Monday, February 23, 2009
Above: The narrow strip of land between Capitol Boulevard and the Deschutes River is the proposed Bellatorre project area, as seen from Capitol Boulevard in Tumwater.
By Janine Gates
“Just out of curiosity, your Honor, do I get these back?” Erik Kjesbu innocently asked Hearings Examiner Rodney Kerslake, as Kerslake moved to enter Kjesbu’s homemade charts and pictures into the formal record.
When the answer was no, chuckles from all sides erupted as an incredulous Kjesbu again asked, “You mean I don’t get them back?” and proceeded to tell the examiner how he had gone to Kinko’s to prepare them and stayed up until 1:00 a.m. the night before, making them, and didn’t have a copy.
Above: Erik Kjesbu indicates the difference between sea-level and street level elevations at various intersections in Tumwater.
The somber scene in the Tumwater city council chambers on February 11th turned sweetly humorous as Kjesbu’s fellow appellants and random audience members loudly urged Kjesbu to give up his carefully made charts, graphs and pictures and enter them into the record.
Tumwater residents cum novice citizen activists Erik and Marcia Kjesbu, along with Cathi and David Read, joined forces to appeal the City of Tumwater’s environmental determination of non-significance under the State Environmental Policy Act (SEPA) for Triway Enterprises’ Bellatorre project. The city had approved the conditional use application in December 2008.
“It is the determination of the Department that the proposal can be considered minor to the extent that significant adverse environmental impacts are not anticipated,” reads the City of Tumwater’s staff report.
What Tumwater considers “minor” is Triway Enterprises’ request to approve their mixed use commercial/residential project in Tumwater Valley adjacent to the Palermo neighborhood off Capitol Way. It includes 134,900 square feet of office space, 69,900 square feet of retail space, 8,600 square feet of restaurant space and 335 residential condominium units on 41 acres wedged between Capitol Way in Tumwater near Tumwater Valley Golf Course and the Deschutes River.
The conditional use permit requests approval to construct seven out of ten new buildings over the building height limit of 50 feet and to divide the land into 11 lots so each of the existing and proposed buildings sit on separate lots.
Above: The proposed Bellatorre project area, as seen from Tumwater Valley Athletic Club property, will feature buildings up to nine stories tall, dwarfing these trees, and obscure views of Mount Rainier from hundreds of homes on Tumwater Hill.
So, while most South Sounders were paralyzed by the winter snowfall, the Kjebu’s and Read’s were working to appeal the decision. “On Christmas morning, Dave and I were working on our comments to the mitigated determination of non-significance, which was due on December 26,” said Cathi Read in her testimony. They are urging the City of Tumwater to require an Environmental Impact Statement (EIS) for the Bellatorre project.
“It feels like a David vs. Goliath story….” said Marcia Kjesbu later, during the hearing’s lunch break, as she described her part as an appellant against the application.
The four Tumwater residents originally met October 29th at a public meeting hosted by city staff inviting residents to meet Triway representatives and hear more about the Bellatorre project.
Erik Kjesbu credits an article in the November/December 2008 issue of the South Sound Green Pages for giving him “courage” to proceed as an appellant after he felt his concerns were not being addressed by Triway or the city. (See South Sound Green Pages, www.oly-wa.us/greenpages)
Above: Tumwater residents meet October 29, 2008 after a public meeting about the Bellatorre project.
The Tumwater residents felt that the city’s approval of the conditional use permit request does not adequately address significant environmental impacts that the massive project, if built, would generate.
Their concerns relate to traffic, particularly coming on and off “M” Street, storm drainage and flooding, water quality impacts to the Deschutes River and nearby critical areas, and views.
On February 11, the four made their case in front of Hearings Examiner Rodney Kerslake. The hearing lasted over eight hours, breaking for lunch and dinner and resuming in the evening for the benefit of those who could not come during the daytime hearing.
The appellants, confident and well-prepared, represented themselves with organized testimony and slides to illustrate their arguments. On the other side of the room sat City of Tumwater attorney Jeff Myers, City of Tumwater Development Services Director Roger Gellenbeck, and a full array of Triway attorneys, staff, and representatives, including Tri Vo, president of Triway Enterprises. At the end of the hearing, Kerslake seemed impressed with everyone, complimenting them for being so well-mannered throughout the proceedings.
Above: Erik Kjesbu shows City of Tumwater attorney Jeff Myers pictures of the view from his home that will be lost if the proposed development is built.
Chris Carlson, City of Tumwater Planning Manager, began the hearing by giving an overview of the project, followed by three real estate agents, Dennis Adams of Adams Realty, Priscilla Terry of Prime Locations and Tom Bennett of Remax-Parkside, who spoke in support of the project.
“I’ve seen that area as a wasteland…I have clients that are looking for something like this in that area. This will be a shot in the arm for local businesses, an increased tax base, and make Tumwater a more up and coming area,” said Adams.
Erik Kjesbu’s testimony focused on his belief that the spirit and intent of the comprehensive land use plans will not be met by the proposed development. He detailed how the conditional use permit to allow buildings higher than 50 feet will adversely effect and impact the values of properties on Tumwater Hill.
