Toward Responsible Dev., Et Al., Apps. V. City Of Black Diamond, Et Al., Res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TOWARD RESPONSIBLE
DEVELOPMENT, a Washington
not-for-profit corporation; CYNTHIA E.
and WILLIAM B. WHEELER; ROBERT
M. EDELMAN; PETER RIMBOS;
MICHAEL E. IRRGANG; JUDITH
CARRIER; EUGENE J. MAY; VICKI
HARP; CINDY PROCTOR; ESTATE
OF WILLIAM C. HARP,
Appellants,
CITY OF BLACK DIAMOND; BD
LAWSON PARTNERS LLC 050510;
BD LAWSON PARTNERS LP 001251
BD LAWSON PARTNERS LP 050510;
BD LAWSON PARTNERS LP 059999;
BD LAWSON PARTNERS LP 091251
BD PARTNERS LP 05010; BD
PARTNERS LP 821004; BD VILLAGE
PARTNERS LP 050511; DIAMOND
STAR DEVELOPMENT LLC 247647;
DIAMOND STAR DEVELOPMENT LLC
247654; FRANKLIN DEVELOPMENT
LLC 1N0763; KING COUNTY DNRP
069800; PALMER COKING COAL CO
LLP 020445; and PLUM CREEK
TIMBER 353489,
Respondents.
No. 69418-9-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: January 27, 2014
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Grosse, J. — Applying the "rule of reason," a Hearing Examiner properly
concludes 	that 	an 	environmental 	impact 	statement 	provides 	a 	reasonably
thorough 	discussion 	of 	the 	significant 	aspects 	of 	a 	Master 	Planned
Development's environmental impacts when, as here, the Hearing Examiner's
findings are supported by substantial evidence. 	Additionally, an agency may

No. 69418-9-1/2
properly rely on the use of phased review to defer further analysis of adverse
environmental impacts 	until the time of construction when, 	as here, 	specific
aspects of the project that would require such analysis are not yet determined.
Accordingly, we affirm.
FACTS1
In 1996, 	the 	city of Black 	Diamond 	(City) completed 	its first 	Growth
Management Act (GMA)2 Comprehensive Plan, which included a designation for
Master 	Planned 	Developments 	(MPD).3 	In 	2005, 	the 	City 	adopted 	MPD
ordinances. 	These 	ordinances 	established 	the 	MPD 	zoning 	district 	and 	the
standards and MPD permit requirements for parcelsthat exceed 80 acres.4
In 2009, 	the 	City adopted 	a 	new and 	updated 	Comprehensive 	Plan,
designating 	large 	areas 	of the 	City 	for 	MPDs.5 	The 	City 	also enacted
development regulations in a 2009 MPD ordinance, codified in chapter 18.98 of
the City code (BDMC), that were consistent with the new Comprehensive Plan
and created an MPD permit and review process for large scale development
projects.6 	This ordinance served to update the procedures, requirements, and
standards 	relating 	to 	application 	for, 	approval 	of, 	and 	amendment 	to 	the
conditions attached to an MPD, and also created an MPD zoning district, set the
standards 	and 	the 	permit 	process 	for 	the 	review 	of 	future 	MPD 	permit
1 Citations to the Administrative Record will be listed as "AR" citations.
2Chapter 36.70A RCW.
3 Ordinance No. 599.
4 Ordinance Nos. 05-779, 05-796.
5 City of Black Diamond Comprehensive Plan, June 2009 ("Plan").
6 BDMC 18.98.010(B), 030(A). 2

No. 69418-9-1/3
applications, 	and contained 	generalized 	policy 	statements.7 	The City 	also
adopted 	chapter 18.08 	BDMC, which 	provided for 	additional 	procedures for
processing 	permits. 	These 	ordinances 	were 	not 	appealed 	or 	otherwise
challenged under the GMA.
In 2009, BD Village Partners and BD Lawson Partners (collectively Yarrow
Bay) sought approval from the City to build two MPDs on land that falls within the
City's urban growth area. 	Yarrow Bay submitted permit applications for two MPD
projects 	known 	as 	"The Villages" 	and 	"Lawson 	Hills." 	The Villages 	project
included 1,196 acres, proposed to be developed with a maximum of 4,800 low,
medium, and high density dwelling units, and a maximum of 775,000 square feet
of 	retail, 	offices, 	commercial 	and 	light industrial 	development, 	schools, 	and
recreation and open space.8 The Lawson Hills project contemplated a maximum
of 1,250 low, medium, 	and 	high density dwelling units 	on 	371 	acres, and a
maximum of 390,000 square feet of retail, offices, commercial and light industrial
development, schools, and recreation and open space.9
As 	required 	by 	the 	State 	Environmental 	Policy 	Act 	(SEPA), 	chapter
43.21 C RCW, Environmental Impact Statements (ElSes) were prepared by the
City under the direction 	of Steve 	Pilcher, the designated 	responsible official
overseeing their preparation. 	Initially, the City agreed that the draft ElSes could
be prepared by Yarrow Bay's consultants, but later retained Parametrix to peer
review the work performed by Yarrow Bay consultants. 	The final ElSes did not
7 See BDMC 18.98.005, .060.
8 AR 27160.
9 AR 27332-33.

No. 69418-9-1/4
include review of additional impacts such as traffic queue lengths at specific
intersections, mitigation project design, and the potential for an alternate, on-site
stormwater pond location. 	These impacts were instead to be deferred until later
stages of development and construction when more specific information about
them would be available.10
Once the final ElSes were completed, a public hearing was scheduled on
the two MDP permit applications. 	At the same time, the ElSes were appealed
and 	those appeal 	hearings were consolidated with the 	hearing 	on the 	MPD
permits. 	After extensive hearings, the Hearing Examiner issued two rulings for
each MPD: one that addressed the adequacy of the ElSes and one that made
recommendations to the Black Diamond City Council (Council) on the permits.
The Hearing Examiner concluded that each EIS provided an adequate analysis
of environmental impacts and recommended that the Council approve both The
Villages and Lawson Hills MDP permits subject to several conditions.11
The Hearing Examiner's recommendations were forwarded to the Council
for 	consideration. 	The 	Council 	voted 	unanimously 	to 	approve 	both 	permits
subject to a number of revised conditions and passed ordinances approving the
MPD permits.12 	A citizens group, Toward Responsible Development (TRD), filed
a land use petition under the Land Use Petition Act (LUPA), chapter 36.70C, in
King County Superior Court appealing both the MDP permits and the Hearing
Examiner's determinations that the final ElSes were adequate. 	The superior
10 AR 1225-26, 1235-36, 2084-85, 2475, 2479-80.
11 AR 24770, 24770-988.
12 Ordinance Nos. 10-946, 10-947.
4

No. 69418-9-1/5
court affirmed the MDP permit approvals and upheld the adequacy of the ElSes.
TRD appeals.
ANALYSIS
To prevail on a LUPA petition, the party challenging a government entity's
land use decision has the burden of establishing that the land use decision was
error as set forth 	in RCW 36.70C. 130(1). 	Among these errors are that the
decision 	was 	a 	clearly 	erroneous 	interpretation 	of 	law, 	unsupported 	by
substantial evidence, or a clearly erroneous application of law to facts.13 	These
are the claimed bases for TRD's challenges to the EIS determinations and the
ordinances. 	In reviewing such decisions, we give "deference to both legal and
factual 	determinations 	of 	local 	jurisdictions 	with 	expertise 	in 	land 	use
regulation."14 We also grant deference to the Hearing Examiner's determinations
under SEPA.15
I. 	Environmental Impact Statement
An EIS is reviewed under the "rule of reason" standard.16 	The "rule of
reason" 	requires 	only a 	"'reasonably thorough 	discussion 	of the 	significant
aspects of the probable environmental consequences . . . .'"17 	"The ElS'fs]
13 RCW 36.70C.130(1)(b),(c),(d).
14 City of Medina v. T-Mobile USA. Inc.. 123 Wn. App. 19, 24, 95 P.3d 377 (2004)
(recognizing deference standard 	in 	RCW 36.70C.130(1) (quoting Timberlake
Christian 	Fellowship v. 	King County. 	114 Wn. 	App. 	174, 	180, 	61 	P.3d 	332
(2002)).
15 RCW 43.21 C.090.
16 Klickitat County Citizens Against Imported Waste v. 	Klickitat County. 	122
Wn.2d 619, 633, 860 P.2d 390 (1993).
17 Klickitat County Citizens. 122 Wn.2d at 633 (quoting Cheney v. Mountlake
Terrace. 87 Wn.2d 338, 344-45, 552 P.2d 184 (1976)).
5

