HEARING EXAMINER - Thurston County, Washington · Ben Cushman, Attorney, represented the...

COUNTY COMMISSIONERS Cathy Wolfe District One Sandra Romero District Two Karen Valenzuela District Three

HEARING EXAMINERCreating Solutions for Our Future

2000 Lakeridge Drive SW, Olympia, Washington 98502 (360) 786-5490/FAX (360) 754-2939

BEFORE THE HEARING EXAMINER IN AND FOR THE COUNTY OF THURSTON

In the Matter of the Appeal of ) Rainier-Vail Neighborhood Group ) ) SEPA 12-101068XA of the March 28, 2013 MDNS ) SUP 2011101927 Issued in review of the Mahan ORV Track ) Special Use Permit ) ) Cadillac Ranch ORV Track and ) ) In the Matter of the Application of ) FINDINGS, CONCLUSIONS, AND Jeff, Bob, and Damien Mahan ) DECISIONS ) for a Special Use Permit to operate the ) ORV Track known as Cadillac Ranch )

SUMMARY OF DECISIONS Because the Applicants did not demonstrate compliance with the special use permit criteria, the proposed land use cannot allowed in the underlying zoning district. The permit must be denied and environmental review pursuant to the State Environmental Policy Act is moot. The application for SUP is DENIED, the MDNS is ordered to be WITHDRAWN, and the SEPA appeal is DISMISSED.

SUMMARY OF RECORD1 Request Jeff, Bob, and Damian Mahan (Mahan brothers, Applicants) requested approval of a special use permit to authorize the operation of an off road vehicle track known as Cadillac Ranch on 26 acres of the 370-acre Mahan farm located at 12307 Vail Cut Off Road SE, Rainier, Washington. Issues on Appeal Thurston County reviewed the proposed use for compliance with the requirements of the State Environmental Policy Act (SEPA) and issued a mitigated determination of non-significance (MDNS) on March 28, 2013. 1 Findings begin on page 11.

Thurston County Hearing Examiner Findings, Conclusions, and Decisions Rainier-Vail Neighborhood Group Appeal of Mahan ORV Track SUP MDNS File Nos. SEPA 12-101068XA/SUP 2011101927 page 2 of 60

On April 18, 2013, a group of neighbors and Rainier residents calling themselves the Rainier-Vail Neighborhood Group (RVNG, Appellants), through counsel, filed a timely appeal of the MDNS, alleging the following (paraphrased) errors in the MDNS which were further developed in legal briefing and testimony on the record:

1. The MDNS is procedurally flawed because: a. The full scope of the proposal was not defined prior to the SUP permit hearing,

the SEPA analyses did not consider the entire project, and therefore the MDNS was based on insufficient information.

b. ORV tracks are not an allowed special use in the RRR 1/5 zone and the special use chapter does not authorize the County to approve any special use that is not expressly listed, and therefore the MDNS on an unlawful use was issued in error.

c. Because the Applicants did not apply for a permit to operate an athletic facility and did not amend their application to reflect an intention that it be an athletic facility until July 2, 2103, the MDNS was issued without considering this proposed use; further the proposed use is not an athletic facility, or alternatively if it is, it should be considered a major sporting facility because it is not "sized to serve the local community" as required at TC 2054.070(3.5)(a), as it is three times the size and scale as is contemplated in the special use provisions and because it clearly targets regional patrons.

d. A prohibited use is incompatible per se with the surrounding neighborhood, the impacts of which cannot be mitigated, and should be denied under TCC 17.09.150.C.

2. The MDNS was issued in error because the use would conflict with the rural

neighborhood character: a. The county Code was amended in 2004 expressly to protect the rural areas from

incompatible special uses.

b. The County's Comprehensive Plan and the RRR 1/5 zone require commercial uses to be small in scale.

c. Commercial ORV track use is incompatible with the existing rural character of the neighborhood.

3. The MDNS was based on insufficient information regarding noise and the use would result in noise amounting to substantial undue harm.

