Plat 2C

Results of Preliminary Plat 2C Public Hearing. January 2015.
Updated October 2015.

Summary:  The city of Black Diamond is missing opportunities to hold developer Yarrow Bay accountable, as proven by the Hearing Examiner’s over-ruling the city in several key areas. Additionally, opportunities were missed when the city didn’t exercise its legal options to require more protections for the public.

Recommendations:
1) The city of Black Diamond should immediately adopt the newest Stormwater manual from Washington Department of Ecology.  It would close loopholes and do more to prevent developments from causing flooding and damage to neighboring properties and waterways.

2) The city should require more information be posted online and in a more timely fashion.  The city should remove obstacles to public participation.  Not all issues with Plat 2C could be addressed adequately because of the short time between the citizens getting access to information (online posting or response to public disclosure requests), and the public hearing.  There was also no process for citizens to turn in written comments at the hearing or ask for the hearing to be extended to a second day.

Details:

1.     City Fails to Require Adequate Hydrology and Stormwater Plans for Yarrow Bay’s Plat 2C
2.     Stormwater Diversion Allowed
3.     Wetlands Protection Opportunities Missed
4.     Water and Sewer Capacity assumes no other development
5.     School Capacity determination relies on inadequate Tri-Party Agreement

Background:  Yarrow Bay’s Plat 2C is the second plat that the city has processed (of the planned 6,000+ units and 1.1 million sq ft of retail).  It is 136 acres, more than half being wetlands, and 203 houses (most on lots <5,000 sq ft).  It is southeast of Plat 1A, which was cleared and graded along the Auburn-Black Diamond Road.  A Public Hearing on Plat 2C was held in December 2014.

 

1. City Fails to Require Adequate Hydrology and Stormwater Plans for Yarrow Bay’s Plat 2C

The Development Agreement, Section 7.4.3.B states:  the development must “maintain surface water and groundwater quality and quantities consistent with the requirements of the Department of Ecology’s 2005 Stormwater Manual (“2005 DOE Manual”) for Western Washington.

The developer attempted to avoid this requirement saying that they did not need to do it because the city code did not adopt one important chapter of the 2005 Stormwater Manual.

But, the Hearing Examiner ruled that the developer’s work was inadequate, stating:

Page 9:  “…Stormwater measures to maintain wetland hydrology identified in the staff report are not sufficient. Project opponents have established that additional conditions are necessary to maintain wetland hydrology.”

Page 11:  “… Notably, Mr. Fure [applicant’s civil engineer] also provided no explanation as to why baseline monitoring was not necessary (as opposed to not required) for the applicant’s water balancing plan. In comparing the expert testimony from the applicant and project opponents, the opponent testimony is clearly more compelling. Opponent testimony provides detailed reasons, based on scientific studies, as to why baseline monitoring and other measures are necessary to maintain wetland hydrology. The applicant’s experts make conclusory and completely unsupported statements that their simplified water balancing measures are adequate.”

This mistake on the part of the City of Black Diamond risks its highly valued wetlands and could create future financial liabilities from stormwater problems.

This information would not have been brought forward without hard work and private donations so that the the public could hire an expert reviewer in the area of stormwater and hydrology.

The experts pointed out that Yarrow Bay had not done the required hydrological calculations using the Western Washington Hydrology Model that is standard from the Department of Ecology.  It is very unlikely that the developer could actually meet the stormwater requirements and fit as many houses and roads on the plat (about 80% impervious surface) as is planned if this model were run.  For their initial stormwater calculations, Yarrow Bay used an old Southern California stormwater model called the Santa Barbara Urban Hydrograph (SBUH), which has been discredited for use in Western Washington.

 

2. Stormwater Diversion Allowed

The city approved a stormwater diversion of water from Plat 2C to a large retention pond in Plat 1A.  The citizen-hired experts explained that it is critical to keep stormwater in the same natural drainage basin as prior to development.  Normally, the law requires this.  In order to do their planned diversion, Yarrow Bay had to write a letter explaining why it is “beneficial” to include this stormwater diversion and get the city to approve it.

Given the risk to the environment by diverting stormwater, and the city’s failure to look critically at the potential for bias in the developer’s position, we are extremely disappointed that city staff signed off on this profit-motivated plan for stormwater diversion.

