BEFORE THE SHORELINES HEARINGS BOARD

STATE OF WASHINGTON

 

LOUISE B. WENBERG LUCE and PAM and FRANK McFADDEN,

 

                        Appellants,

 

            v.

 

CITY OF SNOQUALMIE and NORTHWEST RAILWAY MUSEUM,

 

                        Respondents.

 

 

 

 

SHB NO. 00-034

 

FINAL FINDINGS OF FACT, CONCLUSIONS OF LAW AND ORDER

 

           

This matter comes before the board on the appeal of a Shoreline Substantial Development permit (SDP), and the associated Declaration of Non-Significance (DNS), issued by the City of Snoqualmie to the Northwest Railway Museum (NRM) for the construction of phase 1 of their Conservation and Restoration Center (CRC).  A hearing on the matter was held on May 29th and 30th, 2001, in Snoqualmie, Washington.  The Board was comprised of Kaleen Cottingham, Robert V. Jensen, James A. Tupper, Jr., Judy Wilson, Phyllis Shrauger, and Dan Smalley.  Kaleen Cottingham presided for the Board.  James A. Tupper, Jr., was unable to attend the first day of the hearing, but did review all materials and the transcription of the day and participated in the decision of the Board.  Betty J. Koharski of Gene Barker & Associates provided Court reporting services.  The board conducted a site visit on the first day of the hearing.

            The appellants, Ms. Louise B. Wenberg Luce and Pam and Frank McFadden, appeared through their attorney, Jennifer Dold of the Law Offices of Bricklin & Gendler.  The Respondent, City of Snoqualmie, appeared through its attorney, Patrick B. Anderson.  Respondent, Northwest Railway Museum, appeared through its attorneys Robert C. Rowley and James J. Klauser of the Law Offices of Rowley and Klauser.

            The Board received the sworn testimony of the witnesses, admitted the parties’ exhibits, and heard the arguments of the parties.  Having fully considered this record, the Board makes the following:

FINDINGS OF FACT

                                                                                                                                                                                               I.     

            The Northwest Railway Museum[1] (NRM) has been in existence since 1957.  It received by deed approximately eight miles of operating railroad right-of-way and track extending from Snoqualmie Falls through the City of Snoqualmie to the center of the city of North Bend.  The tracks themselves have been in existence since 1889.  The appellants Louise B. Wenberg Luce and Pam and Frank McFadden own two parcels which adjoin the NRM property along the northeastern side of the tracks, on the side closest to the river.  Both of the appellants’ parcels, while adjacent to the right-of-way, are not immediately adjacent to the site of the proposed CRC.  Ms. Luce has owned her undeveloped property since 1959.  Her property runs along the tracks and is approximately 300-400 yards from the proposed project site.  The McFaddens have owned their property since 1971 and live on site.  Their parcel is 9.8 acres with two homes and outbuildings.  Their property also runs along the tracks and is approximately 300 to 600 feet from the proposed site of the CRC.  The McFadden’s property is closer than Ms. Luce’s property to the proposed site. 

II.

            NRM operates the historic railroad, giving public rides on its trains between the Snoqualmie Depot and the North Bend Depot.  NRM owns the historic Snoqualmie Depot in the center of the City of Snoqualmie where it sells tickets to ride the train, maintains a gift shop, and has conducted restoration work outside on railroad artifacts for nearly 50 years. 

III.

            NRM’s collection of railroad artifacts includes approximately 70 historic pieces of “rolling stock;” most of which are large artifacts originally utilized, for the most part, in rail-oriented transportation, lumbering, and mining from the earliest days of Washington’s history.  The bulk of NRM’s collection is stored on sidings north of the Snoqualmie Depot, secured by a chain-link fence.  The collection is visible from the main street through Snoqualmie.  NRM has been narrowing its collection to artifacts significant to the NW.  The rolling stock consists of large diesel, steam, and diesel/electric locomotives and coaches retired from service and conveyed to NRM.  The collection also includes numerous railroad special purpose artifacts, such as snowplows, tenders, cranes and track maintenance equipment. 

IV.

            All of the collection is slated for restoration at some point in the future.  NRM’s goal is to restore each piece to as close to original condition as possible.  The bulk of the restoration process involves woodworking, replacing cracked, broken or missing windows, painting, and installing upholstery, floor coverings, roof panels, and wiring. Mechanical work on wheels, axles, engines and connectors is also conducted.  Hazardous materials, such as paints, lubricants, cleaning products, greases, solvents, and paint thinners are used in the restoration process.  Asbestos may be present in some of the inventory.  Sanding is part of the restoration process and may cause the release of dust containing residue from lead based paint.  Additionally, some of the inventory occasionally leaks oil or other lubricants along the tracks.

