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2003-05-15 Hearing Examiner MinutesCITY OF EDMONDS VERBATIM TRANSCRIPTS OF HEARING EXAMINER HEARING Hearing Examiner: Ron McConnell Applicant: Washington State Ferries File Number SM-03-31 May 15, 2003 Mr. McConnell: Okay. I am Ron McConnell, the Hearing Examiner for the City. We have three items on the agenda this morning. We will follow the order of the agenda. Copies of the agenda are in the back of the room in case you do not have one and would like to get one. Also, copies of the staff reports are also back there. So if you want to pick up a copy of each of the staff reports, you can do that. Mr. McConnell: The first item on the agenda is a request from Washington State Ferries for a shoreline conditional use permit to allow the existing Edmonds Ferry Terminal overhead loading structure to be there on a permanent basis. What I would like to do first is have staff go through a very brief presentation. Maybe I should ask. How many people are here on the first item, the ferry. Okay. Fine. Quite a few people. So we will have the staff go through a very brief presentation on that, and then hear from the applicant, and then anybody else that wants to speak on the issue. With that, Mr. Chave, it looks like you are the man. Mr. Chave: That would be me. Rob Chave, City Planning Department. Basically, as the Hearing Examiner stated, this is an application by Washington State Ferries for the overhead loading facility that was approved, actually, initially, by the City, who granted a shoreline permit in 1996. After the appeals were over, it was actually, I believe, about February of 1997 by the time the final decision was issued. At that time, it was approved for five years, with the opportunity to file for two five- year extensions. Unfortunately, after the first five-year period, no extensions were filed, so that left the ferry system in the situation where they have to apply now for a new permit. Mr. Chave: Obviously, the facility is an existing facility that was initially permitted. Our analysis at this time, however, has to take into account that there is a new Shoreline Management Program that has been adopted by the City that was not in effect at that time. Actually, it gives probably further additional guidance than was available at the time of the initial application. Also, there is quite a bit of history now related to another action that has a bearing on the ferry terminal, and that is the Edmonds Crossing Multi -Modal Facility. The chronology was attached to the staff report that has a fairly extensive history up until this point and is an ongoing project. So our basic view at this time is that the application is consistent with existing plans, not only the City's plans for the multi -modal in its Comprehensive Plan, but also various regional and state plans that also acknowledge and plan for the construction of the Edmonds Crossing Project. Mr. Chave: So in the context of that, it is appropriate, I think, based on agreements and ongoing service needs at the ferry terminal, to have the overhead loading in its current location and the situation continue. But, that being said, to be consistent with existing plans, the conditions that were placed on the facility by the initial decision back in 1996 still hold. That is that we have a number of conditions itemized that, basically, our recommendation is that it be approved for another five years with an extension to the original approval date of February 26, 2012. In other words, five years with the opportunity to apply for a new extension that would take you out to that 2012 date. The other conditions relate to after the overhead loading facility is removed and moved down to the new ferry location, that restrooms and so forth would still remain on site. All those conditions we recommended would still apply. I think that is the extent of what I wanted to say. Mr. McConnell: Okay. Who is speaking on behalf of the applicant? Can I get you to the microphone? Mr. East: Good Morning. My name is Russ East. I am the director of terminal engineering for Washington State Ferries. My department is responsible for the design, planning, maintenance and construction of all the terminal facilities for Washington State Ferries. I am here to speak on behalf of the application as we have submitted it. I want to make several comments here. First of all, I want to start off saying that upon review of the record, we feel that the facility should have been permitted as a permanent facility back in 1996 when the application was first processed. The facility, as Rob has said, is consistent with current shoreline regulations, and it doesn't make sense to us to permit it as a temporary facility. I think it is important to note that the facility improves route capacity by improving efficient operations. That is that we can load passengers on the upper deck of the vessel while we can continue to load autos onto the auto deck. That allows us to move traffic through the terminal and essentially reduce the traffic and backup on the street that you see today. Mr. East: As a temporary facility, I think it is important to recognize that the conditions that are imposed provide no remedy for continued operation of the facility after 2012. It is important to recognize that if there is no funding for the future facility at the new tank farm location, that as this permit's conditions are currently written, this facility would have no overhead loading. It would exacerbate many of the problems that the community sees today. So our feeling is that the condition for removal of the facility is an appropriate condition for the construction of the new facility, but not to permit as part of this facility without further remedies. Mr. East: A couple of points is that the future funding is subject to voter action or legislative approval. There is no money allocated to construct the new facility. It is partially funded right