 

3. Wetlands Protection Opportunities Missed

Wetlands are critical habitat for wildlife.  They provide drinking water during the dry season, and food and nesting materials for animals when they give birth to their young.  They are also home to diverse plant life, and keep streams clean for fish, such as the threatened Chinook Salmon in Rock Creek.

The protection of wetlands ties directly to the stormwater hydrology discussed above.  That is why the law normally requires that the wetland “hydroperiod” be maintained so that groundwater and surface water flows throughout the year are the same as they were prior to development.  According to Civil Engineer and stormwater expert with over 30 years’ experience, William Lider, “it is extremely difficult, if not impossible, to divert stormwater and not disrupt a wetland’s hydroperiod.”

The Hearing Examiner’s ruling (Page 11):

The applicant’s “…only response to Ms. Brewster’s [the public’s wetland expert] analysis is that ‘there will be no significant adverse impact to the wetland hydrology of the on-site wetlands,’ without any explanation as to why. See 1/6/15 Brainard letter, Ex. 98. Mr. Brainard did a detailed review of the applicant’s water balancing plan in the applicant’s Sensitive Area Study, Ex. 28(a), but there was no explanation in the study or any responsive comments to the letters from Diane Brewster as to how the multiple factors that affect wetland hydrology were adequately addressed in the applicant’s water balancing plan, largely based upon simple annual rainfall calculations without any monitoring to assess baseline conditions.

Almost their entire case against baseline monitoring is on the basis that the City’s stormwater standards don’t require it. The City’s stormwater standards are normally determinative on the adequacy of stormwater controls. However, when significant environmental values are jeopardized as demonstrated by compelling scientific evidence, the applicant needs to be able to provide credible scientific evidence to the contrary. That hasn’t been done here. The wetland hydrology at stake involves the City’s core wetland complex as well as other highly classified wetlands. All reasonable measures need to be taken to protect them.”

City Signs off on old Logging Road as Wetland Buffer edge.

Wetlands are protected by requiring that natural vegetated areas called “buffers” be kept surrounding them.  One of the Plat 2C wetlands has an old logging road at its north end.  The developer said that this logging road is an existing “break” in the buffer, so that instead of setting aside 110 feet of forest land, the buffer stops at essentially zero feet in some places.  Then, the developer added some buffer area to extend the buffer past the logging road as part of their “buffer averaging plan.”

The city signed off on this and the city’s wetland reviewer defended it when the city could have easily required full restoration of the logging road and buffer to 110 feet wide.  The effect is real – there are easily a dozen houses that are in the affected area.  The wetland will suffer from detrimental weeds, changes to the groundwater, and it will be degraded.

 

4. Water and Sewer Capacity assumes no other development

A land use attorney hired by citizens pointed out that the developer provided almost no sufficient evidence of water, sewer, and school capacity.  Therefore, the city did not have to make findings that these were adequate.  In particular, case law disputes Yarrow Bay’s assertion that just because the Comprehensive Plan says that developers would fund future water and sewer lines, this vague reference in the Comprehensive Plan does not mean the city must make a finding of adequate water and sewer.

From the Hearing Examiner’s ruling (page 2):

“Another major point of contention was whether the proposal will be served by appropriate sewer. As proposed, the applicant has not established that there is adequate existing sewer capacity to serve PP2C. Using highly optimistic numbers supplied by the applicant and City, only 26 ERUs of capacity remain after deduction of existing capacity for PP1A and PP2C. There is nothing in the record to remotely suggest that development outside the master plan implementing projects will not use up this 26 ERUs well before PP1A and PP2C are developed. Project opponents were also able to demonstrate that the capacity figures relied upon by the applicant and City are 150 ERUs short of current capacity. For these reasons, a COA has been imposed requiring a study that determines when existing sewer capacity will be used, based upon the build-out rates of PP1A and PP2C and the development rate of projects outside the Villages and Lawson Hills master plans. PP2C will only be allowed to be approved in self-contained final plat phases, where no phase may be approved until adequate capacity is demonstrated to exist to last through final build-out.”

 

5. School Capacity determination relies on inadequate Tri-Party Agreement

Rather than making an independent finding of school capacity for this Plat, which will likely be built after the 800 housing units in Plat 1A, the city relied on the 2009 Black Diamond Tri-Party School Mitigation Agreement.  State law says cities must make independent findings of adequate school capacity for a subdivision.  Unfortunately, the City of Black Diamond did not attempt to do any study or provide any meaningful evidence on whether there is or will be school capacity aside from this agreement.