V.

            NRM has only one paid employee.  The work is done primarily by volunteers.  The volunteers, after training and certification, operate the trains.  The volunteers conduct the assessment of the rolling stock inventory, as well as perform the restoration and conservation work.

VI.

            Restoration of the inventory is a piece-meal process.  It is very dependent on funding and availability of materials.  Much of the funding for restoration of the rolling stock and for the construction of the facilities comes from government grants. Once restored, some of the items will be operational.  Some will be on view only.  All will be moveable.  Only a few pieces of the inventory will be used in the public train rides.

VII.

            NRM attracted more than sixty thousand visitors in 2000.

 

 

VIII.

            The current restoration work is done outdoors. The reason given by NRM on why so much of the rolling stock is not restored is the lack of an indoor restoration facility.  Volunteers apparently do not like to work outdoors in the rain.  In addition to the problems caused by inclement weather, the lack of an indoor facility for restoration has caused problems with security, unsafe working conditions, and reduced control over the inventory and restoration processes. 

IX.

NRM began planning for the construction of an indoor restoration facility in the mid-1990s. 

X.

            Every proposed land development project in the City of Snoqualmie is reviewed in a pre-application review process pursuant to chapter 14.20 of the Snoqualmie Municipal Code.  The pre-application review process is mandatory, as no application can be accepted for filing until pre-application review has been conducted.  Representatives from all City departments attend a meeting to consider each land development proposal, and jointly endeavor to identify all codes, ordinances, regulations and policies applicable to the proposal.  The proposal is discussed, and the determinations made are communicated to the applicant. 

XI.

On July 15, 1999, NRM applied for pre-application review with the City of Snoqualmie. Attached to the “pre-application” was a not very detailed map and site plan for the CRC that showed the existing and proposed tracks and a 40-foot by 100-foot structure.  The pre-application indicates the lot coverage of the structure at 4000 square feet with a height of 22 feet.  A 10 stall, gravel parking lot is also proposed at this stage.  Subsequent documents, such as the DNS, indicate the structures (phase 1 and 2) will cover 2,390 square feet and 5,270 square feet, respectively, for a total lot coverage of 7,660 square feet.  The subsequent environmental checklist indicates the structural height will not exceed 35 feet.

XII.

The pre-application review for NRM’s proposed CRC was conducted on July 21, 1999.  The pre-application review letter was sent to the applicant on August 19, 1999.  It identified requirements applicable to the project.  The City identified the potential environmental impacts of the proposed project, and identified the applicable regulations and other requirements required for final approval.  The City informed NRM that the following would be required for their proposed CRC:

Ø      State Environmental Policy Act (SEPA) compliance;

Ø      Zoning variance;

Ø      Certificate of zoning compliance;

Ø      Conditional Use permit for a museum/interpretive center in the Parks and Open Space zoning;

Ø      Shoreline Substantial Development Permit (SDP);

Ø      Flood improvement permit;

Ø      Barrier-free compliance;

Ø      Design review;

Ø      Sensitive area review;

Ø      Building permit with a clearing and grading design review;

Ø      Fire Marshall’s review;

Ø      Site Plan for water, wastewater, and storm drainage; and

Ø      Parking and traffic review.

XIII.

The Shoreline substantial development permit is not the only permit required for this proposal.  The project also requires at least five other permits and other reviews: a Conditional Use Permit for a museum use in the parks and open space zoning; a variance, as the building is proposed close to the property line within the building setbacks; a building permit; a flood improvement permit for development of lands within the areas of special flood hazard; and a sign permit for any signs proposed for the business.  A sensitive areas review is required.  Additionally, the permit must conform to the conditions of approval of the Design Review Board.  

XIV.

The City does not dictate the order that permits are applied for or granted, that decision is made by the applicant.  The applicant can decide to select a consolidated approach to its permits.  NRM, for reasons not presented to the board, chose to proceed first with obtaining the SDP rather than a consolidated approach to all of the permits. 

 

XV.

On February 18, 2000, NRM filed the SDP application with the City of Snoqualmie to build the CRC, described as a facility for restoring, conserving, storing, and performing maintenance on historic locomotives and train cars. The application was for Phase 1 of an envisioned two-part project.  Phase 1 of the proposal includes an approximately 2,390 square foot structure, 1,200 feet of new rail tracks and parking.  Phase 2, which is not part of the SDP at issue here, contemplates building a 5,270 square foot addition and siding track.  On March 20, 2000, the City of Snoqualmie determined that the application was complete. 

XVI.

