of soil, silt and pollutants entering wetland areas. 138. Policy NE.15.5 of the Interim Comprehensive Plan recommends that native and/or appropriate vegetation be restored and enhanced in wetlands and their buffer areas. Policy NE.15.12 recommends the protection of wetlands that provide critical habitat for priority wildlife species. Policy NE.14.5 recommends that the greatest wetland protection be provided to wetlands of the greatest functions and values. 139. The Open Space Corridors map contained in Chapter 9 of the Interim Comprehensive Plan designates lands useful for recreation, wildlife habitat, trails and connection of critical areas. Such map illustrates an expansive open space corridor in the mountainous area lying west, northwest, and southwest of the site (i.e. Dishman Hills, Brown's Mountain and Tower Mountain area). The map also illustrates a narrow open space corridor extending east and southeast from such expansive corridor area through the north half of the site to Chester Creek, and continuing to the east and southeast along Chester Creek. The map further illustrates a narrow open space corridor extending a short distance to the north and a longer distance to the northeast. 140. Policy P0.5.8 of the Interim Comprehensive Plan recommends that open space areas and corridors be identified and designated throughout the City. P0.5.18 recommends that open space designations be implemented through zoning and other development regulations. Policy P0.6.2 recommends that development proposals be reviewed to evaluate opportunities for multiple use of proposed open space. Policy P0.5.19 promotes the inclusion of functional open space within residential PUD developments. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 20 f 1' 1 141. Policy NE.22.2 of the Interim Comprehensive Plan states that special studies and/or gconditions of approval for development proposals may be required, if necessary, to mitigate storm water runoff and other pollution sources, in the Chester Creek drainage area and other problem drainage areas. 142. The Interim Comprehensive Plan, at pages CR-1 and CR-2, defines "cultural resources" as those buildings, structures, sites or associations that are left behind by a group of people and are generally over 50 years old. This includes historic structures and landscapes engineered and built by man; properties held in spiritual or ceremonial honor by a cultural group or tribe; properties that retain a historical association with an event or period, even though they no longer show evidence of man-made structures; and archaeological sites, battlefields, rock carvings, pictographs, trails, village sites, fishing sites, trading sites, and religious and ceremonial sites. 143. Policy CR.1.1 of the Interim Comprehensive Plan recommends that cultural resources, such as archaeological and historic sites, be identified and evaluated to determine which should be preserved. Policy CR.1.5 recommends that the review of land use actions be sensitive and give consideration to the protection of cultural resources. K. Relevant Zoning Standards 144. The City Phase I Development Regulations, prior to being amended in May of 2006, required all zone reclassifications to be consistent with the implementing zones specified in such regulations for the land use designation that applies to the subject property under the Interim Comprehensive Plan. The implementing zones for the Low Density Residential category of the City Interim Comprehensive Plan, in which the site is designated, are the UR-3.5 and UR-7* zones. 145. The UR-3.5 zone, which zone applies to 96% of the site, is intended to promote areas of primarily single-family residences in an urbanized neighborhood setting. Such zone permits single-family homes, duplexes, and various other uses; and provides for a maximum residential density(net) of 4.35 dwelling units per acre, a minimum lot size of 10,000 square feet for a single- family dwelling, and a minimum lot frontage of 80 feet. 146. The UR-7 zone, the zone that would apply to the entire site if the current rezone application is approved, is intended to add to the variety of housing types and densities in urban areas, and to provide standards for the orderly development of residential property in a manner that provides a N; desirable living environment that is compatible with surrounding land uses and assures the protection of property values. The UR-7 zone permits the same uses as the UR-3.5 zone, as well as multi-family dwellings and certain other more intensive uses. 147. The City Phase I Development Regulations limit new residential development in the Low Density Residential category of the Interim Comprehensive Plan, on land rezoned to the UR-7 under such regulations, to a density(net) of six(6) dwelling units per acre. Such zoning is referred to as the "UR-7*" zone. The UR-7 zone otherwise permits a density of seven (7) dwelling units per acre. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 21 148. The minimum lot area and minimum lot frontage for a single-family dwelling in the UR-7 zone are, respectively, 6,000 square feet and 65 feet. The maximum building height in both the UR-7 zone and the UR-3.5 zone is 35 feet/2.5 stories. 149. The UR-7 zone requires the installation of a 6-foot high sight-obscuring fence, wall or solid landscaping along the border of any UR-7 zone that abuts land zoned "...RR-10, SRR-5, SRR-2, SR-1/2, UR-3.5 or RS...'; except adjacent to public rights of way; and except in the front yard ° where the fence cannot exceed a height of three (3) feet. 150. The RR-10, SRR-5, SRR-2, SR-1/2 and RS zones are found in the former County Zoning Code, but are not found in the City Interim Zoning Code or the current County Zoning Code. See Section 14.618.365 of City Interim Zoning Code. The City Planning Division conditions recommended for the proposal require the installation of 6-foot high screening along the north, south, east and west property lines; except where abutting a roadway. 151. The applicant indicated at the public hearing that the purpose of the proposed rezone was to take advantage of the smaller lot sizes and reduced lot frontages permitted in the UR-7 zone, compared to the UR-3.5 zone; and not to increase density or reduce lot sizes. See testimony of Stacy Bjordahl. L. Transportation Concurrence and Road Impacts 152. The City has adopted the 2001 County Standards for Road and Sewer Construction by reference; with the reference to "County" in such standards replaced with "City". Such standards are referenced below as the "City Road Standards". 153. Section 1.03(1-8) of the City Road Standards sets forth guidelines that a project sponsor's traffic engineer is required to consider in planning transportation systems for a proposed development. The guidelines in Section 1.03(1-7) recommend the provision of adequate vehicular and pedestrian access to all parcels of land, minimizing through traffic movements and excessive speeds on local access streets, logical street patterns, minimizing vehicular and pedestrian-vehicle conflict points, considering traffic generators in designing a street system in a proposed development, prohibiting new residential lots from directly accessing Urban Principal and Urban Minor Arterials, and consideration of bordering arterial routes. 154. Section 1.03(8) of the City Road Standards requires that a proposed subdivision provide an additional access road into the development to serve fire district vehicles, if the development has the cumulative effect of creating a total number of lots, parcels or tracts served by an access road equal to or greater than 50 lots, in a"setting"where the housing density ranges from 2.0 to 11 dwelling units per acre; equal to or greater than 30 lots, in a"setting"where the housing density ranges from .25 to 1.99 dwelling units per acre; or equal to or greater than 20 lots, in a"setting" where the housing density ranges from 0.0 to .25 dwelling units per acre. The location of the additional access road must have the concurrence of the fire district. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 22 155. Section 1.03(8) of the City Road Standards also provides that an additional access road may be required into the development to serve fire district vehicles, if the local fire district concludes that the location and layout of the development causes a concern for safety, regardless of the other criteria in the section. See 2001 County Road Standards, Section 1.03(8). 156. Section 3.03 of the City Road Standards vests City Engineering with broad discretion in selecting the roadway section to be applied in constructing new city roads and improving existing city roads, based on numerous factors. This includes consideration of such factors as the functional classification of the road, density and zoning in the area, terrain, cost relationship of road improvements, traffic volume, terrain, density of existing development, proposed or existing zoning, existing roads in the immediate area and surrounding developments; and other public health, safety and welfare considerations. 157. Section 1.08 of the City Road Standards authorizes City Engineering to approve deviations from such standards for a proposed development; subject to receiving written evidence from the developer that the proposed deviation does not conflict with a condition of approval, is based on sound engineering principles and meets requirements for safety, function, appearance and maintainability. City Engineering may apply conditions to the approval of design deviations. 158. The City has adopted Level of Service "D" (LOS D) as the minimum acceptable level of service for signalized road intersections, and Level of Service "E" (LOS E) as the minimum acceptable level of service for un-signalized intersections; for transportation concur•ency purposes under the City Phase I Development Regulations. 159. The City Road Standards require the construction of curb and sidewalk along the public road frontage of new developments located within urban land use zones. Where sidewalks are required, they must be separated from the curb, and adjacent planting strip or drainage swale; unless a design deviation is approved by City Engineering based on local conditions. 160. The City Engineering conditions of approval recommended for the project require the applicant to improve Ridgeview Drive and 33rd Court in the preliminary plat to public road standards; by installing 30 feet of asphalt pavement; and by installing curb, gutter, separated sidewalk and a roadside drainage swale on both sides of the pavement. 161. City Engineering conditions of approval require the private roads in the project to be designed in accordance with the City Road Standards. Such standards require the installation of pavement and curbs, but not sidewalks, for private roads. The City Road standards also require the reservation of a minimum 10-foot wide maintenance and utility easement on both sides of the private road; unless a design deviation is approved. The record does not disclose whether the applicant plans to install sidewalk along the private roads in the preliminary plat. 162. The City Engineering conditions of approval require the private driveways in the project to be designed in accordance with the City Road Standards; which standards authorize up to three (3) lots to be served by a private driveway. The applicant plans to pave the driveways. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 23 (vA. 163. The a pp licant submitted a traffic impact analysis (TIA) for the current project prepared by Todd Whipple, a qualified professional traffic engineer, on March 4, 2005. The TIA was based on the 49 dwelling units proposed in the original preliminary plat map submitted in November of 2004. The TIA does not include a fire evacuation analysis. 164. The TIA stated that it included sight distance evaluations for the intersections of Schafer Road and Sundown Drive, Sundown Drive and Ridgeview Drive, and Cimmaron Drive and Ridgeview Drive. However, the TIA did not include such evaluations; other than to observe that the intersection of Schafer Road and Sundown Drive had some sight distance issues on its west leg. See TIA, pages 7 and 9. 165. The TIA concluded that the project would have no traffic impacts to the City's public transportation system that would require mitigation by the applicant. 166. Pursuant to a letter dated April 8, 2005, City Engineering advised Todd Whipple that the TIA met all City requirements; except for certain sight distance evaluations identified during the traffic scoping process, that the City had asked the applicant to perform. 167. On May 23, 2005, City Engineering certified in writing that transportation concurrency existed for the proposal. 168. Todd Whipple, in a letter dated July 22, 2005, advised the City Planning Division that he had completed traffic work for the project and supplied City Engineering with final traffic information. The additional submittal by Whipple may have included sight distance evaluations; but if so, the information was not made part of the City Planning Division file for the project, or the record. 169. The TIA focused on the peak hour traffic impacts of the project on the level of service (LOS) at four (4) area intersections scoped by City Engineering; i.e. the signalized intersection of Dishman-Mica Road and University Road/Schafer Road; and the un-signalized intersections of Schafer Road and Sundown Drive, Schafer Road and Cimmaron Drive, and Woodruff Road and Cimmaron Drive. 170. The TIA considered the cumulative impacts of the project and other traffic in the area at the time of project build-out in 2010. This included existing traffic; traffic from projects in the Ponderosa area submitted prior to the current project, i.e. the Ponderosa Ridge, Ponderosa PUD and Mica View Estates projects; and a 1% increase in ambient traffic growth intended to capture future traffic from all other sources. 171. The TIA establishes that the study intersections will comfortably remain at an acceptable level of service during the AM and PM peak hours, for normal traffic flows, at the time of project build-out in 2010; including consideration of cumulative traffic impacts. This included LOS A at the intersection of Woodruff Road and Cimmaron Drive, and LOS C or better at the other study intersections. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 24 172. The TIA did not consider the traffic generated by the 30 duplex units being developed in the Inveraiy final plat (File No. ZE-46A-90/SUB-05-05), located along Schafer Road near its intersection with Dishman-Mica Road; because the application for such project was submitted after the current application, and was required to consider the traffic from the current project and the background projects considered in the current TIA. 173. The TIA submitted for the Inveraiy project considered the cumulative traffic impacts that would be generated by such project, the current project, and the background projects considered in the current TIA; and concluded that the level of service at the signalized intersection of Dishman-Mica Road and Schafer/University Roads would not be degraded below LOS C, an acceptable level of service, at the time of anticipated project build-out in 2010. See Hearing Examiner decision in File No. ZE-46A-90/SUB-05-05. 174. Neighboring property owners raised various concerns regarding steep grades and poor sight distance along Ridgeview Drive, Sundown Drive, other nearby streets, Cimmaron Drive near Ponderosa Elementary School, and Schafer Road at various road intersections lying southeast of the site. 175. Janice Cooperstein, an area resident and project opponent, submitted a copy of a June 6, 2005 report from Robert Bernstein, a qualified professional traffic engineer from the Seattle area; which report had been submitted by neighboring property owners during the proceedings on the Ponderosa Ridge project, in County File No. PE-1940-04. Cooperstein also submitted a transcript of Bernstein's testimony from the Ponderosa Ridge proceedings. See Exhibit#40, p. 733-742; and Exhibit#41, p. 262-293. 176. Robert Bernstein concluded, in such report and testimony, that the road network in the Ponderosa area was not designed or intended to safely accommodate traffic flows generated by dense suburban developments; based on the roadway system not meeting current standards for street width, surface, drainage, grade and sight distance; the lack of safe pedestrian paths and sidewalks; inadequate arterial access; and insufficient street connectivity. The report found sight distance to be inadequate for general traffic and school busses at the intersection of Cimmaron and Schafer, and that the intersection would be made more unsafe by the increased traffic from the Ponderosa Ridge and Ponderosa PUD projects. 