No. 69418-9-1/6
purpose is to facilitate the decision-making process; it need not list every remote,
speculative, or possible effect or alternative,'"18 nor evaluate every scenario or
conduct a "'worst case analysis.'"19 	Courts review an EIS "as a whole"20 and
"examine all of the various components of [the] agency's environmental analysis .
. . to determine, on the whole, whether the agency has conducted the required
'hard look.'"21 	We review SEPA determinations in a land use petition under the
clearly erroneous standard as set forth in RCW 36.70C.130(1)(d).
TRD 	challenges 	the 	adequacy 	of 	the 	ElSes 	on 	several 	grounds. 	It
contends that the Hearing Examiner erred by analyzing the MPDs as nonproject
programmatic actions, rather than project actions, by relying on phased review to
defer some detailed analysis until the time of construction, and by concluding that
the ElSes adequately addressed the impacts on Lake Sawyer and traffic. 	TRD
further 	contends 	that 	the 	ElSes 	failed 	to 	adequately 	respond 	to 	agency
comments on the draft ElSes.
A. 	Project vs. Programmatic Action
TRD contends that 	the 	Hearing 	Examiner erred 	by characterizing the
ElSes as 	"programmatic" rather than project specific and by applying a less
18 Gebbers v. Okanogan County Public Utility Dist. No. 1. 144 Wn. App. 371, 183
P.3d 324 (2008) (citing Klickitat County Citizens, 122 Wn.2d at 641).
19 East County Reclamation Co. v. Biornsen. 125 Wn. App. 432, 442 n.9, 105
P.3d 	94 	(2005) 	(quoting 	Solid 	Waste 	Alternative 	Proponents 	(SWAP) 	v.
Okanogan County. 66 Wn. App. 439, 447-48, 832 P.2d 503 (1992)).
20 Save Lake Washington v. Frank. 641 F.2d 1330, 1336 (9th Cir. 1981).
21 Webster v. U.S. Dep't of Agriculture. 685 F.3d 411, 421-22 (4th Cir. 2012) (first
and 	second 	alterations 	in 	original) 	(quoting 	National 	Audubon 	Soc'v 	v.
Department of Navy. 422 F.3d 174, 186 (4th Cir. 2005).
6

No. 69418-9-1/7
rigorous review standard. 	The Washington Administrative Code (WAC) 197-11-
442 addresses the contents of ElSes on nonproject proposals:
(1) 	The lead agency shall have more flexibility in preparing EISs
on nonproject proposals, because there is normally less detailed
information available on their environmental impacts and on 	any
subsequent project proposals. . . .
(2) 	The lead agency shall discuss impacts and alternatives in
the 	level 	of 	detail 	appropriate 	to 	the 	scope 	of 	the 	nonproject
proposal and to the level of planning for the proposal....
(3) 	If the nonproject proposal concerns a specific geographic
area, site specific analyses are not required, but may be included
for areas of specific concern. 	The EIS should identify subsequent
actions that would be undertaken by other agencies as a result of
the nonproject proposal, such as transportation and utility systems.
WAC 197-11-704 distinguishes between "project" and "nonproject" actions as
follows:
(a) 	Project actions. A project 	action 	involves a 	decision 	on 	a
specific 	project, such 	as a 	construction or management activity
located in a defined geographic area. 	Projects include and are
limited to agency decisions to:
(i)License, 	fund, 	or 	undertake 	any 	activity that 	will 	directly
modify the environment, whether the activity will be conducted
by the agency, an applicant, or under contract.
(ii)Purchase, sell, lease, transfer or exchange natural resources,
including publicly owned lands, whether or not the environment
is directly modified.
(b) Nonproject actions. Nonproject actions involve decisions on
policies, plans, or programs.
(i)The adoption or amendment of legislation, ordinances, rules,
or 	regulations 	that 	contain 	standards 	controlling 	use 	or
modification of the environment;
(ii)The adoption 	or 	amendment 	of comprehensive 	land 	use
plans, or zoning ordinances;
(iii)The adoption of any policy, plan or program that will govern
the development of a series of connected actions (WAC 197-11-
060), but not including any policy, plan, or program for which

No. 69418-9-1/8
approval must be obtained from 	any federal 	agency prior to
implementation;
(iv)Creation of a 	district or annexations to any city, town, 	or
district;
(v)Capital budgets; and
(vi)Road, street, and highway plans.
The Hearing Examiner concluded that review of the MPDs amounted to a
project action:
The parties appear to agree that the MPD review is a nonproject as
opposed to a project action. The [Hearing] Examiner also agrees
that MPD review qualifies as nonproject action because it involves
"regulations that contain standards controlling use or modification of
the environment" as opposed to "a construction or management
activity located in a defined geographical area." 	See WAC 197-11-
704(2)(a) and (b). 	An agency has more flexibility in preparing an
EIS on a nonproject action "because there is normally less detailed
information available on their environmental impacts and on any
subsequent 	project 	proposals." 	WAC 	197-11-442. 	The 	SEPA
Appellants 	have 	pointed 	out 	that 	the 	MPD 	does 	have 	some
characteristics 	of 	a 	project 	action 	due 	to 	the 	specificity 	of
improvements proposed 	and, 	in a 	broader sense, 	because the
review is treated as a quasi-judicial proceeding. 	This is quite true,
but hybrid actions are covered in the nonproject regulations that
specify that the level of detail must be appropriate "to the scope of
the 	nonproject 	proposal 	and 	to 	the 	level 	of 	planning 	for 	the
proposal.["] ]d. Given these 	requirements, 	the 	level of detail is
expected to be comparatively high for project specific impacts.22
We agree with the Hearing Examiner's characterization of the MPD permit
approval as a nonproject action, or at the very least, a hybrid action. 	As Yarrow
Bay points out, 	the 	MPD 	permits 	are 	not 	permits for clearing, 	grading,
subdivision, or construction of any kind; rather, they are initial project permits that
set forth a site plan for development. 	Accordingly, the Hearing Examiner did not
err by treating the action as "nonproject" and applying a more flexible standard.
22 AR 24594.
8

No. 69418-9-1/9
TRD also contends that the MPD permits should be treated as project
actions based on this court's determination in an earlier related appeal that the
MPD permits were "project permit approvals." 	This earlier decision 	involved
TRD's appeal of the MPD permits to the Growth Management Hearings Board
(Board) under the GMA,23 which was filed at the same time it filed the current
LUPA 	appeal 	in 	superior 	court.24 	This 	court 	held 	that the 	Board 	lacked
jurisdiction to review the permits under the GMA because they did not qualify as
decisions involving comprehensive plans and development regulations, to which
the 	Board's jurisdiction was limited. 	Rather, 	this court 	concluded they were
approvals 	of a "project permit" under RCW 36.70B.020(4), which specifically
excludes 	decisions 	involving 	comprehensive 	plans, 	subarea 	plans, 	and
development regulations, and is defined as
any land use or environmental permit or license required from a
local government for a project action, including but not limited to
building 	permits, subdivisions, binding 	site 	plans, 	planned 	unit
developments, conditional uses, shoreline substantial development
permits, site plan review, permits or approvals required by critical
area 	ordinances, 	site-specific 	rezones 	authorized 	by 	a
comprehensive plan or subarea plan, but excluding the adoption or
amendment 	of 	a 	comprehensive 	plan, 	subarea 	plan, 	or
development regulations except as otherwise specifically included
in this subsection.[25]
23 BD Lawson Partners. LP v. Central Puget Sound Growth Momt. Hearings Bd..
165 Wn. App. 677, 269 P.3d 300 (2011), review denied, 173 Wn.2d 1036, 277
P.3d 669 (2012).
24 The LUPA case was stayed pending the GMA appeal.
25 	As this court explained, 	because 	the 	permit 	approvals 	did not amend
development regulations or the City's comprehensive plan but were processed
as permits consistent with the 2009 MPD ordinances, the only way the permits
could violate the GMA is if the MPD ordinance violated the GMA. 	BD Lawson.
165 Wn. App at 689. 	Noting that these regulations were never challenged under
the GMA, this court agreed with Yarrow Bay that "any challenge under the GMA
9