4. Impacts to the Deschutes River, to the underlying critical aquifer recharge area, and the flora, fauna, and habitat of Ruth's Prairie from ORV use were insufficiently evaluated and would not be adequately mitigated.


5. The track's traffic, air emissions, emergency service demand, and stormwater impacts were not sufficiently analyzed and would not be adequately mitigated.

Hearing Date The Thurston County Hearing Examiner conducted a consolidated open record public hearing on the SUP request and SEPA appeal on July 29th and 30th, and August 1, 2013. On the record at the conclusion of the proceedings, the record was held open through August 15, 2013 for the submission of post-hearing submittals, memorialized in a August 2, 2013 Post-Hearing Order. On August 9, 2013, the Examiner conducted a site visit and was escorted onto the property and to the location of the proposed ORV track by Applicants Jeff and Bob Mahan.2 All materials requested in the Order were timely submitted and admitted and the record closed on August 15, 2013. Testimony At the open record public hearing, the following individuals presented testimony under oath:3,4 For the Appellants

Brian Anderson Lucille Ryan Diana Peeples Patrick Skillings, Skillings Connolley Dr. Jennifer Preston Steve Craig

For the Applicant

Chris Real Kim Peterson Coker

2 During the escorted on-site portion of the site visit, conversation was limited to identification of locations of specific proposed improvements, including the new track, the parking area, the existing ORV track, and general indication of landmarks associated with site boundaries; the merits of the application were not discussed. During the unescorted portion of the site visit, the Examiner drove the roads in the area, including 160th Lane and Vail Cut Off, and drove through the town of Rainier. 3 Due to the necessity of scheduling testimony by telephone and other schedule conflicts, many witnesses testified out of order. Additionally, Counsel for Appellants and Applicants requested that testimony be accepted for both the SEPA appeal and the SUP hearing, without the need to recall witnesses or hear duplicative comments. 4 On July 29, 2013, nearly 100 members of the public appeared desiring to testify in the public comment period of the permit hearing, which was not likely to occur on that first day. Public comment on the permit application was taken out of order, in order to allow those who would not return the following day to make their comment, and a second public comment period on the permit was announced to occur as usual after the County's and Applicants' presentation on the permit. Because so many people indicated they wanted to testify on the 29th, a three-minute time limit was established. Audience members were also informed that they could submit written comments up to the close of the record. The second public comment period occurred on August 2, 2013 in the afternoon. Again, such a large number of people indicated the desire to testify that a three-minute time limit was established.


Randy Schleis, Mayor of Rainier Bill Largent Ross Merker Tim Nelson Eric Ainsworth Jeff Mahan, Applicant Bob Mahan, Applicant Damian Mahan, Applicant

For the County

Robert Smith Al Quiocho Arthur Saint Sara Brallier

July 29, 2013 Public Comment Kathi Jo Moore Richard Banach Bob Corl Dr. E.J. Zita Patty Miller Trish Pecerra Rick Roberts Gary Johnson Daniel Johansen Victoria Harper-Parsonson Robert Gehrke Melinda Turner Roger Porter Diane Frank Judy Luczak Ian Gerke Danner Barton Grandon Marek Susan Mayer Cameron Jayne Kendra Trunnert Dr. John Ruhland Erica Stancil John O’Brien John Everett Lisa Geier Connie Largen Karen Kenney Bruce Davidson Linda Tarrant Peter Van Lierop Nick O’Brian Fryst Valentine Ginger Mueller Logan Mueller Melody Rae Daniel Lihach Diane Dondero Barbara Ericksen Bernie Michaels August 1, 2013 Public Comment Alexandria Hillman Shane Ennis Myron Bouchakian Rocky Lyon Dale Riston Jamie Heflin Mickey Beadle Cameron Day Peggy Ledyard Darren Taylor Susy Kyle Antonia Wood