177. Todd Whipple responded in detail to Bernstein's contentions in a letter to the County Hearing Examiner dated June 8, 2005, in File No. PE-1940-04 (Ponderosa Ridge). See Exhibit #40, p. 1564-1569. This included Bernstein not citing any accident data to show that the road network was unsafe; and Whipple relying on accident data to conclude that the road network was safe in its current condition, and with increased traffic from development. 178. Todd Whipple, in a letter submitted on December 17, 2004 for the Ponderosa Ridge project, indicated that the roads in the Ponderosa area, including City streets, were constructed years ago under different versions of the County road standards. The letter found that all the roads in the area had 12-foot travel lanes; many of the roads had shoulders or were wider than current standards required; all the roads in the area met grade requirements, or permitted deviations for BE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 25 zS 0 grade, at the time they were constructed; and the roads had ample capacity to accommodate the increased traffic for development. See Exhibit #40, p. 363-373. 179. The TIA for the current project listed accident data for the four (4) study intersections, for a 2.5-year period of time between 2002 and June of 2004; indicated that no fatalities had occurred at the study intersections during this time period. The TIA found no accident history during this time period for the un-signalized intersections of Schafer/Sundown and Cimmaron/Woodruff. The TIA recited accident figures for the signalized intersections of Dishman-Mica and Schafer/University, and Cimmaron and Schafer, during such time period, but drew no conclusions from such data. 180. There is no competent traffic engineering evidence in the record establishing that the accident rate at area road intersections exceeds current standards; the project will result in current standards being exceeded; or there is a need for the applicant to mitigate sight distance, grades or safety concerns at such intersections to accommodate normal traffic generation. 181. The project, as conditioned, meets the transportation concurrency requirements of the City Phase I Development Regulations. M. Adequacy of Provisions for Emergency/Fire Access and Safety (1) Conditions of approval recommended by County Fire District 1 staff 182. Spokane County Fire District 1 staff submitted various versions of conditions of approval for the project, between December 2, 2004 and May 14, 2007; as the design of the preliminary plat was revised over time. 183. The Staff Report submitted by the City Planning Division incorporates some of the conditions recommended by Fire District 1 staff on March 16, 2007, as conditions of approval for the project. This includes the installation of two (2) new fire hydrants inside the project, the posting of"fire apparatus access roads 20-26 feet wide and turnarounds" as "Fire Lane-No Parking" lanes, and the submittal of a detailed water plan showing hydrant location and size prior to final plat approval. Since the two (2) private roads in the project each have a width of 28 feet, the fire lane posting would not be required for such roads. 184. The Staff Report also incorporates the conditions recommended by Fire District staff on May 14, 2007, as conditions of approval for the project. Such conditions advise that 31 lots in the preliminary plat rely on Ridgeview Drive as the only means of egress; and recommend that either the number of lots accessing Ridgeview Drive be reduced to 30 lots, a second means of egress be provided(out of the preliminary plat), or that the homes developed on the 31 lots be protected by an approved sprinkler system. 185. The conditional second access requirement recommended by Fire District 1 staff, for the 31 lots in the preliminary plat served by Ridgeview Drive, is based on Appendix D of the 2003 International Fire Code (IFC); which was adopted by the City under SVMC #10.15.010. See reference to "Appendix D IFC 2003" in letter dated 8-1-06 from Fire District 1 to City of HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 26 Spokane Valley, item 1; and City Ordinance No. 04-010, which took effect on 7-01-04. Copies of City Ordinance No. 04-010, and Appendix D of the 2003 IFC, have been placed in the record. 186. Section D107 of Appendix D states that developments with more than 30 single-family dwellings "... shall be provided with separate and approved fire apparatus access roads, and shall meet the requirements of Section D104.3." 187. Section D104.3 of Appendix D states that where two (2) access roads are required, they shall be placed a distance apart not less than one-half(1/2) the length of the "...maximum overall diagonal dimension of the property or area to be served, measured in a straight line between accesses." 188. Section D107.1 of Appendix D states that where there are 30 or fewer dwelling units on a single public or private access way, and all dwelling units are protected by approved residential sprinkler systems, "...access from two directions shall not be required." 189. The applicant indicated that it would reduce the number of lots in the preliminary plat accessing Ridgeview Drive to 30 lots, to comply with the Fire District 1 conditions. See testimony of Stacy Bjordahl. 190. Section D107 of Appendix D in the 2003 IFC appears to have the same focus as the second access road requirements for subdivisions set forth in Section 1.03(8) of the City Road Standards (referenced above), i.e. to provide adequate access into a proposed subdivision for fire vehicles. 191. Application of the table in Section 1.03(8) of the City Road Standards depends on the "setting" of the subdivision, in terms of density. It is unclear whether this concerns just the density of the subdivision, or is also intended to consider the density of neighboring development. 192. The housing density of the project, and the urban residential subdivisions located to the south, and east of the south portion of the site, exceeds 1.99 dwelling units per acre. Such density, if applicable, would not require a second access road for the 31 lots accessing Ridgeview Drive in the preliminary plat. 193. The housing density of neighboring land located to the west and north, and east of the north portion of the site, generally ranges from.1 to .2 dwelling units per acre. Such density, if applicable, would require a second access for the 31 lots accessing the extension of Ridgeview Drive in the preliminary plat. 194. Section 1.03(8) also requires a secondary access road into a proposed subdivision, for fire vehicles, where the fire district determines there is a safety concern, based on the location and layout of the development; regardless of the table. 195. Neighboring property owners contended that Section 1.03(8) of the City Road Standards applies to the cumulative number of lots accessing the road(s) located outside a proposed HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 27 subdivision, added to the number of lots in the proposed subdivision generating traffic along such road(s). See Exhibit#48, submitted by Janice Cooperstein. 196. Neighboring property owners contended that the project has only one (1) effective access route out of the area, i.e. Ridgeview Drive, to Sundown.Drive to Schafer Road; traffic along any other egress route (e.g. traveling south on Ridgeview to Cimmaron) is circuitous, and initially leads away from Schafer Road before ultimately discharging to Schafer Road; and since well over 100 homes in the vicinity use Sundown Drive to access Schafer Road, Section 1.03(8)justifies or requires a third(3') public access route out of the area to Dishman-Mica Road. 197. Section 1.03(8) of the City Road Standards appears intended to apply to the number of lots that access a road within a proposed subdivision; and becomes ambiguous or impossible to apply once an access road leaves a development, and begins connecting to other access roads that also lead away from the development for a significant distance. For example, Ridgeview Drive connects with Sundown Drive 120 feet south of the site; and connects to Woodruff Road, via 36th Avenue, within 280 feet of the site. 198. Section 1.03(8) of the City Road Standards, and Section D107 in Appendix D of the IFC, appear intended to ensure adequate access roads for fire/emergency vehicles into a proposed housing development; based on such factors as the number of lots proposed, the geographic size of the development, and the design of the lots and road system in the subdivision. 199. Section 1.03(8) of the City Road Standards, and Section D107 in Appendix D of the IFC, are not intended to address area-wide fire/emergency access issues that may also affect the residents in the development. (2) Preparation of fire evacuation analysis for Ponderosa Ridge/Ponderosa PUD projects 200. In July of 2004, Spokane County Fire District 8 staff submitted conditions of approval for the Ponderosa Ridge/Ponderosa PUD projects, located in the southwest portion of the Ponderosa area. Such conditions required that access roads comply with the County Road Standards, common areas be kept in a manner to resist the ignition and spread of fire, and a minimum of 30 feet of green space be left to buffer homes from the threat of fire. 201. County Fire District 8 also conditioned the approval of such projects on the completion of an evacuation study"...to be conducted by Fire District 8 and other applicable agencies". Fire District 8 recommended that the traffic study for such projects cover the need for an evacuation and the capability of the road system existing the Ponderosa area to handle 5,000 to 6,000 vehicles, in a set period of time; covenants be established to restrict parking on streets so as not to hinder emergency vehicles, and home construction be of fire resistive roofing and siding materials. See Exhibit#40, p. 1,311. 202. To facilitate preparation of the evacuation plan, Lieutenant Tim Archer of Fire District 8 prepared a"Ponderosa Neighborhood Emergency Overview", dated July of 2004; and a draft HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 28 A "Ponderosa Evacuation Plan", dated August of 2004. See Exhibit#40, p. 1,296-1,314; and Exhibit#41, p. 497, lines 10-12. 203. Todd Whipple, a professional traffic engineer retained by the sponsor of the two projects, prepared a fire evacuation analysis for the Ponderosa area; with the assistance of Lieutenant Archer. 204. Todd Whipple considered the documents prepared by Lieutenant Archer; two additional documents provided by Archer, i.e. the Fire Storm '91 Case Study and the 2000 Urban Wildland Interface Code; and other reference documents. See Exhibit#40, p. 1,217-1,247. Whipple also conducted discussions with Lieutenant Archer and others to refine the analysis. Whipple did not consult with County Fire District 1, or local law enforcement. See Exhibit #41, p. 168-175. 205. Lieutenant Archer reviewed and commented on the fire evacuation analysis drafted by Todd Whipple, and favorably received the final draft of the analysis. See Exhibit it#40, p. 179-180. 206. County Engineering submitted a letter regarding the two projects on December 15, 2004; indicating it had reviewed the fire evacuation analysis, found that the assumptions for the evaluation were conservative in nature and acceptable levels of service would be maintained, and accepting the results and recommendations for the evaluation. This was generally corroborated by testimony from County Engineering at the hearing held on the Ponderosa Ridge project. See Exhibit#40, p. 898; and Exhibit#41, p. 155-165. 207. On December 7, 2004, City Engineering requested that Todd Whipple obtain written approval of the fire evacuation analysis from Cal Walker, City Police Chief, and from Bill Walkup, Chief of Fire District 8. This was based on a recommendation received from TRANSPO, a traffic engineering consultant retained by the City to review the TIA. See Exhibit#40, p. 374-377 and 2245. 208. On January 27, 2005, City Engineering advised Todd Whipple by telephone that it was negating its requirement for approval of the fire evacuation analysis by the City police chief and the chief of Fire District 8; subject to the fire evacuation analysis being removed from the version of the TIA submitted for the Ponderosa PUD project. See Exhibit#48, letter dated 2-3-05 from Todd Whipple to John Hohman. 209. On January 28, 2005, Whipple fmalized the TIA for the two projects, and incorporated the �' Pp p j � � fire evacuation analysis into the TIA. See portion of TIA in Exhibit#40, p. 417-461. The TIA is entitled"Ponderosa PUD", but to avoid confusion is referenced hereafter as the "Ponderosa Ridge TIA". 210. On April 8, 2005, Chief Walkup of County Fire District 8 sent a letter to Chuck Hafner, an area resident, responding to concerns raised by Hafner regarding the fire evacuation analysis. Chief Walkup advised that the district did not have adopted written evacuation plans for specific neighborhoods, the responsibility for evacuation rests primarily with law enforcement agencies, Lieutenant Archer and other fire district personnel were not qualified to participate in an BE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 29 rf evacuation analysis, and Whipple should have been directed to work with law enforcement agencies in developing an evacuation analysis for the Ponderosa. The letter also advised that Fire District 9 and Fire District 1 had learned several lessons from the 1991 firestorm; and did not envision evacuating the entire area in the event of another firestorm event, but rather having citizens shelter in place or move to an area of refuge in the event of wildfire. See Exhibit#40, p. 2,221-2,223. The letter was placed in the file for the culTent project, by Todd Whipple, on July 27, 2005. 211. On April 20, 2005, the Board of Fire Commissioners for Spokane County Fire District 1 submitted a letter to City Engineering, noting that there were several large proposed developments in the Ponderosa area, the area still has a significant risk of another major wildfire, the existing two (2) roads into the area may be inadequate for the ingress of fire equipment and the egress of citizens in the event of a major wildfire, and widening the access roads or adding a third (3rd) access might reduce the risk. The letter requested that the various proposals in the area be reviewed as a whole, and take into account the total impact the developments would have on the ingress and egress roads to the area. The letter was placed in the file for the current project on April 28, 2005. 212. On April 22, 2005, the Board of Fire Commissioners for County Fire District 8 submitted written comments to the City Planning Division and the County Planning Department; which recommended that a comprehensive look be taken at the cumulative impacts from development in all areas of the district, with respect to ingress and egress during emergency situations. See Exhibit#40, p. 1739. The letter was placed in the file for the current project on May 23, 2005. 213. On May 20, 2005, County Fire District 1 staff submitted conditions of approval to Spokane County for the two projects; which did not comment on the fire evacuation analysis or fire access issues affecting the greater Ponderosa area. See Exhibit#40, p. 44, Finding of Fact#146. 214. During the June 8-9, 2005 public hearing held on the Ponderosa Ridge project, Marina Sukup, Director of the City Community Development Department, objected to inclusion of the fire evacuation analysis in the TIA. Sukup testified that County Fire Districts 1 and 8 had not accepted the evacuation study; wildfire evacuation in the Ponderosa area needed to be considered as part of a natural hazard mitigation plan that the City and Spokane County were required by federal law to formulate, with the assistance of the local fire districts and water district; such mitigation plan had not yet been formulated; and the evacuation study was deficient in several respects. See Exhibit#41, p. 71-76, 90-97, 112 and 533-548. 215. On August 5, 2005, the County Hearing Examiner approved the Ponderosa Ridge project, as discussed above. (3) Fire access concerns for current project 216. The conditions of approval submitted by County Fire District 1 staff for the current project, between December 2, 2004 and May 14, 2007, did not comment on fire access issues affecting the Ponderosa area as a whole. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 30 217. The City Planning Division did not require a wildfire risk assessment or fire evacuation analysis during its review of the current project, or its environmental impacts. This is despite the concerns raised by the Fire District 1 Board of Fire Commissioners on April 20, 2005, and by the Fire District 8 Board of Fire Commissioners on April 22, 2005, regarding the cumulative effects of developments in the Ponderosa area on fire/emergency access in the Ponderosa area. 218. The application, environmental checklist, and MDNS issued for the current project were provided to County Fire District 1; but were not circulated to the City Police Chief, the County Sheriff's Office or County Fire District 8. The Examiner takes notice that the City Police Chief is appointed by the City Manager, but is a member of the County Sheriff's Office along with other City police officers. 219. Spokane County is currently in the process of preparing a natural disaster mitigation plan; with the assistance of the fire districts, law enforcement agencies and other emergency response agencies in the county. The Ponderosa area was selected as the first area to be studied for emergency evacuation, by the agencies involved in formulating the plan. See testimony of Richard Behm. 220. Russ Shane, a captain for the Spokane County Sheriff's Office, testified at the May 24, 2007 public hearing session held on the current project that the Sheriff's Office was in the process of preparing an evacuation plan for the Ponderosa area, at the request of area residents, to deal with a natural disaster such as the 1991 firestorm; but could not provide a date when the evacuation plan would be completed. 221. Captain Shane was present during the 1991 firestorm that affected the Ponderosa area, and confirmed that Schafer Road was closed to public ingress at Dishman-Mica Road at various times during the 1991 firestorm, to allow fire/emergency vehicles into the area and public egress from the area. 222. Larry Rider, Assistant Chief of County Fire District 1, testified at the May 24, 2007 public hearing session held on the current project that the district was very concerned about the cumulative impacts of residential construction in the Ponderosa area on wildfire safety, without provision for a third(3rd) public access in and out of the area; particularly as projects are built farther and farther from Schafer Road, like the current project. Rider advised that any evacuation of the area for a firestorm event would likely overrun Schafer Road. 223. Assistant Chief Rider expressed concern regarding the dead-end character of the internal roads in the project; notwithstanding the conditions of approval for the project recommended by County Fire District 1 staff, which Rider indicated he had not been aware of before the hearing. 224. Assistant Chief Rider also expressed concern about when the 3rd public access road for the Ponderosa area would be installed; and what provisions were being made by the current project, and other recent developments approved or proposed in the Ponderosa area, to ensure construction of a 3rd access. Rider emphasized that if dead end roads at the urban wildfire HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 31 oo t . i 1 1 interface, such as the current project, continued in the Ponderosa area without the provision of a P31rd access route "...there is going to be a catastrophe, sooner or later." l 225. On June 4, 2007, the Board of Fire Commissioners for County Fire District 1 formally adopted Resolution No. 2007-284; which specifically recommended to the City and County Building Departments "...that no further development be allowed in the Ponderosa Neighborhood until a third(3rd) public ingress/egress be constructed". See Exhibit#50. 226. Resolution No. 2007-284 found that the 1991 firestorm event demonstrates that the P Ponderosa area is in a wildland interface area that is susceptible to major fire events, the Ponderosa area continues to develop residential subdivisions which generate more vehicle traffic with only two (2) public ingress and egress roads, each additional development in the Ponderosa • area has cumulative effects on ingress and egress, access by fire apparatus would be hindered while resident vehicles congest the roadways trying to evacuate from another fire like the 1991 firestorm, and a third(3rd) public ingress and egress would help alleviate emergency congestion in the event of disaster. 227. On June 4, 2007, Spokane County Sheriff Ozzie Knezovich addressed a letter to the Spokane Valley City Council, in support of Resolution 2007-284 adopted by County Fire District 1; and concurring with the fire district that no further development be allowed in the Ponderosa neighborhood until a third(3rd) public access is constructed. 228. Fires in the Ponderosa area typically arise out of the wooded areas located to the south and west, and can also be sparked along the railroad tracks that parallel the west side of Dishman- Mica Road to the southeast. Major fire incidents occurred in the Tower Mountain area in 1984, and the Brown's Mountain area in 1985; in addition to the 1991 firestorm. See Exhibit#40, p. 1,300; and Exhibit#41, p. 451-452. 229. A forested, steep draw is located west of the site and the properties abutting Ponderosa t Lane. See testimony of Susan Schmidt, and photos in Exhibit#29, at exhibit H. The fire evacuation analysis contained in the TIA submitted for the Ponderosa Ridge project warns that there are many reasons to expect a serious fire event could occur again within the Ponderosa neighborhood. i 230. Evacuation of the Ponderosa area for the 1991 firestorm was complicated by poor visibility, multiple fires and fire-spotting, and the overwhelming of public resources initially devoted to the fire. Public safety personnel could not tell how fast the fire was coming and exactly where it was coming from. Firefighting efforts were hampered by residents not heeding the recommendation of o fire officials, and direct orders by County Sheriff deputies responsible for the evacuation. Lack of I defensible space around homes; roadways and restricted driveways, and roads located along hillsides and ridges limited response and operational choices to firefighters. See Exhibit#40, p. 1306, and p. 1217 to 1247; and email dated 12-6-04 from Colleen Ancel. I I (4) Flaws in fire evacuation analysis included in the Ponderosa Ridge TIA ' HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 32 i 1 231. Janice Cooperstein, an area resident opposed to the current project, submitted a copy of the appellate briefs submitted to the Court of Appeals, regarding the pending appeal of the Ponderosa Ridge project; and portions of the transcripts and record from the public hearing conducted by the County Hearing Examiner on the Ponderosa Ridge project. Cooperstein also testified, and submitted written materials challenging the fire evacuation analysis contained in the TIA submitted for the Ponderosa Ridge project. See Exhibit #s 39-42, 46 and 48. 232. The briefs submitted to the Court of Appeals address numerous issues regarding the fire evacuation analysis that were not considered during the public hearing on the Ponderosa Ridge project. Such issues focus on a compact disc (CD) submitted during the Ponderosa Ridge project hearing, which contains software engineering data used in the fire evacuation analysis. 233. The Ponderosa Ridge TIA was placed in the County's project file before the Ponderosa Ridge hearing, but not the CD. Todd Whipple provided a copy of the CD to County Engineering before the hearing, to facilitate its review of the evacuation analysis on behalf of Fire District 8. Whipple also submitted a copy of the CD at the public hearing held on the Ponderosa Ridge project. See Exhibit#41, p. 183-187; and Exhibit 40, p. 545A. 234. The CD could not be opened by the Hearing Examiner using normal software, and was not reviewed by the County Hearing Examiner in reaching a decision on the Ponderosa Ridge project. See Exhibit#42, p. 18 of Opening Brief of Appellant. The printable CD results, obtained by applying traffic engineering software, are referenced in the appellate briefs as "exhibit#545A". See Exhibits #39-42, and 48. 235. The CD was not provided to City Engineering, or its engineering consultant, TRANSPO; in their review of the fire evacuation analysis,a ysis, contained in the same TIA, for the Ponderosa PUD project. This was despite TRANSPO's specific request for the outputs from the traffic model used to formulate the fire evacuation analysis, which CD results were not included in the technical appendix of the Ponderosa Ridge TIA. See Exhibit #48, letter dated 11-5-04 from TRANSPO to City Engineering; and p. 5 of letter dated 11-16-04 from Todd Whipple to City Engineering. 236. Janice Cooperstein also submitted a letter dated July 18, 2006 from Robert Bernstein, a professional traffic engineer, which letter commented on the software data on the CD compiled for the fire evacuation analysis. Cooperstein stated that she was a math major in college, was experienced in market research, and had reviewed traffic studies before. See Exhibit#48. is 237. The fire evacuation analysis created an evacuation model using "Synchro 6" software; which is traffic engineering capacity software that uses procedures contained in the AASHTO Highway Capacity Manual; which traffic studies must comply with. Such software relies on modeling the peak traffic hour(AM and/or PM), based on traffic counts taken during the peak hour, for normal traffic studies. 238. The fire evacuation analysis also utilized a"SimTraffic" module in the Synchro 6 software to simulate traffic flow along the route of ingress and egress; using logarithms, inputting traffic volumes and intersection levels of service, and inputting delay associated with the level of service HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 33 calculations. The traffic simulation can be viewed visually, but is not reproducible on paper. However, the CD contains printable SimTraffic data that was used to create the simulation. See Exhibit #41, p. 182-187; and Exhibit#40, p. 456. 239. The fire evacuation analysis in the TIA claimed to have studied the complete evacuation of the 1,281 existing homes in the Ponderosa, at the rate of two (2) vehicles per home, within a 30- minute timeframe; with all traffic leaving the Ponderosa area in 30 minutes through two (2) exits, i.e. the intersections of Dishman-Mica Road with University/Schafer Road and Bowdish Road. The analysis assumed that Schafer Road, Bowdish Road, Sands Road, 44`x'Avenue and Van Marter Road would be major routes of evacuation. See Exhibit #40, p. 454-458. 240. The fire evacuation analysis concluded, based on the software traffic modeling, that the greatest traffic congestion during a 30-minute evacuation of the Ponderosa area would occur at the Dishman-Mica/Schafer intersection; emergency-assisted traffic control would be needed at both Dishman-Mica intersections during the evacuation; and depending on manpower and the fire danger, the intersections of Bowdish/Sands Roads and Cimmaron Drive/Schafer Road should also have emergency personnel directing traffic. See Exhibit#40, p. 456-457. 241. The Ponderosa Ridge TIA states, in answers to questions raised by area residents (but not in the fire evacuation analysis section), that "...the roadway system within the greater Ponderosa area, even with only two access points to Dishman-Mica, can handle the evacuation of the entire Ponderosa's 1,200 to 1,400 residential units (existing and new), with two (2) cars leaving from each house within a 30-minute time frame..."; subject to emergency personnel controlling the signals at the two main intersections located along Dishman-Mica Road. [Emphasis added]. See Exhibit#40, p. 433-434. 242. The Synchro 6 report prepared for the fire evacuation analysis initially input an average hourly traffic volume of 2,444 vehicles per hour (vph) exiting the Ponderosa area northbound through the two Dishman-Mica intersections. This included 1,392 vph exiting the intersection of Dishman-Mica/University, and 1,052 vph exiting the intersection of Dishman-Mica/Bowdish. See Exhibit#39, Synchro 6 report/fire study, p. 1 and 4 (see NEL/NET/NER movements for Dishman-Mica/Schafer intersection, and NBL/NBT/NBR movements for Dishman-Mica/Bowdish intersection). 243. The initial traffic volume input of 2,444 vehicles was stated on an average hourly basis, since the Synchro 6 model operates on a"peak hour" basis. The inputs recognize that all evacuating vehicles must exit the area in a 30-minute portion of the 1-hour modeling period, with no vehicles evacuating during the remaining 30 minutes. In other words, the "traffic count" for the "peak hour" in the 1-hour model was 2,444 vehicles, with all 2,444 vehicles being evacuated in the initial 30 minutes of the peak hour. 244. The initial input of 2,444 vehicles in the Synchro 6 model assumes there are only 1,222 existing residences in the Ponderosa area(i.e. 2,444 vehicles divided by 2 vehicles/home). This is 59 homes and 118 vehicles less than the 1,281 existing residences, and the 2,562 vehicles, the evacuation analysis in the Ponderosa Ridge TIA stated it was analyzing. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 34 245. The initial input of 2,444 vehicles also does not include the 362 vehicles from the 181 proposed homes (i.e. 2 vehicles per home) in the combined Ponderosa Ridge/Ponderosa PUD projects that would also need to be evacuated, if such projects were approved. This should have been part of the analysis, since the TIA was prepared for both the Ponderosa Ridge and Ponderosa PUD projects. 246. The initial traffic volume inputted into the Synchro 6 model for the two intersections combined should have been 2,924 vehicles,generated by a total of 1,462 homes (i.e. 1,281 existing homes + 181 proposed homes, x 2 vehicles per home). This is a 16% discrepancy from the 2,444 vehicles actually inputted. 247. Peak hour traffic studies generally assume there is a peak 15 minutes of traffic flow during the peak hour(AM or PM); based on a conservative assumption that the peak 15 minutes for one traffic movement within the intersection is the same peak 15 minutes for all traffic movements within the intersection. Such 15-minute "analysis period" is used to evaluate the traffic flow, delay and level of service at an intersection, for each traffic movement and for the intersection as a whole, during the peak 15 minutes of the 1-hour modeling period. This will determine the maximum traffic impact to an intersection or roadway during the peak hour. See Exhibit#48, letter dated 11-16-04 from Todd Whipple to City Engineering. 248. In normal traffic studies, the Synchro 6 software applies a"peak hour factor" (phf) to the average hourly traffic flow, to determine the hourly traffic flow during the peak 15 minutes of traffic. The peak hour factor(phf) is defined as the ratio of the average 1-hour traffic flow rate to the hourly flow rate during the peak 15 minutes of the 1-hour period; and can vary for each intersection or roadway. The lower the phf, the higher the hourly traffic flow rate is during the peak 15 minutes; compared to the average 1-hour flow rate. See Exhibit#48, letter dated 7-18- 06 from Robert Bernstein, p. 2. 249. The evacuation analysis necessarily assumed that all the traffic is evacuated or flows at a constant hourly rate over a 30-minute period of time. Since this leaves no traffic to be evacuated during the remaining 30 minutes of the 1-hour modeling period, the hourly traffic flow rate during the "peak 15 minutes" of the 1-hour modeling period is the same as that during the entire 30- Y minute evacuation period. 250. To reflect the hourly traffic flow rate represented by evacuating a total of 2,444 vehicles during the 30-minute (1/2) hour evacuation period, a"peak hour factor" (phf) of.5 was divided into the initial traffic flow inputs for the intersections analyzed in the Synchro 6 model. 251. A phf of.5 in a normal traffic study assumes that one-half(1/2) of the hourly traffic will occur during the peak 15 minutes of the 1-hour period; and equates to an hourly traffic flow rate K_ during the peak 15 minutes that is double the average hourly flow rate for the 1-hour period. See Exhibit#48, letter dated 7-18-06 from Robert Bernstein, p. 2. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 35 1 252. Application of the .5 phf to the initial traffic input of 2,444 vph for the two intersections produced an "adjusted flow" rate of 4,888 vehicles per hour in the Synchro 6 model. Such adjusted hourly flow rate still represented the evacuation of only 2,444 vehicles in 30 minutes (1/2 hour). See Exhibit #39, Synchro 6 report/fire study, p. 1-2 and 4-5; and Whipple calculation in Exhibit#40, p. 371. 