No. 69418-9-1/10
But that determination decided the issue of jurisdiction over review of the MPD
permits; it does not address the issue here, which is whether a more flexible
standard applies to review of an EIS for an MPD permit. 	As discussed above,
this 	depends on 	whether the MPD permit is characterized as a 	"project" or
"nonproject" action as defined in the specific regulations relating to EIS review,
and the Hearing Examiner properly reviewed it as a nonproject action.
B. 	Phased Review
TRD further contends that the Hearing Examiner erred by considering the
ElSes as part of a "phased" environmental review and allowing the deferral of
certain detailed environmental analyses until the time of actual construction. 	The
EIS regulations provide for "phased review" as follows in WAC 197-11-060(5):
(b) Environmental review may be phased. 	If used, phased review
assists agencies and the public to focus on issues that are ready
for decision and exclude from consideration issues already decided
or 	not 	yet 	ready. 	Broader environmental 	documents 	may 	be
followed by narrower documents, for example, that incorporate prior
general 	discussion 	by reference and 	concentrate solely on the
issues specific to that phase of the proposal.
(c) Phased review is appropriate when:
(i)The 	sequence 	is 	from 	a 	nonproject 	document 	to 	a
document of narrower scope such as a site-specific analysis
(see, for example, WAC 197-11-443); or
(ii)The sequence is from an environmental document on a
specific proposal at an early stage (such as need and site
to the 2010 permits approved consistent with the 2009 ordinances constitutes an
impermissible collateral attack on the 2009 ordinances," and concluded, "TRD's
challenge to the City's permit approval must be under LUPA in superior court, not
under the GMA before the Board." 	BD Lawson. 165 Wn. App. at 690.
10

No. 69418-9-1/11
selection) to 	a 	subsequent environmental document at a
later stage (such as sensitive design impacts).
(d) Phased review is not appropriate when:
(i) The sequence is from a 	narrow project document to a
broad policy document;
(ii) 	It would merely divide a 	larger system 	into exempted
fragments or avoid discussion of cumulative impacts; or
(iii) 	It would segment and 	avoid present consideration 	of
proposals and their impacts that are required to be evaluated
in a 	single 	environmental document 	under WAC 197-11-
060(3)(b) or 197-11-305(1); however, the level of detail and
type of environmental review may vary with the nature and
timing of proposals and their component parts.
(g) Where proposals are 	related to a large existing or planned
network, such as highways, 	streets, 	pipelines, 	or utility lines or
systems, the lead agency may analyze in detail the overall network
as the present proposal or may select some of the future elements
for present detailed consideration. 	Any phased review shall be
logical in relation to the design of the overall system or network,
and shall be consistent with this section and WAC 197-11-070.
Our courts have approved of phased review in cases where it is difficult to
assess the full impact of a project at the time. 	For example, in Cathcart-Maltbv-
Clearview Community Council v. Snohomish County, the court held that even
though 	the EIS was a "bare 	bones" 	presentation of impacts, 	a 	large 	scale
residential development project was an appropriate candidate for phased review:
Given the magnitude of the project, the length of time over which it
will evolve, and 	the 	multiplicity of variables, 	staged 	EIS review
appears 	to 	be 	an 	unavoidable 	necessity. 	At 	this 	point, 	an
exhaustive 	EIS 	is 	impracticable 	in 	light 	of 	the 	difficulty 	of
determining in the abstract, for a period of 25 years, such things as
the rate at which the project will develop, the particular location of
the housing units, the growth of the tax base which will support the
needed 	public 	services, 	the 	evolution 	of 	transportation
technologies, 	and the 	evolving 	socioeconomic 	interests of the
prospective population.1261
26 96 Wn.2d 201, 208, 210, 634 P.2d 853 (1981).
11

No. 69418-9-1/12
But the court also made clear that approval of the initial EIS "does not relieve the
developers from 	ultimately complying with all SEPA requirements."27 	Rather,
"[a]s the data becomes available or, at the latest, when sector plan approval is
sought, the secondary and cumulative impacts on the entire affected area . . .
must be quantitatively assessed and the costs of mitigating them identified."28
Similarly here, 	phased 	review is appropriate. 	The approved 	deferred
environmental review applies to those aspects of construction that can only be
adequately analyzed after additional detail is known. This includes construction
traffic impacts, traffic queue lengths at not yet constructed intersections, and the
potential 	for 	an 	alternate, 	on-site 	stormwater 	pond 	location.29 	When 	this
information 	becomes 	available, 	Yarrow 	Bay 	must 	comply 	with 	all 	SEPA
requirements and provide a supplemental EIS that quantitatively assesses the
secondary and cumulative impacts on the entire affected area and identify the
27 Cathcart. 96 Wn.2d at 211.
28 Cathcart. 96 Wn.2d at 211(citation omitted).
29 See testimony at AR 2474-75 (potential impacts from construction hauling best
addressed at project stage); AR 1219 (not reasonable or cost effective to assess
queue length 	calculations for 	project build-out in 	the year 2025); 	AR 	1226
(needed turn lanes can be identified, 	not appropriate at this stage to assess
sizing and length of turn lanes when construction not until 5, 10, 15 years, makes
sense 	when 	it 	is closer to design 	and 	construction); 	AR 	2084 	(if 	off-site
stormwater infiltration pond 	not permitted, potential impacts of an alternate on-
site 	pond 	would 	require 	additional 	analysis 	after 	specific 	locations 	are
determined); AR 2474 (potential impacts of constructing sewer system more
accurately assessed at project specific phase).
12

No. 69418-9-1/13
costs of mitigating them.30 	TRD fails 	to show that the Hearing 	Examiner's
approval of the use of phased review is clearly erroneous.
C. 	Lake Sawyer Impacts
TRD contends that the ElSes failed to adequately address the impacts of
the MPDs on Lake Sawyer, which has a history of water quality issues. 	Lake
Sawyer's water quality problems were caused in part by failing septic systems in
the Lake Sawyer watershed and, in 1981, the City responded by constructing a
sewage treatment plant that discharged treated 	effluent into wetlands. 	The
effluent, however, ultimately reached Lake Sawyer, causing phosphorous levels
to increase and create algae blooms that rendered the lake unusable by the
public. 	The problem was eventually corrected in 1992 but it took several years
for water quality to reach acceptable levels of phosphorous.31
As a result, 	the Washington State Department of Ecology (DOE) listed
Lake Sawyer as an impaired water body subject to the federal Clean Water Act,
which requires that a limit be set for the amount of phosphorous allowed into the
water. 	This limit is known as the total maximum daily load (TMDL). 	In 1993, the
Environmental Protection Agency (EPA) set the TMDL for phosphorous in Lake
Sawyer at 715 kilograms per year, an in-lake concentration of 16 micrograms/L32
In 2000, 	King 	County 	prepared 	the 	Lake 	Sawyer 	Management 	Plan
(LSMP), which sought to complete a 	study 	begun 	in 1989 	through 	1990 to
30 Cathcart. 96 Wn.2d at 211; see also WAC 197-11-405(4)(a),(b) (requiring a
supplemental EIS when there are either "substantial changes" to a proposal or
"significant new information" indicating probable environmental impacts).
31 AR 24669.
32 AR 20760.
13

No. 69418-9-1/14
assess the impact of the water treatment plant diversion on water quality, update
the lake's nutrient and water budgets, and evaluate restoration alternatives to
protect water quality. 	It also included a detailed projection of phosphorous levels
at full build-out of the Lake Sawyer watershed, with and without recommended
mitigation. 	The LSMP showed a phosphorous concentration of 31 micrograms/L
for build-out with "watershed controls" and 37 micrograms/L for build-out with
"internal load control."33
In 	2009, 	DOE 	released 	a 	follow-up 	plan, 	the 	Lake 	Sawyer 	Total
Phosphorous 	Maximum 	Daily 	Load 	Water 	Quality 	Implementation 	Plan
(Implementation Plan), which provided for corrective actions to address sources
of phosphorous pollution 	in the lake and the surrounding watershed.34 	The
Implementation 	Plan 	also 	contemplated 	the 	City's 	adoption 	of 	the 	2005
Stormwater Management Manual for Western Washington and concluded that
the adoption of the manual and a monitoring program would result in meeting the
TMDL.35 	The Implementation Plan also included data showing that phosphorous
levels 	had 	actually 	decreased 	by 2007, 	approximately 50 	percent below the
TMDL.36
The ElSes discussed the phosphorous levels in Lake Sawyer as follows:
Historically, 	untreated sewage from septic tanks and drainfields
drained to Lake Sawyer, partially contributing to existing elevated
phosphorous concentrations in the lake. 	In 1992, all wastewater
discharge from 	Black 	Diamond's 	lagoons to 	Lake 	Sawyer was
33 AR 24670.
34 AR 24670.
35 AR 24671.
36 AR 15399 (figure 5 shows a graph indicating levels in 2007 at .08 micrograms).
14

