HomeMy WebLinkAbout2022 10 07 - Appellants Written Closing
APPELLANTS’ CLOSING ARGUMENTS - 1
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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BEFORE THE JEFFERSON COUNTY HEARING EXAMINER
In Re Appeal of OAK BAY
CONCERNED CITIZENS,
Appellants,
v.
JEFFERSON COUNTY
Respondent.
NO. MLA21-00066
APPELLANTS’ CLOSING
ARGUMENTS
In his remarks closing the hearing on September 27, the Examiner invited the parties to address
in their closing arguments not only the SEPA appeal but also the conditional use permit approval
criteria. In our arguments below, the Oak Bay Concerned Citizens will explain why the County’s
review of the project’s environmental impacts was not consistent with SEPA, and why those impacts
mean the Pomona Woods conditional use permit should have stricter conditions attached than what
the County proposes.
Pomona Woods is too large a development for its location. It does not fit in with the
surrounding land uses, some of which are single-family houses on secluded, rural lots, others of which
are undeveloped lots used for growing trees. No doubt there are any number of urban or suburban
locations in Jefferson County where a development like Pomona Woods would not adversely affect
its neighbors, but this site along rural Oak Bay Road is not one of them.
APPELLANTS’ CLOSING ARGUMENTS - 2
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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I. NOISE
Noise is the most significant impact of the Pomona Woods project. On the SEPA side, the
County failed to meaningfully evaluate the project’s noise impacts, which is grounds to reverse the
DNS for failure to base a threshold decision on information reasonably sufficient to evaluate the
project’s impacts. WAC 197-11-335 (“The lead agency shall make its threshold determination based
upon information reasonably sufficient to evaluate the environmental impact of a proposal”). In
addition, the evidence that emerged during the hearing showed that the project’s noise impacts will be
significant, not non-significant, which is further grounds to reverse the DNS. See Norway Hill Pres.
and Prot. Ass’n v. King Cty. Council, 87 Wn.2d 267, 277–278, 552 P.2d 674 (1976) (reversing a DNS
because the project’s impacts would be significant).
On the CUP side, a CUP cannot be issued unless “[t]he conditional use will not be materially
detrimental to uses or property in the vicinity of the subject parcel;” and also “[t]he conditional use
will not introduce noise … which unreasonably impact existing uses in the vicinity of the subject
parcel.” JCC 18.40.530.1.c, -d.
A. The County Failed to Base Its DNS on Information Reasonably Sufficient to
Evaluate the Noise Impacts of the Pomona Woods Project.
As noted above, the County was required to base its threshold determination on information
reasonably sufficient to evaluate the noise impacts of the Pomona Woods project. WAC 197-11-335.
See also, Moss v. City of Bellingham, 109 Wn. App. 6, 14, 31 P.3d 703 (2001). It has failed to do so,
and as a result, the proposed noise mitigation measures have no basis in evidence. In addition, as we
will explain below, the proposed noise mitigation measures are unlikely to reduce noise to an
acceptable level. We propose alternative noise mitigation measures the Examiner could impose. The
Examiner could also remand the matter to the County to conduct a proper noise study and base new
mitigation measures off the results of that study.
APPELLANTS’ CLOSING ARGUMENTS - 3
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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The County acknowledges that “No noise study has been submitted in conjunction with this
application due to the expected minimum noise impacts typical of residential and small-scale
recreational development.” Staff Report Addendum, Ex. 53, AR 765.1 The expert reports in the record
do not take the place of a noise study. As both noise engineer Adam Jenkins and non-engineer Kevin
Warner testified, the noise numbers in their reports are based on assumptions. Below, in the section
regarding the likely significance of noise impacts, we will discuss in more detail what the expert
reports predict in terms of noise impacts, but for now, when we are discussing the adequacy of the
County’s information about noise, it is enough to say that neither expert can determine with certainty,
what the noise impacts are going to be. Thus, the County has no basis to issue a DNS, and the proposed
mitigation conditions for the CUP are not grounded in evidence.
