HomeMy WebLinkAbout07-06-2023 HEARING EXAMINER DECISION - Garden Avenue Realignment
SSDP p. 1 Findings, Conclusions and Decision
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BEFORE THE HEARING EXAMINER FOR THE CITY OF AUBURN
Phil Olbrechts, Hearing Examiner
RE: Garden Ave. Realignment
Project
Shoreline Substantial Development
Permit 22-0001
FINDINGS OF FACT, CONCLUSIONS
OF LAW, AND DECISION
SUMMARY
The City of Auburn has applied for a Shoreline Substantial Development Permit (“SSDP”) and
a critical areas exemption for site preparation and construction of two roads located east of the
Green River. The project will extend SE 318th Street to connect Garden Avenue (102nd
Avenue SE) to 104th Avenue SE. The SSDP is approved. The critical areas exemption is
denied and is found not necessary to meet the critical area requirements for SSDP approval. A
condition of approval requires the City to hire a wetlands biologist if it hasn’t already done so
to assess impacts and mitigation and to be involved in mitigation monitoring.
The proposal generated a couple neighborhood concerns. These concerns were addressed in
detail by City staff in Exhibits 13 and 14. The City responses are found to be consistent with
City development standards and policies. The issue of funding for the proposal is beyond the
scope of this decision and the hearing examiner has no authority to address that issue.
This proposal has been somewhat difficult to navigate because the City is proposing
development activity within a shoreline buffer where development is generally prohibited.
Ideally, the City should have consolidated its substantial development permit application with
an ACC 16.10.170 “special exception for public agencies and utilities1.” The proposal was also
lacking a formal critical areas report authored by a wetlands scientist as required by the City’s
critical areas ordinance (CAO).
As outlined in Conclusion of Law No. 3, the requirement for a special exception application
can be dispensed with for this application by construing the road project as a “new” road
instead of a road reconstruction project. As outlined in Conclusion of Law No. 4, the site plan
submitted with the JARPA application can be construed as a critical areas report since it
provides all information necessary to evaluate the critical area impacts of the proposal.
However, City hearing testimony suggests that a qualified biologist was not involved in CAO
impact assessment. A condition of approval requires that if it hasn’t done so already, the City
1 The public agency exception may have to be construed as limited to utility services and not include
road projects due to one of the criteria requiring that application of the CAO would “unreasonably
restrict the ability to provide utility services to the public.” If that is the case a shoreline variance instead
of the public agency exception would be the means of dev eloping road projects within road buffers.
SSDP p. 2 Findings, Conclusions and Decision
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retain a wetlands scientist to evaluate the adequacy of the “critical areas” report and mitigation
plan and to monitor the mitigation plan as required by CAO regulations.
Ultimately the modest procedural departures from CAO critical area report requirements are
found to be harmless error given (1) all necessary critical areas information was provided, (2)
the proposed mitigation is likely more than adequate, and (3) this decision requires verification
of the CAO assessment by a wetland scientist.
The application of shoreline buffer requirements to this project has unearthed some anomalies
in the integration of the CAO with the City’s Shoreline Master Program (SMP). In what
appears to be an unintended result, road maintenance and reconstruction is prohibited within
shoreline buffers while new road construction is expressly authorized in the absence of a
feasible alternative. The CAO/SMP integration eliminated a CAO exemption for road
maintenance/reconstruction within shoreline jurisdiction, but retained a buffer exception for
new road construction. In short, filling potholes of existing roads within shoreline buffers is
prohibited2, while building an entire new road within such buffers is expressly authorized if a
feasible alternative route is not available. This illogical preferential treatment for new road
construction partially served as the basis for the liberal interpretation of the proposal as a
“new” road project.
ORAL TESTIMONY
A computer-generated transcript has been prepared of the appeal hearing to provide an
overview of the hearing testimony. The transcript is provided for informational
purposes only as Appendix A. Since the transcript is computer generated, it is not
100% accurate, but does provide a useful indication of what testimony was presented
during the hearing.
EXHIBITS
The Exhibits 1 through 14 listed on page 25 of the staff report were admitted into the
record during the hearing. The staff PowerPoint was admitted as Exhibit 15.
FINDINGS OF FACT
Procedural:
1. Applicant. The applicant is the Public Works Department of the City of Auburn,
Kim Truong, Project Engineer, 25 West Main Street, Auburn, WA 98001.
2 Road maintenance/reconstruction can be authorized via an ACC 16.10.170 public agency exception or
shoreline variance. As previously noted, ideally Public Works should have applied for the public agency
exception or shoreline variance instead of the buffer exemption.
SSDP p. 3 Findings, Conclusions and Decision
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2. Hearing. A hearing was held on the application at 5:30 p.m. on June 21,
2023 at Auburn City Hall, City Council Chambers. The meeting was also available
live to the public via Zoom, Meeting ID: 876 3380 5542.