No. 69418-9-1/15
terminated, although numerous septic drainfields still surround the
lake. 	In 	1993, 	the 	EPA 	set a 	maximum 	mean 	summer total
phosphorous concentration limit of 16 ug/L (.016 mg/L). 	Although
the Department of Ecology has determined that some short term
noncompliance with the total phosphorous concentration limit may
exist, it has concluded that Lake Sawyer appears to be meeting the
limit as a long term average. Existing elevated total phosphorous
concentrations in the lake stem from several sources: release from
sediments during seasonal turnovers (19 percent); flow from Rock
Creek basin (35 percent); flow from Ravensdale Creek basin (17
percent); the immediate Lake Sawyer subbasin (12 percent); septic
tanks (8 percent); and input from aquatic plants, groundwater, and
the air (9 percent).
King 	County 	completed 	the 	Lake Sawyer 	Management 	Plan 	in
2000 and concluded that the lake is currently mesoeutrophic. The
Lake Sawyer Management Plan 	has a 	goal of maintaining the
lake's mesoeutrophic state while accommodating future population
growth through 2030.[37]
Nutrients of concern in stormwater consist largely of nitrogen and
phosphorous and often originate from fertilizers used on lawn and
landscaping, and from 	exterior use 	of detergents. 	Nitrogen and
phosphorous 	can 	also 	enter 	waterbodies 	from 	erosion 	during
construction 	and from 	bed 	movement in streams. 	Lake Sawyer
currently has a 303(d) 	listing for phosphorous, and both it and
Jones Lake are potential candidates for eutrophication based on
increased nutrients resulting from development.1 8]
The Hearing Examiner found that the ElSes failed to adequately disclose
potential phosphorous impacts to Lake Sawyer,39 but concluded that the LSMP
and Implementation Plan "[p]rovide a [h]ighly [credible and [thorough [r]eview of
[p]hosphorous 	[i]mpacts 	and [c]ontrol for 	[development 	in 	the [e]ntire 	Lake
Sawyer Watershed,"40 both MDP projects are within the phosphorous loading
37 AR 20760.
38 AR 20768.
39 AR 24671.
40 AR 24669 (boldface omitted). 15

No. 69418-9-1/16
assumptions employed 	by the LSMP,41 	and 	both 	MDPs adequately mitigate
phosphorous impacts to Lake Sawyer.42
TRD 	first 	contends 	that 	the 	Lake 	Sawyer 	analysis 	was 	inadequate
because it failed to disclose the potential impacts of phosphorous loading into
Lake Sawyer. 	The Hearing Examiner found that this information was lacking but
concluded that this omission alone was not a basis to invalidate the entire EIS:
Neither [T]he Villages 	EIS 	or the 	Lawson 	Hills EIS 	adequately
identifies the impacts associated with 	reaching eutrophic status,
e.g., the health hazards, beach closures, harm to endangered fish
and aesthetic blight. . . . These omissions are difficult to justify
given that 65% of [T]he Villages sand [sic] 100% of Lawson Hills
drains into Lake Sawyer.
Given the prominence that Lake Sawyer water quality plays in the
Black 	Diamond 	community, 	the 	significance 	of 	phosphorous
impacts 	and 	the 	uncertainty 	in 	the 	science 	backing 	[sic]
Implementation Plan, it was unreasonable for the EIS to fail to warn
of 	the 	specific 	problems 	that 	could 	arise 	from 	phosphorous
contamination 	of 	Lake 	Sawyer. 	Given 	the 	large 	amount 	of
development involved in the MPD proposals, the information on
specific 	impacts could spur decision makers into advocating for
updated 	modeling 	[sic] the 	LSMP 	or 	a 	greater commitment to
implementing 	the 	regional 	mitigation measures 	identified 	in the
Implementation Plan. 	Given the overall scope and context of the
EIS, the failure to include these specific impacts cannot by itself
justify a finding of inadequacy for the entire document, especially
given that the reference to eutrophication in both documents does
provide inquiry notice to persons concerned about water quality.[43]
TRD fails to show that the Hearing Examiner's conclusion was clearly erroneous.
Applying the rule of reason, it was not error to conclude that omission of the full
extent of these impacts cannot alone justify invalidating the entire EIS. 	At the
41 AR 24673.
42 AR 24674.
43 AR 24672.
16

No. 69418-9-1/17
very 	least, 	it 	did 	identify 	Lake 	Sawyer 	as 	a 	"potential 	candidate[] 	for
eutrophication based on increased nutrients resulting from development."44
TRD further contends that the ElSes' failure to provide information about
the actual quantity of phosphorous that likely will reach the lake at full build-out of
the MPDs renders the ElSes inadequate because this information is "essential" in
assessing the projects' impacts on Lake Sawyer, which TRD contends is "at a
tipping point."45 	But as the Hearing Examiner concluded:
On the utility of additional information, Mr. Zisette testified that the
Applicant failed 	to determine how much phosphorous the MPDs
would add to Lake Sawyer. He noted that the Applicant could have
easily made this determination since it had data on both projected
stormwater 	volumes 	and 	phosphorous 	concentrations. 	The
Applicant did not rebut this testimony and the Examiner finds that
the 	phosphorous 	loading 	would 	not 	have 	been 	unreasonably
difficult to compute. 	However, this additional information would not
have provided anything of significant use to the decision maker. As
ably demonstrated by Mr. Zisette, there is no question that under
the 	modeling 	of the 	LSMP that the 	MPD phosphorous 	loading
would exceed TMDL, no matter what amount of phosphorous was
generated by the projects'461
Of course, with more work the Applicant could recalibrate the LSMP
model 	to 	include 	current 	lake 	conditions, 	the 	Applicant's
adjustments to the drainage basins and the benefits of the 2005
stormwater manuals. In short, the Applicant would prepare its own
LSMP. The 	resulting 	information 	could 	indicate 	how 	close 	the
MPDs will bring Lake Sawyer to TMDL and what the Applicant's
proportionate share of phosphorous loading would have to be in
order to keep full build-out below TMDL. The price of this additional
information is to hold the Applicant to a different standard than the
watershed 	standards 	developed 	in 	the 	LSMP 	and 	the
Implementation Plan 	[T]he reliance of the Applicant upon the
LSMP, 	instead 	of 	its 	own 	calculations, 	provides 	a 	reasonably
44 AR 20768.
45 Appellant's Brief (AB) at 47 (boldface omitted).
46 AR 24678.
17

No. 69418-9-1/18
thorough 	discussion 	of stormwater impacts to 	Lake Sawyer as
required for an adequate EIS.[47]
Again, applying the rule of reason, TRD fails to show that the Hearing
Examiner's 	conclusion 	was 	clearly 	erroneous. 	The 	analysis 	reasonably
disclosed 	that 	phosphorous 	loading 	resulting from MPDs would exceed 	the
TMDL and identified reasonable mitigation measures in line with DOE standards.
While it certainly failed to identify by precisely how much the TMDL would be
exceeded, this lack of specific information alone does not render the entire EIS
inadequate. 	Indeed, WAC 197-11-080(3)(a) and (b) permits agencies to proceed
in the absence of "vital information" when information relevant to adverse impacts
is either "essential to a reasoned choice among alternatives, but is not known,
and the costs of obtaining it are exorbitant" or "important to the decision and the
means to obtain it are speculative or not known," and 	provides that in such
cases,
the agency shall weigh the need for the action with the severity of
possible adverse impacts which would occur if the agency were to
decide 	to 	proceed 	in 	the 	face 	of 	uncertainty. 	If 	the 	agency
proceeds, 	it 	shall 	generally 	indicate 	in 	the 	appropriate
environmental documents its worst case analysis and the likelihood
of occurrence, to the 	extent this information can 	reasonably be
developed.
Nor has 	TRD 	challenged 	any findings 	as 	unsupported by substantial
evidence. 	While TRD claims that 	Lake Sawyer is at the 	"tipping 	point" to
becoming eutrophic (i.e., exceeding 24 micrograms/L),48 the Hearing Examiner's
findings 	acknowledge 	"there 	is still 	a great deal of uncertainty 	in 	predicting
47 AR 24678.
48 AR 24677.
18

No. 69418-9-1/19
phosphorous loading," noting that the modeling in the LSMP shows levels 84
percent above the TMDL, while the most recent data shows it could be as much
as 50 percent below the TMDL.49 	The Hearing Examiner's findings further note
that while the EIS relies on the phosphorous loading estimates in the LSMP, "the
preponderance of evidence in the record establishes that the LSMP significantly
overstates 	the 	amount 	of 	phosphorous 	generated 	by 	the 	proposed
development."50
The Hearing Examiner found that "[t]he record identifies three factors and
potentially one 	more factor that 	markedly skew the 	LSMP 	assumptions to
overstate MPD phosphorous loading. 	No factor was offered into the record to
that [sic] understates phosphorous loading."51 	The Hearing Examiner further
found that "[tjhere is nothing to suggest in the record that the MPD proposals,
alone, will 	push the phosphorous concentration beyond the 24 micrograms/L
given the current conditions of Lake Sawyer."52 	The Hearing Examiner noted
that TRD's expert testified that as little as a 5 percent increase could push the
lake into eutrophic status, but did not explain the basis for his assumption or
whether it considered the current state of the lake, as all of his calculations had
been based on that identified in the LSMP.53
49 AR 24671; AR 24673 (the Implementation Plan shows the 2007 phosphorous
concentration at 8 to 9 micrograms/L).
50 AR 24673.
51 AR 24674.
52 AR 24677.
53 AR 24677.
19