A proper noise study, as Mr. Jenkins explained, would include the specific types of noise-
generating equipment proposed for installation, and would give their locations in relation to other
features of the project, especially buildings and walls. Only once that information is known can a noise
expert model the noise impacts at the property line. Neither Mr. Jenkins nor Mr. Warner had that
information, so neither expert was able to provide the County with a firm determination of the project’s
noise impacts. The proper course of action in this circumstance is to commission a noise study, because
the SEPA rules require that:
If information on significant adverse impacts essential to a reasoned choice among
alternatives is not known, and the costs of obtaining it are not exorbitant, agencies shall
obtain and include the information in their environmental documents.
WAC 197-11-080(1).
1 County planner Amanda Hunt testified that the Staff Report Addendum, Ex. 53, is actually a revised
staff report, not merely an addendum to the original staff report, Ex. 19. We will continue to refer to Ex. 53 as the Staff
Report Addendum, the name it was assigned in the County’s list of exhibits.
APPELLANTS’ CLOSING ARGUMENTS - 4
Bricklin & Newman, LLP
Attorneys at Law
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Seattle, WA 98107
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The Examiner should reject the Staff Report Addendum’s breezy assertion that a noise study
is not necessary because the noise impacts of Pomona Woods will be “typical of residential and small-
scale recreational development.” That statement is void of meaning. First, there is no such thing as a
“typical” small-scale recreational development. Under the code, JCC 18.20.350, small-scale
recreational development includes uses as diverse as outdoor archery ranges (a use whose loudest
noise would come from human voices) and recreational off-road vehicle parks (a use whose noise
would include multiple, unmuffled gasoline engines at high revolutions per minute). There are
obviously a wide range of noise impacts possible for a small-scale recreational development, so it is
meaningless to talk about the noise impacts that are “typical” for such a development.
Even if there were such thing as a “typical” small-scale recreational development, and even if
Pomona Woods were an example of such a “typical” development, that still would not mean no noise
study would be necessary, because this stretch of Oak Bay Road is not a “typical” neighborhood. As
Mr. Jenkins’ ambient noise collection shows, the median L25 noise level was 39 dBA during the day
and 31 dBA at night at the boundary between the Pomona Woods property and Kathleen Heinz’s
property to the south. Jenkins Report, Ex. 29, Table 5, AR 515. This is a very quiet neighborhood.
Adding noise to such a quiet neighborhood will result in a greater impact than adding noise to a louder
neighborhood. When it comes to noise, one size does not fit all. Noise that is not significant in one
location may be significant in a different location. Therefore, a site-specific inquiry is necessary.
Indeed, site-specific inquiry is the reason for requiring a conditional use permit in the first place.
We are not arguing that every CUP application must be accompanied by a noise study. As
noted above, some types of conditional uses involve nothing louder than human voices. Here,
however, where a noise engineer has identified the possibility of severe impact if equipment is not
selected and sited with care, a noise study is appropriate and necessary under WAC 197-11-080.
APPELLANTS’ CLOSING ARGUMENTS - 5
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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Without a noise study, the County cannot determine the noise impact, nor can the County propose
noise mitigation measures that are grounded in reality. The DNS should be reversed and the matter
remanded for a noise study.
B. The Evidence Shows a Significant Noise Impact Is More Likely than a Non-
Significant Noise Impact.
It is not only the case that the County’s DNS was not based on sufficient information to
evaluate noise impacts. It is also the case that the evidence from the experts shows a significant noise
impact is more likely than a non-significant impact. Therefore, the County should have issued a DS
and required an EIS for Pomona Woods.
We have conceded above that neither expert knows, with certainty, what the noise levels of
Pomona Woods will be, because there has been no noise study (which, in turn, would require the
applicant to specify equipment types and locations). However, it is not our burden to prove that
significant, adverse impacts are inevitable. We need only prove that they are “probable.” See King
Cty. v. Boundary Review Bd. for King Cty., 122 Wn.2d 648, 663, 860 P.2d 1024 (1993) (citing RCW
43.21C.031). For SEPA purposes, “[p]robable means likely or reasonably likely to occur … Probable
is used to distinguish likely impacts from those that merely have a possibility of occurring…” WAC
197-11-782. Here, significant noise impacts are reasonably likely to occur.
First, let us define a “significant, adverse” noise impact. Mr. Jenkins and Mr. Warner both
agreed that a 15 dBA increase would be a “severe” noise impact. Mr. Warner did not testify about
increases of less than 15 dBA, but Mr. Jenkins did. He testified that a 10 dBA increase would be a
“substantial” increase, enough to generate new noise complaints, and even a 5 dBA increase would be
a “noticeable” increase. This testimony was not controverted.