The Kjesbu’s have lived on 2nd Avenue for over 20 years and have horizon-level views of sunrises and Mt. Rainier that will be obstructed by the proposed development. Kjesbu spent time explaining that there seems to be mixed information being provided by the city and Triway regarding the actual heights of the project buildings.
Above: Bellatorre's proposed Building J, which would be located in the wooded area, left, across the street from Western Meats on Capitol Boulevard. This area is closest to the Deschutes River. Triway Enterprises envisions this proposed five story building to have a Rite-Aid pharmacy on the ground level. The land in the foreground is brewery property. Photo taken from Cleveland Avenue.
Kjesbu said there is a significant difference if one is measuring at sea-level or street level street elevations. Using a pencil, Kjesbu indicated several Tumwater intersections as examples on his black and white homemade charts, color-coded with little round stickers. The city used a laser pointer to demonstrate their points on their large, glossy, full-color Triway-provided pictures and aerials. Both sides seemed equally effective and persuasive to the hearings examiner, who, for the benefit of the written record, often clarified what was being visually explained.
Kjesbu used data from Thurston County Geodata Center and Microsoft Virtual Earth to support his claims that the property values of 23 blocks of Old Tumwater Hill will be adversely affected due to view loss. In their brief, Triway’s application describes this area as a “discrete subset of the population.”
Dave and Cathi Read live in Tumwater’s Palermo Valley neighborhood off Capitol Way. Cathi Read focused her testimony on 12 arguments that were later agreed upon points that the hearing examiner.
Part of the Shoreline Master Program for Thurston County, written in quieter times in 1990, is an idyllic-sounding Deschutes River Special Area Management Plan (SAMP) for the Tumwater Valley.
It says, in part, “Throughout its length the banks of the river will remain in their present state or have been enhanced for fish and wildlife habitat. The trees on the bluffs overlooking the valley will remain in place. Any structures at the tops of the bluffs will be set back out of sight of the river or designed to minimize their visual impact on the valley.”
Another paragraph says, “The Palermo neighborhood will remain the only substantial housing area in the valley. However, scattered homes may be located along less steep portions of the bluffs or suitable areas at the foot of the bluffs.”
The “wasteland” described by real estate agent Dennis Adams includes the Deschutes River and abundant wildlife.
Above: This blue heron kind of likes his piece of Tumwater real estate just the way it is near the Deschutes River.
Nancy Partlow, Tumwater resident, spoke to the conditional use permit portion of the hearing.
"I would like to take issue with a previous comment by one of the proponent’s spokespersons. Supposedly the developer is "saving" 562 trees or 63% of the trees on site. But we really don't know how many trees will be saved, if any, since large portions of the "tree save" area can be further developed at a later date, and the developer would not commit to putting these trees into a conservancy designation. Nor would he commit to not developing this land in the future. Within the site plan footprint, virtually all the trees will be eliminated."
Partlow continued, "I have been struck by how little concern has been given to the Deschutes River. It's like the river is not even there. The Habitat Plan is minimal as is the tree plan for such a huge development in such close proximity to Thurston County's second largest river and Tumwater's most important ecosystem…The conditional use language sets the bar so low on conditions to be met that they are almost not there."
After nine hours of testimony, the agreed upon SEPA appeal issues were whether the City of Tumwater erred on 12 points:
1. Whether the City erred in issuing the Mitigated Determination of Non-Significance (MDNS) for the Bellatorre proposal because it failed to consider and/or mitigate traffic impacts at the intersection of Capitol Boulevard and M Street;
2. Whether the City erred in issuing the MDNS for the Bellatorre proposal, and allowed the development to avoid Shoreline Master Program requirements because it failed to address a future roadway connecting through the proposed development from Capitol Boulevard to Tumwater Valley Drive;
4. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it relied on outdated inaccurate Federal Emergency Management Agency (FEMA) floodplain maps and did not consider more current information showing that flooding on property adjacent to the development may result from the proposal;
5. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it failed to adequately mitigate impacts resulting from multi-day storm events that may contribute to flooding on property adjacent to the development;
6. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it failed to adequately mitigate impacts to water quality in the Deschutes River that will result from increased runoff from the proposal;
7. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it failed to consider and/or mitigate impacts to groundwater quality that will result from increased runoff from the proposal and impacts to the flow of groundwater from stormwater infiltration planned for the development;
8. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it failed to consider and/or mitigate impacts to the Deschutes River Riparian Area arising from lost vegetation caused by the proposal, in particular related to guidelines from the Deschutes River Special Area Management Plan;
Above: The proposed site of the Bellatorre project from Capitol Boulevard.
9. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it failed to adequately mitigate impacts to wetlands along the base of the slope below the project site, consistent with the City’s Conservation Plan;
10. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it failed to adequately mitigate impacts to views that existing residents have of Mount Rainier and the Deschutes Valley;
11. Whether the City erred in issuing the MDNS for the Bellatorre proposal because it made a procedural error in not notifying citizens who requested notification;
12. Whether the City erred in issuing the MDNS for the Bellatorre proposal because the errors shown in this appeal show that an EIS is needed to gather additional information as required under SEPA;
The hearing examiner said he would have his decision ready within 10 business days of the hearing.
Above: Hearings Examiner Rodney Kerslake meets with the appellants and the applicants on February 11, 2009.