No. 69418-9-1/20
Nor has TRD successfully challenged the 	Hearing's Examiner's finding
that the MPDs "meet the conditions for DOE's finding of TMDL compliance."54 As
the Hearing Examiner concluded, "any conclusion that the MPDs would fail to
meet TMDL would be directly contrary to the findings of DOE, made in 2009, that
the MPDs would satisfy TMDL."55 	And as the Hearing 	Examiner noted, the
appellants offered nothing to refute DOE's findings.56
D. 	Traffic Impacts
TRD contends that the ElSes' traffic analyses were inadequate by failing
to address safety impacts, increase in travel times, construction traffic impacts,
and the feasibility of implementing mitigation measures. 	TRD further contends
that the ElSes failed to adequately analyze alternatives. We disagree.
The Hearing 	Examiner recognized that the 	ElSes 	did not address a
number of potential impacts on traffic.57 	The Hearing Examiner further found
that the ElSes did 	not provide much detail about alternatives 3 and 4, and
instead "merely noted the percentage increase posed by each alternative."
54 AR 24675.
55 AR 24678.
56 AR 24676 ("nothing was offered by the Appellants to explain why DOE would
reach such a conclusion if there was no reasonable basis for it.").
57 AR 24615, Findings of Fact (FF) 9 (EIS did not include a detailed analysis of
potential queue lengths resulted from increased traffic); AR 24615, FF 10 (EIS
did not address individual turning movement failures at the various "legs" of each
intersection); AR 24616-18, FF 14, 16 (EIS did 	not address safety concerns
including those faced by bicyclists and pedestrians); AR 24617-18, FF 15 	(EIS
did not include an analysis or estimate of anticipated increases in travel times);
AR 24620, FF 19 (EIS did not assess traffic impacts posed by construction ofthe
proposed projects).
68 AR 24620, FF 20. 20

No. 69418-9-1/21
But the Hearing 	Examiner ultimately concluded that the traffic analysis was
adequate:
Although many facets of the transportation analysis could 	have
been better, 	the choices made by Parametrix are all within the
parameters 	of 	reasonably 	justified 	professional 	judgment,
especially given the substantial weight that must be given to the
SEPA 	Responsible 	Official's 	determination 	that 	the 	analysis 	is
adequate. 	The FEIS [(final EIS)] contains a reasonably thorough
discussion of the significant adverse transportation impacts of the
proposed project at the programmatic level of analysis. 	However,
the use of a 	regional model to 	project local traffic impacts, the
divergence 	in the 	effect 	of 	modeling 	assumptions, 	along 	with
concern related to the effect of the choice of models on potential
impacts 	and 	mitigation 	will 	lead 	the 	Hearing 	Examiner 	to
recommend additional mitigation measures based on the outcome
of this subsequent study in the MPD.I59]
TRD first contends that the ElSes' failure to address safety impacts
renders it inadequate. The Hearing Examiner concluded:
While the 	FEIS did not 	identify safety concerns as 	a 	probable
significant adverse impact, the Appellants did not present evidence
that these issues could 	be 	adequately addressed at this 	higher
level 	review. 	It is 	reasonable to 	conclude that decision-makers
would recognize that vehicle accidents will increase proportionately
with increased traffic volumes.1601
The Hearing Examiner also made findings recognizing the difficulty of predicting
safety impacts without evaluating the particular configuration of a high-accident
location.61 	TRD does not assign error to these findings. 	Accordingly, they are
59 AR 24620.
60 AR 24620, FF 2.
61 Finding of Fact 14 cites Parametrix' expert John Perlic's testimony: "Mr. Perlic
noted while some of the safety impacts are mitigated by the improvements called
for in the FEIS, the randomness of the accidents makes it difficult to predict and
impose more specific mitigation that would decrease the risk. 	He further testified
there is no known way to analyze safety impacts except to evaluate the particular
configuration of a high-accident location." AR 24617.
21

No. 69418-9-1/22
verities on appeal and support the Hearing Examiner's conclusions. 	TRD fails to
show that the conclusions are clearly erroneous.
TRD also contends that the ElSes' traffic impact analysis was inadequate
because it failed to analyze travel times and instead only analyzed intersection
levels 	of service 	(LOS). 	The 	Hearing 	Examiner concluded 	that 	it was 	not
necessary for the ElSes to discuss anticipated increases in travel times due to
increased traffic and that the LOS analysis "is the more customary manner to
address traffic issues."62 The Hearing Examiner further concluded that the ElSes
contained "a reasonable discussion of the impacts resulting from increased traffic
volumes and decreased levels of service."63 As the City notes, these conclusions
are supported by substantial evidence, including testimony from TRD's traffic
expert, city of Maple Valley's traffic expert, and Parametrix's expert.64
TRD further contends that the ElSes failed to disclose "the true extent of
LOS failures," by omitting an AM peak hour analysis and an analysis of individual
intersection legs. 	The Hearing Examiner concluded that "[u]se of the PM peak
hour 	analysis 	was 	sufficient 	to 	establish 	necessary 	mitigation 	for 	traffic
increases," citing testimony from Parametrix's expert that it is customary to use
the highest travel hour to account for worst-case traffic scenarios.65 	The Hearing
Examiner 	also 	concluded 	that 	"[analysis 	of 	whole 	intersection 	failure 	was
sufficient to establish necessary mitigation," citing testimony from both TRD's
62 AR 2462, CL 3.
63AR24621,CL3.
64 AR 849, 878 (TRD expert Ross Tilghman); AR 1109 (City of Maple Valley
expert Natarajan Janarthanan); AR 1218, 1234 (John Perlic from Parametrix).
65AR24621,CL4.
22

No. 69418-9-1/23
expert and Parametrix's expert that "it is standard practice to analyze the entire
intersection because mitigation is tied to failure of whole intersection."66 	The
Hearing 	Examiner 	further 	concluded 	that 	examining 	various 	legs 	of 	each
intersection is inappropriate for the EIS itself as this analysis is contained in the
Transportation 	Technical 	Report.67 	TRD 	fails 	to 	show 	that 	the 	Hearing
Examiner's 	conclusions 	are 	not supported 	by substantial 	evidence 	and 	are
clearly erroneous.
Next, TRD contends that the ElSes were inadequate by failing to analyze
construction 	impacts. 	The 	Hearing 	Examiner 	recognized 	this 	omission 	but
concluded that "mitigation of such impacts is more appropriately handled at each
phase ofthe project."68 As the Hearing Examiner explained:
There is no evidence that addressing these impacts at this stage of
environmental review would result in a more effective mitigation.
SEPA allows the City to determine the appropriate scope and level
of detail of environmental review to coincide with meaningful points
in their planning and decision-making processes, and to focus on
issues that are ready for decision and exclude from consideration
issues 	already 	decided 	or 	not 	yet 	ready. 	WAC 	197-11-060(5).
Construction impacts are such issues not ripe for consideration.
The City's Engineering and Construction Standards will require a
traffic control plan that will address the specific impacts prior to
commencement of construction.1691
TRD fails to show that this 	conclusion is clearly erroneous. 	As the Hearing
Examiner noted, no evidence was presented showing that addressing impacts at
66AR24621,CL5.
67AR24621,CL5.
68 AR 24624, CL 14.
69 AR 24624, CL 14.
23

No. 69418-9-1/24
this stage would result in more effective mitigation and TRD points to no such
evidence.
TRD also contends that the failure to include an analysis of the feasibility
of 	implementing 	mitigation 	measures 	renders 	the 	ElSes 	inadequate. 	The
Hearing Examiner concluded that it was not necessary for the ElSes to address
the feasibility of implementing mitigation measures, explaining:
SEPA requires the FEIS to discuss reasonable mitigation measures
that would 	significantly mitigate 	impacts, 	and 	indicate what the
intended 	environmental 	benefits 	of mitigation 	measures 	are for
significant impacts. 	WAC 197-11-440. The FEIS may discuss the
economic practicability of mitigation measures // there is concern
about 	whether 	a 	mitigation 	measure 	is 	capable 	of 	being
accomplished. Id. It need not analyze mitigation measures in detail
unless they involve substantial changes to the proposal causing
significant 	adverse 	impacts, 	and 	those 	measures 	will 	not 	be
subsequently analyzed under SEPA. Id. In this case, the measures
will 	be 	subsequently 	analyzed, 	and 	it would 	be 	premature 	to
attempt to analyze the feasibility of implementation of mitigation
measures at this juncture. 	Such an analysis is of limited use given
the multitude of other factors that could derail the project. Cost-
sharing 	arrangements 	may 	be 	addressed 	by 	development
agreements entered into between the developer and City.
These issues are more appropriately addressed later as part of the
review 	of 	the 	specific 	project 	pieces 	when 	the 	City 	has 	the
permitting authority to condition the project on implementation of
mitigation measures. 	If level of service impacts mandate mitigation,
any 	development 	can 	only 	proceed 	if 	mitigation 	is 	actually
implemented. While SEPA does not require the 	FEIS to discuss
mitigation measures in detail in all instances, mitigation must be
reasonable 	and 	capable of being 	accomplished. 	If mitigation is
determined to be unfeasible at the time the project will be built, then
GMA concurrency will prevent the development from proceeding.
Consequently, 	any 	feasibility analysis 	at 	this 	point would 	only
speculate on whether the development will proceed to completion if
approved.1701
70 AR 24622-23, CL 10.
24