Substantive:
3. Site/Proposal Description. The City of Auburn has applied for a Shoreline
Substantial Development Permit (“SSDP”) and a critical areas exemption for site
preparation and construction of two roads located east of the Green River. The project
will extend SE 318th Street to connect Garden Avenue (102nd Avenue SE) to 104th
Avenue SE. Project improvements will include roadway, pervious pavement sidewalk,
curb, and gutter connecting Garden Avenue (102nd Avenue SE). Also, half-street
improvements consisting of sidewalk and utilities will be constructed along the north-
south Garden Ave terminating in a new cul-de-sac at the south, eliminating vehicle
connection to 8th Street NE/SE 320th Street. Approximately 2,500 square feet of
pavement within the 100-foot Green River buffer will be converted to native mitigation
planting south of the new cul-de-sac.
Portions of the following utility improvements are anticipated within shoreline
jurisdiction:
•New and replaced impervious roadway surfaces will be graded such that run-off from
these areas (new cul-de-sac) will sheet flow to a bioretention cell/rain garden area on
SE 318th Street with the use of drainage conveyance piping.
•Install 2 new parallel water mains and replace the 6” water line with 8” water main
along Garden Avenue from 8th Street NE to the new east/west roadway for the future
Lea Hill pump station.
•Extend the existing sewer line in the new east/west roadway from the existing
manhole to Garden Avenue and provide side sewer stub to the properties to the north
and south of the new sewer line.
4. Characteristics of the Area. Surrounding properties are all zoned R-1 with
some open space zoning to the west. All surrounding properties are developed with
single-family homes with the Green River located to the west.
5. Adverse Impacts. There are no significant adverse shoreline impacts
associated with the proposal.
A State Environmental Policy Act (SEPA) Determination of Non-Significance (DNS)
was issued on May 16, 2023 and has not been appealed.
SSDP p. 4 Findings, Conclusions and Decision
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As shown in the site plan to the JARPA application, Ex. 3, there is 9,902 square feet of
impervious surface currently within the 200-foot shoreline jurisdiction3 and the project
will result in a total of 11,481 square feet within shoreline jurisdiction. A very small
amount of vegetation will be removed or altered, to include approximately 400 square
feet of grass,1 fruit tree, and some small shrubs. The 1,579 square feet added by the
proposal will be off-set by the addition of 2,500 square feet of native vegetation south
of the proposed new terminus to Garden Avenue. At least half the road will also be
displaced further from the shoreline.
The Applicant has prepared a stormwater plan to establish compliance with the City’s
stormwater regulations, most significant the Stormwater Management Manual for
Western Washington, which contain detailed standards designed to protect water
quality. New and replaced impervious roadway surfaces will be graded such that run-
off from these areas (new cul-de-sac) will sheet flow to a bioretention cell/rain garden
area on SE 318th Street with the use of drainage conveyance piping. The new
sidewalks will be constructed with permeable pavement to reduce stormwater flows.
During construction, a Spill Prevention, Control, and Countermeasures Plan required of
the Contractor prior to construction will outline the Best Management Practices
(BMPs) employed to reduce pollutants in stormwater discharges from the site. The
SPCC plan is intended to help prevent oil spills and lay out control and
countermeasures steps should a spill occur.
Erosion control measures consistent with City standards and Best Management
Practices (BMPs) will be implemented during construction. BMPs used to control
erosion will include, but are not limited to, inlet protection, street sweeping, and
temporary cover measures. A Temporary Erosion and Sediment Control (TESC) plan
will be developed for this project.
According to the staff report, this re-design and mitigation will result in no net loss of
ecological function to the Green River. This finding is consistent with the net increase
in functional habitat added by the native vegetation planting and the measures
described above to protect water quality.
3 As noted by Mr. Dixon during the hearing, the proper area for assessing addition of impervious surface
may be limited to the shoreline buffer, which is 100 feet within the Urban Conservation shoreline
designation. SMP 4.4.2 Reg. No. 1 notes that for development within the 200-foot “shoreline
jurisdiction”, native plant communities within the “shoreline buffer” shall be protected, maintained,
enhanced and restored. If this means that vegetation mitigation is limited to impacts to buffer vegetation,
then the pertinent amount of impervious surface isn’t that added to the entire 200-foot shoreline
jurisdiction, but rather only that added within the 100-foot buffer. It’s not clear how much impervious
surface will just be added to the 100-foot buffer, but from the Ex. 3 JARPA site plan it appears to be
significantly less than that added to the entire shoreline jurisdiction. I f mitigation is limited to buffer
impacts, the proposed 2,500 square feet of native vegetation mitigation is even more compelling as
adequate mitigation for project impacts.