253. The adjusted flow rate that should have been inputted into the Synchro 6 model(after applying the .5 phf) is 5,848 vehicles per hour(i.e. based on the 2,920 vehicles generated by the 1,460 existing and 181 proposed homes, divided by the .5 phf). This flow rate is 16% higher than the 4,888 vph adjusted flow inputted; and equates to the evacuation of 2,924 vehicles in 30 minutes. See Exhibit #42, Opening Brief of Appellant, p. 21-22; and Reply to Brief of Respondents, p. 12. 254. Todd Whipple, during the Ponderosa Ridge proceedings, testified that he had "essentially doubled" the traffic flow (i.e. 4 vehicles per home) considered in the fire evacuation analysis, by using a .5 phf. This statement is misleading and wildly inaccurate; since the adjusted flow rate of 4,888 vehicles per hour inputted into the Synchro 6 model, after applying the .5 phf, is still equivalent to only 2,444 vehicles being evacuated in 30 minutes, the assumed evacuation period. Whipple also made several factual errors in his testimony, stating at one point that there were 1,800 existing houses in the Ponderosa to evacuate; and that he considered the evacuation of 7,200 vehicles in a 30-minute period of time. See Exhibit#41, p. 174-183. 255. Application of a .5 phf in the Synchro 6 model was simply a means of determining the hourly traffic flow rate during the 30-minute evacuation period; for a software model that is designed only for peak hour traffic studies. It did not "double"the volume of traffic evacuated from the Ponderosa area within 30-minutes, as claimed, but left it the same. 256. To simulate the evacuation, the Synchro 6 model maximized intersection "green time" for the exiting northbound movements at the two intersections; by adjusting the traffic signals to allow approximately two-thirds (2/3) of the light cycle time at the Dishman-Mica/Bowdish intersection, and approximately three-fourths (3/4) of the light cycle time at the Dishman/Schafer intersection, to be used for exiting traffic. The remaining light cycle time was used to allow some cross traffic, and some resident traffic into the area, at the intersections. See Exhibit#39, Synchro 6 Report for Fire Study, p. 1-2 and 4-5. 257. The evacuation analysis assumed that resident traffic allowed back into the area equaled 10% of the exiting traffic, and that emergency personnel would use the emergency access that crosses the railroad tracks near 48th Avenue and Dishman-Mica. See Exhibit#40, p. 372 and 456- 457; Exhibit#41, 177-178; Exhibit#42, Appellant's Opening Brief, 20, note 22. p. pp P g � p. � 258. Under the AASHTO Highway Capacity Manual, the "ideal flow" rate for an intersection is 1,900 passenger cars per hour per lane; while the "ideal flow" rate for a single roadway lane ranges from 2,100 to 2,400 cars per hour per lane. See Exhibit #40, p. 367. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 36 259. The Synchro 6 report for the fire study reduced the "ideal flow" rate for the signalized intersections of Dishman-Mica/Schafer and Dishman-Mica/Bowdish to a"saturated flow" rate,to account for delay caused by individual road and driver factors. See Exhibit#42, Opening Brief of Appellant, p. 19, note 20; and Exhibit #42, Reply to Brief of Respondents, p. 12. 260. The Synchro 6 report calculated a"saturated flow" of 1,658 vehicles per hour and 1,608 vehicles per hour for the northbound through and left-turn movements at the intersection of Dishman-Mica/Bowdish, respectively. The Synchro 6 report calculated a"saturated flow" rate of 1,642 vehicles per hour and 1,608 vehicles per hour for the northbound through and left-turn movements at the intersection of Dishman-Mica/Schafer, respectively. See Exhibit#39, p. 1 and 4 of Synchro 6 Report. 261. The Synchro 6 report showed an overall intersection signal delay time of 407 seconds (6.8 minutes), resulting in a drastically failing LOS F, at the intersection of Dishman-Mica/Schafer. This included a delay of 103.3 seconds for northbound traffic approaching the intersection [the ICU level of service D shown in the report is not relevant]. 262. The Synchro 6 report showed an overall intersection delay time of 186.6 seconds (3.1 minutes), and a significantly failing LOS F, at the intersection of Dishman-Mica/Bowdish. This included a delay of 133.3 seconds for northbound traffic approaching the intersection [the ICU level of service D shown is not relevant]. See Exhibit #39, Synchro 6 report/fire study, p. 1-2 and 4-5. 263. The delay time shown in the Synchro 6 report for northbound traffic at the intersection of Dishman-Mica/Bowdish was significantly greater than that shown for northbound traffic at the intersection of Dishman-Mica/Schafer; since there is only one (1) intersection lane available for evacuation at the Dishman-Mica/Bowdish intersection. 264. LOS F, at a signalized intersection, is equivalent to a delay of over 80 seconds. LOS D, the minimum acceptable LOS at a signalized intersection under the City Road Standards, cannot exceed a delay time of 55 seconds. See Exhibit#39, p. 464. 265. The fire evacuation analysis logically assumed that during a full-scale fire evacuation, emergency personnel would take over and manually control choke points such as the intersections of Dishman-Mica Road with Schafer and Bowdish Roads; in order to maximize egress from the jl area. 266. Todd Whipple testified during the Ponderosa Ridge project hearing that based on the need for manual control of the two Dishman-Mica intersections during an evacuation, he allocated even more green time to exiting traffic at the two intersections; and arrived at a conclusion that existing traffic in the Ponderosa could be safely evacuated in 30 minutes. See Exhibit#41, p. 176-178. The Synchro 6 report does not reflect or quantify this additional green time, or explain how the final conclusion was reached that the Ponderosa could be safely evacuated in 30 minutes with manual control of the two intersections. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 37 1 267. During his testimony at the public hearing on the current project, Todd Whipple indicated I the main value of the fire evacuation analysis was to assist Fire District 8 in determining what intersections would be the most congested during an evacuation and require emergency 1 assistance, and that there was no applicable engineering standard to apply to determine what was a safe evacuation. 268. Whipple also testified at the current hearing that the "level of service" results indicated by the Synchro 6 report were irrelevant to an emergency fire evacuation; queue length and delay at the affected intersections were the primary factors he considered in the Synchro 6 report, in determining the choke points during an evacuation and how many vehicles could be evacuated during a certain period of time; and he ultimately relied on the Synchro 6 report and"engineering judgment" to reach a conclusion that the Ponderosa area could be safely evacuated. 269. The Ponderosa Ridge TIA indicates that there are two (2) lanes available for northbound traffic movements at the intersection of Dishman-Mica Road and Schafer/University Roads; a through/right-turn lane, and a left-turn lane with 150 feet of storage length. The TIA indicates that there is only one (1) lane available for northbound movements at the intersection of Dishman- Mica Road and Bowdish Road, a through/left-turn/right-turn lane. See Exhibit#40, p. 178. 270. The two intersections together have an"ideal" flow rate of 5,700 vehicles per hour (i.e. 1,900 vph times 3 intersection lanes); or 2,850 vehicles per 30 minutes. Such ideal flow rate per 30 minutes is 70 vehicles less than the 2,924 vehicles per 30 minutes that should have been considered for evacuation through the two intersections. 271. The combined"saturated" flow for the two intersections is no more than 4,908 vehicles per hour; calculated by adding 1,642 vehicles per hour plus 1,608 vehicles per hour for the Dishman- Mica/Schafer intersection, plus 1,658 vehicles per hour for the Dishman-Mica/Bowdish intersection, shown by the Synchro 6 report. This equates to a combined saturated flow for the two intersections of only 2,454 vehicles per 30 minutes. This is 470 vehicles less than the 2,924 vehicles that needed to be evacuated in 30 minutes; a 16% discrepancy. 272. The plat sponsor for the Ponderosa Ridge project contended in its Court of Appeals brief that the "ideal" traffic flow for an intersection should be used to evaluate the capacity of the subject intersections; while under manual emergency control during a fire evacuation. The opponents of the project contended in their briefs that the more realistic "saturated" flow rate should be used. 273. The plat sponsor for the Ponderosa Ridge project, in its Court of Appeals brief, objected to use of the "saturated flow" rate; on the basis that there would be fewer light cycles at the intersections for egressing traffic, reducing the delay caused by driver reaction time compared to normal stop and go traffic. 274. The fie evacuation analysis assumed that the two intersections, even under manual control during a fire evacuation, must still allow some resident traffic into the area. See Exhibit 40, p. 456; and Exhibit#41, p. 559-560. Thus, the "ideal flow" rate at the two intersections cannot be HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 38 0 I I achieved. The traffic model already assumes that delay will not result from such potential human factors as stalled vehicles, traffic accidents, lost visibility due to smoke, fallen trees, etc. 275. The plat sponsor for the Ponderosa Ridge project also suggested in its appellate brief, without direct support from the Ponderosa Ridge record, that the two Dishman-Mica intersections, under manual control during a fire evacuation, would each operate like a"street link"; with an ideal capacity ranging from 2,100 to 2,300 vehicles per hour per lane, and no inbound or cross traffic allowed at the two intersections. See Exhibit 342, Brief of Respondents, p. 16, note 10. 276. The functioning of the two intersections as "street links", even with no cross traffic or inbound traffic, appears highly unlikely; considering such factors as the northbound turning movements that need to be made at each intersection, the left turn pocket at the intersection of Dishman-Mica Road/Schafer is only 150 feet long, the single lane available to northbound traffic along Schafer Road immediately south of the left turn pocket, the management of exiting traffic on City streets once it passes through the two intersections, etc. See Exhibit #39, Synchro 6 report/fire study, p. 1; and Exhibit#42, Reply to Brief of Respondents, p. 10-12. 277. The Synchro 6 report shows a northbound left storage lane at the intersection of Dishman and Bowdish Road that is 100 feet in length. Since there is no protected northbound left-turn lane along Bowo such cati , pt ht he R project contended that inclusion dish of R this ad additional lo lane on created the opan eonenrror s in of the e Synchro results idge regarding the conten volume of traffic that could be passed through such intersection in 30 minutes. See Exhibit#42; Appellant's Opening Brief, p. 22. 278. The plat sponsor for the Ponderosa Ridge project, in its appellate brief, appeared to concede that there was no northbound left-turn storage lane at the Dishman-Mica/Bowdish intersection; but instead argued there was a"de facto additional right turn lane at Bowdish"; without describing its configuration, length, or effect on traffic flow. See Exhibit#42, Brief of Respondent, p. 17. 279. The Ponderosa Ridge TIA, in describing the Dishman-Mica/Bowdish intersection, states that the northbound approach at the intersection has only one (1) approach lane; and mentions a "defacto right turn lane" only with regard to the right through lane for the southbound approach to the intersection, which is not relevant. See Exhibit#40, p. 428. The Synchro 6 report does not show a northbound right turn lane. See Exhibit#39, Synchro 6 report/fire study, p. 4, lines 3-4. 280. It is not clear from the record to what extent the erroneous inclusion of a 100-foot long northbound left-turn lane at the Dishman-Mica/Bowdish intersection, into the Synchro 6 report, resulted in overstating the capacity of the intersection to pass northbound traffic. 281. The pages from the Synchro 6 report submitted by Janice Cooperstein contain the report for only one (1) un-signalized intersection along the evacuation routes leading to Dishman-Mica Road, at Schafer/Sundown,. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 39 282. The Synchro 6 report shows an adjusted hourly flow of 2,428 vph for the northbound traffic through movement at the un-signalized intersection of Schafer Road and Sundown Drive. Traffic turning northbound onto Schafer Road from Sundown Drive adds 84 vph to the northbound traffic along Schafer Road, yielding a northbound traffic flow through the intersection of Schafer Road and Mercy Court of 2,712 vph. See Exhibit #39, Synchro 6 report/fire study, p. 23 and 1. Such traffic flows at the two intersections substantially exceed the ideal traffic flow through the intersection of 1,900 vph, by 22% and 30%, respectively. 283. The adjusted hourly flow rates inputted for northbound traffic along Schafer Road, and passing through the un-signalized intersections along Schafer Road south of Dishman-Mica Road, do not include the unknown Schafer Road share of the 236 vph contributed by the 59 existing homes in the Ponderosa area not tabulated in the Synchro report (i.e. 59 homes x 2/vehicles per home x 2 half-hours/hour). 284. The adjusted hourly traffic flows inputted for northbound traffic along Schafer Road in the Synchro 6 model also fail to include the traffic contributed to Schafer Road by the 181 proposed homes in the Ponderosa Ridge/Ponderosa PUD projects. 285. The Ponderosa Ridge TIA found that 75% of the traffic generated by the proposed homes in the Ponderosa Ridge/Ponderosa PUD projects will ultimately access Schafer Road, and 25% will ultimately access Bowdish Road. This represents the evacuation of an additional 271 vehicles, or 542 vehicles per hour,along Schafer Road(i.e. 181 homes x .75 x 2 vehicles/home x 2 half-hours) See Exhibit#39, Synchro 6 Fire Study report, p. 1 and 23; - yn y ort p , p , and Exhibit#48, letter dated 11-16 04 from Todd Whipple to City Engineering, p. 8, question 6. 286. The additional 542 vph of evacuating traffic generated by the proposed homes onto Schafer Road must all pass through the intersections of Schafer/Sundown Drive and Schafer/Mercy Court to reach Dishman-Mica Road. See Exhibit#40, p. 453. This increases the adjusted hourly flow at such intersections, for the northbound through movement, to 2,970 vph and 3,254 vph, respectively. This is without adding in any traffic from the 59 homes not accounted for in the Synchro 6 report. These adjusted rates compare to an ideal traffic flow for the northbound through movement at these intersections of only 1,900 vph; a discrepancy of 35% and 42%, respectively. 287. The Synchro 6 report shows a"saturated flow" of only 1,676 vph for the northbound through movement at the intersection of Schafer Road and Sundown Drive. This is 43% less than the adjusted traffic flow of 2,924 vph calculated for such intersection above. This represents a total of 624 vehicles (2,924 vph— 1,676 vph x1/2 hr) that cannot pass through the intersection, applying the "saturated flow" rate. 288. The un-signalized intersections along Schafer Road obviously cannot operate as a continuous "street link", even under manual operation by emergency personnel; because traffic from the side streets located south of Schafer Road must be allowed to turn northbound onto Schafer Road, in order to evacuate the area. 11E Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 40 I S' I p 289. The fire evacuation analysis intentionally did not study lane or corridor capacity impacted by the evacuation traffic; assuming that controlled intersections created the largest constriction. points. See Exhibit #40, p. 456. The ideal hourly flow rate for a roadway is considered to be 1 2,100 to 2,400 vph per lane, as stated above. 290. There is one (1) lane of northbound traffic along Schafer Road and one (1) lane of northbound traffic along Bowdish Road. This includes a distance of several hundred feet along Schafer Road between Dishman-Mica Road and the points to the south where the nearest secondary roads merge into such roads. 291. The two (2) lanes combined for Schafer Road and Bowdish Road can accommodate an "ideal" flow rate of 4,200 to 4,800 vph, or 2,100 to 2,400 vehicles per 30 minutes. This is a range of 524-824 vehicles less than the 2,924 vehicles that need to be evacuated northbound along such roads in 30 minutes, before reaching Dishman-Mica Road. This is a discrepancy of 18-28%. 