No. 69418-9-1/25
TRD fails to 	show that this 	conclusion 	is clearly 	erroneous. 	The 	Hearing
Examiner relies on the relevant regulations addressing mitigation in an EIS,71 and
TRD cites no contrary authority requiring the level of detail it urges.
Finally, TRD challenges the adequacy of the alternatives analysis in the
ElSes' discussion of traffic impacts, contending that it failed to address safety
impacts and did not disclose the number of intersections failing LOS standards.
The Hearing Examiner concluded:
While the FEIS gave short shrift to Alternatives 3 and 4, merely
noting the percentage increase posed by each alternative, failure to
go into more detail is not fatal to the validity of the FEIS. 	The SEPA
Responsible 	Official 	made 	a 	determination 	that 	the 	FEIS 	is
adequate. 	The FEIS provided sufficient information to enable the
decision-makers 	to 	making 	[sic] 	a 	reasoned 	choice 	among
alternatives. 	The issues that Appellants claim should have been
addressed in more detail with regard to each alternative, such as
safety, hours of commute analyzed, character and travel times are
discussed elsewhere herein, and were not necessary for the validity
oftheFEIS.[72]
TRD fails to show that this conclusion is clearly erroneous. 	An EIS need only
include "[reasonable alternatives" and they need not be discussed in detail.73
Here, the ElSes identified two specific scaled down alternatives and disclosed
the 	percentage 	of traffic increases 	attributable 	to 	both. 	TRD 	points to 	no
authority requiring the detail it seeks.
71 	WAC 	197-11-440(6)(a),(c)(iv) 	(An 	EIS 	need 	only 	"discuss 	reasonable
mitigation measures that would significantly mitigate," and 	"may discuss their
technical feasibility and economic practicability, if there is concern about whether
a mitigation measure is capable of being accomplished.") (emphasis added).
72 AR 24622, CL 9.
73 WAC 	197-11-440(5)(b)(i) 	("The word 	'reasonable' 	is intended to limit the
number and range of alternatives, as well as the amount of detailed analysis for
each alternative.").
25

No. 69418-9-1/26
E. 	Noise Impacts
TRD further contends that the ElSes failed to adequately address impacts
of construction noise. 	The Hearing Examiner concluded:
The 	FEIS 	and 	its 	Technical 	Appendices 	reasonably 	disclose,
discuss, and substantiate the loudness of construction noise that
may be attributable to the proposed development.'741
The Applicant proved that the existing noise levels in the FEIS were
sufficiently accurate.'751
Although [The Villages] FEIS does not adequately address noise
impacts 	upon 	the 	Harp 	[property] 	and 	potentially 	the 	Proctor
property, this does not render the entire FEIS inadequate. 	The
noise appeal was limited to 	impacts upon the three residences
identified in Finding of Fact No. 1. Mitigation and further analysis of
noise impacts upon 	those properties can be handled 	under the
MPD conditions of approval without having any substantial impact
upon 	the 	noise 	analysis 	conducted 	in 	the 	EIS. 	Further 	the
information in the FEIS was sufficient to notify the decision maker
that noise impacts could be severe for some property owners, such
as the Harps and Ms. Proctor.'761
TRD contends that because the Hearing Examiner also concluded that the
ElSes should have included an assessment of the duration of the noise impacts
and mitigation,77 the Hearing Examiner should have found the ElSes inadequate.
But as the Hearing Examiner also concluded, mitigation and further analysis of
noise impacts "can be handled under the MPD conditions of approval without
having any substantial impact upon the noise analysis conducted in the EIS."
74 AR 24610, CL1.
75AR24611,CL3.
76 AR 24612, CL6.
77 See AR 24583, 24611.
78 AR 24612.
26

No. 69418-9-1/27
As the City contends, an EIS may properly take into account mitigation imposed
as part of project permit conditions.79 	In fact, the Council followed the Hearing
Examiner's suggestions and imposed detailed noise mitigation and monitoring
conditions, including a requirement for development of a separate haul route and
a prohibition against hauling on certain existing streets in residential areas.80
F. 	Responses to Agency Comments
TRD further challenges the adequacy of the ElSes on the basis that they
failed to respond to critical agency comments of the draft EIS. 	TRD points to the
lack 	of 	adequate 	responses 	to 	King County's 	comments 	about 	(1) 	how 	a
proposed infiltration pond in a rural area may impact the regional Green River to
Cedar River trail corridor, (2) the draft EIS's deficient discussion of stormwater
impacts, 	(3) the 	draft 	EIS's failure to 	adequately address 	potential 	adverse
impacts to rural areas and resource lands per countywide planning policy and
county comprehensive plan, and (4) more detail about new local wastewater
infrastructure and impacts to local streams, wetlands, soil, public health, and to
comments 	from 	both 	King 	County 	and 	Washington 	State 	Department 	of
Transportation (WSDOT) about deficiencies in traffic analysis.
As a threshold matter, the City first notes that the Hearing Examiner found
that the SEPA appellants never raised the adequacy of the responses to agency
comments in their administrative SEPA appeals. 	Rather, the issue was first
79 See Edwardsen v. U.S. Dep't of Interior. 268 F.3d 781, 790 (9th Cir. 2001);
City of Sausalito v. O'Neill. 386 F.3d 1186, 1212-13 (9th Cir. 2004).
80 AR 27310-11,AR 27478.
27

No. 69418-9-1/28
raised in TRD's posthearing closing brief.81 	Accordingly, the Hearing Examiner
concluded, "the failure to respond to DEIS [(draft EIS)] comments on its own is
not within the scope ofthe appeals of this decision."82 	But the Hearing Examiner
did clarify that the issue can be a factor if related to an appeal issue that has
been timely presented and concluded that "[d]uring the course of this appeal the
SEPA [a]ppellants have raised the adequacy of [The Villages] FEIS responses
related to issues that they have properly presented, such as transportation and
Lake Sawyer water quality."83 Thus, the issue is properly before this court.
The "rule of reason" applies to claimed failures to 	respond to agency
comments 	and 	inconsequential 	errors 	must 	be 	dismissed 	as 	harmless.84
Applying this rule of reason in Klickitat County Citizens, the court held that the
county's failure to respond to specific comments about handling of waste on a
draft EIS did not render the EIS inadequate, noting that the county did respond to
general comments on handling waste and made some changes to the final EIS
as a result.85
The Hearing Examiner concluded that "there is nothing in the record to
suggest 	that 	the 	City failed 	to 	address 	DEIS 	comment 	letters 	that 	raised
significant adverse environmental impacts that were not adequately addressed in
the EIS," but did note that the City's failure to use a localized model "certainly
81 AR 24634-35.
82 AR 24635 (Citing BDMC 18.08.210[(F)]: "no new substantive appeal issues
may be raised 	or submitted after the close of the time period for filing of the
original appeal.").
83 AR 24635.
84 Klickitat County Citizens. 122 Wn.2d at 637-38.
85 Klickitat County Citizens. 122 Wn.2d at 638.
28

No. 69418-9-1/29
detracts from the reasonableness of its discussion, but not enough to render it
inadequate."86 	The Hearing Examiner noted that the city of Maple Valley did, in
fact, use a local model and the city's transportation engineer was highly qualified,
worked for the city instead of the applicant, and had good reason to use the
regional model.87 Applying the rule of reason, TRD fails to show that the Hearing
Examiner's conclusion was clearly erroneous. 	Additionally, as the City points
out, all of the agency comments were addressed in detail during the EIS appeal
hearing; thus, any failure to respond amounts to harmless error.
II. 	Permit Approval
TRD 	next 	challenges 	the 	ordinances 	approving 	the 	MPD 	permits,
contending that they are inconsistent with the Comprehensive Plan policies to
preserve small town character, violate City code standards for job creation and
walkability, and fail to provide adequate mitigation for adverse environmental
impacts.
TRD first contends the MPD proposals fail to preserve the City's small
town character and 	natural setting as mandated by the Comprehensive Plan
("Plan"). 	As TRD points out, BDMC 18.98.080.A.1 provides that an MPD permit
will not be approved 	unless it "complies with all applicable adopted 	policies,
standards and regulations," and BDMC 18.98.010.L lists as one of the purposes
of the MPD permit process:
[To] [p]romote and achieve the city's vision of incorporating and/or
adapting the planning and design principles regarding mix of uses,
86 AR 24635, CL 3.
87 AR 24635, CL 3.
29