SSDP p. 5 Findings, Conclusions and Decision
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Other than the Green River itself (which qualifies as a Type S stream), the only other
critical area within the shoreline jurisdiction is a Type 1 aquifer recharge area and a
channel migration zone (CMZ). The measures identified above to protect water quality
are sufficient to achieve compliance with the City’s aquifer recharge standards. For the
CMZ, the proposal meets the non-development criteria for an exemption from a
Floodplain Permit. According to the JARPA site plan, Ex. 3, the proposal will disturb
30 square feet of the CMZ and 5,000 square feet of the 50-foot CMZ buffer. A
Floodplain Permit Exemption (FDP22-0009) was approved by the Development
Engineer Department via email (Exhibit 11) in accordance with ACC 15.68.370 (E, F,
& G).
No other impacts within the shoreline jurisdiction are apparent. The removal of the
Garden Avenue/320th connection will likely result in a decrease in traffic within
shoreline jurisdiction. Given the absence of any appreciable structural height, the
proposal will have no impact on shoreline views. The removal of the Garden
Avenue/320th connection will remove direct public access from 320th to the Garden
Avenue shoreline area, but the addition of sidewalks to Garden Avenue will improve
pedestrian access for those living in the surrounding neighborhood. No impacts to
cultural resources are anticipated. The applicant provided a Cultural Resource Report,
(Exhibit 7). Cultural resources were not documented except for a home built in 1907
that is no longer present at the project site. Since no work within the Green River is
proposed, the proposal will have no impact on navigation.
6. Necessity for Proposal. The proposal is necessary because Public Works staff has
determined that the new street connections will provide better safety and traffic
operation by eliminating the connection point from Garden Avenue directly onto the
high traffic volume on the minor arterial of SE 320th Street. It will provide a better
pedestrian walkable environment for people living north of SE 320th Street and will
provide calm and safe access to the shoreline.
As shown in the site plan accompanying the JARPA application, Ex. 3, there is no
feasible alternative location to road construction within the buffer to the Green River
because of the current road alignment and constraints of city right of way. The storm,
water and sewer lines cannot be feasibly located elsewhere because they are limited to
existing right of way, must serve adjoining properties and/or are part of utility line
networks that must use the shoreline right of way to feasibly and efficiently complete
sections of the utility network grid.
CONCLUSIONS OF LAW
Procedural:
1. Authority of Hearing Examiner. ACC 14.03.030 classifies shoreline
substantial development permit applications as Type III applications, subject to hearing
examiner approval after staff recommendation. SMP 6.1.12, 6.1.15 and 6.1.17
SSDP p. 6 Findings, Conclusions and Decision
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provides the Hearing Examiner with the authority to conduct a hearing and issue a final
decision on SSDPs.
Substantive:
2. Zoning and Shoreline Designation. The project site is zoned R-1. The
shoreline designation of the project site is Urban Conservancy.
3. Development within Shoreline Buffer. The proposal is authorized within
the Green River 100-foot buffer as “new” road construction under SMP 4.4.2 Reg. No.
2b.
A. Proposal Subject to SMP and CAO. The proposal is subject to both the CAO
and SMP. The proposal is subject to the SMP because it is located within 200
feet of the Green River. As identified in the preface to the SMP, the Green
River is “regulated under the SMA [Shoreline Management Act] and the City’s
Shoreline Master Program (SMP)” and qualifies as a “shoreline of statewide
significance.” As further identified in the preface, shoreline jurisdiction
(which includes the SMP) includes “includes areas that are 200 feet landward
of the ordinary high water mark (OHWM) of waters that have been designated
as Shorelines of Statewide Significance’…” As shown in the Ex. 3 JARPA site
plan, the proposal is located within 200 feet of the Green River and hence is
subject to the SMP.
The proposal is also subject to the CAO ordinance, Chapter 16.10 ACC,
because it is a shoreline of the state. ACC 16.10.080D 1 provides that
shorelines of the state qualify as Type S streams protected by the CAO. RCW
90.58.030(2)(g) defines shorelines of the state to include shorelines of statewide
significance, which as previously identified includes the Green River.
B. CAO Buffer Standards Generally Apply to Shoreline Jurisdiction. With some
exceptions, CAO buffer standards apply within the shoreline jurisdiction, i.e.
200 feet of the Green River. SMP 4.4.4 Reg. No. 1 provides that “[p]rovisions
of the City of Auburn Critical Areas Ordinance, as codified in Chapter 16.10
ACC (per Ordinance No. 6733) are herein incorporated into this master
program,…” subject to some exceptions.
C. Development Generally Prohibited in Shoreline Buffer. Development is
generally prohibited in shoreline buffers. ACC 16.10.0090E2c provides as
follows:
“No structures or improvements shall be permitted within the stream
buffer area, including buildings, decks, docks, except as otherwise
permitted or required under the city’s adopted shoreline master
program, or under one of the following circumstances…”
SSDP p. 7 Findings, Conclusions and Decision
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SMP 4.7.8 Reg No. 7c further confirms this restriction as follows:
The required setbacks for buildings and structures on from the OHWM
in the Urban Conservancy and Shoreline Residential environment
designations shall be measured from the OHWM or lawfully
constructed bulkhead or revetment, whichever is further upland, shall
be 100 feet except that the shoreline setback shall not apply to
approved docks, floats, buoys, bulkheads, launching ramps, and
similar structures.