The environmental checklist prepared by NRM was submitted to the City on February 18, 2000.  Along with the checklist, NRM submitted the site plan associated with the Conditional Use Permit showing placement of the building, delineation of wetlands A & B, a 50-foot wetland buffer, and a 15-foot building set back from the wetland buffer.  It also showed the parking lot, access to Stoen Quarry Road, sidewalks and the placement of a future building (phase 2 of this project).  On March 17, 2000, a revised site plan was submitted to the City showing greater building setback from the wetland buffers.  On March 20, 2000, the Conditional Use permit (for the zoning, not for the shoreline) was deemed complete with notations of the need for the hazardous materials inventory and usage determination, as well as provision of a method for the containment of contaminants within the structure.

 

 

XVII.

On February 19, 2000, a wetland delineation and analysis report was prepared by NRM’s wetland consultant, B & A.  It was submitted to the City on April 24, 2000, along with proposed buffers and a copy of the site plan from December 17, 1999.  The City submitted this wetland delineation and analysis report to its independent wetland consultant on April 28, 2000. On May 9, 2000, a revision to the wetland survey was prepared by NRM’s consultant and submitted to the City.

XVIII.

On May 1, 2000, the City issued its Determination of Non-Significance (DNS) under SEPA.  The City indicated that the proposal “does not have a probable significant adverse impact on the environment that can not be mitigated through compliance with all applicable City codes and regulations.” 

XIX.

            On May 9, 2000, the Director of Planning issued the SDP.  A corrected notice of decision was issued on May 12, 2000. Conditions for the applicant were contained throughout the permit (in both the application of applicable master program policies section, the applicable shoreline regulations section, and in the section called “terms and conditions.”)  Specifically, all of these sections together required NRM to obtain or perform the following prior to construction:

Ø      Obtain “a conditional use permit because of its location within Parks and Open Space zoning.”

Ø      Provide “compensatory storage for all fill associated with the project.  Existing soils will be removed from the same location as where the fill is proposed such that no net-fill will be included in the project.”

Ø      Include “oil separation of sump water, sewage treatment and containment and absorbtion (sic) of fueling spills.”

Ø      Provide “additional information from the proponent regarding the use and disposal of these [hazardous] materials”;

Ø      Comply “with other regulations of general applicability, including Building Regulations, Flood Hazard Regulations, Sensitive Areas Regulations and Clearing and Grading regulations;”

Ø      Septic will only be allowed if approved by King County, otherwise the proponents are required to hook up to the municipal sewer system;

Ø      Prepare a hazardous materials inventory and a hazardous materials management plan to be reviewed by Ecology for the storage and use of hazardous materials on the site and their proper disposal.

Ø      Grading shall be in conformance with SMC code provisions

Ø      Comply with any other federal, state of local statutes, ordinances, or regulations

Ø      Conform to the conditions of approval of the Design Review Board.

XX.

            The City’s independent wetland consultant, Sheldon and Associates, issued its review of the wetland delineation and analysis report on May 25th and June 8, 2000.  On June 7, the City received yet another revised site plan associated with the Conditional Use permit for the structure.

XXI.

            The proposed CRC is within the 100-year floodplain of the Snoqualmie River, a shoreline of statewide significance.  The area is designated “urban floodplain” in the Snoqualmie Shoreline master program and is zoned “Parks and Open Space” in the Snoqualmie Vicinity Comprehensive Plan.  Although the proposal is within the 100-year floodplain, it is not adjacent to a water body, but rather is located approximately a half a mile landward of the ordinary high water mark of the Snoqualmie River. 

XXII.

            The site for the proposed CRC is approximately 2.1 acres of the NRM right of way running parallel to Stoen Quarry Road.  The site of the proposed CRC contains no existing structures.  The existing rail line runs the entire length of the site and there are piles of rails and other associated debris and equipment in the general vicinity.  The majority of the site not associated with the rail line is a second growth forest of mixed conifer and hardwoods.  The property is generally level ground and contains areas of high ground water and wetlands.  Two of those wetlands were documented prior to permit issuance (known as Wetland A and Wetland B).  A third wetland was discovered and noted by appellants’ wetland consultant as part of discovery.  Wetland A is located in the north corner of the property, while Wetland B is at the southeastern edge of the property.  The third wetland is between Stoen Quarry Road and the tracks.  It has not been delineated or identified, although evidence of the presence of saturated soils and wetland plants was presented.

XXIII.

            The soil in this area is Si silt loam and Puget silty clay loam.  The Si series is a moderately well drained soil.  The Puget series is a poorly drained soil.  The Puget series is on the hydric soils list and is generally considered a wetland soil.

XXIV.