Mary Coulton Sarah Wooten Charles Pracna Shaun Simmons Walter Korte Rob Neibauer Karen Silliman Debra Jacqua Shane Barton Rachael Barton Helena Goslin Diane D’Acuti Tiffany Scott Jennifer Mustoe Attorney Representation Ben Cushman, Attorney, represented the Appellants. Jay Goldstein, Attorney, represented the Applicants. Jeff Fancher, Deputy Prosecuting Attorney, represented Thurston County. Exhibits The following exhibits were admitted in the record of this matter:

Exhibit 1 Thurston County Resource Stewardship Land Use and Environmental Review

Section Exhibits:

1A Thurston County Appeal Staff Report, including County witness list and the following attachments:

1. Appeal of an Administrative Decision, dated April 18, 2013

2. Photos of Public Hearing Notice Posting

3. E-mail from Chief Mark King, E.E. Thurston Fire Authority, dated July 30, 2013

1B Thurston County Special Use Permit Application Staff Report, with the following attachments:

Attachment a Notice of Public Hearing

Attachment b Zoning/Site Map

Attachment c Master Application, received June 9, 2011

Attachment d Special Use Permit Application, received June 9, 2011

Attachment e Project Narrative, undated

Attachment f Additional Project Narrative, received February 9, 2012

Attachment g Revised Hours of Operation Schedule, received April 9, 2013

Attachment h Letter from Jay Goldstein clarifying Special Use category, dated July 2, 2013

Attachment i Site Plan, received January 24, 2013

Attachment j Multi-Use Structure Floor Plan/Elevation Drawing, received February 7, 2012


Attachment k Sound Study, DPS Technical, Inc. (Chris F. Real, CLS), dated August 15, 2012

Attachment l Noise Control Plan, received November 19, 2012

Attachment m Mitigated Determination of Non-Significance (folder 12 101068 XA), issued March 28, 2013

Attachment n Comment Memorandum from Sara Brallier, Thurston County Public Health and Social Services Department, dated February 12, 2013

Attachment o Comment Memorandum from Sara Brallier, Thurston County Public Health and Social Services Department, May 6, 2013

Attachment p Comment Memorandum from Arthur Saint of the Thurston County Public Works Department, dated May 2, 2013

Attachment q Comment Letter from Julie Keough, Weyerhaeuser Company, dated December 22, 2011

Exhibit 2 Appellant Rainier-Vail Neighborhood Group’s List of Witnesses and Exhibits

2A Appellant Exhibits:

1 Resume of Patrick Skillings

2 Patrick Skillings written response to Mahan's technical information

3 C.V. of Lucille Ryan

4 Resume of Steve Craig

5 Petitions signed by residents living in the vicinity of Cadillac Ranch who oppose the Mahans’ ORV Track

6 Declaration of Susan Ralston McLean

7 Internal County email exchange on 8/17/11 between Pat Allen and Jim Bachmeier, along with Mr. Backmeier’s 5/26/11 Memorandum of Water Resources Division’s review of the Straddleline ORV Park

8. Written comments of Lucille Ryan entitled "Impact of Noise on Health, Well-being and Quality of Life", dated July 29, 2013

9. Declaration of Jeanne Catherine Flick, 8/1/13, including attachments:

a. Excerpts from the web page of Thurston County Natural Resources Planning Conservation Futures Program

10. July 2013 Thurston County Regional Planning Council Memo re: Thurston County Prairie Habitat Conservation Plan, 2/20/12 Thurston County Planning Commission meeting minutes, 1/24/13 Ag Advisory Commission meeting minutes


2B Examples of citizen complaints to Thurston County regarding existing ORV

1. Email exchanges between Kathi Jo Moore and Guy Jacques, 4/22/11 – 4/26/11

2. Email exchanges between Brian Anderson & Diana Peeples and Guy Jacques, 4/25/11 - 4/26/11

3. Email from Catherine Flick to Guy Jacques, dated April 30, 2011

4. Email exchange between Kim Springer and Guy Jacques, 4/26/11 - 5/2/11

5. Emails with Daniel Johansen from Robert Smith, 5/27/12 – 5/29/12

6. Email from Daniel Johansen to Guy Jacques, dated 6/16/12

7. Email from Daniel Johansen to Guy Jacques, dated 7/15/12

8. Email from Antonia Wood to Guy Jacques, dated 7/15/12

9. Email from Daniel Johnson to Guy Jacques, dated 5/28/13

2C Appellant-collected comments opposing the proposal (144 comments)5

2D 1. Appellant Rainier-Vail Neighborhood Group’s Supplemental Exhibit, July 28, 2013