D. Green River Buffer has 100-foot Buffer. The Green River has a 100-foot
buffer. ACC 16.10.090E2 (a CAO regulations) provides that the buffer for
Type S streams is set by the SMP. SMP Table 1 identifies that the buffer for
Type S streams is 100 feet. This is further confirmed by SMP 4.7.8 Reg No.
7c, quoted above.
E. Proposal Subject to Buffer. As shown in the site plan to the JARPA
application, Ex. 3, about a third of the proposed Garden Avenue road
improvements, on its southern end, are located within the 100 buffer to the
Green River.
F. Proposal Doesn’t Qualify for Exemption. The proposal doesn’t qualify for a
CAO buffer exemption. The Applicant applied for such an exemption, Ex. 6.
ACC 16.10.040 identifies what qualifies as exempt from CAO restrictions.
ACC 16.10.040A4 exempts minor utility and street projects from CAO
restrictions, which was the exemption requested by the Applicant. ACC
16.10.040A3 exempts road maintenance and reconstruction from buffer
restrictions. However, SMP 4.4.4 Reg No. 1f provides that the ACC 16.10.040
exemptions do not apply within shoreline jurisdiction. Consequently, the
Applicant’s exemption request must be denied.
G. Proposal Qualifies for “New Road” Exemption. The proposal can be approved
without a separate waiver application as a “new road” without a feasible
alternative under ACC 16.10.0090E2cii.
Paradoxically, although the SMP eliminates CAO exemptions for road
maintenance and reconstruction within shoreline buffers as determined in
Conclusion of Law No. 3F, it doesn’t eliminate the ACC 16.10.0090E2cii
exception for new road construction. ACC 16.10.0090E2cii authorizes the
following development activity within stream buffers:
SSDP p. 8 Findings, Conclusions and Decision
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For construction of new public roads and utilities, and accessory
structures, when no feasible alternative location exists;
There is no apparent policy reason why road maintenance/reconstruction
within shoreline jurisdiction is prohibited while the construction of a new road
is authorized outright. The wholesale clearing of shoreline habitat for a new
30-foot wide road with sidewalks will clearly have far more adverse impacts
on shoreline resources than filling potholes in an existing road. It can only be
concluded that the retention of the new road exception to buffer restrictions
quoted above was retained as an oversite when the Council adopted its
wholesale prohibition of CAO exemptions listed in Conclusion of Law No. 3F.
Several rules of statutory construction are at play in construing the anomalous
road requirements outlined above. A basic rule of statutory construction
requires that, whenever possible, statutes should be construed so that no
portion is superfluous, and so that strained, unlikely or absurd consequences
are avoided.” Clark v. Payne, 61 Wash. App. 189, 193, 810 P.2d 931, 934
(1991). As noted in the preceding paragraph, giving preferential treatment of
new road construction over road maintenance is clearly absurd and should be
avoided. When deciding how to avoid this absurd consequence, the rule must
also be heeded that legislative intent is the paramount factor in construing a
law and a specific statute will prevail over a general statute. Lynch v. Dept.
Labor Industries, 19 Wn. 2d 802 (Wash. 1944)(paramount rule); Univ. of
Wash. v. City of Seattle, 188 Wash. 2d 823 (Wash. 2017)(general-specific
rule). Given that the most specific and affirmative action taken by the City
Council on road development was to eliminate road maintenance exemptions,
it can be argued that the intent of the Council should be construed as
prohibiting road development in shoreline buffers.
Although rules of statutory construction point towards prohibiting road
development within buffers, those rules do not apply when there is no
ambiguity in a statute. Unambiguous statutory language must be accorded its
plain meaning, and the rules of statutory construction are only appropriate
where there is an ambiguity in the meaning. “Only when the plain,
unambiguous meaning cannot be derived through such an inquiry will it be
‘appropriate [for a reviewing court] to resort to aids to construction.’”
Velazquez Framing, LLC v. Cascadia Homes, Inc., 521 P.3d 257, 261 (Wash.
Ct. App. 2022), citing Sheehan v. Cent. Puget Sound Reg'l Transit Auth., 155
Wash.2d 790, 797, 123 P.3d 88 (2005).