            The property is prone to flooding.  Flooding events were described in testimony for 1959, 1986, 1991, and 1993.  Not only is this property subject to flooding, but also so is much of the City of Snoqualmie.  In 1991, a big flood event pushed water to within 300 feet of the McFaddens’ driveway and within 100 feet of their buildings.  During this flood event, testimony indicated water covered the NRM site.  In 1993, the road was closed due to water over the roadway.  During the 1993 flood event, water was noted on the railroad tracks.

XXV.

            The railroad right-of-way is generally 100 feet wide, except in the area proposed for this project.  The right-of-way here is 200 feet wide.  The facility will be constructed on the right-of-way but adjacent to the mainline so as not to disrupt rail traffic.  The facility will be enclosed and a side-track will terminate inside.  The facility will be designed to capture all materials used in the restoration process.  The facility is not a toxic storage facility, although some toxic materials will be used on site.  Asbestos, although rare, is found on some old equipment and will be removed and disposed of by certified contractors.  The facility is designed to be self-contained for liquids that might leak or be spilled inside, including a sump pump to capture liquids for transport to a separator and subsequent disposal in either an approved septic or public sewer system.

XXVI.

The project review is on going, and the precise conditions to be imposed pursuant to other applicable Snoqualmie municipal code provisions have not yet been specifically established.  Further action includes drainage review, civil engineering review, design review, conditional use permit review, and flood improvement permit review.

XXVII.

There is a history of, and evidence of recent leakage of oil or other liquid material from the rolling stock along the tracks in the general vicinity of the proposed project.

XXVIII.

            Although the City of Snoqualmie issued the SDP on May 9, 2000, it was not transmitted to Ecology until November 9, 2000.  The “date of filing” as defined in RCW 90.58.140(6) was determined by Ecology to be November 13, 2000.

XXIX.

On November 30, 2000, this appeal was timely filed. 

XXX.

            Any Conclusion of Law deemed to be a Finding of Fact is hereby adopted as such. 

 

 

            From these Findings of Fact, the Board issues these:

CONCLUSIONS OF LAW

I.

      The board has jurisdiction over the persons and subject matter of this appeal.  RCW 90.58.180.  The board reviews the proposed development for consistency with: 1) the Shoreline Management Act (SMA), chapter 90.58 RCW; 2) the City of Snoqualmie Shoreline Master Program (SMP); and 3) the provisions of the State Environmental Policy Act (SEPA), chapter 43.21C RCW.  See WAC 461-08-505.

II.

            The board’s scope of review is de novo.  WAC 461-08-500.  The board’s standard of review is preponderance of the evidence for the Shoreline Substantial Development permit issues and clearly erroneous for the SEPA challenges.   Since this matter involves the issuance of a permit, the appellants bear the burden of proof.  RCW 90.58.140(7).                                          

III.

The issues in this case are:

1.      Did the City of Snoqualmie err in issuing a Determination of Non-significance for the NW Railway museum in violation of the requirements of the State Environmental Policy Act (SEPA)?

2.      Did the City of Snoqualmie fail to adequately evaluate impacts to wetlands, surface and groundwater, air, soils, fisheries and wildlife, floodplains, fire utilities, and impacts from use of hazardous materials in violation of SEPA?

3.      Did the City of Snoqualmie err in issuing a substantial development permit to the NW Railway Museum Company for the Railroad Car Restoration Building in violation of applicable provisions of the Shoreline Management Act, Snoqualmie’s Shoreline Master Program, and Snoqualmie’s shoreline regulations?

4.      Does the Board have jurisdiction to consider issues relating to compliance with shoreline regulations when such regulations have not been approved by the Department of Ecology as part of the City’s Shoreline Master Program?

5.      Is the petition for review time-barred?

6.       If the petition for review is not time-barred, have the petitioners failed to exhaust administrative remedies?

           

            The last two issues, numbers 5 and 6, were addressed in preliminary motions.  The board ruled that the parties were barred by collateral estoppel from raising these issues as a result of a Thurston County Superior Court ruling on May 25, 2001.

            The remaining issues will be consolidated for analysis into the following three categories and each will be separately addressed:

1.      The role of the board in SEPA threshold determination challenges;

2.      The issuance of the SDP; and

3.      The issuance of the DNS.

IV.

            1. The role of the board in SEPA threshold determination challenges.

            The respondents argue that the board is precluded from hearing extra-record testimony on the SEPA threshold determination.  Respondents argue that the board’s role is to review only the record as compiled by the local government when it made its SEPA threshold determination.  The board does not agree with respondents’ articulation of the law.  The legislature has granted the board sole jurisdiction over all aspects of a Shoreline Management Act (SMA) appeal, including any related SEPA issues.  RCW 43.21C.075 (7) provides:

In an appeal under this chapter regarding a project or other matter that is also the subject of an appeal to the shorelines hearings board under chapter 90.58, the shorelines hearings board shall have sole jurisdiction over both the appeal under this section and the appeal under chapter 90.58, shall consider them together, and shall issue a final order within one hundred eighty days as provided in RCW 90.58.180.