Ms. Kaylor did ask Mr. Jenkins to confirm that Jefferson County has not set regulatory noise
limits in its code. Indeed not. Jefferson County uses the state limits. JCC 8.70.050. The state limits, in
APPELLANTS’ CLOSING ARGUMENTS - 6
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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turn, allow a land use to generate up to 55 dBA of noise in residential zones during the day and 45
dBA at night. WAC 173-60-040. A party that habitually violates these limits is guilty of a crime and
may be placed in jail for ninety days. JCC 8.70.070.1.
The statewide noise limits do set the boundaries on what constitutes a significant, adverse
noise impact. In places where the ambient noise is already louder than 55 dBA, a new land use could
be very loud and still not add anything adverse to the overall noise environment. By contrast, in places
where the ambient noise is low, even a moderately loud new land use could have a significant impact.
The significance comes from the amount of change relative to existing conditions, not just the final
tally of dBA. The Examiner should reject any argument from the developer that the numeric noise
limits are the only criteria that define significance. Indeed, the code itself is explicit that the noise
chapter merely “supplements existing regulations,” JCC 8.70.010, which would include the
conditional use permit criteria (which have their own noise criteria to avoid introducing
“unreasonable” noise impacts, JCC 18.40.530.1.d). Obviously, an environmental impact can be
significant and adverse even if the project complies with the code—otherwise, there would be no point
in project-level SEPA review. Here, where the surrounding neighborhood is so quiet, the Examiner
should conclude that any increase of 10 dBA or more above ambient would constitute a significant,
adverse impact. Mr. Jenkins’ testimony establishes that 10 dBA would be a substantial impact, and no
other testimony contradicts him.
Having defined 10 dBA as a reasonable threshold of significance, the next task is to determine
whether the Pomona Woods project will result in a 10 dBA increase. Here we have conflicting
testimony. Mr. Jenkins says it will, Mr. Warner says it will not.
The experts’ dispute arises from differences in assumptions about equipment, and from
differences in methodology. With regard to the assumptions, Mr. Jenkins testified that he selected
APPELLANTS’ CLOSING ARGUMENTS - 7
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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equipment and locations that would be reasonable for a project of this magnitude, based on his decades
of experience as an engineer. He did not try to fudge the numbers by selecting unusually loud
equipment or siting it unusually close to the property lines. By contrast, Mr. Warner consistently
selected the quietest possible equipment and sited it on the farthest side of the buildings, all to paint to
the quietest possible picture in his report. But Mr. Warner has no basis for determining whether the
quietest possible equipment and the most advantageous location will, in fact, be possible. As Mr.
Jenkins testified, noise control requires a complex dance between a facility’s equipment needs and the
location and characteristics of the site. It is not always possible to use the quietest possible
equipment—for example, if the quietest equipment will lack the needed capacity to service the facility.
For this reason, Mr. Warner’s assumptions about how quiet the equipment will be are unwarranted.
By contrast, Mr. Jenkins’ assumptions are grounded in his engineering experience. Mr. Jenkins’
assumptions are more reasonable than Mr. Warner’s assumptions.
Besides the differences in equipment assumptions, the two experts also differed in which noise
impact criteria they used. Mr. Jenkins used criteria aimed at evaluating community noise. Mr. Warner
used criteria aimed at evaluating transportation noise, from commuter rail, light rail, and highways.
As Mr. Jenkins explained, community noise has different characteristics than transportation noise, so
it is more reasonable to use a community model when assessing community development like Pomona
Woods. Mr. Jenkins’ community criteria use an hourly basis, whereas Mr. Warner’s transportation
criteria average out noise over longer periods (days, weeks, or years). The hourly model is more
appropriate here, first, because people experience noise on an hourly basis; they do not “average out”
their noise experience over the course of an entire day. Second, Washington State itself assesses noise
on an hourly basis, not the longer-term basis used by Mr. Warner. See WAC 173-60-040. Thus, Mr.
APPELLANTS’ CLOSING ARGUMENTS - 8
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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Jenkins’ model is both more appropriate for this type of development and more closely aligned with
standard practice in Washington.