292. The "saturated flow" rates for the Schafer Road and Bowdish Road roadway are not included in the Synchro results; but, if applicable, would be somewhat reduced from the "ideal flow" rate, and allow even fewer vehicles to be evacuated in 30 minutes. 293. The northbound hourly traffic rate indicated by the Synchro 6 report for the last leg of j northbound traffic along Schafer Road, between Mercy Court and Dishman-Mica, is 2,784 vph. If the additional hourly traffic flow rate of 543 vph for the proposed homes is added to this rate, the adjusted hourly traffic rate along the last leg of Schafer Road is 3,327 vph. If just one-fourth (1/4) of the 236 vph contributed by the 59 existing homes excluded from the Synchro 6 report are also added in(equal to 59 vph), the adjusted hourly flow along the last leg of Schafer Road, would be 3,386 vph. These adjusted flow rates of 3,327 vph and 3,386 vph compare to an "ideal flow" rate along Schafer Road of only 2,100 to 2,400 vehicles per hour. 294. The flow rate of 3,327 vph calculated above equates to evacuating 1,663 vehicles in 30 minutes, while the flow rate of 3,386 vph calculated above equates to evacuating 1,693 vehicles in 30 minutes; for northbound travel along the last leg of Schafer Road. This is far more vehicles that must be evacuated in 30 minutes, along the last leg of Schafer Road, than is possible under li the ideal flow rate for a roadway of 2,100-2,400 vph; which would allow only 1,050-1,200 vehicles to be evacuated in 30 minutes. This represents a 26-38% discrepancy, and a range of g 430-643 vehicles that cannot be evacuated in 30 minutes along the last leg of Schafer Road; comparing the range of actual flow rates to the range of ideal flow rates. 295. The large discrepancy between the actual traffic flow required to be evacuated and the ideal flow possible, for northbound traffic evacuating along Schafer Road, also occurs south of Mercy Court; to lesser degrees. A similar discrepancy can be calculated along Bowdish Road, between Sands Road and Dishman-Mica Road; but to a somewhat smaller degree, since Bowdish Road would carry a smaller percentage of the combined evacuating traffic than Schafer Road. 1 HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 41 fi 296. The Synchro 6 report inputs an adjusted hourly traffic flow of 2,104 vehicles per 30 minutes) at the intersection of Dishman-Mica/Bowdish. If the hourly traffic from 45 of the 181 proposed homes (based on 25% of the vehicles from the 181 homes accessing the intersection) not considered in the Synchro 6 report are added to this volume, i.e. 181 vph (181 homes x .25 x 2/vehicles per home x .5 hr x 2), the hourly traffic flow at the intersection would be 2,285 vph. 297. If just one-fourth(1/4) of the hourly traffic flow from the 59 homes not considered in the Synchro report (equal to 59 vph) was also added to the hourly traffic flow at the Dishman- Mica/Bowdish intersection, the potential hourly traffic flow impact at such intersection would be 2,344. These adjusted hourly volumes of 2,285 vph and 2,344 vph substantially exceed the ideal hourly flow rate for this 1-lane intersection of 1,900 vph; a 20% discrepancy. 298. The above analysis indicates that a significant percentage, perhaps one-third(1/3), of the combined traffic from the 1,281 existing homes in the Ponderosa area, and the 181 proposed homes in the Ponderosa Ridge/Ponderosa PUD projects, cannot be evacuated within 30 minutes to Dishman-Mica Road; even assuming manual control of the intersections, and ideal flow rates for the roadways and intersections evacuating the traffic. The above analysis also shows no basis for County Engineering's conclusion that "acceptable levels of service" could be maintained during the fire evacuation scenario. 299. The above analysis also strongly suggests that if one (1) of the main exit routes to Dishman- Mica Road became blocked for any length of time during a firestorm event, a majority of the vehicles from the 1,281 existing homes and 181 proposed homes in the Ponderosa area could not be evacuated to Dishman-Mica Road within 30 minutes. 300. The fire evacuation analysis does not include consideration of the 90 additional vehicles from the current project (45 homes x 2 vehicle/home) that would access Schafer Road during a complete evacuation of the Ponderosa area; or the vehicles from 60 vehicles from the 30 housing units in the Inverary final plat project currently being developed along Schafer Road, near its intersection with Dishman-Mica Road. This is an additional 150 vehicles, from 75 homes, added to Schafer Road for evacuation during the 30-minute period; or 300 vehicles per hour. 301. If the traffic from the 81 homes proposed in the Ponderosa PUD project, for which no decision has been entered, was excluded from consideration in the fire evacuation analysis, this would be roughly offset by inclusion of the traffic from the current project (45 homes) and from the Inverary project (30 homes) in the evacuation analysis. 302. The SimTraffic simulation in the fire evacuation analysis shows a much smaller percentage of traffic that can be evacuated from the Ponderosa area in 30 minutes, using the two intersections, than the Synchro results; i.e. only 1,908 vehicles per hour, or 954 vehicles per 30 minutes. See Exhibit#39, SimTraffic Report, p. 2 and 3; and Exhibit#42, Reply to Brief of Respondents, p. 12, note 8. 303. Robert Bernstein, in his July 18, 2006 letter, indicated that it was inappropriate to use the Synchro and SimTraffic software packages to analyze conditions during an emergency HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 42 . evacuation; and found their use in the evacuation analysis to not be meaningful, and also misleading. 304. Robert Bernstein, in such letter, also criticized the fire evacuation analysis for not considering traffic from the residences proposed in the Ponderosa Ridge and Ponderosa PUD projects, and other future development; and for not making available any formal documentation of the analysis and simulation model results, connecting the summary text in the TIA with the computer data files on the CD. 305. Robert Bernstein stated, in such letter, that the Synchro results suggested that the Ponderosa neighborhood could not be evacuated in 30 minutes; and that the SimTraffic simulation does not show that the area can be evacuated in 30 minutes. 306. The plat sponsor for the Ponderosa Ridge project indicated in its Court of Appeals brief that the SimTraffic simulation assumed that the traffic signals at the two intersections were functioning normally and were not under the control of emergency personnel(unlike the Synchro results); resulting in the simulation showing considerable congestion at the two intersections compared to the Synchro results. See Exhibit#42, Brief of Respondents, p. 18. 307. Based on the above facts, the SimTraffic module results do not establish that the Ponderosa area can be evacuated during a 30-minute time frame. 308. Todd Whipple testified during the current proceedings that the debate over the fire evacuation analysis was essentially moot; because County Fire District 8 had advised that a mass evacuation of the area was unlikely in the event of another firestorm event, and district t a d the dis ct would more likel y employ p oy a strategy of shelter in place or moving to a safe location. 309. The documents prepared by Lieutenant Archer of County Fire District 8 in 2004 indicated that wildland fire research is now closely examining the issue of evacuation versus shelter in place alternatives; emergency fire commanders need to seriously consider the advantages of not evacuating residents, based on topography, fire behavior and history, many wildland fires will not require a full-scale evacuation, and residents can be given instructions on protecting themselves at home. See Exhibit #40, p. 1,296-1,314. 310. Claude Wells, a retired Deputy Chief of County Fire District 9, testified as a fire consultant for the plat sponsor at the Ponderosa Ridge hearing. See Exhibit#41, p. 445-553. Wells was involved in the 1991 firestorm on the north side of Spokane, and had some involvement with fire p � that occurred in the Ponderosa in 1984. Wells indicated that he had reviewed the documents provided to Todd Whipple by Lieutenant Archer of County Fire District 8, and the fire evacuation analysis summary contained in the Ponderosa Ridge TIA, in preparing his testimony. 311. Claude Wells testified during the Ponderosa Ridge proceedings that some progress had been made in Spokane County since the 1991 firesto-rn, in preventing and managing fires occurring at the urban wildland interface. This included the adoption of second access requirements for new subdivisions, fire access road requirements for private roads and driveways, and additional water HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 43 supply requirements for new developments under local codes; and having the same dispatch center for all local law enforcement agencies, and one dispatch center for all local fire authorities. 312. Claude Wells testified during the hearing on the Ponderosa Ridge project that, based on his understanding of the fire evacuation analysis prepared by Todd Whipple, which concluded that the entire Ponderosa area can be safely evacuated in 30 days, the evacuation of the Ponderosa area during a wildfire event would not be a significant problem. See Exhibit#41, p. 477. Such testimony is undermined by the significant flaws in the fire evacuation analysis, as discussed above. 313. Both Todd Whipple and Claude Wells testified during the Ponderosa Ridge hearing that mass evacuation of the Ponderosa area during a firestorm event was only one scenario; and that other possible scenarios included a rolling evacuation over a period of time greater than 30 minutes, and/or sheltering in place. Neither witness gave serious consideration to one or both of the main exits to Dishman-Mica Road being blocked by any length of time, by fire crossing the road, or other circumstance, in expressing their opinions; although they conceded this was a possibility. See Exhibit#41, p. 445-565. 314. The 2000 Urban Wildland Interface Code, published by the National Fire Protection Association, is intended to establish a set of minimum standards to reduce the loss of property from fire in vegetation spreading to buildings. Such standards, if adopted, would require that two (2) access roads be provided to directly serve the land containing a permitted use. This standard addresses access at the point of the use, similar to Appendix D of the 2003 IFC and Section 1.03(8) of the County Road Standards; but does not address area-wide wildfire access issues affecting a proposed development, such as those presented in the Ponderosa area. 315. Robert Bernstein, in his testimony and report submitted on behalf of neighboring property owners during the proceedings on the Ponderosa Ridge project, found that emergency access in the Ponderosa was inadequate both for emergency services response to calls and for emergency evacuation of the Ponderosa community. 316. Bernstein's findings were based on the area's physical isolation due to being surrounded by a railroad and impassable terrain, the presence of only two (2) existing public access roads out of the area to Dishman-Mica Road and one additional limited emergency access, the potential for random events that may block one of the access routes during an evacuation, the new development constructed or proposed in the Ponderosa area since the 1991 firestorm, the potential for having to evacuate the area during a firestorm event during non-work hours when more residents would need to be evacuated than during the 1991 firestorm, the substandard condition of the road network in the Ponderosa area, the need for evacuation routes of adequate capacity on multiple escape routes that may be necessary, and the need for redundancy in the system of evacuation to ensure that escape is not cut off in the case of closure or blockage of one or more routes. See Exhibit #40, p. 733-742; and Exhibit 41, p. 262-293. 317. The opinions expressed by Robert Bernstein, County Fire District 1 and the County Sheriff, regarding the need for additional public access routes out of the Ponderosa area, before additional HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 44 development is approved in such area, find strong support in a 2005 article published in the Natural Hazards Review, by Associate Professor Thomas Cova of the University of Utah, a specialist in the area of natural and technological hazards. See Exhibit#37. 0 318. The article by Professor Cova addresses public safety for fire-prone communities in the urban-wildland interface. This includes the consideration that evacuation, voluntarily or by order of emergency authorities, where there is time to evacuate, is usually safer than the more "risky" alternative of having to shelter in place, in circumstances where there is insufficient time or an inability to evacuate. This is coupled with the difficulty of deciding whether to evacuate or shelter in place; which depends on the quality of the shelter, road network geometry, wind speed and direction, visibility, travel demand, water availability and other factors that are difficult to assess and synthesize under pressure. 319. The Cova article emphasizes the need to evacuate a community in a maximum 30-minute time period, in an area having a high wildfire hazard; to consider potential bottlenecks or blockages that may occur along community exit routes during an evacuation; and to consider the number of community exits available for the number of homes in the area. Professor Cova cited the example of a neighborhood in the Oakland-Berkeley area, having 337 homes and four(4) exits, where a 1991 fire blocked the two (2) primary exits in its first 30 minutes; leaving the remaining residents with two (2), narrow uphill exits for evacuation, and resulting in a number of fatalities. 320. Professor Cova in his article recommended a minimum of four (4) exiting roads for wildland-urban interface communities having over 601 households. The Ponderosa area has over two (2) times this number of households, and only two (2) public exits out of the area. 321. Scott Engelhard of County Engineering testified during the hearing on the Ponderosa Ridge project that such agency was continuing to look for a new public road access from the Ponderosa area across the railroad tracks to Dishman-Mica, either at-grade or separated, after searching for a number of years; but that nothing concrete had been firmed up. Engelhard advised that such situation was based on the difficulty of negotiating the purchase of necessary land from private property owners, securing the necessary funding, identifying the location of the crossing, the resistance of the railroad to a new crossing, and getting approval for the crossing from the Washington Utilities and Transportation Commission. See Exhibit#41, p. 41-46; and also see letter dated 7-22-05 from Todd Whipple to City Community Development Department, in current project file, p. 3. 322. Based in part on the above considerations, the County Hearing Examiner did not impose a $500 per lot fee requested by County Engineering to fund construction of a railroad crossing in the vicinity of the Ponderosa Ridge project; in approving the Ponderosa Ridge project. See Exhibit#40, p. 45 Findings of Fact#s 154-155. 323. The TIA for the current project indicates that creation of a north access from the current site to 28th Avenue, to provide a third (3rd) public access for the Ponderosa area, does not appear feasible at this time; due to private land ownerships lying between the site and 28th Avenue, the HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 45 fipp pp likely need to improve the existing railroad crossing at 28"'Avenue, and the railroad's opposition to any new at-grade railroad crossings for vehicular travel. See TIA, p. 9. This comment appears directed at the possible extension of a road from the Ridgeview Drive, at the north end of the current preliminary plat, north and east to 28"'Avenue. Such extension would pass through private land located outside the City. N. Priority Wildlife Habitat, Classification of DNR Streams on Site 324. In 1996, Spokane County adopted the County Critical Areas Ordinance (CAO). In 1997, the County amended certain portions of the ordinance. 325. The 1997 amendments to the County CAO included significant changes to Section 11.20.060 of the ordinance, relating to fish and wildlife habitat and species conservation areas. See County Resolution No. 97-0652, including attachments. 326. The 1997 amendments, in pertinent part, provided protection for certain priority wildlife habitats and species located within the Urban Impact Area(UIA) designated by the County, which had previously been protected only if located outside the UTA. This included white-tailed deer winter range, elk, and urban natural open space priority wildlife habitats. 