The agreement, in turn, relies on future voter approval of taxpayer-funded school bonds to build schools for new students.  If these bonds do not pass, it is hard to imagine how adequate capacity for Plat 2C is possible.

 

The Full Hearing Examiner Decision

There were many more issues and details in the Hearing Examiner’s decision.  You can read the complete decision on the city’s website:   The Hearing Examiner’s  Final Corrected Decision .

In reading the decision, it is important to keep in mind how the process works.  You can think of public comments in 3 General Categories:

1. General comments that do not cite a law, rule, regulatory precedent, or professional study.

Most comments fall into this category, and unfortunately, comments that do not tie the concern into solid evidence of a mistake do not affect the plat.  They are important though, because elected elected officials and staff should take them into consideration when working on future laws or enforcement for other development. They are the voice of the people.

2. Concerns the city could have addressed, but did not.

The city has broad discretion about things like making a finding of adequate school capacity (state law requires this, but doesn’t define what it is) or requiring additional protections for wetlands.  Their code gives them discretion, but if they don’t use it, they have lost the chance by the time of the hearing.

For example, the Examiner makes reference to many comments that aren’t backed up with evidence or expert studies.  These are often things staff could have considered during processing but did not.  But, by the time of the Plat Hearing, without extensive evidence, it is not possible for the Hearing Examiner to change what city staff have decided.  That doesn’t mean many people did not raise valid issues.

Also, in some cases, we disagree with the Hearing Examiner’s decision.  There were many issues where he could have ruled differently and required more from the developer.  He also should have rejected the Plat and sent it back to the developer to correct the issues, rather than signing off with conditions.  Approval with conditions denies the public their right to future review, and some of the conditions should result in major changes to the plat.

3. Expert or legal comments with evidence.

In order to make a change at the plat level, the public had to point out not just issues that “could” have been done differently, but find things that were done wrong.  Then, detailed evidence must be submitted to prove they were wrong.  In this case, the citizens had to hire four experts with professional qualifications to review the plat.  They had to document that something was incorrect and explain why from a scientific and legal perspective, it was incorrect.  In addition to this expert assistance, the public also had to find all the Black Diamond Municipal Code that provided the legal basis for Black Diamond to do what the experts recommended.

This is a time-consuming, detailed, and expensive process for something that the city should be doing in the first place.

But it was worth it.  Mistakes were found that must be corrected according to the Hearing Examiner’s Conditions of Approval.  It is important that the public stay vigilant and continue to expect that our rights will be upheld and the City of Black Diamond will work for the people.

 

Plat 2C information from the City of Black Diamond website.  The links below can all be found on the city’s Community Development/Natural Resources web page.