The big problem with Pomona Woods is not how much noise it can be proved to cause, but
rather how much noise it is allowed to cause. Under the Jefferson County code, the project could cause
up to 55 dBA of noise during the day and 45 dBA at night, resulting a 15 dBA increase which would
be a severe impact using impact criteria presented by both Mr. Jenkins and Mr. Warner. Nothing in
the proposed conditions sets any limit lower than that. Indeed, Mr. Warner seemed to believe that it
would be unreasonable to set any limit lower than that. Thus, under the developer’s current scheme,
the project would be allowed to cause a severe noise impact, and nothing in the permit conditions or
the County code would prevent it. In other words, the project, as permitted, will be allowed to cause a
significant, adverse environmental impact, and, as Mr. Jenkins explained, there is a reasonable
likelihood that will cause such an impact. For this reason, the Examiner should conclude that the
County erred in issuing a DNS. It should have issued a DS.
C. The Proposed Conditions Do Not Mitigate Noise Impacts.
Besides the SEPA requirement to issue a DS in the event of a probable, significant, adverse
noise impact, there is also the CUP requirement to avoid “material detriment” to neighboring
properties, and to avoid introducing “unreasonable” noise to neighboring properties. Mr. Jenkins
testified that limiting noise to a 5 dBA increase above existing conditions would be best to avoid
unreasonable noise and detriment. However, he was willing to go as high as 10 dBA—the level that
the EPA guidelines describe as a “substantial” increase likely to generate noise complaints. Appellants
agree with Mr. Jenkins that a level of noise that generates noise complaints is the highest possible level
that could be permitted under the “material detriment” and “unreasonable” standards.
APPELLANTS’ CLOSING ARGUMENTS - 9
Bricklin & Newman, LLP
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Seattle, WA 98107
Tel. (206) 264-8600
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The County’s proposed noise mitigation measures (Staff Report Addendum, Ex. 53, condition
24) will not prevent unreasonable noise. The proposed measures limit the applicant to the numeric
limits set forth under state law (55 dBA day and 45 dBA night, which works out to a 16 dBA increase
for day and a 14 dBA increase for night, per the Jenkins noise measurements). As explained above,
these numbers allow the developer to create not just a substantial noise impact but a severe one.
The rest of the conditions set quiet hours for construction crews and guests, and while we
certainly agree with the quiet hours, they are not sufficient. The bulk of the noise, per the Jenkins
report, comes from mechanical equipment, garbage pickup, and the generator, none of which are
mitigated by quiet hours for construction crews and guests.
There is a condition that the developer “shall monitor noise and other related impacts.” Mr.
Jenkins explained what a meaningless condition this is. First, the requirement merely to monitor still
allows the facility to generate noise up to 55 dBA and create a severe noise impact. Second, the
requirement merely to monitor does not compel the developer to reduce noise or even report excess
noise—all she has to do is monitor noise. Third, the requirement to monitor does not explain how the
monitoring must be done. The developer could “monitor” noise by sitting on her porch with a cup of
coffee in the morning, but monitoring of this kind would not generate any useful noise data, much less
any action to abate noise.
Mr. Jenkins suggested noise conditions with teeth. Limit the noise to 10 dBA increase above
median ambient, as measured at the south property line. Require monitoring by a professional noise
consulting company on a recurring basis. If noise is detected that exceed the 10 dBA increase limit,
and that noise is attributable to the project, then the developer must take immediate action to bring
noise below the 10 dBA limit. Here is some suggested language that would accomplish these
objectives:
APPELLANTS’ CLOSING ARGUMENTS - 10
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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1. The applicant shall retain the services of a professional noise consultant to
predict emissions from facility operations based on updated design documents
and actual equipment selections. If predicted noise emissions exceed 49 dBA
(hourly L25) during the day or 41 dBA (hourly L25) at night, the noise study
shall include feasible mitigation measures for implementation during final
design.
2. Within 30 days of the start of operations at Pomona Woods, the noise
consultant shall continuously monitor sound levels for not less than 72 hours
at two locations along neighboring property boundaries where the noise study
predicted the highest sound levels. Audio recordings shall be made for all
sound events above 49 dBA during the day and 41 dBA at night for use in
processing the data to determine if any exceedances were due to the facility or
ambient noise environment. Additional 72-hour rounds monitoring shall be
conducted not less than once per quarter for the first year of operation to
capture seasonal variations in operations. Reports shall be issued to the County
within four weeks of the measurements and made available for public review.