 

            This amendment was added by the legislature in 1994 to eliminate the bifurcation of appeals of the same project as well as to clarify the confusing roles previously granted to the board and the local governments.  The amendment confers upon the board exclusive jurisdiction over an administrative SEPA appeal related to a shoreline permit application that has been appealed to the board. The 1994 amendment is consistent with the general SEPA requirement to consolidate appeals of SEPA determinations with appeals of agency decisions on the proposed actions. RCW 43.21C.075 (3)(a); WAC 197-11-680(3)(a)(v).  Further, RCW 43.21C.075 clearly indicates that an appeal of a SEPA action “shall be linked to a specific governmental action.”  In this matter, the appeal of the SEPA action is clearly linked to the issuance of the SDP, which is squarely within the jurisdiction of the board. 

            In San Juan County v. Department of Natural Resources, 28, Wn. App. 796 (1981), the court held that the board had properly considered evidence outside the record and subsequently upheld the board's determination that the DNS was supported by the record.  Further, the board has adopted rules regarding the scope of review and standard of review.  Both terms have separate meaning.  “Scope of review” means the breadth of the evidence reviewed by the board, whereas “standard of review” means the burden of persuasion carried, in this case, by the appellants.  The board's scope of review in both SMA and SEPA challenges is de novo.  WAC 461-08-500.  The board’s standard of review for SMA challenges is preponderance of the evidence.  The standard of review for SEPA challenges is “clearly erroneous.”  Norway Hill Preservation & Protection Ass'n v. King County Council, 87 Wn.2d 267(1976)).

            In determining whether the SEPA decision is consistent with the requirements of chapter 43.21C RCW, the board may admit “evidence that is material and relevant to determination of the matter consistent with the standards…..whether or not such evidence had been submitted to the local government unit.”  WAC 461-08-505(2).  This was upheld in Citizens for Sensible Growth v. City of Leavenworth, SHB No. 98-24 (1998), holding that the scope of review is de novo, and is not confined to the record made before the local government; the standard of review is whether the threshold determination is “clearly erroneous.” See also, Swift v. Island County, 87 Wn.2d. 348, 356-7 (1976).

            The board has consistently heard SEPA appeals with extra-record evidence.  In Save Our Industrial Land v. City of Seattle, SHB No. 95-41 (1996), the board held that a SEPA appeal is not limited to the administrative record before the administrative agency.  See also Young v. San Juan County, SHB No. 95-51 (1996). Thus, the clearly erroneous standard as exercised by the board does not preclude consideration of extra-record testimony.

            Respondents argue that a SEPA appeal be in conjunction with the appeal of the underlying land use action and pursuant to Land Use Petition Act (LUPA).  Chapter 36.70C RCW.  The board agrees that the SEPA appeal must be heard in conjunction with the underlying permit appeal, but does not agree that LUPA applies. A LUPA appeal arises in a wholly different context from an appeal before the board. LUPA provides for a judicial appeal of quasi-judicial land use decisions made by local governments to a superior court. RCW 36.70C.030.  A superior court’s review of the quasi-judicial decision is generally limited to the record with some exceptions. The Shorelines Hearings Board is a quasi-judicial body, not a judicial body.  Even if LUPA did apply to the board, respondents’ argument fails due to RCW 36.70C.120(3) which allows for the record to be supplemented by evidence of material facts when the underlying decision was not made by a quasi-judicial body or officer and the parties did not have access to a quasi-judicial proceeding in which to make a record.  That is the situation before us with the City of Snoqualmie’s decision.  First, the City admitted that there was no previous appeal of the DNS allowed.  Second, the decision was not made by a quasi-judicial body or officer; it was made by Nancy Tucker, the Planning Director.  Nor was there a quasi-judicial process for the appellants’ to have assured that the record was complete.  Thus, the review by the board is the opportunity to make sure the record is complete.  Evidence may be taken by the board to assure that the record is complete.

            Finally, the evidence presented by appellants was not exclusively related to the SEPA determination, but rather to both the SEPA determination and the SDP determination.  Precluding the testimony would have precluded evidence clearly related to the board's role in determining whether the SDP was consistent with the policies of the SMA.

 

 

V.