327. The 1997 amendments, in pertinent part, removed the requirement of a 25-foot riparian buffer along DNR Type 5 streams "...when there is no connection to type 1, 2, 3 or 4 streams", and increased the buffer for a DNR Type 4 stream from 50 feet to 75 feet. See County Resolution No. 97-0652, p. 16 of Attachment "A". 328. The addition of a connection requirement for Type 5 streams in the County CAO was based on the fact that many of the streams in Spokane County had not yet been typed by DNR, and had to be typed on a case-by-case basis; coupled with a concern over the broad definition of a Type 5 stream in WAC 222-16-030(5) at the time, as "...streams with or without well-defined channels, areas or perennial or intermittent seepage, ponds, natural sinks and drainageways having short periods of spring or storm runoff." See County Resolution No. 97-0652, p. 4. 329. The County's concern over the broad definition of a Type 5 stream in former WAC 222-16- 030(5) was that the description could be applied to very small areas without riparian habitat, especially when such areas are isolated and do not connect to other streams; that if such isolated areas contained hydric vegetation, they would be classified as wetlands and protected as such under the County CAO; and that if such areas were isolated, they were unlikely to have significant riparian habitat and would not affect larger streams where habitat is present. See County Resolution No. 97-0652, p. 4 and 6. 330. Section 11.20.060.D of the County CAO specified buffers for DNR Type 1-5 streams, as they were defined in WAC 222-16-030;with the additional requirement for Type 5 streams that they must connect to a Type 1-4 stream before a 25-buffer can be required. Section 11.20.060.D also provided a brief description of each stream, based on the version of WAC 222-16-030 in place in 1996-97. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 46 331. The City, at the time of incorporation in 2003, adopted the County COA by reference, as amended in 1997. This is the City CAO in effect at the present time. The City also adopted the County Critical Areas maps in place at the time of incorporation, by reference, as the City Critical Areas maps. See Exhibit #25; colorized Critical Areas maps in project file produced on 1-14-04; and testimony of Karen Kendall. 332. WAC 222-16-030 was amended effective 1998; but made no changes to the definitions of DNR Type 3, 4 or 5 streams, in pertinent part. In 2001, WAC 222-16-030 was amended to include a new "permanent" type of water typing, i.e. DNR Type "S", "F", "Np", "Ns" streams; and the DNR Stream Types 1-5 classifications were moved to WAC 222-16-031, as "interim" water typing systems. 333. The 2001 amendments significantly revised the definitions of DNR Type 3-5 streams, in pertinent part; and provided that the "interim" stream typing system under WAC 222-16-031 would remain in effect until the fish habitat water type maps described under the new typing system under WAC 222-16-030 were adopted by the State Forest Practices Board. 334. WAC 222-16-031 provides a water type conversion table which, in pertinent part, equates a Type "F" stream to Type 2-3 streams, a Type "Np" stream with a Type 4 stream, and a Type "Ns" stream with a Type 5 stream. 335. Further amendments to WAC 222-16-030 and WAC 222-16-031, taking effect on July 1, 2005 and December 16, 2006, altered the definitions of a Type 4/"Np" stream and a Type 5/"Ns" stream. 336. The current definition of Type 3 and 4 streams under WAC 222-16-031 do not match the general description of such stream types under Section 11.20.060.D of the City CAO; since there is no reference to a channel width being greater than or less than "10 feet" or "2 feet", or to the stream affecting the quality of a Type 1-3 stream. The current defmitions also differ from the description of such stream types under the version of WAC 222-16-030 that was in effect in 1996-1997. 337. The current definition of a Type 5/"Ns" stream is more restrictive than the definition of a DNR Type 5 stream under the 1996-1997 version of WAC 222-16-030; by requiring such streams to have a"defined channel", be "...physically connected by an above-ground channel system..." to a Type 1-4 stream, and not be located downstream from a DNR Type 4 stream. 338. The current definition of a Type 4/"Np" stream is "...all segments of natural waters within the bankfull width of defined channels that are perennial nonfish habitat streams..."; with "perennial streams" defined as "...flowing waters that do not go dry at any time of a year of normal rainfall and include the intermittent dry portions of the perennial channel below the uppermost point of perennial flow." HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 47 339. The definition of a Type 4/"Np" stream, under the WAC regulations in place when the current application was submitted in 2004, provided a means of identifying the uppermost point of perennial flow at the point along the stream channel where the contributing basin was a certain size (at least 300 acres in Eastern Washington). This criterion has been eliminated from the current definition. 340. The term"intermittent streams" has been consistently defined by WAC 222-16-030 and WAC 222-16-031 to mean "...those segments of streams that normally go dry." 341. Section 11.20.060.A of the City Critical Areas Ordinance identifies and describes the priority habitats and species in Table 11.20.060A, advises that they are adopted from the Washington State Priority Habitats and Species Program"...as now or hereafter amended...", and advises that such program will be revised periodically as species and habitats are changed. 342. Section 11.20.030.D of the City CAO advises that the City maintains maps of critical areas, to provide information to the public and to aid in the administration of the CAO; and requires the City to add to, correct and update such maps when new or additional information is available. 343. Section 11.20.030.D of the City CAO provides that the City's critical areas maps are not regulatory in nature, such maps will be used to identify the possible existence of critical areas, and the maps, "...in conjunction with site visits and other information, will be used as a basis for requiring field investigations such as wetland reports, fish and wildlife habitat management plans, geo-technical studies and hydrogeologic reports." 344. Section 11.20.030.D of the City CAO provides that in the event of conflict between the information shown on a map and the information shown as a result of a field investigation, the information provided by a field investigation shall prevail. See CAO, Section 11.20.030.D. 345. Section 11.20.030.D of the CAO provides that omission of a development site from a particular critical areas map will not exempt the site from complying with the provisions of the CAO; and provides that when an interpretation is needed regarding the existence of a particular critical area, the City Department of Community Development is required to make such determination according to the criteria and characteristics contained in the CAO, and consultation with an agency or agencies of expertise as deemed appropriate by such department. 346. The City did not update its Critical Areas maps after incorporation; although the new City Comprehensive Plan contains maps of various critical areas (except DNR streams) that were updated in 2006. 347. The current version of WAC 222-16-030 makes the State 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 HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 48 "interdisciplinary team", and for a dispute resolution process that involves DNR, WDOE, the contesting parties, etc. 348. In March of 2006, DNR updated its hydrolayer for the area, using "statistical modeling techniques that did not include any actual field observations". See email from Eric Lamb dated 8- 15-06, with reference to conversation with Jill.Jones of DNR on 8-14-06. This resulted in designation of a Type "F" stream on the site, in the south and east drainages; and a Type "Ns" stream flowing into the wetland from the west. 349. The applicant submitted a request to modify the water typing of the site, in accordance with WAC 222-16-030; but DNR made no ruling on the request. 350. 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. On this basis, DNR agreed that the City has the authority to type the streams for the current project, not DNR. See Exhibit#29, letter dated 5-3-07 from Robert Anderson to Shawn Taylor; and testimony of Karin Divens. 351. Larry Dawes met with Bernard Jones of the State DNR, and others, on the site on September 12, 2006; to observe whether the stream on the site was a Type "F" stream, as indicated by the DNR hydrolayer. Jones and Dawes concluded from the site visit that there was { no defined stream channel on the site consistent with a Type "F" stream; although Jones acknowledged that DNR had no jurisdiction to determine the stream typing for the site. See Exhibit#36; and testimony of Larry Dawes. 352. On January 23, 2007, the City concluded that DNR did not have authority to retype the stream, the City had the authority to determine water typing for the site under the numerical typing system adopted in the City CAO, and the City had not adopted the new DNR mapping or the permanent water typing system set forth in WAC 222-16-030. 353. The City determined that there were no Type 1-5 streams requiring a buffer on the site under the City CAO; based on the City Critical Areas maps, and the September 12, 2006 site visit by Larry Dawes and Bernard Jones. See letter dated 2-2-07 from Karen Kendall to Bruce Howard, and revised SEPA checklist. 354. The County's 1994 decision approving a preliminary short plat for the site, and certain adjacent land lying to the east, found that the plat area was designated as white-tailed deer winter range; but did not require protection for such habitat. Such lack of protection was apparently based on virtually the entire plat area being designated outside the County UTA at the time, at a time when the County CAO did not protect such habitats when located inside the UTA. See decision in File No. SP-945-94, Finding of Fact#19. 355. The 1994 short plat decision did not mention the existence of any DNR streams designated on the site by the County Critical Areas maps; but did require that the natural drainage course in the south portion of the site be preserved for stormwater purposes. This was done through the HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 49 1 reservation of 40-foot wide drainage easements on the final short plat map. See decision in File i No. SP-945-94, County Engineering condition#11. 1 356. During normal rainfall years, surface water from the southerly stream/drainage flows through the south end of the site and adjacent land to the east, spreads out and infiltrates into the ground before it reaches the wetland. During normal rainfall years, surface water does not overflow the wetland through the breach in the embankment. 357. During high water years, surface water in the southerly stream/drainage way generally makes it all the way to the wetland; overflows from the wetland to the south through a narrow breach in the embankment, ponds up, discharges to a shallow ditch/drainage way that extends easterly through the northeast portion of the site, fans out somewhat from the sides of the ditch, and infiltrates into the ground before reaching the east boundary of the northeast portion of the site. See Exhibit #29, photographs in exhibit G and H. 358. During certain high water years or flood events, surface water flows in and alongside the ditch/seasonal stream all the way east to Bascetta Lane; where it passes off-site through two 18- inch culverts underlying Bascetta Lane, and may overflow Bascetta Lane. The surface water then fans out in the open fields to the east; and either infiltrates into the ground or flows all the way to Chester Creek, where it also infiltrates into the ground. This occurred as recently as 2006. See Exhibit#29, photographs in exhibit H. 359. The 1994 wetland report submitted for the 1994 short plat found that the wetland located on the site "...in rare years of high runoff overflows to the east through a narrow cut in the berm...", and that "...[e]ast of this point the runoff rapidly disappears by infiltrating to the porous sands and gravels". See 1994 wetland report, p. 2 and attached map. 360. The 1994 wetland report characterized the overflow channel leaving the wetland as a"small seasonal stream" that "..drains eastward into the valley floor of the Chester Creek drainage system..."; and noted that the "...valley floor is composed of thick sands and gravels and both Chester Creek and the eastward draining tributary system disappears (become effluent) at this location in the valley". See 1994 wetland report, p. 1. 361. The 1994 wetland report also noted the presence of an"intermittent stream channel" that originates at the south end of the site, is located in a dense growth of ponderosa pine, drains to the north, disappears to the north before reaching the wetland basin, contains valuable wildlife habitat, and functions as an area of groundwater recharge and biofiltration of winter runoff in its own immediate drainage system. See 1994 wetland report, p. 8. 362. In approximately 2000, a habitat management plan was prepared for seven(7) of the acreage tracts lying west and northwest of the site, by Larry Dawes. The operative part of the plan was recorded with the County Auditor in 2000, in connection with the sale of the tracts, and is included in the record. See appeal application, exhibits "B and "C". The analysis portion of the habitat management plan was not made part of the record. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 50 o 1 1 1 N 1 363. The habitat management plan included reservation of an easement for a"wildlife habitat area N. and travel corridor" in a forested draw lying west of the site where the concentration of white- tailed deer was considered the heaviest; i.e. the portion of the 5-acre tract ("Lot 4") located west of the north one-half(1/2) of the north part of the site, lying west of Ponderosa Lane; and the o south 90 feet of the 5-acre tract ("Lot 3") lying west of the south one-half(1/2) of the north part of the site, lying west of Ponderosa Lane. 364. The habitat management plan also included reservation of an easement for a 50-foot wide travel corridor/noise buffer strip along the west boundary of"Lot 4" and "Lot 5" located west of the site, west of Ponderosa Lane. 365. The habitat management plan concluded that the stream located on "Lot 4" and"Lot 5" west of the site did not qualify as a DNR Type 5 stream; and was not entitled to be protected by a riparian buffer under the County Critical Areas Ordinance, since it did not connect to a DNR Type 1, 2, 3 or 4 stream. 366. The habitat management plan, nevertheless, provided for protection of the stream and the riparian habitat located alongside; through reservation of an easement for "riparian area protection" on the south 90 feet of"Lot 3", and on the north 25 feet of"Lot 4", located between Ponderosa Lane and the site; and within the easement area reserved for a wildlife habitat area and travel corridor on the portions of"Lot 3" and"Lot 4" lying west of Ponderosa Lane. 367. Karin Divens, Area Habitat Biologist for the Washington State Department of Fish and it W dlife indicated in her testimony and correspondence ce that she had been to the site at least hr Y p t t ee (3) times, and walked the channel of a Type "Np" stream located on the site all the way south and upstream to a"perennial" spring, located behind(uphill from) the Phillips farm. The off-site basin map for the revised conceptual drainage plan for the project shows a spring or springs in this general location. 368. Divens testified that she had previously located the source of another "perennial" spring, located some distance south of 44th Avenue in the Iller Creek area, which feeds the tributary of the southerly stream that crosses under 44`h Avenue. The presence of such springs was verified by Walter Edelin of the County Soil Conservation Service. Divens also testified that the stream flowing into the site from the west should be classified as a Type `alp"water, rather than a Type "Ns" or Type 5 water. 