No. 69418-9-1/30
compact form, 	coordinated open space, opportunities for casual
socializing, accessible civic spaces, and sense of community; as
well as such additional design principles as may be appropriate for
a particular MPD, all as identified in the book Rural By Design by
Randall Arendt and in the city's design standards.
TRD also points to references in the Plan to "fundamental principles to retain its
small town character," and "[r]etain the natural setting."88 	TRD contends that the
MPD applications are contrary to these principles, noting that the development
areas will be cleared of all vegetation and graded, and will involve the excavation
of six million cubic yards of soil and fill. 	TRD contends that the result will be a
"classic, 	mega-suburban subdivision development pattern" and "big box retail
development" that 	is inconsistent with the 	historic small 	character of Black
Diamond and the principles of Rural by Design.89 	TRD further contends that the
MPD proposal is not a continuation of the City's "incremental development," and
does not "control the scale and character" of the development as required by the
Plan because it seeks to quintuple the City's current size in 15 years, which is
wholly out of character and scale of the existing small town ambience.90
In its approval of the MPDs, the Council found that the purpose of BDMC
18.98.010.Lwasmet:
As detailed in Finding No. 2, the Land Use Plan map and the MPD
application, 	[T]he 	Villages 	MPD 	application 	proposes 	a 	mix 	of
residential and commercial type uses, with development located in
compact clusters separated by sensitive areas and open space.
88 AB at 79 (emphasis omitted).
89 AB at 80; see Plan at 7-49 (reference to "sustain[ing] historical community
character") 	(emphasis 	omitted). 	TRD cites 	Rural 	By Design's 	reference 	to
planning developments to "[f]it within the environment rather than on top of it,"
and "to nestle into rather than intrude upon its natural setting 	" AR 14081.
90 AB at 81-82; Plan at 5-10, 33.
30

No. 69418-9-1/31
Parks and schools are proposed to be located on site with a road
and 	trail 	network to 	link the 	residential 	portions 	of the 	project.
These will provide opportunities for interaction, socializing and a
sense 	of 	community. 	Stands 	of 	trees 	and 	natural 	areas 	are
proposed along the main spine road through the project. These
natural areas and extensive open space will help 	preserve rural
character.'911
The Council further found:
The 	proposed 	project 	is 	generally 	consistent 	with 	the 	vision
statement and 	the 	City's development 	regulations 	and 	policies.
Further, Page 5-13 of the Comprehensive Plan (Land Use element)
discuss the MPD Overlay plan designation. 	The Villages MPD is
also consistent with that section ofthe Comprehensive Plan.'921
The Council also concluded:
The most controversial policies at issue concern those pertaining to
preservation of small town 	character. 	Many 	parties of interest
argued that the Comprehensive Plan policies require preservation
of "rural" character. 	This is incorrect, and would be inconsistent
with the Growth Management Act, the City's Comprehensive Plan,
and implementing development regulations in any event. 	As the
Hearing Examiner's Recommendation explained, when it comes to
density, "the die has already been cast on this issue." The Growth
Management 	Act, 	[c]hapter 	36.70A 	RCW, 	requires 	cities 	to
encourage urban 	densities in 	order to promote efficient use of
infrastructure and contain urban sprawl. . . . 	Under the GMA, cities
are not permitted to adopt Comprehensive Plan policies requiring
certain areas to remain "rural." See, e.g.. Final Decision and Order
in Robison v. Bainbridge Island. CPSGMHB No. 94-3-0025, at 22-
23. 	In Robison. the Board determined that the City of Bainbridge
Island's "Overriding 	Policy 	No. 	1," which 	called for the 	City to
"preserve 	the 	rural 	character 	of the 	Island" 	violated 	RCW
36.70A.020(1) and (2), 	and remanded the policy to the City for
revision (the City excised the word "rural"). As the Board explained,
"Compact urban development is not 'rural' land use. . . . [BJecause
Bainbridge Island has chosen to be a city, it must remain cognizant
of its duty under the Act to plan for compact urban development
within its boundaries as it grows."'931
91 AR 27249.
92 AR 27249.
93 AR 27257 (internal citations omitted) (alteration in original).
31

No. 69418-9-1/32
The Council noted that it implemented the GMA's mandate to provide for
urban densities by adopting the MPD overlay provisions in the Plan, which state
that the 	MPD 	densities 	"are 	intended 	to 	be 	urban 	in 	nature" 	and 	"will 	be
established as part of the MPD approval process."94 	The Council further noted
that the Plan states that all cities are included within the urban growth area that
are expected to accommodate urban growth in the next 20 years and that the
Plan 	proposed 	a 	"village" 	environment 	with 	residential 	and 	economic
development.95 	The Council then concluded that it is "not in a position to deny
the MPD applications because their densities might be construed as damaging
'rural character,'" but noted that impacts created by those densities "may be (and
are) addressed through application of the MPD criteria and conditions of approval
imposed .. . ."96
The 	Council 	also 	concluded 	that 	the 	Plan's 	policies 	do 	not 	require
preservation of "rural character" even if it was permitted under the GMA. 	Rather,
the 	Council 	pointed 	out 	that 	the 	Plan 	refers 	to 	protection 	of "small 	town
character," 	which 	is 	accomplished 	by 	principles 	that 	include 	compact
development.97 	Citing the Plan policies, the Council noted that "it calls for the
use of 'techniques that continue the character of compact form,' while design
guidelines will help the new, compact development feel like a rural community.
94 AR 27257 (emphasis omitted).
95 AR 27257.
96 AR 27258.
97 AR 27258.
32

No. 69418-9-1/33
This does not mean that the Plan is calling for protection of 'rural character' by
limiting density."98
As to the 	policies referenced above by TRD requiring 	preservation of
community character, historic character, natural setting, rural community, small
town 	character, 	and 	existing 	historical 	development, 	the 	Council 	concluded,
"None require rural densities or suggest that they supersede the more specific
comprehensive plan policies and state mandates requiring urban densities within
the City."99 Rather, the Council recognized that MPD regulations must be applied
to 	harmonize 	the 	urban 	density 	requirement 	with 	maintaining 	small 	town
character.100 	While 	the 	Council 	noted 	that the 	MPD 	regulations 	provide
examples of how to accomplish this, including reference to Rural by Design, it
recognized that it "must apply these specific standards, and may not impose
conditions upon the MPDs on some vague 'feeling' that they are necessary to
protect small town or rural character, because such terms are highly subjective
and difficult to assess."101
TRD fails to show that the Council's determinations were not supported by
substantial 	evidence 	or 	were 	clearly 	erroneous. 	The 	City was 	entitled 	to
deference in construing its own Plan and what is consistent with that Plan.102 As
the Council's findings and conclusions demonstrate, the MPD approvals were
98 AR 27258.
99 AR 27258.
100 AR 27258.
101 AR 27259.
102 Phoenix Dev. Inc.. v. City of Woodinville. 171 Wn.2d 820, 838, 256 P.3d 1150
(2011).
33

No. 69418-9-1/34
consistent with Plan policies. And while TRD claims that the MPDs are contrary
to 	the 	Plan's 	"incremental 	development" 	policies, 	the 	Plan 	itself expressly
projects at least a quadrupling of the City's population by 2025.103
TRD next contends that the ordinances approving the MPDs are invalid
because they violate City code job creation requirements set forth in BDMC
18.98.120.C, which provides:
The MPD shall, within the MPD boundary, or elsewhere within the
city, 	provide 	for 	sufficient 	properly 	zoned 	lands, 	and 	include
sufficient 	incentives 	to 	encourage 	development 	as 	permit
conditions, 	so 	that 	the 	employment 	targets 	set 	forth 	in 	the
comprehensive plan for the number of proposed residential units
within the MPD, will, with reasonable certainty, be met before full
build-out of the residential portion of the MPD.
The Comprehensive Plan states:
The City's employment target is to provide one job per household
within the City by the year 2025, which would translate to a jobs
target 	of 	approximately 	6,534 	jobs. 	However, 	employment
projections used in this update are more conservative in order to
recognize that the City's 	population will need to grow first so it
provides a larger market base that can attract and support a higher
level of commercial development, including the services needed by
a larger population.'1041
TRD contends that the Council erroneously relied on a jobs per household
target of 0.5 per household, rather than one per household as required by the
Comprehensive Plan. 	The Council acknowledged the Plan's reference to the
target of one job per household by 2025, but pointed 	out that the Plan also
recognized that these projections 	are more conservative and that the 	Plan's
"[e]mployment [t]argets" as 	shown 	in Table 	5-3 for 2025 	show 	a 	jobs 	per
103 AB at 81-82; Plan at 5-29.
104 Plan at 3-11,3-12.
34