In this case, the ACC 16.10.0090E2cii exception for new road construction is
plain and unambiguous. It cannot be amended out by the statutory
construction rule of absurd consequences. The only ambiguity is what
qualifies as a “new” road for purposes of the exception. The statutory
SSDP p. 9 Findings, Conclusions and Decision
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construction rule to avoid absurd consequences dictates that to provide for
some consistency in policy that the meaning of “new” road be liberally
construed. Although such a position may run contrary to legislative intent, it
does not run counter to the objectives of the SMP. SMP regulations such as
SMP 4.4.2 Regulation No. 1 require that any impacts to shoreline vegetation
be fully mitigated. ACC 16.10.0090E2cii further only authorizes the road
construction if there is no feasible alternative. In this regard, the standards that
apply to the new road exception are identical to those that apply to a “special
exception for public agencies and utilities,” as governed by ACC 16.10.170
and are similar to the considerations used in shoreline variance applications.
For this particular application, given the factors above, the proposal can be
liberally construed as qualifying as new road construction. Although not
included within shoreline jurisdiction, an integral and essential part of the
overall project is the extension of SE 318th Street from 104th Ave to 102nd
Ave. In this regard, the project is a “new road” project.
Beyond qualifying as a new road project, the only other prerequisite for
meeting the ACC 16.10.0090E2cii new road exception is that there has to be
no other feasible alternative route. As outlined in Finding of Fact No. 6, the
purpose of the project is to eliminate the Garden Avenue connection to 320th.
The only place that can be done is within the shoreline jurisdiction. There is
no other feasible alternative route. Consequently, the proposal is authorized in
the Green River shoreline buffer under the ACC 16.10.0090E2cii new road
exception.
4. Critical Areas Report Marginally Met. Another questionable issue of
compliance is whether the Applicant prepared a critical areas report. As best as can be
ascertained from the record, a site plan prepared submitted with the City’s JARPA
application satisfies the City’s critical area report standards.
ACC 1610.070B1 provides that
…a critical area report must be submitted to the city for review when the city
believes that a critical area may be present. The purpose of the report is to
determine the extent, characteristics and functions of any critical areas
located on or potentially affected by activities on a site where regulated
activities are proposed. The report will also be used by the city to determine
the appropriate critical area classification and, if applicable, to establish
appropriate buffer requirements.
SMP 4.4.2 Reg. No. 5 is even more direct, requiring a critical areas report for any
development within shoreline jurisdiction. The regulation further requires that the
contents of the report conform to ACC 16.10.070.
SSDP p. 10 Findings, Conclusions and Decision
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ACC 16.10.070B2 provides that a critical areas report contain the information required
by the CAO for each type of critical area. ACC 16.10.070C requires the report to be
prepared by a “qualified consultant.” ACC 16.10.020 defines a “qualified consultant”
for wetlands and streams to be at a minimum “a professional wetland scientist with at
least two years of full-time work experience as a wetlands professional.”
No formal critical areas report has been prepared for this application. The closest
document that meets the requirements above is the site plan for the project included
with the Ex. 3 JARPA application. The site plan shows the Green River, its 100-foot
buffer, its 200-foot shoreline jurisdiction, its proposed mitigation area. The site plan is
accompanied with a planting plant. Arguably, this is all the information necessary to
meet the purpose of a critical areas report as outlined in the quoted provision of ACC
1610.070B1 above – combining the information from the City’s CAO, SMP and the site
plan, the classification and buffer of the Green River is fairly self-evident. Given that
the proposal will displace the road further away from the shoreline and that the 2,500
native planting area is several times the amount of new impervious surface within the
100-foot shoreline buffer, it appears reasonable to conclude that with the mitigation no
material impact to shoreline functions and values will be created by the project.
Although the JARPA site plan appears to provide all the information realistically
necessary for a critical areas report, it doesn’t appear to meet the requirement that it be
prepared by a professional wetland scientist. At hearing, staff acknowledged that the
adequacy of mitigation was not evaluated by anyone with a background in biological
sciences. There is nothing in the record to suggest that the JARPA site plan or
associated planting plan was prepared by a wetland scientist. However, given the
minor nature of the critical area impact and the extensive amount of mitigation, it
appears very likely that all information necessary to assure adequate critical area
protection has been submitted into the record.
On balance, although a critical report meeting all technical requirements of code has not
been submitted, the information presented into the record is sufficient to ensure
compliance with the CAO, most significantly that impacts are minimized and fully
mitigated. A condition of approval also requires the retention of a wetland scientist to
verify the accuracy of the information provided and the adequacy of mitigation and to
conduct monitoring as required by ACC 16.10.130C6.. Given these circumstances, to
the extent that failure to include a qualified consultant in the CAO process is procedural
error, such error is found to be harmless4.
5. Review Criteria and Application. A shoreline substantial development
permit is required for the road work because it is located within shoreline jurisdiction
(200 feet from the Green River) and not exempt under WAC 173-27-040. SMP 6.1.7
4 RCW 36.70C.130(1)(a) authorizes procedural error in land use review if such error is
found to be harmless.
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provides that shoreline substantial development permit decisions shall be based upon
the policies and regulations of Washington State Shoreline Management Act (SMA),
the SMP and the Auburn Comprehensive Plan and Municipal Code.