369. Karin Divens' first visit occurred in approximately February of 2005, at the same time Chris Merker of the State Department of Ecology was visiting the site for wetland verification purposes. See Merker email dated 3-7-05, Exhibit#37, Mortz letter to Karen Kendall dated 2-7- 05 (with attached photos), and Karin Divens letters to City dated 4-21-05 and 6-7-05. r 370. Karin Divens also visited the site in January of 2007; when she walked the stream up to the ti spring source behind the Phillips farm, along with local property owners and a representative from the State DNR. This occurred during frozen ground conditions. See Divens email dated 5-03-07. Divens also testified that she visited the site once in the summer, when it was "hot and dry". She HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 51 ii 0 g 4 il did not provide the month or year when this occurred, but the year would have to be either 2005 or 2006. 371. The annual rainfall in 2005 in the Spokane area was below normal; but was above normal in 2006, and is above normal so far in 2007. See testimony of Larry Dawes. 372. Karen Divens testified that the spring source behind Phillips farm was readily apparent during both the summer visit and frozen ground conditions. Divens also indicated that she had spoken to the Phillips and some other residents about what happens during high water years, and what the spring does year round; which conversations were consistent with her classification of the stream as a Type "Np". 373. Karin Divens testified that during normal water years drainage flows down the stream from the perennial spring; essentially disappears into the ground around the intersection of Sunderland and Cimmaron, where the stream channel has been artificially widened north of such point; resurfaces; flows into a"drainage swale" located on the site, north of the culverts crossing Ponderosa Lane, and portions of a natural drainage channel; and goes subsurface before reaching the wetland on the site. 374. Karin Divens testified that during high water years, the stream flows all the way down the channel from the perennial spring to the site, through the site to the wetland; and may continue some distance east of the wetland toward Chester Creek before going subsurface on the site. 375. Karin Divens testified that there was evidence of"scour" along portions of the channel lying between Ponderosa Lane and the wetland, but not all the way to the wetland. This included the p ortion of the drainage a g e wa Y/stream located on the Margaret Mortz property, which abuts the south end of the site on the east. See Exhibit#37. Divens indicated that the natural channel had been modified on the site when the swale was installed to control flooding or convey stormwater, but that such alteration shouldn't change the classification of the stream from"Np". 376. Karin Divens testified that the defined channel in the south end of the site was less than 10 feet in width, and there was no "superdefined channel"; but advised that the "ordinary high water mark" along the defined channel was wider than 10 feet, and illustrated the capability of having more capacity for flow. 377. Margaret Mortz provided photos showing trees and other natural vegetation growing along rx the channel of the seasonal stream crossing her property, and the wide and deep path of the is channel. See Exhibit#37. Mortz indicated that the channel was approximately eight (8) feet wide on her property; but did not distinguish whether this was created by the high water flows that occurred along the drainage/stream twice since 1997, or ordinary annual flow. 378. Larry Dawes's report dated March 11, 2005 found that an intermittent drainage way was located on the site; all drainage from the site disappeared into the deep sand and gravel deposits occurring in the lowest elevational contours of the site before reaching Chester Creek; and HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 52 I Chester Creek also disappeared into the deep sands and gravel near the site. This was based on a site investigation conducted on August 31, 2004. 379. Larry Dawes's report found that the drainage ways on the site did not meet the definition of a Type 5 stream under the interim typing system set forth in WAC 222-16-031, because the drainage ways were not physically connected by an aboveground channel system to a DNR Type 1-4 water. 380. Larry Dawes testified that he should have typed the drainage ways on the site in accordance with the version of WAC 222-16-030 in place before its amendment in 2001, as modified by the City CAO; instead of using the new typing system under the current version of WAC 222-16-030. 381. Larry Dawes testified that the drainage ways on the site did not fit the definition of a Type 4 stream under the pre-2001 version of WAC 222-16-030, or the definition of a Type 4 or Type "Np"water under the more current versions of WAC 222-16-030 or WAC 222-16-031; because there was not a"defined channel" or"scouring" associated with an"ordinary high water mark" on the site; although there was evidence of a flood channel created during high water years. 382. Larry Dawes testified that it was impossible to determine whether any portion of a "perennial stream" upstream from the site went "dry at any time of a year of normal rainfall.", within the definition of a Type 4 or Type "Np" stream under the more current versions of WAC 222-16-030 or WAC 222-16-031. Dawes based such conclusion on the lack of a period of normal rainfall in the area recently, and that continual checking would have to occur to verify whether the perennial stream went dry any time during the year. 383. Larry Dawes indicated that seasonal low water usually occurs around the 1st of October, but could occur anytime between August and October. Dawes testified that Karin Devins' observation of the spring during the summer months, such as July or August, did not establish that the spring did not go dry at any time of that year. 384. Margaret Mortz, a statistician, provided some statistical evidence that the time period of July through October in a given year was a reasonable period to measure low spring flows in Eastern Washington; and logically contended that evidence of perennial flow "during a year of normal rainfall" could be determined by observing perennial flow during a year of less than normal rainfall. See Exhibit#57. 385. During his testimony, Larry Dawes provided ample evidence of his training, qualifications and experience to do DNR water typing. Dawes testified that Karin Divens of the WDFW, Chris Merker of WDOE and Walter Edelin of the County Soil Conservation Service did not have the biological or hydrological background or training to perform stream typing. 386. Karin Divens, Chris Merker and Walter Edelin were not present to rebut such remarks; but each have some experience and qualifications that allow them to comment on aspects of DNR water typing. However, based on the record, such professionals are not as well qualified, trained and experienced as Larry Dawes in DNR water typing. .: HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 53 387. Lary Dawes testified that he assumed Bernard Jones of DNR was qualified to perform 1 water typing, based on Jones statement that he is responsible for doing water typing in the field on forestlands for DNR. Jones' training in the field of biology and hydrology were not substantiated in the record. See testimony of Dick Behm 388. The record indicates that in approximately 2000, the drainage channel in the south end of the site was modified through the use of heavy equipment; generally within the recorded drainage easements in such area. This was done by Spokane County, the past site owner or the current site owner. See testimony of Margaret Mortz and Stacy Bjordahl, and Exhibit#37. 389. The 2000 modification to the drainage channel may conceivably have occurred as a result of a 100-year storm event that occurred in the area in April of 2000; when stormwater flowed through the drainage way/stream on the site all the way to the wetland, and then east to Chester Creek. See testimony of Dick Behm. 390. White-tailed deer, as many as 16 at a time, travel daily from Brown's Mountain through the wildlife and riparian corridor designated on the land lying west of the site; and east through the wetland and along its easterly outlet to the alfalfa/farm fields lying east of Bascetta Lane, and to Chester Creek. See, e.g. Exhibit#29, in exhibit "G"; Exhibit#37; exhibit "A" attached to SEPA appeal; and letter dated 12-6-04 from Denny and Tracy Fish.. 391. Karin Divens of the WDFW responded to the notice of application mailed out by the City Planning Division, in a letter dated December 6, 2004. Divens commented only on the adequacy of the buffer for the on-site wetland, advised that she would defer to the expertise of WDOE on such issue, and recommended that a habitat management plan be prepared for the wetland if it was g p p p determined that greater protection for the wetland was needed. 392. Karin Divens testified that the effect of the current project on the habitat management plan adopted for the acreage lots developed west of the site should be evaluated, since the plan provided for a travel corridor for white-tailed deer from such land to the wetland area located on the site. She also found the riparian corridors on the site to be valuable for wildlife. IN 393. Karin Divens indicated in her April 21, 2005 letter that the stream on the site is important kn for groundwater and aquifer recharge, wetland recharge, and connectivity to Chester Creek; and that riparian corridors are extremely important for wildlife and birds. Chris Merker of WDOE voiced similar opinions, in his March 7, 2005 email. 394. Larry Dawes provided un-rebutted testimony that the site does not appear to provide priority wildlife habitat, or serve as a migration corridor, for elk; in responding to the designation of elk priority wildlife habitat on the south portion of the site by current WDFW maps. 395. Larry Dawes did not evaluate the site for its value as priority wildlife habitat or a migration corridor for white-tailed deer. Dawes testified that fencing the site would prevent deer from passing through the site to access the alfalfa fields and Chester Creek lying to the east, deer would be more likely to use the easterly drainage channel proposed by the preliminary plat than the HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 54 private roads in the project, the proposed drainage channel was not wide enough to accommodate deer travel to the east, and if the deer could not pass through the site they would have to find ways to go around the site to access the fields and creek area to the east. 396. The passage of white-tailed deer through the wetland area on the site and east toward Chester Creek would be impeded by the private driveways and public road in the preliminary plat that border the wetland on three (3) sides, and by the perimeter screening required by the City Planning Division along the site borders. The environmental checklist submitted for the project indicates that deer migrate through the site from Brown's Mountain to the alfalfa fields located east of the site. Also see letter dated 7-22-05 from.Todd Whipple, page 2. 397. The County Critical Areas Ordinance requires the City Planning Division to consult with the WDFW, or other appropriate authority, to determine whether a development proposed in a priority wildlife habitat is likely to have a significant adverse impact on such habitat; and if so, to require the preparation of a habitat management plan for the development. M. Provisions for Wetlands 398. Section 11.20.050.A of the City CAO requires the City Planning Division to verify the accuracy of the wetland delineation submitted by an applicant for land development by consulting with WDOE, or other agency of expertise; and render adjustments to the delineation as appropriate. 399. The City Planning Division conditions of approval for the project require the applicant to submit an updated delineation for the wetland on the site. This was requested by WDOE, based on its policy that a wetland report completed more than five (5) years ago is obsolete in both methodology and currency, and based on the 2004 modifications to the State wetland ratings manual adopted for Eastern Washington. See emails dated 3-7-05 and 4-19-05 from Chris Merker. 400. Larry Dawes indicated in his March 11, 2005 letter that the 1994 wetland delineation for the site was probably based on the 1989 version of the ratings manual; which was less rigorous than the 1987 manual Dawes advised was the current standard. Dawes indicated that if the wetland was delineated under the 1987 manual, in 2005, the wetland might be smaller than delineated in 1984; particularly since rainfall data showed that the annual precipitation in 2004 and 2005 was farther below normal than it was in 1993 and 1994. Dawes contended that the 1994 wetland delineation stood in perpetuity, upon its approval by the County; and the wetland should not have to be re-delineated. 401. The 1994 wetland delineation states that the 1987 manual was used to delineate the on-site wetland, not the less rigorous 1989 manual assumed by Larry Dawes. In addition, Larry Dawes testified that the average rainfall in 2006 and 2007 was above normal, meaning the wetland could be larger if delineated currently. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 55 r I i N I402. WDOE contended that the 2004 ratings manual should be used to evaluate the wetland, Ibased on the language in Section 11.20.050.B of the City CAO adopting the subject rating manual 1 "as amended". 403. The City Planning Division conditions of approval require the applicant to implement the buffer mitigation proposed in Larry Dawes' letter dated January 8, 2006. Such plan proposes to mitigate a 2,600-square foot encroachment on the buffer, on the east and west sides of the wetland, by the road system shown on the preliminary plat map submitted in November of 2004. 404. The proposed buffer mitigation includes a buffer enhancement plan, consisting of planting native vegetation between the areas of buffer impact and the wetland, to increase the buffer function around the impact area; and also includes extension of the required 75-foot buffer to the south, to add an increased buffer area of 10,030 square feet, with a stormwater feature placed somewhere in the increased buffer area. 405. The mitigation plan appears to generally comply with the criteria set forth in the City CAO relating to reducing and/or averaging the standard buffer width for a wetland, based on the discussion in Dawes' letter dated January 8, 2006. 406. The current preliminary plat map illustrates a larger encroachment of 3,750 square feet to 4,000 square feet on the wetland buffer by the proposed private roads, based on the scale illustrated on the map. The proposed mitigation and replacement area may still be adequate, but the mitigation plan should be amended to address the increased buffer encroachment. N. Adequacy of Conceptual Drainage Plan 407. The City adopted the 1998 edition of the Spokane County Guidelines for Stormwater 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" 408. 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. 409. 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. 410. The Guidelines require drainage facilities to be designed for various 24-hour storm events. P 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 stoimwater 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. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 56 g ........... . ........ g 1 g a runoff cannot exceed the pre-development rate for the 2-year, 10-year and 50-year storm events. 1 A detention facility must have an emergency overflow structure that is designed to accommodate 1 a 100-year storm event, generated under development conditions. 411. The Guidelines require that drainage infiltration systems be designed to consider the effect Y g 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. 1 412. The Guidelines require the submittal of a geotechnical site characterization study when the subsurface disposal of stormwater is proposed, to demonstrate soil infiltration suitability. Marginal soils are typically not given "credit" for infiltration in the drainage analysis. 413. 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. 414. The Guidelines require that any natural draws or channels on a development site that are used to convey stormwater to 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. 415. The Guidelines require the Soil Conservation Service (SCS) Method to be used for drainage basins greater than 10 acres, such as the current circumstances. This includes inputting the 24- hour precipitation for the various design storms to calculate the amount of runoff from a particular drainage basin, using the "isopluvial maps" contained in the Guidelines. 