now with some money that was recently allocated from the legislature. It was included in what is called the RTID Funding, which is a regional transportation package. But, again, that is subject to voter approval. We are working with and are committed to working with the City of Edmonds to relocate the facility, I think, to the extent we can within our current capital budget. We fully intend to dismantle this facility when the new facility is constructed. But to have an arbitrary date of 2012 puts a particularly difficult burden on us as to what we do after the fact. Mr. East: I think that what the original shoreline permit had as a maximum —two extensions —makes it difficult for us to continue to come back here and address a situation that we are currently working on to try and resolve. This arbitrary 2012 date has us particularly troubled. We operate a highway system, and we have an obligation to maintain those State throughways. Mr. East: I think probably the last important point to make is that the overhead loading facility is critical to ADA compliance for the route. We have overhead loading facilities in Kingston, which allow the passengers to walk on the boat through the overhead loading facility in an unassisted manner. We have a paired facility here, in Edmonds, that matches up with that. Some of the vessels that are on the route do not have elevators, which creates problems for us in moving passengers from the auto deck to the passenger deck of the vessel. In 2012, if the new facility is not constructed and funding does not come through, we will be in a position„ and the City will be in a position, of requiring the State to tear down a facility that we have invested $20 million in. That would then take the facility out of compliance with ADA, and we feel that the City, as well as Washington State Ferries, could be subject to legal action by the disabled community. So we would like to see this as a permanent facility and any conditions of removal we think is appropriate to include in the shoreline permit for the new facility when it actually comes on line. Mr. McConnell: Okay. Is anybody else speaking for you? Mr. East: Yes. Verbatim Hearing Examiner Transcripts File Number SM-03-31 May 15, 2003 Page 2 Ms. Caid: My name is Debra Caid. i am an assistant attorney general representing the Washington State Ferries this morning. Mr. McConnell: And same address as the ... Ms. Caid: My address is on the sign up sheet. It is Post Office Box 40113, Olympia, WA 98504. Mr. McConnell: Okay. If it is on the sign up sheet, I am fine. Ms. Caid: The permit that has been applied for by Washington State Ferries should be issued as a permanent rather than temporary as it was the last time. The issuance of a permanent permit is actually more consistent with the Shoreline Management Act than would be a temporary permit. Under RCW 90.58.020 it states the policies of the Shoreline Management Act. There are, I believe, six set out there. This project specifically meets four of those state-wide policies. First, is to promote state-wide interests over local interests. This ferry run is part of the state-wide highway system that includes a lot of ferry routes, so this action is actually considered part of the highway system. Ms. Caid: To promote long-term benefit over short-term benefit. It does not make sense for the ferry staff and my office and whoever else is involved in this to have to spend a lot of time coming back here every five years for renewals on this project. As Mr. East suggested, the ultimate goal of having this overhead loading facility removed at some point could be accomplished by attaching that as a condition to a new permit for the new facility. It is much more appropriately included there. The third goal that this means under the Shoreline Act is increasing public access to the shoreline. It also increases public recreational opportunities on the shoreline. Ms. Caid: Granting the permit as a temporary permit implies, in fact expressly implies, that the City has the right to come back in 2012 and require the removal of this facility. That is not too far from being able to simply outright deny the application for this permit. That would be inconsistent with the Shoreline Management Act for the reasons that I just stated because it would be contrary to the policies that I just set out. It is also contrary to the whole legislative plan of having highway funds, including ferry funds, allocated on a priority basis state-wide by the legislature, the Transportation Commission and by the Secretary of Transportation. Ms. Caid: There has been a statement in the staff report to the effect that issuance of a permanent shoreline substantial development permit here is inconsistent with the planning process that is currently going on for the SR-104 Edmonds Crossing Project. The DOT and the ferry system undertake planning for new projects all of the time, without considering the facilities to be replaced to be temporary facilities. There is no reason to formally designate this as a temporary permit or this facility as a temporary facility in order for that planning process to occur. Planning is going on at the same level today for the replacement of the Alaska Way Viaduct. Nobody considers the Alaska Way Viaduct to be a temporary facility. So the whole idea that a permanent permit for this facility is inconsistent with planning for its replacement is not appropriate. Ms. Caid: Mr. East explained that this project planning is going on with some funding, but eventual funding for design and construction and property acquisition is simply not guaranteed. Mr. East also stated that the overhead loading facility is necessary for the State to comply with its own responsibilities under the ADA. I think the City should have some concern here that if their own regulations prohibit the State from maintaining this facility and maintaining access for disabled ferry riders, there is potential liability for the