BEFORE THE HEARING EXAMINER FOR THURSTON COUNTY

BEFORE THE HEARING EXAMINER
                                   FOR THURSTON COUNTY


In the Matter of the Administrative                 )       NO.      AAPL 000190
Appeal of James D. Kelly of                         )
SEPA Threshold Determination                        )       FINDINGS, CONCLUSIONS
Of a four lot subdivision                           )       AND RECOMMENDATION
                                                    )


                                          DECISION
The appeal of James D. Kelly of a threshold determination made by Thurston County pursuant to
the State Environmental Policy Act (SEPA) is DENIED. The preliminary large lot approval of
the four-lot large subdivision at 2243 Gravelly Beach Drive Northwest, Olympia, Washington is
APPROVED.1


                                       INTRODUCTION
Rocky Mountain Development, Inc., and a principal of that organization, Russ Meixner,
(Applicant) requested approval from Thurston County of a large lot subdivision for the
development of property at 2243 Gravelly Breach Drive Northwest, Olympia, Washington. It is
the intent of the Applicant to develop the property with four large lots that would result in the
construction of three residences on three of the lots of the subdivision and the retention of an
existing residence on the remaining lot. Pursuant to the State Environmental Policy Act (SEPA),
Thurston County was designated as the lead agency for the identification of any environmental
impacts resulting from the proposed development. After a review of the application and other
documents, the County issued a Mitigated Determination of NonSignificance (MDNS) on
August 24, 2000.




1
 The issuance of this decision has been somewhat delayed because of the need for research on a unique legal issue
presented.
On September 6, 2000, James D. Kelly (Appellant) filed a SEPA comment letter with Thurston
County. On September 26, 2000 the Appellant filed an appeal of the SEPA determination,
basing the appeal on identified issues in the appeal form, including reference to the SEPA
comment letter dated September 6, 2000. A hearing on this appeal was set for November 20,
2000.

On October 17, 2000 the Applicant, through his Attorney, James R. Tomlinson, moved to
dismiss the appeal, contending that it was not timely filed. The motion to dismiss was denied.
On October 24, 2000 the Applicant, through his Attorney, filed a second motion to dismiss
contesting the standing of the Appellant. That motion is being denied with this decision and the
Appellant has established standing to bring the Appeal.

The hearing on the appeal was heard before the Hearing Examiner of Thurston County on
November 20, 2000. At the hearing the following presented testimony and evidence:

Gayle Zeller, Development Services
Bernadette Clemente, Roads and Transportation
James Tomlinson, Applicant Representative
Russ Meixner, Applicant
James Kelly, Appellant
Todd Mason
Mark Ewbank

At the hearing the following exhibits were submitted and admitted as part of the official record
of this proceeding:

EXHIBIT 1       Development Services Department Report

        Attachment a            Notice of Hearing

        Attachment b            Appeal of Administrative Decision

        Attachment c            September 29, 2000 Letter from Gayle Zeller to Russ Meixner

        Attachment d            October 6, 2000 Pre-Hearing Order

        Attachment e            October 17, 2000 Motion to Dismiss from James R. Tomlinson,
                                Applicant’s Representative

        Attachment f            October 19, 2000 Letter from James D. Kelly Responding to the
                                Applicant’s Motion to Dismiss.

        Attachment g            October 25, 2000 Order Denying Motion to Dismiss


Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                            Page 2
Attachment h            October 24, 2000 Applicant’s Second Motion to Dismiss Appeal

        Attachment i            October 26, 2000 Applicant’s Witness List and Response to Issues
                                on Appeal

        Attachment j            Section 3.3 Maintenance Plan – Thurston County Drainage Design
                                and Erosion Control Manual

        Attachment k            Table 4.1 Minimum Storage Volumes

        Attachment l            November 2, 2000 Memorandum from Bernadette Sison Clemente,
                                Roads and Transportation to Mike Kain, Development Services