The staff report findings on consistency with SMP goals and policies are adopted by
reference and not repeated in this Decision. Applicable SMP regulations and SMA
policies are quoted below and applied via corresponding conclusions of law. The
City’s SMP incorporates all applicable SMA administrative code regulations so those
regulations are not separately addressed by this decision. The proposal is found to
conform to the City’s comprehensive plan for the reasons identified in the staff report.
Applicable municipal code requirements primarily pertain to street design standards.
Conformance to those standards has been verified by Public Works staff and nothing in
the record suggests any noncompliance with those requirements.
SMP 3.3.1; Purpose of the Urban Conservancy Environment:
The purpose of the “Urban Conservancy” environment is to protect and restore
ecological functions of open space, floodplain and other sensitive lands where they
exist in urban and developed settings, while allowing a variety of compatible uses
consistent with the Comprehensive Plan.
4. As determined in Finding of Fact No. 5, there are no significant adverse
impacts associated with the proposal, including impacts to shoreline resources or
ecological functions. The purpose of the Urban Conservancy environment is met.
SMP 4.4.2: Shoreline Vegetation Conservatoin
1. During any development activity within the shoreline jurisdiction, native plant
communities located within the shoreline buffer (minimum of 100-feet from OHWM
for Shoreline Residential and Urban Conservancy environments; 200-feet for
Natural environment) shall be protected, maintained, or enhanced per the
regulations established in the Critical Areas Ordinance and the Master Program.
Pursuant to ACC 16.10.090, “Buffer Areas and Setbacks”, buffers that have been
previously disturbed shall be re-vegetated pursuant to an approved enhancement
plan.
2. The following uses are allowed within the shoreline buffer only when also allowed
within the applicable shoreline environment designation:
…
b. New public roads and bridges, where no feasible alternative location exists
c. Utilities and accessory structures, where no feasible alternative location exists
…
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5. A critical areas study shall be submitted for review for all proposed development
activity within the shoreline jurisdiction. The purpose of the report is to determine
the extent, characteristics and functions of critical areas located on or potentially
affected by proposed activities on site. See ACC 16.10.070 “Critical Area Review
Process and Application Requirements” for required report contents.
8. Proposed development in the shoreline jurisdiction shall include provision of
landscape information appropriate to identify and remove nonnative and invasive
species and replace with native vegetation to maintain or enhance shoreline
ecological functions on the property. ..
5. As conditioned, the proposal is consistent with the shoreline regulations quoted
above. As noted in Finding of Fact No. 3, the only vegetation removed from shoreline
jurisdiction will be 400 square feet of grass, 1 fruit tree and some small shrubs. The
2,500 square feet of native vegetation replanting should be more than enough to
compensate for this loss of vegetation. The planting plan accompanying the Ex. 3
JARPA site plan provides the landscape information necessary to identify how the
compensatory mitigation is to be installed. There is no feasible alternative location for
the proposed road and utility lines for the reasons identified in Finding of Fact No. 6.
As conditioned, the proposal will meet critical area report requirements as outlined in
Conclusion of Law No. 3.
SMP 4.4.3: Environmental Impact Mitigation
1. To the extent Washington's State Environmental Policy Act of 1971 (SEPA),
Chapter 43.21C RCW, is applicable, the analysis of environmental impacts from
proposed shoreline uses or developments shall be conducted consistent with the
rules implementing SEPA (Chapter 16.06 ACC and WAC 197-11).
2. Where required, mitigation measures shall be applied in the following sequence of
steps listed in order of priority.
a. Avoiding the impact altogether by not taking a certain action or parts of an
action;
b. Minimizing impacts by limiting the degree or magnitude of the action and
its implementation by using appropriate technology or by taking affirmative
steps to avoid or reduce impacts;
c. Rectifying the impact by repairing, rehabilitating, or restoring the affected
environment;
d. Reducing or eliminating the impact over time by preservation and
maintenance operations;
e. Compensating for the impact by replacing, enhancing, or providing
substitute resources or environments; and
f. Monitoring the impact and the compensation projects and taking
appropriate corrective measures.
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2. In determining appropriate mitigation measures applicable to shoreline
development, lower priority measures shall be applied only where higher priority
measures are determined to be infeasible or inapplicable.
3. Required mitigation shall not be in excess of that necessary to assure that proposed
uses or development will result in no net loss of shoreline ecological functions.
4. Mitigation actions shall not have a significant adverse impact on other shoreline
functions fostered by the policies of the Shoreline Management Act.
5. When compensatory measures are appropriate pursuant to the priority of
mitigation sequencing above, preferential consideration shall be given to
measures that replace the impacted functions directly and in the immediate
vicinity of the impact. However, alternative compensatory mitigation within the
watershed that addresses limiting factors or identified critical needs for shoreline
resource conservation based on watershed or comprehensive resource
management plans applicable to the area of impact may be authorized.