City should the State ever be sued because a disabled person could not access the ferry. The City should keep that in mind that it has its own obligation to provide ADA accessibility in areas that it regulates. Ms. Caid: For those reasons, I would ask the City to consider this an application for a permanent permit and issue the permit as a permanent document. Mr. McConnell: Okay. Thank you. Is anyone else speaking as part of your group? Okay. Is there anyone else that wants to speak on this issue? Sure. Your name and address please. Ms. Shippen: Natalie Shippen, 1022 Euclid, Edmonds 98020. I think the ferry system's argument that Edmonds would shut the ferry down or that the implication from any of the text of the permit or the appeal that was made to it imply that Edmonds would shut down the ferry terminal at the end of 15 years. It is too dire. I would like to refer you to Attachment 9, Verbatim Hearing Examiner Transcripts File Number SM-03-31 May 15, 2003 Page 3 Page 7 in which the City Attorney and the current planning supervisor, Mr. Wilson, says the mitigated determination of non - significance is inadequate if this proposal was a permanent facility. The City has, therefore, responded with conditions approving the proposal for up to 15 years with reviews each five years. I think that addresses the fact that there was no environmental impact statement made at the time the existing ramp was put in. The conditions, then, that were attached to approval were an effort to remedy that problem. Ms. Shippen: It also refers to, on Page 15 of the decision, it says in Number 2, environmental review for the development anticipated a temporary use. Long-term impacts to the City's environment, and particularly to adjacent parks and other public areas, were not considered. Then accordingly, they go on and require the 15-year temporary permit. So I think that if in 15 years the facility has not been built at Point Edwards, that the City would go back and require an environmental impact statement, not shut the ferry down, which I think Edmonds would consider much too extreme. Ms. Shippen: Other than that, I would also like some changes in the wording of the recommendations of staff. On the front Page (2 of 11), in 2, strike the first sentence and replace it with the original sentence, which I just read. Environmental review for the development anticipated a temporary use. Long-term impacts to the City's environment, and particularly to adjacent parks and other public areas, were not considered. Mr. McConnell: Okay. So you are basically reading that out of... Ms. Shippen: That was the original Hearing Examiner's opinion. But that has been reworded in the recommendations of Staff, in Number 2. So it is that change. And then in 2.b, I think they have struck the requirement for a public hearing. I think if the ferry system did not allow its permits to lapse, there would be no point in having this kind of formal review. It would be something more, I would think, that the staff would handle in. No one has ever had it come up before staff, and I guess Rob doesn't know what the procedure is. But that would be contingent, not permitting a public hearing or a hearing before the Hearing Examiner, on the fact that the ferry system had again failed to renew its permits. Other than that, I have no comments. Mr. McConnell: Okay. Anyone else want to speak on this issue? Okay. Any response from the ferry service? Ms. Caid: Debra Caid from the Attorney General's Office. The suggestion that there were comments that the MDNS was inadequate for a permanent facility are not really supported here. The City of Edmonds is an agency with jurisdiction. The MDNS and environmental checklist that were prepared for the application were for this facility as a permanent facility. If the City considered the MDNS to be inadequate under SEPA for permitting a permanent facility, then as an agency with jurisdiction, its only remedy, under the SEPA rules, was to simulate agency status and prepare an environmental impact statement. It has no remedy at this point, or at any point in the future here, to require an EIS for this project. Mr. McConnell: So, as I recall, Washington State Ferries was the lead agency under ... I was the Hearing Examiner when this was originally approved, but I have forgotten who the lead agency was. Ms. Caid: Washington State Ferries was the lead agency then, and it is the lead agency now. But the City is the agency with jurisdiction. Mr. McConnell: I understand. I just wanted to clarify for my ... What has it been, six, seven years ago. Ms. Caid: At least. As the public agency that's the project proponent, WSF is the lead agency. There is a provision for an agency with jurisdiction to simulate agency status... Mr. McConnell: I understand that. I just didn't remember who was the lead agency ... Ms. Caid: Both times it was WSF. Mr. McConnell: Okay. Thank you. Okay. Anything further from anyone before I turn it back over to staff. Okay. Staff. Verbatim Hearing Examiner Transcripts File Number SM-03-31 May 15, 2003 Page 4 Mr. Chave: Okay. I guess there are several comments I want to make. First, I guess the Hearing Examiner should take a look at the findings of fact and conclusions of law that the City Council actually issued on the initial application as contained in Attachment 10. At that time, the City Council had some findings related to SEPA particularly stating that the City reserves the right to consider all the environmental impacts in its permitting decision regardless of whether SEPA identifies specific impacts. So, in other words, the City's position is that, regardless of what the State Environmental Impact Statement says, the City government is also required to consider all environmental impacts in its decisions. It is also important to note that this is not the only environmental statement (this DNS) that was issued for this particular application. There was also a draft EIS that is out right