EXHIBIT 2       Appellant’s Map

EXHIBIT 3       Four Photographs of Property

EXHIBIT 4       Arial Photograph of Property taken in 1992

EXHIBIT 5       Arial Photograph produced by Thurston Geo Data Center

EXHIBIT 6       PSUB 99-1159 Photograph of Property Looking at Property off Gravelly Beach
                Road taken January 13, 2000

EXHIBIT 7       Map of Drainage Swale on Appellant’s Property

EXHIBIT 8       Photographs Depicting Drainage Swale on Appellant’s Property

EXHIBIT 9       Photograph Depicting End of Discharge Pipe for Detention Facility and Location
                of Inlet for Existing Culvert

EXHIBIT 10 Two Photographs of Property

EXHIBIT 11 Appellant’s Appeal Brief

EXHIBIT 12 No Exhibit 12

EXHIBIT 13 Pre Developed Photograph

EXHIBIT 14 Large Map Evaluation of Site Pervious CN Number

EXHIBIT 15 Arial Post Development Photograph

EXHIBIT 16 Map Identifying Disturbed Areas

Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                          Page 3
EXHIBIT 17 Mitigated Determination of NonSignificance issued August 24, 2000

The following Findings of Fact and Conclusions of Law are based on the official record
developed at the hearing before the Hearing Examiner.


                                       FINDINGS OF FACT

1.      The Applicant requested approval from Thurston County of a four-lot large lot
        subdivision and a forest land conversion application for property at 2243 Gravelly Beach
        Drive Northwest, Thurston County. The proposed four-lot subdivision would subdivide
        22.92 acres into four lots with 30 percent of the timber located on proposed Lots 1, 2 and
        3 being removed. Staff Report; Zeller Testimony.

2.      The subject property is a rectangular-shaped parcel of 22.92 acres with a topography that
        slopes down to the Gravelly Beach Loop Northwest. Three of the lots (Lots 1, 2 and 3)
        would be created for development with new single-family residences. Lot 4 would be
        created but the existing single-family residence would be retained. The lots of the
        subdivision are proposed as follows: Lot 1 is a 6.01-acre parcel in the southwest portion
        of the plat; Lot 2 is a 5.20-acre parcel in the northwest portion of the plat; Lot 3 is a 5.50-
        acre parcel in the northeast portion of the plat; and Lot 4 is a 5.77-acre parcel in the
        southeast portion of the plat. In addition to the creation of the four lots, 30 percent of the
        timber on proposed Lots 1, 2 and 3 is being removed. Zeller Testimony.

3.      Pursuant to the State Environmental Policy Act (SEPA) Thurston County was designated
        as the lead agency for the environmental review of the proposed project. After a review
        of the environmental checklist and other documents the County issued a Mitigated
        Determination of NonSignificance (MDNS) on August 24, 2000.                Exhibit 17.
        Subsequent to the issuance of the MDNS the Appellant filed a SEPA comment letter
        dated September 6, 2000. The appeals of the MDNS issued by the County were due on
        September 7, 2000. Exhibit 1, Attachment B.

4.      On September 26, 2000 the Appellant filed an appeal of the MDNS. In the appeal
        document the Appellant checked the box for the SEPA appeal and stated in the document
        that the support of his SEPA appeal was based on the SEPA comment letter of September
        6, 2000. Exhibit 1, Attachment B. A motion to dismiss the appeal on the grounds that it
        was not timely filed was submitted by the Applicant on October 17, 2000. Exhibit 1,
        Attachment E. On October 25, 2000 the motion to dismiss was denied. Exhibit 1,
        Attachment G. At the hearing the Hearing Examiner stated that the denial of the motion
        to dismiss was because the Appellant had cited the September 6, 2000 comment letter as
        part of the appeal and this letter was filed prior to the September 7, 2000 appeal deadline.



Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                                 Page 4
5.      On October 24, 2000, the Applicant filed a second motion to dismiss contending that the
        Appellant did not have standing. Exhibit 1, Attachment H. At the hearing the Appellant
        submitted testimony that he was married to Lesley G. Smith, who is listed as the property
        owner on a parcel of land south of the subject property across Gravelly Beach Drive.
        The Appellant has been married to Ms. Smith since 1980 and the two of them have used
        the property for their enjoyment and for other purposes. Kelly Testimony. Adequate
        standing has been established for the appeal.

6.      Admitted at the public hearing was a copy of a map produced by the Thurston County
        GEODATA Center Internet Map Server. The map can be used to identify the properties
        of the parties of the appeal. The subject property is identified by the word “site”. The
        Appellant’s property is on the opposite side of Gravelly Beach Loop Northwest from the
        subject property. It is the second property from the west property line as depicted on the
        map. Attached hereto is a reduced copy of the large lot subdivision site plan, which was
        admitted as part of Exhibit 1, Attachment E.

7.      At the hearing the Applicant’s engineer presented a map that depicts tributary area and
        time of concentration of stormwater for the subject property. This map was used to assist
        in the determination of the type of stormwater control system needed for the proposed
        development. On the map the area of the drainage basin of the four lot subdivision is
        shown as being 7.80 acres. Exhibit 1, attachment I (Map is titled “Evaluation of Site
        Pervious CN Number”). The natural flow of the 7.80 acres of the drainage basin on the
        subject property is to the south at a rate calculated by the Applicant’s engineer at 8.13
        cubic feet per second (cfs). Because of the damming effect of the road the drainage is
        currently collected near the central southern boundary of the subject property and
        eventually is transmitted through an 8-inch culvert under Gravelly Beach Loop and onto
        other properties, including the Appellant’s property. The flow eventually outfalls into
        Young Cove. Some of the stormwater that ponds on the subject property percolates into
        the ground. However most of it is conveyed via swales into a culvert on the Appellant’s
        property. The culvert was part of the historic construction of Gravelly Beach Drive and
        is part of the system that the County interprets as the “natural” flow of the storm
        drainage. Clemente Testimony; Mason Testimony.

8.      For stormwater design, the Thurston County Manual requires developments to detain
        stormwater runoff in a holding pond and control the release rate to one that will be under
        pre-developed conditions. Based on the data presented by the Applicant the Thurston
        County Development Review Section of the Roads & Transportation Services
        Department calculated the minimum required storage volume of a stormwater detention
        facility to adequately handle stormwater from the four lot subdivision to be 43,480 cubic
        feet. The Applicant has proposed a storage facility of 45,744 cubic feet, with an
        additional one-foot of free board. The proposed detention facility is a pond located in an
        area where there is an existing natural stormwater collection point. The proposed facility



Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                            Page 5
will include a detention of all development runoff while releasing surface water at or
        below predevelopment rate. Mason Testimony; Exhibit 1, attachment i.

9.      It was the Appellant’s contention that the engineering plans for the proposed
        development are inadequate to handle the projected increase in surface water after
        buildout. While the Appellant contended that requirements of the Thurston County
        Drainage Manual were not adhered to in the preparation and analysis of the development
        plan. No specific sections of the Manual were cited. The Appellant also contended that
        the flow and discharge onto adjacent properties exceeds the natural flow. Kelly
        Testimony and Exhibit 1, Attachment F.

10.     Gravelly Beach Drive Northwest was constructed in the early part of the 20th Century.
        The design of this long established road effectively created a dam that has altered the
        natural flow of the stormwater to Young Cove and has caused ponding at the southern
        boundary of the subject property on the north side of the road. Zeller Testimony.

11.     The existing storm drainage design, as well as the proposed design, is not the natural
        course of the storm drainage flow. However the existing design has been in existence for
        nearly 100 years and development in the area has been designed with it. Zeller
        Testimony. The existing design controls the flow on the north side of the road and directs
        it to the 8-inch culvert. The culvert has a capacity of 1.97 (cfs) which is less than the
        allowable release rate and significantly less than the undammed flow rate of 8.13 cfs.
        Therefore the culvert capacity controls the flow of the stormwater. Because the new
        design will not exceed the current drainage flow the County determined that the nearly
        100 year stormdrainage design flow that is to be used for the determining the allowed of
        the storm drainage of the four lot subdivision. Zeller Testimony; Exhibit 1 Staff Report.