Authorization of compensatory mitigation measures may require appropriate
safeguards, terms or conditions as necessary to ensure no net loss of ecological
functions. ACC 16.10.110, “Mitigation Standards, Criteria And Plan
Requirements,” establishes regulations on location and timing of mitigation. On-
site and in-kind mitigation are preferred.
7. A monitoring program shall be prepared and implemented by the applicant for
mitigation projects. The monitoring program shall include a contingency plan in
the event that implementation of the mitigation plan is inadequate or fails. A
performance and maintenance security is required in the amount of one hundred
and twenty-five percent of the cost of the mitigation project for the length of the
monitoring period. This is to ensure the applicant complies with the terms of the
approved mitigation plan. See ACC 16.10.130, “Monitoring Program and
Contingency Plan”, for specific elements that need to be incorporated into the
monitoring program.
6. As conditioned, the proposal is consistent with the shoreline regulations quoted
above. As noted in Finding of Fact No. 5, a DNS was issued for the project to fulfill
SEPA requirements. Mitigation sequencing has been appropriately implemented by
first minimizing impacts by moving the road away from the shoreline, restoring any
disturbed vegetation via a condition of approval, compensating for the minor loss of
vegetation and shoreline impacts via the proposed native planting area and monitoring
the planting area as required by the conditions of approval. No other feasible
mitigation sequence is available given the necessity of removing the Garden
Avenue/320th St. connection in the shoreline area. The mitigation is not in excess of
that necessary, given the SMP 4.4.2 Reg. No. 1 requirement that previously disturbed
buffer areas (in this case removed roadway) be replanted. The proposed mitigation has
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no ascertainable adverse impacts on other shoreline functions. The proposed
compensatory mitigation is on-site and immediately adjacent to the shoreline areas
impacted by the proposal. Conditions of approval require monitoring consistent with
that required above.
SMP 4.4.7 Water Quality, Storm water and Non-Point Pollution
1. Shoreline development and use shall incorporate measures to protect and maintain
surface and ground water quantity and quality in accordance with all applicable
laws. Appropriate vegetation restoration and conservation actions shall be
undertaken consistent with regulations under Section 4.4.2, “Shoreline Vegetation
Conservation” and Chapter16.10 ACC, “Critical Areas”.
2. Development within the City’s shoreline shall conform to all requirements in the
City’s Comprehensive Drainage Plan and stormwater standards, Comprehensive
Plan, and Flood Hazard Areas regulations.
7. As conditioned, the proposal is consistent with the shoreline regulations quoted
above. As outlined in Finding of Fact No. 5, the Applicant has prepared a stormwater
plan that establishes conformance to the City’s stormwater regulations. As identified in
Conclusion of Law No. 5, the proposal is co nsistent with the SMP’s vegetation
conservation standards.
SMP 4.7.10: Transportation Regulations
Roads & Bridges
1. Developers of new roads must be able to demonstrate the following:
a. The need for a shoreline location and that no reasonable upland alternative
exists.
b. That construction is designed to protect the adjacent shorelands against erosion,
uncontrolled or polluting drainage, and other factors detrimental to the
environment both during and after construction.
c. That the project will be planned to fit the existing topography as much as
possible thus minimizing alterations to the natural environment.
d. That all debris, overburden and other waste materials from construction will be
disposed of in such a way as to prevent their entry by erosion from drainage into
the water body…
f. That when new roads will afford scenic vistas, viewpoint areas will be provided.
Scenic corridors shall have sufficient provision for safe pedestrian and non-
motorized vehicular travel.
2. Developers of roads must demonstrate that:
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a. The road is located on grade rather than elevated unless crossing wetlands. Road
designs must provide appropriate pedestrian and non-motorized vehicular crossings
where public access to shorelines is intended…
5. All cut and fill slopes shall be stabilized and planted with native and/or
appropriately introduced grasses, shrubs and/or trees which shall be maintained by the
installing agency until established.
6. Roads shall be located so as to avoid the use of culverts to the maximum extent
possible.
7. Major roads shall cross shoreline areas by the shortest most direct route feasible,
unless such route would cause significant additional environmental damage….
8. The project is consistent with the regulations quoted above.
As determined in Finding of Fact No. 6, there is no reasonable alternative location. As
determined in Finding of Fact No. 5, the proposal as mitigated and designed will protect
adjacent shorelands from erosion and other pollution. The proposal will largely be done
within and adjacent to an existing road and thus will not result in any significant change
in grade according to the flood permit exemption decision. Best management practices
applicable to the project will prevent the introduction of any waster materials or other
pollution into the river. The views along the new road will be made more accessible to
the public by the addition of sidewalks. Given the lack of any change in grade, the
proposal does not appear to necessitate any significant cut and fill slopes that need to be
stabilized.
SMP 4.7.11: Utility Regulations
2. Utilities shall be located to be consistent with the policies of comprehensive plan
utilities element.