No. 69418-9-1/35
household ratio of 0.468.105 Thus, the Council concluded that the Plan's jobs per
household target is actually 0.5 per household:
Given 	the 	Comprehensive 	Plan's 	acknowledgement 	that 	more
conservative targets are being utilized to recognize that population
growth 	must 	precede 	employment 	growth, 	and 	in 	light of the
"Employment Targets" specified in Table 5-3 and on page 3-12, the
jobs per household target specified by the Comprehensive Plan is
0.5 jobs per household. 	Applying this standard to [T]he [Vjillages
MPD, the MPD should include sufficient land either within the MPD
boundary or City as a whole, to provide approximately 2,400 jobs
(4,800 x 0.5 = 2.400).'1061
The Council then concluded that the code requirement was met:
Because [T]he Villages MPD is projected to generate 1,365 jobs
within 	[T]he 	[VJillages 	MPD 	boundary, 	because 	the 	City 	has
sufficient zoned land within the City as a whole for 5,761 jobs and
because 	the 	conditions 	of 	approval 	contain 	incentives 	for
development 	of 	the 	retail/commercial/light 	industrial 	areas, 	the
criterion in BDMC 18.98.120[.]C is met.'1071
TRD fails to show that this conclusion was clearly erroneous or unsubstantiated
by the record. 	As the Council explained, the 0.5 jobs per household target is
based on projections set forth in the Plan. As noted above, the City is entitled to
deference in interpreting its own Plan and TRD fails to show that this was an
unreasonable interpretation.
TRD also argues that approval of the MPD permits violates the walkability
standard required by BDMC 18.98.080.A.14, which provides: "School sites shall
105 AR 27271, CL 40(B) ("[T]he Comprehensive Plan includes the City's updated
projection for 2,677 new jobs by the year 2025. 	Table 3-9 characterizes this as
0.5 jobs per household by the year 2025. This is roughly consistent with the
Comprehensive Plan's "Employment Targets" shown on Table 5-3, for a year
2025 jobs target of 2,952 jobs (2,525 new jobs) which, when divided 	by the
household target of 6,302 households, is jobs per household ratio of 0.468.").
106 AR 27271, CL 40(D).
107 AR 27272, CL 40(G). 35

No. 69418-9-1/36
be identified so that all school sites meet the walkable school standard set for in
the comprehensive plan." 	TRD contends that despite the Council's recognition
that the Plan calls for a 	half mile walkability standard, it did 	not impose this
requirement for the MPDs. 	To ensure compliance with BDMC 18.98.080.A.14,
the Council imposed a condition to require that "where reasonable and practical,
all schools should be located within a half-mile walk of residential areas."108 	The
Council noted that the Plan contains no specific "walkable" standard but instead
refers to the "ten-minute walk" concept and a goal for 80 percent of City residents
to have no more than a half-mile walk from commercial services, employment, or
access to transit.109 TRD fails to show that this conclusion is clearly erroneous or
unsubstantiated 	by the 	record. 	The Council's characterization of the 	Plan's
references to walkability standards is accurate and does not require a half-mile
walkability standard as TRD contends.
Finally, TRD challenges the MPD permit ordinances on the basis that the
Council improperly concluded that significant adverse impacts on Lake Sawyer
and traffic would be mitigated. 	TRD argues that Yarrow Bay was required to
show that the MPDs would 	not cause an increase in phosphorous pollutants
reaching Lake Sawyer, referring to the Plan's policy NE-6, which provides:
The special protection measures noted in NE-5 should evaluate
and define "high risk" uses and address the siting of such uses in
sensitive aquifer recharge areas. 	The protection measures should
also evaluate and 	include measures to 	reduce 	pollutants loads,
including phosphorous discharged to Lake Sawyer/1101
108 AR 27268, CL 40(B).
109 AR 27268, CL 40(A).
110 Plan at 4-25.
36

No. 69418-9-1/37
But as the City notes, this policy is not a requirement for MPD permit approval as
TRD suggests; it is a requirement that the City adopt special protection measures
in areas highly susceptible to groundwater contamination as identified in policy
NE-5[111] and to evaluate and reduce phosphorous loading into the lake. 	As
discussed 	above, 	the 	City 	has 	taken 	such 	measures 	(e.g., 	adoption 	of
stormwater management manual and monitoring program).
The Council's findings 	and 	conclusions further establish that the code
requirements for MPD 	permit approval were satisfied. 	BDMC 18.98.080.A.2
provides 	that 	a 	permit 	may 	not 	be 	approved 	unless 	"[significant 	adverse
environmental impacts are appropriately mitigated." 	The Council concluded that
the MPDs satisfied the permit requirement to "identify significant environmental
impacts and ensure appropriate mitigation" as follows:
The 	MPDs 	have 	been 	subject 	to 	extensive 	and 	intensive
environmental 	review. 	The 	FEIS 	is supported 	by 	hundreds 	of
pages of environmental analysis. 	The bulk of the hearings on the
MPDs 	was 	comprised 	of 	the 	testimony 	of 	numerous 	experts
addressing the appeals of the FEIS. Through this process several
areas 	of 	improvement 	were 	identified, 	resulting 	in 	Hearing
Examiner recommendations for and Applicant offers of extensive
additional mitigation, including additional future impact analysis and
mitigation. 	That 	mitigation, 	and 	the 	requirements 	for 	future
analysis, are incorporated into the conditions of MPD approval in
Exhibit C below. 	New conditions addressing traffic and noise in
particular, will help ensure that all significant environmental impacts
are appropriately mitigated.'1121
111 	NE-5 	provides 	that such measures 	must "require 	businesses 	that use
hazardous chemicals to have containment facilities to capture potential chemical
spills, and require the use of best management practices for applying pesticides
and fertilizers for business residential and recreational uses." 	Plan at 4-26.
112 AR 27246, CL 9. 37

No. 69418-9-1/38
The Council also concluded that BDMC 18.98.020.B was satisfied, which
requires 	"[protection 	of 	surface 	and 	groundwater 	quality 	both 	on-site 	and
downstream, through the use of innovative, low-impact and regional stormwater
management technologies."113 	The Council's findings cite the City's adoption of
the 2005 Ecology Stormwater Management Manual for Western Washington,
and 	the 	MPD 	application's 	stormwater 	management 	plan 	which 	includes
incorporation 	of low-impact development (LID) techniques.114 	The Council's
findings of fact and conclusions of law also refer to its imposition of several
conditions 	of the 	MPD 	permit approval, 	including: 	requiring 	identification 	of
mechanisms to 	integrate 	LID 	into the 	overall 	design 	of the 	MPD; 	requiring
incorporation 	of 	additional 	innovative 	techniques 	(e.g., 	requiring 	new
phosphorous treatment technology if authorized for use 	by DOE 	in meeting
stormwater manual requirements);115 requiring Yarrow Bay to identify estimated
maximum annual volume of total phosphorous that will be discharged in runoff
from the MPD site and that will comply with TMDL for Lake Sawyer, and if the
discharged 	amount 	exceeds 	the 	maximum, 	to 	make 	changes 	to 	reduce
discharge 	below the maximum;116 	imposing 	monitoring 	requirements;117 	and
imposing 	restrictions on roof types.118 	Again, 	TRD fails to show that these
conclusions are clearly erroneous or are unsubstantiated by the record.
113 AR 27251, CL 18 (boldface and italics omitted).
114 AR 27251, CL 18(B).
115AR27251,CL18D(i).
116AR27251,CL18(D)(ii).
117 AR 27252, CL 18 (D)(v).
118 AR 27252, CL 18 (D)(iv). 38

No. 69418-9-1/39
TRD's 	contention 	that traffic and 	noise 	impacts 	were 	not 	adequately
mitigated is likewise without merit. 	TRD essentially reasserts its challenges to
the ElSes on this basis, which as discussed above, lack merit.
We affirm.119
<r=p<\* \3=^ 	1
WE CONCUR:
fex.^n
119 The 	respondents' 	motion to dismiss and 	appellants' 	motion to strike are
denied. 	As 	the prevailing 	parties, 	the respondents 	are awarded 	their fees
pursuant to RCW 4.84.370.
39