416. The Guidelines require stormwater design to be coordinated with consideration of any wetland areas. The City Critical Areas Ordinance authorizes stormwater facilities to be located in a wetland buffer, if sited and designed so that the buffer area as a whole preserves wetland functions and values, taking into account the scale and intensity of the development. 417. Dick Behm contended for the SEPA appellants that the design storm precipitation levels calculated for the Ridgeview Tributary in the 1997 Chester Creek study should be used to calculate runoff flows for the project, instead of the precipitation levels required to be inputted under the SCS method. This is based on the Chester Creek study showing that the Brown's Mountain area receives 25% more precipitation in snow and rainfall than Spokane International Airport, which rainfall levels are used to generate the precipitation levels inputted into the SCS method. 418. Dick Behm and the SEPA appellants also contended that the three (3) 36-inch culverts shown on the current conceptual drainage plan developed basin map were inadequate; based on the installation of four (4) such culverts under Ponderosa Lane on the site, and under Sunderland !' HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 57 Road south of the site, respectively. Behm indicated that such culverts had been installed several years ago to deal with a 10-year design storm event. 419. The original conceptual drainage report submitted for the project on January 5, 2005 used the flows from the hydrological study contained in the Chester Creek Watershed Plan, for the "Ridgeview Drive Tributary", to estimate drainage flows entering the site from the 2-year, 10- year, 50-year and 100-year storm events. See letter dated 1-5-05 from Todd Whipple to City Engineering, regarding preliminary drainage report. 420. On September 22, 2005, City Engineering advised the sponsor's engineer that it was inappropriate to use the flows derived from the Chester Creek study. See letter dated 9-22-05 from Sandra Raskell to Craig McPhee. 421. On December 23, 2005, Todd Whipple, the applicant's engineer, submitted a letter to City Engineering that included a complete evaluation of the upstream off-site basins contributing drainage to the on-site wetland, using the Soil Conservation Service (SCS) method required to be used by the City Guidelines for Stormwater Management. Whipple noted that the flows derived from the SCS method appeared to be considerably larger than the flows from the Chester Creek study; including a 100-year storm discharge of 97 cfs under the SCS analysis, and only 60 cfs from the Chester Creek study. 422. On February 1, 2007, the applicant submitted a revised conceptual drainage plan ("conceptual drainage plan") for the project prepared by its engineering consultant, Gabe Gallinger of Landworks Engineering, Inc. The conceptual drainage plan was accepted by City Engineering, as being consistent with subject to the submittal of a final drainage report and plans that conform to such regulations, prior to final plat approval. 423. Dick Behm indicated that the a new floodplain maps for the Chester Creek area were close to being issued, which maps would significantly reduce the area of the floodplain. This suggests that revisions have been made to the 1997 Chester Creek hydrological study, including the calculation of reduced flows reaching the floodplain. 424. The revised conceptual drainage plan also calculated the basin flows for the project based on the SCS method required by the Guidelines for Stormwater Management. There is not a sufficient basis in the record to require use of the precipitation levels contained in the 1997 Chester Creek study, or to find that the proposed culverts leading out of the wetlands are insufficient to convey the required design storm flows. 425. The SEPA appellants and other residents contended that the proposed narrowing, redirecting, berming and reducing the level of infiltration and storage capacity of the natural drainage channel located in the south end of the site, for the conceptual drainage plan, in conjunction with the inadequate culvert sizing, would cause flooding during large storm events to properties abutting the south end of the site. IHE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 58 to the east as it currently does, at the pre-developed flow and rates, and in the same location. Pond A, located in the extreme southeast corner of the site, appears to serve a similar treatment and infiltration function as the existing swale area in the drainage channel lying directly north of Ponderosa Lane. 427. Since the on-site wetland, and the portion of the proposed drainage channel located directly south of the wetland are at a lower elevation than the abutting properties to the east, stormwater from the drainage way located west of the site that flows into the wetland area will not be diverted to such abutting properties. 428. Under the conceptual drainage plan, the two (2) 18-inch culverts underlying Bascetta Lane will likely be inadequate to accommodate flows from a 50-year or 100-year storm event from off- site and on-site flows directed through the site, and allow stormwater to overflow the road; as in the existing circumstances. However, the conceptual drainage plan will actually reduce the peak runoff rate and volume of the drainage reaching Bascetta Lane. See testimony of Gabe Gallinger. 429. The conceptual drainage plan appears to preserve the hydrology of the on-site wetland and adequately treat stormwater generated from impervious surfaces developed on the site. 430. The conceptual drainage plan took frozen ground conditions into account, in terms of the placement of stormwater facilities. See testimony of Gabe Gallinger. 431. Dick Behm contended that the extension of Ridgeview Drive in the preliminary plat appeared to extend through the breach in the embankment, based on a personal measurement he made. This is not apparent from the elevations shown on the preliminary plat map; which was based on a survey of the site, and should be given more weight. See testimony of Gabe Gallinger. This is also not apparent from the current DNR hydrolayer. 0. Mitigation of Geo-Hazards and Drainage Impacts 432. The applicant submitted a geo-hazard evaluation report for the site prepared by ALLWEST Testing and Engineering, a qualified engineering firm, on November 4, 2004. Such firm also submitted a supplemental geotechnical evaluation on June 30, 2006. 433. Eberhard Schmidt, a retired geologist, raised a concern over the proposed construction of a private driveway at a grade of 28% over a length of 45 feet in the northwest corner of the preliminary plat; in the area of Lot 6, Block 3. The geo-hazard addressed house construction in such area of the site; but not the private driveway, which should be addressed. 434. The November 4, 2004 geo-hazard report otherwise adequately identifies and discusses the geo-hazards presented by site development, and recommends adequate mitigating measures to deal with such geo-hazards. The preliminary plat map does not illustrate the geo-hazards on the site, as required by the subdivision ordinance. P. Public Sewer and Water Concurrence HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 59 1 435. The Spokane County Division of Utilities certified the availability of public sewer to the proposal. Spokane County Water District#3 certified the availability of public water to the proposal. The conditions of approval recommended by the Spokane Regional Health District, and County Utilities, require the proposal to be served with public sewer and water. 436. The proposal meets the sewer and water concurrency provisions of the City Phase 1 Development Regulations. Q. Other Concurrence Issues 437. The City Phase 2 Development Regulations do not require direct concurrency for parks or schools. City Parks did not comment on the project. 438. Central Valley School District indicated it had capacity to serve the future students in the project. The project should make provision for safe waiting and bus boarding for secondary students, as requested by the school district. R. Provision for Cultural Resources 439. City Planning conditions of approval recommended for the project require a cultural survey of the site to be completed prior to final plat approval, in consultation with the affected tribes and the State DHAP. Based on the above findings of fact, the Hearing Examiner enters the following: HI. CONCLUSIONS OF LAW 1. Pursuant to RCW 58.17.033, a preliminary plat application must be considered under the zoning ordinance, development regulations and comprehensive plan policies in place at the time a fully completed application for the preliminary plat is submitted to the reviewing authority. The fully complete date for the current application was November 5, 2004. 2. To be approved, the preliminary plat must comply with applicable zoning standards and other development regulations; make appropriate provision for the public health, safety and general welfare; serve the public use and interest; and make appropriate provision for open spaces, drainage ways, streets or roads, other public ways, potable water su pp lies, transit stops, , F sanitary wastes, parks and recreation, playgrounds, schools and school grounds, critical areas, fire/emergency access, sidewalks for children who reach school by walking, and other relevant facts and planning features. See RCW 58.17.110, County Subdivision Ordinance and County Hearing Examiner Ordinance. 3. RCW 36.70B.030 requires that a comprehensive plan and development regulations adopted by local government under the State Growth Management Act (GMA) serve as the foundation for project review; and that where standards for development are specified in local development { regulations, or in the absence of applicable development regulations, are addressed in a HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 60 comprehensive plan, such regulations, or the comprehensive plan, respectively, are determinative of the standards of development for the land use action. 4. Under Washington case law, where the comprehensive plan of a local government conflicts with zoning regulations or other development regulations, the zoning and other development regulations are controlling. 5. The preliminary plat does not make appropriate provision for the public health, safety and welfare; or serve the public use and interest; considering the inadequacy of public egress out of the Ponderosa area in the event of a wildfire or other large-scale disaster, and that the proposal is likely to worsen such access problems. See Policy T.4a.9 and T.6.2 of City Interim Comprehensive Plan, and Section 1.03(1) of City Road Standards. 6. The proposed rezone should be denied; since the purpose of the rezone is to relax development standards for the preliminary plat, the preliminary plat does not bear a substantial relationship to the public health, safety and welfare, and the preliminary plat is inconsistent with the Interim Comprehensive Plan. 7. The proposal is likely to have a significant, probable adverse impact on safe public access out of the Ponderosa area, in the event of a wildfire event or similar disaster that requires the area to be evacuated. However, since such issue was not raised in the current SEPA appeal, the Examiner cannot require the issuance of a Determination of Significance for the project; even though this might be a preferable choice to denying the project. 8. The streams on the site must be typed in accordance with the version of WAC 222-16-030 that took effect on January 1, 1994; as modified under Section 11.20.060.C.2.e of the City Interim Critical Areas Ordinance (CAO) to eliminate the buffering requirement for Type 5 streams when there is no connection to a Type 1-4 Water. 9. The streams on the site do not constitute a Type 4 Water under the above regulations because they do not connect downstream to a Type 3 Water. The streams do qualify as a Type 5 Water under former WAC 222-16-030; but have no buffering requirement under Section 11.20.060.C.2.e of the CAO, because they do not connect to a Type 1-4 stream. "Connect" should be construed to mean a physical connection by an aboveground channel. 10 Even if the streams were evaluated under the current version of WAC 222-16-030 or 222- iE 16-031, they would not qualify as a Type Np or Type 4 Water. This is because portions of the stream located between the site and the potential perennial water source located upstream are dry, or go subsurface, during the entire year of normal rainfall. See definition of"ordinary high water mark". Such streams do no constitute a Type Ns or Type 5 Water under such current regulations, because they do not physically connect to a Type S, F or Np water by an aboveground channel system. 11. The City Planning Division should have required the applicant's wildlife biologist to conduct a field investigation of the site, and consulted with the WDFW, to determine whether the project HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 61 1 would have a significant adverse impact on the deer population in the area, and the requirement for a habitat management plan. This is in light of the riparian corridor established for white-tailed deer by the habitat management plan approved for the adjacent lots to the west; ample evidence that a sizeable population of deer use the site on a daily basis to migrate between Brown's Mountain, the on-site wetland, feeding grounds to the east and Chester Creek; and the adverse impacts of the project on such migration. This could be required under the City CAO, without having to issue a Determination of Significance. 12. The project generally complies with the wetland, geo-hazard and riparian buffer requirements of the City CAO; and the City Guidelines for Stormwater Management. 13. The project will not have a significant adverse impact on the elements of the environment referenced in the appeal; provided compliance with the City CAO is required. The SEPA appeal should be denied. 14. The City should update the description of its DNR stream types, and Critical Areas maps, based on best available science. This includes consideration of the permanent typing system in the current version of WAC 222-16-030, the DNR hydrolayer, and WDFW's current database designating priority wildlife habitat and species. 15. The preliminary plat complies with the concurrency requirements set forth in the County Phase 2 Development Regulations. 16. Denial of the subject applications, and denial of the SEPA appeal, are appropriate under Chapter 10.35 of the City Municipal Code, the City Local SEPA Ordinance, the City Interim Subdivision Ordinance, and Chapter 58.17 RCW. IV. DECISION Based on the Findings of Fact and Conclusions of Law above, the subject applications for a preliminary plat and rezone are hereby denied The SEPA appeal submitted by the Ponderosa Properties Homeowner's Association is hereby denied. DATED this 30th day of August, 2007 CITY HEARING EXAMINER PRO TEM / Michael C. Dempsey, WSBA 1 3 HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 62 NOTICE OF FINAL DECISION AND NOTICE OF RIGHT TO APPEAL Pursuant to Section 10.35.150 of the City of Spokane Valley Municipal Code (SVMC), as amended, the decision of the Hearing Examiner on a combined application for a zone reclassification and preliminary plat is final and conclusive unless within fourteen (14) calendar days from the Examiner's written decision, a party of record aggrieved by such decision files an appeal with the City Council of the City of Spokane Valley, City Hall, 11707 E. Sprague Avenue, in Spokane Valley, Washington; in accordance with all the requirements of SVMC #10.35.150. This decision was mailed by certified mail to the Applicant, and by first class mail to other parties of record, on August 30, 2007. THE APPEAL CLOSING DATE IS SEPTEMBER 13, 2007. The complete record in this matter, including this decision, is on file during the appeal period with the Office of the Hearing Examiner, Third Floor, Public Works Building, 1026 West Broadway Avenue, Spokane, Washington, 99260-0245, (509) 477-7490. The file may be inspected during normal working hours, listed as Monday- Friday of each week, except holidays, between the hours of 8:30 a.m. and 5:00 p.m. After the appeal period, the file may be inspected at the City of Spokane Valley Department of Community Development, Division of Current Planning, 11707 E. Sprague Avenue, Spokane Valley, WA. Copies of the documents in the record will be made available at the cost set by City of Spokane Valley Ordinance. Pursuant to RCW 36.70B.130, affected property owners may request a change in valuation For property tax purposes notwithstanding any program of revaluation. HE Findings, Conclusions and Decision REZ-23-04 SUB-15-04 APP 03-07 Page 63