Staff Report Staff report Nov 25 2014.pdf
Exhibit 1 1. Vicinty Map.pdf
Exhibit 1a 1a. Tax assessor maps.pdf
Exhibit 1b 1b. Pre-App.pdf
Exhibit 2 2. Plat 2C Plan set.pdf
Exhibit 3-3a 3-3a. Plat 2C Submittal.pdf
Exhibit 3b 3b. Application Form.pdf
Exhibit 3c 3c. Sens. Area Form.pdf
Exhibit 3d 3d. Project Narrative.pdf
Exhibit 3e 3e. SEPA Checklist.pdf
Exhibit 3f 3f. Title Reports.pdf
Exhibit 3g 3g. Preliminary Drainage Analysis.pdf
Exhibit 3h 3h. List of property owners.pdf
Exhibit 3i 3i. Water and sewer availability.pdf
Exhibit 3j 3j. Transfer of Development Rights.pdf
Exhibit 3k 3k. Fee and review deposit.pdf
Exhibit 3l 3l. DRC letter and images.pdf
Exhibit 3m 3m. Sig. tree inventory.pdf
Exhibit 3n 3n. External materials board (Photo).JPG
Exhibit 4 4. Request for MDNS.pdf
Exhibit 5 5. MDNS.pdf
Exhibit 6 6. Public Comment-Walter.pdf
Exhibit 7 7. Public Comment-Wheeler.pdf
Exhibit 8 8. Public Comment-Morgan.pdf
Exhibit 9 9. Public Comment-Proctor.pdf
Exhibit 10 10. Public Comment-Bortleson.pdf
Exhibit 11 11. Public Comment-Borgstadt.pdf
Exhibit 12 12. FEIS no appendices.pdf
Exhibit 13 13. Stormwater Rpt Jan 2014.pdf
Exhibit 13a 13a. Letter, Tetra Tech, Jan 30.pdf
Exhibit 13b 13b. Status Update Stormwater.pdf
Exhibit 13c 13c.Stormwater Rpt Nov 2013.pdf
Exhibit 14 14. MPD Permit.pdf
Exhibit 15 15. MPD Dev Agreement.pdf
Exhibit 16 16. LLA Request.pdf
Exhibit 16a 16a. City Approvals.pdf
Exhibit 16b 16b. Revised Submittal.pdf
Exhibit 17 17. Woonerf Request.pdf
Exhibit 17a 17a. Woonerf Approval.pdf
Exhibit 18 18. Completeness Notice.pdf
Exhibit 18a 18a.Notice of Application.pdf
Exhibit 19 19. Notice of Hearing.pdf
Exhibit 19a 19a.  Hearing Postponement.pdf
Exhibit 20 20. Preliminary Drainage Analysis.pdf
Exhibit 20a 20a. RH2 review of hydrology.pdf
Exhibit 20b 20b. RH2 Review of Stmwtr Deviation.pdf
Exhibit 20c 20c. Stormwater Deviation Approval.pdf
Exhibit 21 21. Road Deviation Request.pdf
Exhibit 21a 21a. Road Deviation Approval.pdf
Exhibit 22 22. Overall Grading Plan memo.pdf
Exhibit 22a 22a. Grading–reduced size.pdf
Exhibit 22b 22b. Response to comments.pdf
Exhibit 23 23. Geotechnical.pdf
Exhibit 23a 23a. Comments on GeoTech Report.pdf
Exhibit 24 24. Traffic Impact Study.pdf
Exhibit 24a 24a. Traffic Impact Study review.pdf
Exhibit 24b 24b. Response to Traffic Comments.pdf
Exhibit 24c 24c. Technical review of responses.pdf
Exhibit 24d 24d. Eval of compliance with MPD permit.pdf
Exhibit 25 25. Traffic Monitoring Report.pdf
Exhibit 25a 25a. Traf Monitg Response to Comments.pdf
Exhibit 24d 24d. Eval of compliance with MPD permit.pdf
Exhibit 25 25. Traffic Monitoring Report.pdf
Exhibit 25a 25a. Traf Monitg Response to Comments.pdf
Exhibit 25b 25b. Sufficiency of Traffic Analysis.pdf
Exhibit 25c 25c. Approval of Traffic Monitoring.pdf
Exhibit 26 26. Construction Noise Plan.pdf
Exhibit 27 27. Veg Mgmt Plan.pdf
Exhibit 28 28. SAS, Buffer Avg Plan Rpt 5-6-14.pdf
Exhibit 28a 28a. SAS, Buffer Avg Plan Rpt 2-24-14.pdf
Exhibit 28b 28b. SAS and Wildlife Rpt Dec 2013.pdf
Exhibit 28c 28c. Wetland Rpt Review.pdf
Exhibit 28d 28d. Response to Wetland Review.pdf
Exhibit 28e 28e. Follow-up Review- May 19, 2014.pdf
Exhibit 28f 28f. Eval of hydroperiod analysis.pdf
Exhibit 29 29. Regional Facilities schedule.pdf
Exhibit 29a 29a. Approval of Reg Schedule.pdf
Exhibit 30 30. Request for Wetland Buffer Avg.pdf
Exhibit 30a 30a. Approval of Buffer Avg.pdf
Exhibit 30b 30b.  YarrowBay letter on Condition  \l 2.pdf
Exhibit 30c 30c. Perteet on YB letter.pdf
Exhibit 31 31. Const Traffic Impacts.pdf
Exhibit 31a 31a. Parametrix review of constr impacts.pdf
Exhibit 31b 31b. Response to  Parametrix.pdf
Exhibit 32 32. Fiscal impacts analysis.pdf
Exhibit 32a 32a.Comments on Fiscal Analysis.pdf
Exhibit 32b 32b. Review of Fiscal Analysis.pdf
Exhibit 32c 32c. City Approval of Fiscal Analysis.pdf
Exhibit 33 33. COBD Summary of permit activity.pdf
Exhibit 34 34. Welsh Subpoena correspondence.pdf
Exhibit 35 35. Water System Capacity Aug 5 2014.pdf
Exhibit 36 36. Wildlife Corridor analysis.pdf
Exhibit 36a 36a. Mark Hoppen memo to file.pdf
Exhibit 37 37.Reg Sewer Service Request.pdf
Exhibit 38 38. Phase 1A conditions.pdf
Exhibit 39 39. Constr. Waste Mgmt Plan.pdf
Exhibit 40 40. MDRT comment matrix.pdf
Exhibit 41 41. Sanitary Sewer Capacity Memo.pdf
Exhibit 42 42. Affidavits of Public Notices.pdf
Exhibit 43 43. Memo from CH& October 9, 2014.pdf
Exhibit 44 44. Temporary Access and Utility Esmt.pdf
Exhibit 45 45. Consulting Engineer’s Review.pdf
Exhibit 46 46. Tract 906 as a Comm Park.pdf
Exhibit 47 47. City Utility Letters 6-16-14.pdf