now for the Edmonds Crossing Project, which obviously has a bearing on this application, as well. So there would be an issue of weighing or evaluating the impacts that were identified for this particular SEPA action as those compared to the larger impacts and the larger project that is the Edmonds Crossing. Those need to be consistent. At this point, we are not sure, if this is considered for a long-term, permanent facility, whether the impacts that were identified under this application are really consistent with the Edmonds Crossing environmental work. Mr. Chave: I think it is also important to note that the City, by attaching specific time periods to the approval of this permit, is not foreclosing the opportunity for the ferry system to apply for a longer -term or permanent status in the future. What we are saying is that right now is not that time because we have plans that are existing at the local, regional and even at the State level that call for a permanent facility being located at Point Edwards. Also, approving a permanent facility at the existing ferry terminal would be inconsistent with those plans and would not be appropriate until those plans are modified to show that the long-term facility needs to remain in its current location. Obviously, if that was the case, that would significantly change the environmental work that has been done related to the Edmonds Crossing, and it would have a significant impact on the types of environmental impacts that could be anticipated here. Mr. Chave: I think it is well -documented in the environmental work underlying the existing City Comprehensive Plan, as well as the Edmonds Crossing Project, that the reasons for wanting to move the terminal south are not only related to pedestrian access or ADA. There are much larger issues that relate to overall safety, traffic, and a number of things that go well beyond what the current overhead loading facility is. In our opinion, if the overhead loading facility was to remain long- term at the existing site, the plans would have to reflect and evaluate a much different situation. That is not just an overhead loading facility, but in all probability, you would have to address the long-term traffic impacts and other related concerns that a long-term facility would need. In other words, there would be related actions above and beyond this overhead facility that would need to be evaluated. Again, the existing plans do not call for that kind of a facility or that kind of an analysis at the existing location. Mr. Chave: I think the notion that a condition could be attached after the fact to a new facility located at Point Edwards misses the point. The conditions should be attached to the facility at hand and not attached to something in the future that we don't know whether or not that facility will occur. Right now, all the plans call for it to happen. All the funding decisions that are being made are continuing that decision or supporting that decision. So there is no reason, at this point, to think that that facility down at Edmonds Crossing is not going to occur. Therefore, if we are going to approve projects that are consistent with those plans, the conditions attached need to be at the present time, and not held until some point in the future. Mr. Chave: I think there is also information in the record before the Hearing Examiner that questions the assertions made that the overhead loading would be consistent with public access and increasing recreational opportunities — two of the State goals that were mentioned... We have supplied some photographs in the record here that indicate, number one, wide-angle shots sort of giving you the wide perspective. But also there are some shots that show what you actually see. They are labeled "Person Perspective Views." Those were taken from public parks north and south of the facility. I think the point there is that there are impacts to public access and public views and existing parks in the vicinity of this project that have not been considered or have not been mitigated. Particularly if this facility is to remain past the time period indicated. So these are the kinds of impacts or the kinds of considerations that would have to be looked at in any new planning that was going to be done if the multi -modal facility at Point Edwards is not completed. Again, that is a series of planning actions, a series of environmental analysis that has not been completed up to this point in time. So I think, at this point, staff is still supportive of the recommendation that it made. I think, actually, the suggestion Ms. Shippen made during her comments is appropriate. We would support including that, as well. Mr. McConnell: Okay. Anything else from anyone. If not, I will close the hearing. Wait. You have something? Verbatim Hearing Examiner Transcripts File Number SM-03-31 May 15, 2003 Page 5 Ms. Caid: Debra Caid, Attorney General's Office, representing WSF. First of all, this is not a permit for the entire facility nor a permit for the overall operation of the facility of the ferry terminal. It is simply for the overhead passenger loading component. Second, if a decision has to be made, for funding reasons, not to relocate the ferry terminal to Point Edwards, it is not going to be subject to some kind of SEPA review or permitting. It will simply be a matter of no funding being available and the facility having to remain in its current location. That particular decision would not be the basis for an environmental review. It would, in fact, be a legislative decision due to lack of funding. Mr. McConnell: Okay. If there is nothing else, I will close the hearing, and I will have a written decision out within two weeks. Thank you for coming. I TESTIFY THAT THESE VERBATIM TRANSCRIPTS ARE COMPLETE AND ACCURATE TO THE BEST OF MY ABILITY TO TRANSCRIBE THE PROCEEDINGS. Karin Noyes, Transcriber Date Verbatim Hearing Examiner Transcripts File Number SM-03-31 May 15, 2003 Page 6