2. Appellant Rainier-Vail Neighborhood Group’s Second Supplemental to Exhibits, August 1, 2013

Exhibit 3 Applicant Mahans' Disclosure of Witnesses and Exhibits, dated July 15, 2013, with the following attachments:

1. Stormwater Site Plan, dated April 26, 2012

2. Site Access Analysis, dated April 19, 2012

3. Septic Design, dated April 19, 2012

4. Traffic Impact Analysis, dated April 19, 2012

5. Pollution Prevention Plan, dated April 24, 2012

6. Hydrogeologic Assessment and Nitrate Loading Study, dated January 21, 2013

7. DPS Technical, Inc., Sound Study, dated August 15, 2012

8. Olympian, Rainier Track Record, dated July 13, 2012

9. CV, Ainsworth, PE, dated July 15, 2013

10. CV, Real, dated July 15, 2013

11. CV, Halbert, dated July 15 2013

12. California OHV Noise Study, dated September 1, 2005

5 Exhibits 2C, 15A, 15B, and 15C contain long lists of names and dates of public comments. The four lists have been included at the end of the decision in Appendix A.


13. Wyle , CA OHV Noise Study, Real, et al., dated Dec 1, 2004

14. American Motorcyclist, article, How To Conduct a Sound Test, January 1, 2010

15. DPS Technical Projects, dated July 15, 2013

16. Development of Motorcycle Sound Test Procedure, SAE, Real et al., dated August 1, 2011

17. Understanding and Controlling Vehicle Sound in Env, Motorcycle Noise Control, dated, January 14, 2012

18. Real, Site Measurement Locations, Appendix 4, dated July 14, 2012

19. Real, Site Map, dated July 14, 2012

20. Dirt Rider, Dropping in on Chris Real, dated June 2008

21. Overview, Sound Study, dated July 7, 2013

22. Hearing Range, Real, dated July 15, 2013

23. Sound Resources, Real, dated July 15, 2013

24. Acoustic Terms, Real, January 1, 2012

25. Bio, Real, dated January 1, 2013

26. Sound Advice, dated July 1998

27. Sound Measurements of Helicopters During Logging Operations, dated April 16 2007

28. Appendix 5 Sound Propagation in the Open Air, dated July 5, 2013

29. Acknowledgements, July 5, 2013

30. Appendix 1 Noise Reduction Policy, dated July 2012

31. Support Letters from Close Neighbors, dated July 2010

32. Support from Rainier Community, dated July 15, 2013

33. Letter from Senator Dan Swecker, dated July 15, 2013

34. Map; Neighborhood dated, July 15, 2013

35. Neighborhood Business Support, dated June 2013

36. Native Plant Map, Site Map, and Dept. of Ecology, dated January 23, 2013

37. Letter from Randy Schleis, Mayor of Rainier, dated July 26, 2013

38. Sound Study Appendix 4, Addendum – Measurement Locations, July 26, 2013

39. Article from the Olympian titled “Farm Family, Neighbors at Odds Over Rainer Motocross Track,” dated July 28, 2013

40. Letter from Chris Real, DPS Technical, dated July 31, 2013


41. State of Washington, Off Road Vehicle Noise Study and Recommendations, dated November 2006

42. A. Applicant's 1st Supplemental Witness/Exhibit list, dated July 15, 2013

B. Applicant's 2nd Supplemental Exhibit list, received July 23, 2013

C. Applicant's 3rd Supplemental Witness and Exhibit list, dated July 26, 2013

D. Applicant’s 4th Supplemental Witness and Exhibit List, dated July 26, 2013

E. Applicant’s 5th Supplemental Witness and Exhibit List, dated July 28, 2013

F. Applicant’s 6th Supplemental Witness and Exhibit List, dated July 28, 2013

Exhibit 4 SEPA Appeal Briefs:

A. Appellant Rainier-Vail Neighborhood Group’s Brief for Hearing, July 29, 2013

B. Applicant Brief in Support of Mitigated Determination of Non-Significance and Special Use Permit, July 29, 2013

Exhibit 5 Environmental checklist, received February 7, 2012

Exhibit 6 Native Plant Survey, USDA NRCS, dated January 23, 2012

Exhibit 7 Site Access Analysis, The Land Developer, LLC, dated April 19, 2012

Exhibit 8 Level 1 Traffic Impact Analysis, The Land Developer’s Engineered Solution, dated April 19, 2013

Exhibit 9 Pollution Prevention Plan, The Land Developer, LLC, dated October 3, 2012

Exhibit 10 Stormwater Site Plan, The Land Developer, LLC, dated April 26, 2012

Exhibit 11 Hydrogeologic Assessment and Nitrate Loading Study, Insight Geologic, Inc., dated January 21, 2013

Exhibit 12 Thurston County Public Works Department Comment Memorandum from Arthur Saint, dated December 12, 2012

Exhibit 13 Washington State Department of Ecology comment letter, February 27, 2012

Exhibit 14 Full Size Site Plan, received January 24, 2013

Exhibit 15 Public Comment Letters, various dates (See Appendix A):

A. Public comments submitted to the County between notice of hearing and close of the record on August 1, 2013 (205)

B. Public comments submitted in response to published noticed of MDNS: Comments (35)


C. Public comments in the County file related to the property predating MDNS and hearing notice (178)

Exhibit 16 Comment Letter from Andrew Deffobis, Associate Planner, dated August 1, 2013

Exhibit 17 Vicinity Map Titled “Nearby Property Owners Exhibit,” submitted by Applicant, dated August 7, 2013

Exhibit 18 Post Hearing Briefs:

A. Appellant Rainier-Vail Neighborhood Group’s Memorandum in Response to Public Comment at Exhibit 15, dated August 15, 2013

B. Appellant Rainier-Vail Neighborhood Group’s Post Hearing Brief, dated August 15, 2013

C. Applicant’s Post-Hearing Brief in Support of Special Use Permit and Mitigated Determination of Non-Significance, dated August 15, 2013

The record also includes: A. Pre-Hearing Order Setting Submission Schedule, dated May 7, 2013

B. Appellant Motion for Order Dismissing SUP and Withdrawing MDNS, dated June 27, 2013

C. Mahan’s Response to Appellant Motion to Dismiss and Withdrawing MDNS, July 8, 2013, with the following attachments:

1. Declaration of Jeff Mahan, dated July 6, 2013

2. Declaration of Jay Goldstein, dated July 8, 2013

D. Thurston County Response to Appellant Motion to Dismiss and Withdrawing MDNS, dated July 8, 2013

E. Appellant Reply in Support of Motion for Order Dismissing SUP and Withdrawing MDNS, dated July 9, 2013, with attachments:

1. Applicant Project Narrative, dated received February 9, 2012

2. Pollution Prevention Plan, dated October 3, 2012

3. Thurston County Ordinance 13235, adopted November 22, 2004

4. Letter from Jay Goldstein, dated July 2, 2013 (changing proposed use to "resort")

5. Email exchanges between County Staff and neighbors of the subject property, dates ranging from October 15, 2010 to November 7, 2011

6. Stipulation and Agreed Order No 10-2-01501-6, Thurston County v. Mahan/Cadillac Ranch (unsigned/dated copy), filed with Thurston County Clerk October 15, 2010

7. Letter dated June 4, 2010 to Mahans from Resource Stewardship Department regarding posting of a June 3, 2010 Stop Work Order posted on-site relating to complaints about commercial motor cross activities on-site


8. Citation issued June 22, 2010 regarding resulting from motor cross activities on-site

9. Final Code Interpretation LO4CI004, issued February 11, 2005 by the King County Department of Development and Environmental Services

F. Second Pre-Hearing Order Denying Appellants' Motion to Dismiss, dated July 10, 2013

G. Post Hearing Order Setting Submission Schedule, dated August 2, 2013

Based upon the record developed at the open record hearing, the Hearing Examiner enters the following findings and conclusions. The following findings are applicable to the SEPA appeals and the requested permits.