3. If measured sound levels exceed the noise limits set forth above, additional
noise control measures shall be implemented prior to the next monitoring
period and documented in the subsequent monitoring report. If compliance is
not achieved by the fourth monitoring report, monitoring and noise control
refinement shall continue on a quarterly basis until satisfaction of the noise
limits is demonstrated.
With these conditions in place, the County can be assured that Pomona Woods will not cause
a material detriment or unreasonable noise to neighboring properties. These conditions would also
have the additional benefit of mooting the County’s erroneous SEPA review, because there would no
longer be an adverse environmental impact from noise.
Mr. Warner testified that imposing numeric noise conditions and a professional monitoring
program would be all but impossible. He said it would be too difficult to set up a professional noise-
monitoring program. He also said it would be impossible to attribute any excess noise to the project.
What if an airplane flies over? he asked. What if a dog barks? Wouldn’t airplanes and dogs render any
noise measurements meaningless?
Mr. Jenkins explained why Mr. Warner is wrong. First, he explained that setting noise limits
and devising a monitoring scheme is not as difficult as Mr. Warner pretended. Indeed, Mr. Jenkins
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Seattle, WA 98107
Tel. (206) 264-8600
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testified, he sets up noise-monitoring programs for projects all the time. It is not the case that noise
monitoring is somehow too difficult for this developer to accomplish. Mr. Jenkins himself conducted
a multi-day noise monitoring program at the property line to obtain data for his expert report.
Professional noise monitoring is just not that difficult.
Nor is it the case that attribution of noise would be impossible. Mr. Warner mentioned lawn
mowers, and barking dogs, and airplanes overhead. He seemed to be worried that one of these non-
project noise sources would cause a noise impact and the monitoring program would then blame the
project for the excess noise. Mr. Jenkins explained why this fear is unwarranted. Noise attribution is
not particularly resource-intensive. Only in the rare instances where there is a prolonged period of
excess noise does the software even flag the noise for human review. During human review of the
excess noise periods, it is easy to determine whether the noise comes from a dog, a lawnmower, or an
airplane, and if so, the excess noise will not be counted against the project. It is simply not true, as Mr.
Warner seemed to believe, that noise monitoring is somehow beyond the capabilities of a landowner.
A 10 dBA noise limit coupled with a professional noise monitoring program and a requirement
to mitigate excess noise would solve the noise problem. The Examiner should impose the suggested
conditions here, or else remand to the County to devise its own, similar set of conditions.
II. TRAFFIC
Traffic safety is both an environmental issue, WAC 197-11-444(2)(c)(6), and a CUP issue.
JCC 18.40.530.1.b, -c. Here, the issue is the driveway location. As Ross Tilghman testified, the
Pomona Woods driveway is in the worst possible location. It is just far enough offset from Terri Ross’s
driveway that cars attempting to turn left into Pomona Woods will have to turn directly in front of Ms.
Ross’s driveway. If the Pomona Woods driveway were directly aligned with Ms. Ross’s driveway,
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Seattle, WA 98107
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or—better still—if the Pomona Woods driveway were substantially south of Ms. Ross’s driveway,
these conflicts could be avoided.
Public Works director Monte Reinders did not dispute that a different driveway location would
be superior in terms of avoiding conflict between Ms. Ross and the Pomona Woods traffic. He testified
that the Pomona Woods driveway could not be sited directly across from Ms. Ross’s driveway due to
the presence of a culvert. Fair enough. But he also testified that neither he nor anyone else had
considered siting the Pomona Woods driveway farther south, away from Ms. Ross’s driveway. He
even agreed that the proposed Pomona Woods driveway location was not necessarily the only possible
location. Thus, it appears that the County and developer have settled on the current driveway location
on the basis that it is convenient for the developer. But they have not made any effort to locate the
driveway in a place to avoid material detriment to Ms. Ross.
The developer may protest that it is unreasonable to force her to relocate her driveway just to
accommodate Ms. Ross. Not so. Pomona Woods is not a use allowed outright. It is a conditional use.
Here, where there is a more-harmful location and a less-harmful location, the developer should be
required to use the less-harmful location. If it seems too onerous, then she should simply use the
property for a use allowed outright, such as homes—which are free to locate their driveways anywhere
they want.