2.      The issuance of the SDP.

The proposed CRC is located within the Urban Floodplain Environment designation in the Snoqualmie Shoreline Master Program.  Allowable uses in that designation include “Roads and Railroads,” so long as such uses meet the existing zoning code and comprehensive plan.  The underlying zoning is “Parks and Open Space.”  Under the zoning code and comprehensive plan, museums and interpretive centers are allowed as a conditional use in this zoning designation. 

The CRC is an integral part of the NRM’s overall operation as an operating railroad and museum.  The railroad tracks are already located on the site, and this proposal is related to the extension of the existing railroad and museum.  The appellants contend the CRC is a light industrial use and thus prohibited under both the zoning and the Shoreline Master Program.  The board does not agree.  The SMC specifically identifies light industrial as “the mechanical or chemical transformation of materials, substances or components into new products.”  The proposed CRC is not a light industrial use, as new products will not be constructed on site, but rather routine maintenance and restoration of existing equipment necessary for the continuation of the railroad operation will be performed as well as allowing occasional public access for interpretive purposes.

Despite the CRC being an allowable use in this general location, several major errors have occurred in the issuance of the SDP that require remanding the decision to the City of Snoqualmie for processing consistent with this opinion.

Under the Shoreline Management Act, the scope and extent of the authorized uses is defined only by the contents of the development permit itself.  Effective operation of the permit review process, as well as enforcement of the SMA, demands that shoreline permits be complete in themselves and contain sufficient detail to enable the local government and the board to determine consistency with the policies set forth in the SMA, implementing regulations and Shoreline Master Programs.  Hayes v. Yount, 87 Wn.2d 280, 295 (1976).  WAC 173-27-180(9)(f) requires an application for a SDP to contain, at a minimum, project diagrams and site plans.  Specifically the regulations require:

The dimensions and locations of all existing and proposed structures and improvements including but not limited to; buildings, paved or graveled areas, roads, utilities, septic tanks and drainfields, material stockpiles or surcharge, and stormwater management facilities.

            More importantly, WAC 173-27-130(4) requires that “when the project has been modified in the course of the local review process plans or text shall be provided to the department that clearly indicate the final approved plan.”

These regulations are clear and unambiguous.  The terms are not specifically defined within chapter 173-27 WAC.  We give such words their usual and ordinary meaning.  Stastny v. Board of Trustees, 32 Wn.App. 239, 253 (1982).  What is required is a scale drawing showing dimensions and locations of structures of what is actually proposed to be built and what was approved by the local government.  Save a Valuable Environment v. City of Bothell, et al, SHB No. 82-29 (1982).  While the board does not rule on whether the conditions referring to compliance with other parts of the Snoqualmie Municipal Code are adequate, it does find that it is unable to tell what those provisions in the code will do to the proposed CRC.  As such, the board has no idea what was approved by the City of Snoqualmie.  Site plans have continued to be submitted after the fact and will probably continue to evolve as the proponents move to comply with all of the conditions imposed. 

It appears that the project proponents knew far in advance what other requirements were applicable to this proposal.  The pre-application review process is very commendable.  However, it is unclear to the board whether NRM used the information provided in the August 19, 1999, letter to enrich the design process.  Either their proposal did not incorporate the requirements of all of those referenced in the pre-application review letter or the City felt constrained to comment on the likelihood of the proposal complying with the other provisions.  In either case, the board is left with the sense that this proposal is far from complete and that the evolution of the design may well substantially change the look, feel, impact, location and buffers of the CRC.  Until a proposal is more fully developed and likely to pass all hurtles, it was inappropriate for the City to have issued the SDP. 

It is also important to this analysis that NRM chose to proceed first with the SDP, despite the opportunity to consolidate the permits.  It is not known why NRM did not choose to use the consolidated approach to permitting authorized by 14.30.010 and 14.30.130 of the Snoqualmie Municipal Code.  A decision to consolidate the process might have changed the outcome in this appeal.

By choosing to proceed first with the SDP placed a burden on both the project proponent and the City of Snoqualmie to assure that the permit approved, and the associated site plans, reflected the imposition of conditions, not just as cross references to codes, but to actual impact of conditions on a project. 

A complete application must at a minimum comply with WAC 173-27-130 and must provide sufficient information for the public, Ecology, and the board to know the details of the proposed project as approved by the local government.  In particular, when the project has been modified in the course of the local review process, plans or text shall be provided to Ecology that clearly indicates the final approved plan. WAC 173-27-130(4).  That did not occur in this process.  The board, and presumably the public, is unable to determine the extent of the proposed CRC.  Nor was the board able to ascertain the impact of the conditions and determine whether the conditions would assure that the proposal was consistent with the SMA and the local master program.  This does not mean that the conditions, when fully incorporated into the project’s design will not be adequate, only that the board was unable to determine the adequacy.