Exhibit 48
48. Revised plan set 11-21-14.pdf
Exhibit 49 49  Cover Sheet CV1 11-26-14.pdf
Exhibit 50 (added 12/05/14)
Exhibit 51 (added 12/05/14) Exhibit 52 (added 12/05/14) Exhibit 53 (added 12/11/14)
Exhibit 54 (added 12/11/14) Exhibit 55 (added 12/17/14) Exhibit 56 (added 12/17/14)
Exhibit 57 (added 12/17/14) Exhibit 58 (added 12/17/14) Exhibit 59 (added 12/12/14)
Exhibit 60 (added 12/12/14) Exhibit 61 (added 12/12/14) Exhibit 62 (added 12/12/14)
Exhibit 63 (added 12/12/14) Exhibit 64 (added 12/12/14) Exhibit 65 (added 12/12/14)
Exhibit 66 (added 12/12/14) Exhibit 67 (added 12/12/14) Exhibit 68 (added 12/12/14)
Exhibit 69 (added 12/12/14) Exhibit 70 (added 12/12/14) Exhibit 71 (added 12/12/14)
Exhibit 72 (added 12/12/14) Exhibit 73 (added 12/12/14) Exhibit 74 (added 12/12/14)
Exhibit 75 (added 12/12/14) Exhibit 76 (added 12/17/14) Exhibit 77 (added 12/17/14)
Exhibit 78 (added 12/17/14) Exhibit 79 (added 12/17/14) Exhibit 80 (added 12/17/14)
Exhibit 81 (added 12/17/14) Exhibit 82 (added 12/17/14) Exhibit 83 (added 12/17/14)
Exhibit 84 (added 12/17/14) Exhibit 85 (added 12/17/14) Exhibit 86 (added 12/17/14)
Exhibit 87 (added 12/17/14) Exhibit 88 (added 12/17/14) Exhibit 89 (added 12/17/14)
Exhibit 90 (added 12/17/14) Exhibit 91 (added 12/17/14) Exhibit 92 (added 12/17/14)
Exhibit 93 (added 12/17/14) Exhibit 94 (added 12/17/14) Hearing Examiner Orders
K. Bryant – Wetland Tesitmony City’s Response YarrowBay Reply 1 of 3
YarrowBay Reply 2 of 3 YarrowBay Reply 2a of 3 YarrowBay Reply 2a1 of 3
YarrowBay Reply 2a2 of 3 YarrowBay Reply 2b1 of 3 YarrowBay Reply 2b2 of 3
YarrowBay Reply 3a1 of 3 YarrowBay Reply 3a2 of 3 YarrowBay Reply 3b1 of 3
YarrowBay Reply 3b2 of 3 YarrowBay Reply 3b3 of 3 Wetland Testimony Rebuttal
YarrowBay Wetland Response K. Bryant Rebuttal Plat 2 C Hearing 12-11-15  

PP2C Hearing 

Final Corrected Decision –  Appendix A (Hearing Summary) – Appendix B (Exhibits)

 

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