FINDINGS

Introduction 1. The Applicants requested approval of a special use permit to authorize the operation of a

commercial off road vehicle (ORV) track known as Cadillac Ranch on 26 acres of the 370-acre Mahan farm located at 12307 Vail Cut Off Road SE, Rainier, Washington.6 Thurston County reviewed the proposed use for compliance with the requirements of the State Environmental Policy Act (SEPA) and issued a mitigated determination of non-significance (MDNS) on March 28, 2013. The MDNS was timely appealed by a group of neighbors and Rainier residents organized as the Rainier-Vail Neighborhood Group (RVNG, Appellants). After issuance of the environmental threshold determination, the Thurston County Resource Stewardship Department (Department) determined that the proposal is inconsistent with special use approval criteria, the purpose of the underlying zone, and the Comprehensive Plan land use designation and recommended denial. Eighty-six people testified at the three day hearing conducted July 29, July 30, and August 2, 2013.

Site Description 2. Historically, the Mahan farm has been operated as a dairy farm. The topography of the

Mahan farm is gently undulating. Portions of the overall farm are designated as forestry lands of long term significance. The proposed ORV track would be located in the southern central portion of the property around and on a small hill. The area of the proposed track is pastureland with a few fir trees that would be retained. Exhibit 1B, pages 2-3; Mahan brothers testimony.

3. The area of the subject property proposed to be developed as an ORV track is located in a Category 1 aquifer sensitive area as defined by Thurston County Code (TCC) 17.15.500 et seq.7 The Deschutes River, a shoreline of statewide significance, is located 938 feet

6 The legal description of the subject property is a portion of the Southeast Quarter of Section 21, Township 16 North, Range 1 East, W.M.. The Mahan farm occupies eight tax parcels; the project site is on the southeastern-most, approximately 130-acre parcel identified as Tax Parcel No. 21621400000. Exhibit 1B; Exhibit 17. 7 The County's purpose and policy in regulating aquifer recharge areas to accomplish the following: A. To maintain groundwater recharge; B. To prevent the degradation of groundwater resources; C. To recognize the delicate balance


southeast of the site at its closest point; the project is not subject to the jurisdiction of the Shoreline Master Program for the Thurston Region. Ruth Prairie and Weir Prairie are located in nearby. The proposed 26-acre ORV track contains no designated priority habitat or priority species, according to County mapping. A native plant survey conducted by Jeffrey Swotek of the USDA National Resource Conservation Service (NRCS) shows three areas of native plants on the underlying dairy farm; none of the native plant areas are located in the proposed ORV track. Exhibit 6; Exhibit 17; Exhibit 1B, page 3; Exhibit 1A, page 7.

4. Land uses surrounding the Mahan farm consist of commercial timber lands to the west;

rural residences and agriculture to the north and east; and County park land to the south. The County park property is undeveloped and appears to contain an abandoned railroad right-of-way. As measured from the proposed 26-acre ORV track area, the property boundaries abutting nearest neighboring parcels are as follows: approximately 663 feet to the west, abutting forestland owned by Weyerhaeuser Co; 470 feet to the south, abutting Thurston County park land; 1,160 feet to the east abutting the property owned by Charles Merker where he lives and operates a wholesale nursery; 1,565 feet to the east to residences along 160the Lane SE; 1,908 feet to the northeast abutting property owned by Lois Chatwood; 2,265 feet farther to the northeast to Vail Cut Off Road, across from privately owned parcels; and over 4,000 feet to the northern property boundary abutting privately owned parcels across Vail Cut Off Road. Exhibit 1B, page 3; Exhibit 1B, Attachment b; Exhibit 17.