12.     The Appellant contended that the project as approved will result in quantitative increases
        of stormwater flow from the basin, which will be released through the existing 8-inch
        culvert pipe and discharged onto the Appellant’s property. According to the Appellant
        the quantitative increases are not properly reflected because the Applicant has under
        represented the amount of surface water being contributed to the drainage basin. The
        deficiency in the calculations is the failure to include the impact of the removal of trees
        and vegetation to the stormwater drainage system and not including the internal driveway
        as part of the drainage system. This error in calculations, according to the Appellant,
        creates substantial risk of damage to his property through erosion and other factors.
        Kelly Testimony; Exhibit 1, Attachment F. The Appellant, however, was unable to
        provide specific figures or calculations of the surface water being contributed.
13.     A stormwater drainage expert testified on behalf of the Appellant. He submitted that the
        proposed design will function to Thurston County standards but that the drainage facility
        should be larger. Ewbanks Testimony.




Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                             Page 6
14.     The stormwater expert of the Applicant submitted that the stormwater released from the
        site will not result in a quantitative increase of the flow onto the Appellant’s property.
        Mason Testimony. To support his opinion the Applicant’s engineering consultant
        submitted a thorough and complete description of drainage history of the site and area
        and a description of the proposed drainage. Exhibit 1, attachment i. The proposed
        drainage analysis includes an appendix that provides runoff quality design descriptions,
        time of concentration calculations, soil calculations and two foot contour map. These
        documents are very credible and are adopted as findings to support this decision. Exhibit
        1, attachment i. None of the submitted testimony or evidence effectively contradicted
        this analysis.

15.     In determining stormwater design the Thurston County manual requires detention of
        stormwater runoff in a holding with the release rate less than or equal to the pre-
        developed condition. The pre-developed condition is determined by looking at existing
        soils and vegetation on the site and establishing the amount of runoff that flows off the
        site in the existing condition. Although Thurston County did not have the Applicant’s
        engineers evaluate the existing conditions, it did establish that the release rates for the
        water were 0.04 cubic feet per second (cfs) per acre for a 2-year 24-hour storm event and
        0.35 cfs per disturbed acre for a 100-year 24-hour event. The proposed system will be
        able to handle these rates of stormwater if they are generated from the site. Mason
        Testimony; Exhibit 1, attachment i. The Applicant’s representative expressed doubt that
        these rates would ever occur. Mason Testimony. The stormwater will flow onto the
        Appellant’s property but it will be controlled with release restrictions. There not be a
        detrimental increase of the flow onto the Appellant’s property from the current design.
        Mason Testimony.

16.     The Appellant contended that there had been a substantial amount of logging and
        removal of timber from the site. The Appellant did not have the exact percentage of
        timber removed from the site, and, conceded in his testimony that the amount may not
        have exceeded the allowed 30 percent removal. Kelly testimony. The Appellant
        submitted photographs that he claims depict the excessive removal of timber from the
        site. Exhibits 3 and 4.

17.     The Applicant submitted that area for building pads on Lots 1 and 2 were cleared of trees
        and a view corridor for Lot 2 was cleared. No clearing has occurred on Lot 3, nor on Lot
        4 which has the existing residence. The clearing for the building sites did not exceed the
        Thurston County standards. Tomlison Testimony.

18.     No trees were removed for road construction other than one maple tree. The Applicant
        did conduct “selective” thinning of forests throughout the site to provide some clearances
        and to removed dead or diseased trees. At least 70 percent of the forest on-site was left
        consistent with County standards. Tomlison Testimony.



Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                             Page 7
CONCLUSIONS OF LAW

1.      The Applicant requested approval from Thurston County of a four-lot large lot
        subdivision and a forest land conversion application for property at 2243 Gravelly Beach
        Drive Northwest, Thurston County. The proposed four-lot subdivision would subdivide
        22.92 acres into four lots with 30 percent of the timber located on proposed Lots 1, 2 and
        3 being removed. Finding of Fact 1. Pursuant to the State Environmental Policy Act
        (SEPA) Thurston County was designated as the lead agency for the identification of any
        environmental impacts resulting from the proposed development. After a review of the
        application and other documents, the County issued a Mitigated Determination of
        NonSignificance (MDNS) on August 24, 2000.

        On September 6, 2000, James D. Kelly (Appellant) filed a SEPA comment letter with
        Thurston County. On September 26, 2000 the Appellant filed an appeal of the SEPA
        determination, basing the appeal on identified issues in the appeal form, including
        reference to the SEPA comment letter dated September 6, 2000.

2.      The drainage basin of the four-lot subdivision is shown as 7.80 acres with an
        unobstructed flow at 8.13 cubic feet per second (cfs). However, the natural flow is
        obstructed by an established road constructed in the early 20th Century. Because of the
        damming effect of the road, the storm drainage is currently collected near the central
        southern boundary of the subject property and eventually is transmitted through an 8-inch
        culvert under Gravelly Beach Drive onto other properties, including the Appellant’s. The
        design of other development in the area and on the site has been done using the road as
        part of the drainage system. Finding of Fact 7.

3.      In the state of Washington surface waters may not be artificially collected and discharged
        upon adjoining lands in quantities greater than or in a manner different from the natural
        flow thereof. Phillips vs. King County 136 Wn.2d 946. Washington law is silent as to a
        situation such as presented in this case. While it has been agreed by all parties that the
        natural flow of the site would be unobstructed by the Gravelly Point Road. However,
        that has not been the case for nearly a century, and has long been part of the storm
        drainage system. While the existing drainage does not follow the natural flow route, it
        does follow the long established route that has been used for the development of the area.
        It can be considered as the natural flow because of its long established use and because
        the area has been developed with the road being an important part of the drainage system.
4.      The stormwater will flow onto the Appellant’s property but it will be controlled with
        release restrictions. There will not be a detrimental increase of the flow onto the
        Appellant’s property from the current design. Finding of Fact 15.

5.      The engineering review of the stormdrainage system of the four lot subdivision is
        thorough and addresses all stormwater and drainage issues related to the proposed
        development. Finding of Fact 19.

Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                            Page 8
6.      The Appellant has failed to prove that the County erred in allowing the tree clearing or
        that the Applicant exceeded the amount of clearing allowed for the site. In testimony the
        Appellant stated that he had no data to support his contention and that the Applicant may
        have not exceeded the allowed clearing. Finding of Fact 16.

7.      SEPA is essentially a procedural statute to ensure that environmental impacts and
        alternatives are properly considered by the decision makers. MUNNS vs MARTIN, 131
        Wn.2d 192, 930 P.2d 318 (Wash. 1997). The environmental impacts resulting from the
        proposed project have been addressed and considered and the MDNS was correctly
        issued.


                                               DECISION

For the reasons as set forth in the above Finding of Fact and Conclusions of Law the MDNS
issued by Thurston County for development of a four-lot large lot subdivision and a forest land
conversion application for property at 2243 Gravelly Beach Drive Northwest, Thurston County
is upheld, and, the appeal of James Kelly is denied.


Decided this 5th day of January 2001.



                                                        James M. Driscoll
                                                        Hearing Examiner for Thurston County

Property owners affected by this decision may request a change in valuation for property tax purposes
from the Thurston County Assessor. TCC 20.60.020(3)(j)

K:\zoning.lu\DECISION\APPEAL.ADM\000190.decision.doc




Findings, Conclusions & Decision
Hearing Examiner of Thurston County
James Kelly Appeal, AAPL 000190                                                                  Page 9
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