In Citizens for Sensible Growth v. City of Leavenworth and Vacation International, Ltd., SHB No. 98-24, the board was faced with a SDP contingent on future plans and studies, much like the current case is contingent on complying with other provisions in the City’s municipal code.  The board has previously held that the soundness of a proposal should be determined before approval of a shoreline permit, not afterwards.  Department of Ecology v. Barden, SHB No. 83-42, 84-27 and 84-33 (1985).  We reversed the shoreline permit in that case because the very feasibility of the proposal was contingent on future study.   We contrasted that case with the facts of a later case, Evergreen Islands v. City of Anacortes and Leeward Development, SHB No. 91-39 (1992), where study had shown the feasibility and all that was left was locating the development as proposed.  In the case before us today, the feasibility of the development under a wide variety of other municipal code provisions has not been fully detailed.  This case is akin to Barden and distinguishable from Leeward.  The permit granted by the City postpones any determination of feasibility.  It is even acknowledged by the City in its closing briefs and testimony that the appellants’ arguments are “based on the mistaken notion that the Substantial Development permit in itself will permit construction.”  Development review, and thus proposal evolution, will continue right up to the issuance of the building permit.

Finally, the board questions the decision to segment the proposal into phase 1 and phase 2 for purposes of review under the SMA.  Although this decision to segment the project may not be technically flawed, the board reiterates that segmentation of projects has the potential to overlook or minimize the impacts of a proposal.  First, segmentation of shoreline permits from other permits is not allowed if the piecemeal administrative approvals would frustrate the vitality of either the SMA or SEPA.  Merkel v. Port of Brownsville, 8 Wn. App. 844 (1973).  Second, the entirety of the project must be evaluated under SEPA.  It appears that the SEPA environmental checklist was prepared for both phase 1 and phase 2, however, it is not clear whether the City has met the standards set forth in Merkel.  There should be a similar review under the SMA.  It is not necessary to obtain a single permit for both phases.  It is critical, however, that there be some assessment of the cumulative impact of the entire project under shoreline policies and regulations.  Hayes v. Yount, 87 Wn.2d 280, 284 (1976).

VI.

3.      The issuance of the DNS.

               As noted above, the standard of review for the DNS is whether the decision was clearly erroneous.  A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the record is left with the definite and firm conviction that a mistake has been committed. Norway Hill Preservation & Protection Ass'n v. King County Council, 87 Wn.2d 267, 274(1976)).  For a DNS to survive judicial scrutiny, the record must demonstrate that environmental factors were considered in a manner sufficient to amount to prima facie compliance with the procedural requirements of SEPA and that the decision to issue an DNS was based on information sufficient to evaluate the proposal's environmental impact. Pease Hill Community Group v. County of Spokane, 62 Wn. App. 800, 810, 816 (1991).  The SEPA review must be affirmed unless “the reviewing court is firmly convinced in light of the record and the public policy contained in RCW 43.21C.010 that a mistake has been committed.”

               The clearly erroneous standard allows a reviewing court to give substantial weight to the agency determination as required by RCW 43.21C.090, yet at the same time it allows a reviewing court to consider “the public policy contained in the act of the legislature authorizing the decision or order.” Norway Hill Preservation, 87 Wn.2d at 274.

               In order to facilitate the "threshold determination," the applicant must prepare an environmental checklist, which must provide information reasonably sufficient to evaluate the environmental impact of the proposal. WAC 197-11-315 et. seq. The responsible official must then thoroughly consider a proposal's potential environmental significance as documented in the environmental checklist. WAC 197-11-315(1)(a).  Based upon independent review of all relevant information and analysis, the responsible official determines whether the proposal is "likely to have a probable significant adverse environmental impact." WAC 197-11-330(1)(b). The responsible official then renders a "determination of significance" (DS) or a "determination of non-significance" (DNS). A DS mandates intensified environmental review through preparation of an EIS. WAC 197-11-360. Conversely, a DNS means that no EIS will be required. WAC 197-11-340.  Anderson v. Pierce, 86 Wn. App. 290 (1997).

A DNS must be based upon adequate information, information reasonably sufficient to evaluate impacts. WAC 197-11-335. The Supreme Court recently held that a decision to issue a negative threshold determination must be based upon “information sufficient to evaluate the proposal’s environmental impacts.” Wenatchee Sportsmen Association v. Chelan County, 141 Wn.2d 169, 176 (2000).  Significance under SEPA is defined as “a reasonable likelihood of more than a moderate adverse impact on environmental quality.”  WAC 197-11-794.  The purpose of SEPA is to provide consideration of environmental factors at the earliest possible stage to allow decisions to be based on complete disclosure of environmental consequences.  King County v. Boundary Review Board, 122 Wn.2d 648, 664 (1993).