5. The subject property has a Rural Residential Resource one dwelling in five acres (RRR 1/5) zoning designation. Pursuant to Thurston County Code (TCC) 20.09A.010, the purpose of this zone is to encourage residential development that maintains the county's rural character; provides opportunities for compatible agricultural, forestry and other rural land uses; is sensitive to the site's physical characteristics; provides greater opportunities for protecting sensitive environmental areas and creating open space corridors; enables efficient road and utility systems; and does not create demands for urban level services. Permitted uses in the zone include: agriculture, single-family and two-family residences, home occupations, and farm housing. TCC 20.09A.020.

6. The Mahan farm is located just outside the City of Rainier, Washington. The Rainier Sportsmen's Club flat track racing facility is less than two miles away, in Rainier. Site visit.

between surface and groundwater resources; D. To balance competing needs for water while preserving essential natural functions and processes; and E. To comply with Chapter 173-200 WAC, as amended, the Water Quality Standards for Groundwater of the State of Washington. TCC 17.15.500. A Category I aquifer recharge area is characterized as having extreme aquifer sensitivity and including those areas which provide very rapid recharge with little protection, contain coarse soil textures and soil materials, and are derived from glacial outwash materials. TCC 17.15.505.A.


Procedural Background 7. There is an existing ORV track on the Mahan farm west of the proposed project site.

Starting at an unknown time in or before 2010, the County began to receive complaints from neighbors about events held at the existing ORV track and initiated code enforcement action. The County issued a stop work order informing the Applicants that they could not operate a "commercial motorsports and RV park" from their property without obtaining County permits. The County eventually filed a lawsuit in Thurston County Superior Court to cease the activity. However, the parties entered into a stipulated agreement that allowed the Applicants to hold up to four personal social events per year on-site with up to 200 people in attendance and required the Applicants to apply for permits to operate the existing commercial endeavor. To the present, the Applicants continue to hold up to four ORV events per year on the property under the temporary use section of the special use permit chapter of the zoning ordinance, TCC 20.54.070(41.5)(a). Exhibit 1B, page 3; Exhibit E, Appellant Reply Motion and attachments.

8. On June 9, 2011, the Applicants submitted a master use and supplemental special use application requesting expansion of a nonconforming use and approval of an ORV track. The project description as provided in the application and narrative was continually updated up to the date of the hearing, as follows: the multi-use structure floor plan/elevation drawings were submitted February 7, 2012; project narrative clarifying details was submitted February 9, 2012; a sound study was submitted August 15, 2012; a noise control plan was submitted November 9, 2012; a site plan was received on January 24, 2013; the environmental checklist was submitted on February 7, 2013; revised (expanded) proposed hours of operations were submitted April 9, 2013; the Applicants' attorney submitted a letter identifying the proposed use as an "athletic facility" on July 2, 2013; and at hearing, the Applicants noted that the proposed track would allow a maximum of 40 bikes at any one time. Full details of the final proposal are provided in finding 12, below. Exhibit 1B, Attachments c, d, e, f, g, h, i, and j; Exhibit 5; Mahan brothers testimony.8

9. Thurston County Resource Stewardship Department reviewed the application and supplemental materials and issued a mitigated determination of non-significance on March 28, 2013.9 On April 18, 2013, neighboring property owners calling themselves the Rainier-Vail Neighborhood Group submitted a timely appeal of the MDNS, alleging (among other things) that the noise, dust, and fumes already experienced from the unpermitted ORV track use on-site would increase with the issuance of the permit and

8 The testimony of Bob, Jeff, and Damian Mahan ended up being delivered simultaneously, as a group. All of their comments will be cited as testimony of the Mahan brothers. 9 Environmental review is covered in greater detail in findings 16, 17, and 18 below.


that impacts had not been fully considered or mitigated.10 Exhibit 1B, Attachment m; Exhibit 1A.1.