The Examiner should impose a CUP condition requiring the developer to locate the driveway
substantially to the south of the Ross property to avoid traffic conflicts, or else produce an engineering
study explaining why a southward location is infeasible.
III. STORMWATER
Stormwater control is both a SEPA issue, WAC 197-11-444(1)(c)(i) and (ii), (2)(d)(vii), and
a CUP issue. JCC 18.40.530.1.d. Under the stormwater manual, Pomona Woods is required to meet
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Seattle, WA 98107
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all nine minimum requirements in the stormwater manual. Staff Report Addendum, Ex. 53, condition
27, AR 777. Staff required the developer to submit a stormwater plan demonstrating compliance with
the nine minimum requirements. Id. at AR 764.
Bafflingly, however, the developer’s stormwater expert only chose to demonstrate compliance
with the first five minimum requirements. Revised Stormwater Plan, Ex. 47, AR 567–584 (stopping
with Worksheet C for minimum requirement 5 at AR 584). The developer’s stormwater engineer,
Laura Bartenhagen, testified that there was nothing preventing her from doing the worksheets for all
nine requirements; she simply didn’t do it. Her omission is all the more baffling, because the
stormwater flowchart (AR 573) specifically says that a project subject to all nine requirements must
“must demonstrate compliance with the LID Performance Standard and all minimum requirements”
(emphasis added). There is nothing in the flow chart or worksheets that allows a developer to simply
stop at minimum requirement 5.
Mr. Bartenhagen testified that meeting the other requirements—such as minimum requirement
7, which requires stormwater flow post-development to match the flow of a fully forested property—
was probably feasible given the size of the site. But that testimony is merely her best guess. It is not
based on a reasoned examination of the requirements themselves and the specific features of the site.
It does not satisfy the flow chart’s directive to “demonstrate” compliance with all nine requirements,
rather than simply “assume” compliance with all nine requirements.
There is sometimes a temptation, in these cases involving multiple stages of permitting, to
defer stormwater compliance to a later stage, such as the building permit stage. But it is the CUP
applicant’s burden of proof to establish that there will be adequate infrastructure for stormwater, not
that there might be adequate infrastructure for stormwater. JCC 18.40.530.1.b. Here, it is obvious that
a mistake has been made—the developer’s stormwater planner stopped at minimum requirement 5
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instead of continuing to minimum requirement 9. This Examiner should not countenance any attempt
to fix this omission at the building permit stage, because a building permit is not subject to the
Examiner’s review. JCC 18.40.040, Table 8-1 (building permit is Type 1 decision not subject to
Examiner review). The CUP stage is the Examiner’s chance to ensure that stormwater infrastructure
is not just possible in theory but actually in practice. The CUP approval criteria require the developer
to make that showing now, not some future stage.
The Examiner should conclude that the DNS was not based on information reasonably
sufficient to evaluate Pomona Wood’s stormwater impacts, and he should conclude that the developer
has not met her CUP burden of proof to demonstrate that adequate stormwater infrastructure will be
provided. The matter should be remanded for a stormwater report that evaluates all nine minimum
requirements, not just the first five.
IV. LIGHT AND GLARE
Light and glare is another issue implicating both SEPA and the CUP approval criteria. WAC
197-11-444(2)(b)(iii), JCC 18.40.530.1.a, -c. No experts provided testimony regarding Pomona
Woods’ light and glare impacts. However, Kathleen Heinz testified that the light and glare will be
easily visible from her property, especially the open, grassy field of her backyard. She can look through
the trees now and see the building site, and there is nothing in the vegetation plan or other conditions
that would require the developer to provide a denser vegetation screen. The photos of the developer’s
wetlands expert inadvertently proved Ms. Heinz’s point, as her lawn is visible through a thin scrim of
narrow trees. Photo, Ex. 84, AR 1062.
The Pomona Woods light and glare will be occurring in an area that is currently very dark at
night and where there is no glare from windows because everyone lives in widely separated houses.
Into this environment will be dropped a large, glass-facaded structure (Rendering, Ex. 73, AR 913)
APPELLANTS’ CLOSING ARGUMENTS - 15
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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with exterior “safety” lighting (Revised SEPA Checklist, Ex. 48, AR 623) and an illuminated sign on
Oak Bay Road (Staff Report Addendum, Ex. 53, AR 767). Although these lights and windows may
not seem like much in an urban environment, they will obtrude in this rural environment, causing a
significant, adverse impact, and a material detriment to surrounding properties, not compatible with
the character of existing development.