6. Upon completion of utility installation/maintenance projects on shorelines, banks
shall, at a minimum, be restored to pre-project configuration, replanted and
provided with maintenance care until the newly planted vegetation is fully
established. Plantings shall be native species and/or be similar to vegetation in the
surrounding area.
10. Transmission, distribution, and conveyance facilities shall cross shoreline
jurisdictional areas by the shortest, most direct route feasible, unless such route
would cause significant environmental damage.
9. The proposed project is consistent with the SMP regulations applicable to utility
uses. Utilities within the shoreline jurisdiction are limited to drainage conveyance
piping that will convey road and sidewalk sheet flow to a bioretention cell/rain garden
area on SE 318th Street outside of the shoreline jurisdiction. Underground sewer and
water lines will also be located within parts of the shoreline jurisdiction as identified in
Finding of Fact No. 3. Since the stormwater facilities are of a minor nature and will
not create any impacts to shoreline resources or the environment in general, they are
consistent with the utilities element of the City’s comprehensive plan. A condition of
approval requires restoration of any vegetation disturbance cause by installation of the
utility lines. The utility lines are designed to take the shortest route possible within
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available right of way and street alignment and still provide service as necessary to
adjoining properties and convey stormwater to the off-site bioretention pond.
RCW 90.58.020:
. . . [I]t is the policy of the state to provide for the management of the shorelines of the
state by planning for and fostering all reasonable and appropriate uses. This policy is
designed to ensure the development of these shorelines in a manner which, while
allowing for limited reduction of rights of the public in the navigable waters, will
promote and enhance the public interest. This policy contemplates protecting against
adverse impacts to the public health, the land and its vegetation and wildlife, and the
waters of the state and their aquatic life, while protecting generally public rights of
navigation and corollary rights incidental thereto.
9. The policy quoted above is met. The proposal will not adversely affect
navigation, public health or shoreline resources because no adverse impacts are
anticipated as determined in Finding of Fact No. 5.
DECISION
Based upon the Findings of Fact and Conclusions of Law above, the SSDP is approved
and the critical areas exemption request denied, subject to the following conditions:
1. Development pursuant to a substantial development permit shall not begin and shall
not be authorized until 21 days from the date the director files the approved
substantial development permit with the State Department of Ecology and Attorney
General, or until all review proceedings initiated within 21 days of the date of such
filing have been terminated. (SMP 6.1.19)
2. Construction or substantial progress toward construction of a project for which a
permit has been granted pursuant to the Auburn SMP must be undertaken within
two years after permit approval. (SMP 6.1.21)
3. Project mitigation shall be substantially consistent with the Stormwater Site Plan
provided in the Garden Ave. Realignment Stormwater Site Plan, Consor, Inc.,
revision dated March 2023 (Exhibit 8) for the project.
4. In accordance with ACC 16.10.110(D) the civil plans submitted for the
development shall show the 100-foot critical area buffer of the Green River and the
conservation easement or other acceptable mechanism around the 2,500 square foot
restoration area located at the south terminus of the cul-de-sac. The area between
the path (leading from the cul-de-sac to SE 320th Street) and 100 Shoreline buffer
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(approximate 1,800 square foot) shall also be restored in plantings with less
intensive groupings than the restoration west of the path.
5. In accordance with ACC 16.10.120(A) The restored 2,500 square foot area shall be
protected with critical area open rail fencing and signage as appropriate.
6. In accordance with ACC 16.10.130 a Monitoring Program for the Green River
buffer restoration shall be submitted by the applicant and reviewed and approved
by the city prior to implementation. The monitoring program shall include a
contingency plan if implementation of the mitigation plan is inadequate or fails.
7. In accordance with ACC 16.10.120 Performance standards and maintenance of the
mitigation sites during the initial 5-year monitoring period will be the responsibility
of the City of Auburn Public Works Department.
8. Unless done so already, the City shall hire a wetlands scientist to verify and
supplement the critical areas information used to review the proposal as necessary
to meet the content requirements for critical area reports as governed by ACC
16.10.070. The consultant shall assess the adequacy of proposed mitigation and the
City shall implement any recommended additions as City planning staff find
necessary to comply with the City’s critical area regulations. The wetlands
scientists shall provide monitoring reports and other required monitoring
information as required by ACC 16.10.130.
9. Upon completion of utility installation/maintenance projects on shorelines, banks
shall, at a minimum, be restored to pre-project configuration, replanted and
provided with maintenance care until the newly planted vegetation is fully
established. Plantings shall be native species and/or be similar to vegetation in the
surrounding area.
Dated this 6th day of July, 2023.
City of Auburn Hearing Examiner
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Appeal Right and Valuation Notices
This decision is final subject to appeal to the Shoreline Hearings Board as governed by
Chapter 90.58 RCW.
Affected property owners may request a change in valuation for property tax purposes
notwithstanding any program of revaluation.