The primary argument of the appellants to show that the DNS was clearly erroneously issued is that the information was inadequate and therefore it was incorrect to determine that no significant adverse impacts would occur.  The inadequacy of the information claim by appellants focused primarily on the failure to evaluate stormwater impacts, failure to delineate and evaluate the third wetland and failure to evaluate the impacts from hazardous materials used in the CRC.

As to the allegation regarding stormwater, although much testimony was provided on differing methods to analyze stormwater for sizing of runoff control facilities (Santa Barbara method versus the Rational method), the board does not find that the appellants met their burden of showing that a mistake has been made.  While it may be true that the 1990 King County Surface Water Design manual is required by 19.12 of the Snoqualmie Municipal code for purposes of applying for the stormwater permit, it is not specifically required as part of the SEPA analysis.  The fact that Snoqualmie relied on an acceptable scientific method of calculating stormwater impacts, is sufficient for the purposes of SEPA.  On this issue alone, the issuance of the DNS was not clearly erroneous.

On the failure to delineate the third wetland, the board finds that the definition in RCW 90.58.030(2)(h), RCW 36.70A.030(20) and WAC 173-22-080(2) provide for certain artificial wetlands created as a result of road construction to be considered wetlands for purposes of protection under the SMA.  The definition of wetlands in the SMA excludes those artificial wetlands “created after July 1, 1990, that were unintentionally created as a result of the construction of a road, street, or highway.”  RCW 90.58.030 (2)(h).  By implication, those wetlands created before July 1, 1990, are subject to the SMA.  Conflicting evidence was provided that the construction or existence of the road and railroad may have caused the creation of this third wetland or that it may have existed prior to the construction.  Regardless of the conflicting testimony, since the road and railroad have been in existence since long before 1990, this wetland, whether artificial or pre-existing, is considered a wetland for purposes of the SMA.  Therefore, it was an error to not delineate this wetland, to not include it on the environmental checklist and to not consider the impact of the proposal on this wetland.  The lack of this information is substantial, given the location of various aspects of the proposed project.  Failure to include this information in the SEPA threshold determination was clearly erroneous.

On the failure to adequately evaluate the impacts of hazardous materials, the board finds that the appellants have not met their burden of proof.  The environmental checklist prepared by NRM is less than forthcoming on the type, magnitude and risks associated with the vast array of chemicals, cleansers, paints and petroleum products used in the restoration process and in operating the locomotives and other rolling stock.  However, the City of Snoqualmie has required the preparation of a chemical and hazardous waste materials inventory by a chemical engineer and approved by the Fire Marshall.  This indicates that the City evaluated the impacts at some level.  The board is, however, struck by the absence of analysis on the impact of these materials to the environment.

In general, the board is troubled by the City’s general reliance on its municipal codes as providing adequate analysis of environmental impacts of specific projects.  The City argues that as a result of the 1995 Regulatory Reform legislation (Engrossed Substitute House Bill 1724), which attempted to better integrate SEPA with Growth Management, SEPA is now allowed to rely on City codes for mitigation of impacts.  Despite the City’s arguments, SEPA still requires the local government to consider, in the course of project review, the “specific probable adverse environmental impacts to the proposed action and determines that these specific impacts are adequately addressed by the development regulations…”  It appears the City relied on its development regulations and other portions of the municipal code without specifically evaluating the impacts of the proposal on the environment.  Missing from this analysis is any assessment of whether the site specific impacts can be successfully mitigated through compliance with the applicable provisions of the municipal code.  This is not allowed by SEPA.

For the reasons cited above, the issuance of the DNS was clearly erroneous.  The board does not render an opinion as to whether the project warrants a finding of significance, only that the City failed to adequately evaluate pertinent information in issuing its DNS and that the City relied on its municipal code provisions rather than specifically evaluating the impact of the proposal on the environment.

VII.

            Any Finding of Fact deemed to be a Conclusion of Law is hereby adopted as such.  Based on the above Findings of Fact and Conclusions of Law, the Board enters the following:

 

ORDER

            The SDP and associated DNS are hereby remanded to the City of Snoqualmie for processing and reconsideration in accordance with this order.

            Done this 27th day of August 2001.

SHORELINES HEARINGS BOARD

KALEEN COTTINGHAM, Presiding

 

JAMES A. TUPPER, Jr., Member

 

ROBERT V. JENSEN, Member

 

JUDY WILSON, Member

 

PHYLLIS SHRAUGER, Member

 

DAN SMALLEY, Member


[1] The previous name of NRM was the Puget Sound Railway Historical Association.  The name change occurred in 1999.