The lights and windows are all the more offensive because they are unnecessary. As Ms. Hunt
testified at the end of the last day of hearing, there is nothing in the code that requires so-called “safety”
lights or an illuminated sign. These are optional features the developer believes will improve the
quality of her project, but they will be significantly harmful to her neighbors.
Because this is a CUP, the developer is not entitled to inflict these impacts on her neighbors.
Rather, the burden is on her to make her project as unobtrusive as possible. The proponents of the
project went on at some length about the natural-looking, non-reflective wood in the exterior façade,
but as the Examiner can see in the rendering at AR 913, the wood in the façade represents a tiny
fraction of the façade. Most of the facade is glass, which will reflect light onto Ms. Heinz’s property.
The developer is not required or entitled to install so much glass. Like the safety lights and the
illuminated sign, the glass façade improves her property at the expense of her neighbors, which is
disallowed for a conditional use.
The Examiner should impose conditions prohibiting exterior lights except for porchlights of
the type that would commonly be found at residential properties. He should prohibit an illuminated
sign in favor of a non-illuminated sign. And he should limit the area of glass coverage of the structure
to no more than one-third of the façade. These conditions would prevent a significant, adverse impact,
material detriment, and a non-harmonious structure.
V. WETLANDS
APPELLANTS’ CLOSING ARGUMENTS - 16
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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Wetlands implicate both SEPA and the County critical areas ordinance. The issue here is the
rating form for Wetland A. As the Examiner heard during testimony, the size of the Wetland A buffer
changes depending on whether it is a depressional or a sloped wetland. Our expert, Diane Brewster,
explained that a wetland that is partially sloped and partially depressional should be rated as sloped,
depressional the developer failed to do. The developer’s expert, Jennifer Marriott, testified that she
believed only a minority of Wetland A was depressional, but she admitted she had not been able to
see very much of the wetland owing to private property restrictions.
In response to a question by the Examiner, all witnesses agreed that that a Category III, high-
intensity buffer—150 feet per the table at JCC 18.22.730—would not affect the developer’s current
site plans. If the Examiner orders a noise study and relocation of the driveway as we suggest above,
the site plans might change somewhat to accommodate new noise control measures and a new
driveway; and the site plans might also change somewhat to accommodate stormwater requirements
1 through 9, depending on the results of a new stormwater plan. However, in all cases, the changes
would be likely to move development farther from Wetland A, not closer. Thus, there is no harm to
the developer in treating Wetland A as a Category III wetland (as Ms. Brewster’s evidence suggests it
is) and imposing a 150-foot buffer.
In addition, all walking trails should be routed outside of any wetland buffer, but that, too, will
not substantially affect the project. The code may not require trails to routed outside the buffers, but
the site is large enough to accommodate trails throughout the remaining undeveloped land while still
providing protection to valuable wetland functions by avoiding the disturbance of trails.
VI. REQUESTED RELIEF
For the foregoing reasons, the Hearing Examiner should reverse the Determination of
Nonsignificance. The matter should be remanded to the County for a noise study, to include the actual
APPELLANTS’ CLOSING ARGUMENTS - 17
Bricklin & Newman, LLP
Attorneys at Law
123 NW 36th Street, Suite 205
Seattle, WA 98107
Tel. (206) 264-8600
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equipment and infrastructure that is proposed; a new driveway location offset to the South of Ms.
Ross’s driveway. The developer should also be required to submit a new stormwater plan that
addresses all nine minimum requirements.
In addition, the Examiner should impose as a permit condition a noise limit of 10 dBA above
ambient levels and require the developer to implement professional noise monitoring, with a
requirement to mitigate any excess noise detected by the monitoring program. He should limit the use
of glass to 30 percent of the façade’s total area, and prohibit outdoor lights and illuminated signs other
than a porchlight-style light above any exterior doors.
Dated this 7th day of October, 2022.
Respectfully submitted,
BRICKLIN & NEWMAN, LLP
By:
Claudia Newman, WSBA No. 24928
Alex Sidles, WSBA No. 52832
123 NW 36th Street, Suite 205
Seattle, WA 98107
newman@bnd-law.com
sidles@bnd-law.com
Attorneys for Oak Bay Concerned
Citizens