10. Apprised of the appeal for scheduling purposes, the Thurston County Hearing Examiner convened a pre-hearing conference, conducted by telephone on May 7, 2013. The Appellants, Applicants, and County were represented by counsel during the conference. A schedule for pre-hearing exchange of witness and exhibit lists and documents was agreed to and memorialized in a May 7, 2013 pre-hearing order. The order required pre-hearing motions to be submitted by July 1, 2013. Exhibit A, Pre-Hearing Order, dated May 7, 2013.

11. On June 27, 2013, Appellants filed a pre-hearing motion to dismiss (MTD) the special use application and withdraw the MDNS on the following (paraphrased) grounds: 1) the use is not allowed in the underlying zone because a) in order to be allowed in the RRR 1/5 zone, a use must be expressly listed in the permitted uses table; and b) ORV track is not substantially similar to any listed use; and 2) if the ORV track is an unlawful use, the County cannot issue an MDNS because the impacts of an unlawful use cannot per se be mitigated. Exhibit B, Appellants Motion to Dismiss. Consistent with the May 7, 2013 pre-hearing order, the County and the Applicants timely responded to the MTD.11 The MTD was denied on July 10, 2013. Exhibits B, C, D, and F. The hearing convened as scheduled on July 29, 2013.

The Proposal 12. At the time of hearing, the Applicants proposed as follows:

To construct and operate a 26-acre ORV park, consisting of an ORV track, an accessory day lodge, a parking lot, and associated infrastructure, as an "athletic facility" land use. The proposed motocross style serpentine track would be constructed of native dirt and compost. Approximately 20,000 cubic yards of material would be graded for the initial track construction; regrading portions or all of the track and reconfiguring the path of the track would be a regular part of ongoing maintenance activities. Proposed hours of operation include three to four days per week of practice runs occurring between 9:00 am and 3:00 pm. Races and events would begin at 8:00 am and be finished no later than 7:30 pm. A "Mini-Bike series" would be scheduled one Saturday per month and would end no later than 9:00 pm. According to the Applicants, most events would be done by 5:00 pm. The Applicants indicate that the maximum number of vehicles on the track at any time would be 40. The Applicant proposes to have a qualified emergency medical technician in attendance during all events.

10 Issues on appeal are paraphrased in the summary of the case on page 2 and addressed in detail in findings 19 through 44, below. 11 Appellants submitted a Reply to the responses from the County and Applicants; however, no reply was provided for in the May 7, 2013 order section on pre-hearing motions. The reply and attached information were not considered in deciding the motion to dismiss but were admitted in the record.


Access to the site is by an approximately 2500-foot long existing, unimproved farm road extending southwesterly into the property from Vail Cutoff Road SE. A 97-stall parking lot is proposed, and next to it, a ten-foot-square covered refueling structure. The refueling station would have a concrete floor with a central sump and collection tank provided with an oil separator. The proposed day lodge would be a two-story structure up to 30 feet in height, with an 8,000 square foot footprint and a 4,000 square foot second story. Amenities in the lodge would include a kitchen, a restaurant/lounge, and a separate area for live entertainment. The application materials identify the kitchen/restaurant as a concession stand serving hamburgers and similar fare. Seating and tables would be provided on both floors. The proposal includes a second building of undetermined size to contain restrooms and showers for use by riders and spectators. No maximum number of riders and/or spectators was proposed. A new Group A water system and new on-site septic would serve the project. Stormwater runoff from the parking area and access drive would be conveyed to a wet pond for treatment and then to an infiltration pond for discharge to groundwater. Roof run-off water from the structures would be directed to the infiltration pond. Four separate additional infiltration ponds would be located around the track to address runoff from its surface. The track would be watered and groomed approximately every 2.5 hours while in use to keep dust down for the benefit of riders and spectators, which would also serve to minimize dust drifting off-site. While not in use, the ORV track area would be grazed by cattle.

Exhibit 1 B, page 2; Exhibit 1B, Attachments d through l; Mahan brothers testimony; Erik Ainsworth testimony.

13. Because noise is a primary concern with the proposed use, the Applicants commissioned a professionally prepared study that measured the sound levels of on-site ORV use at nine locations throughout the valley in which the site is located. The applicable State noise standards during proposed hours of operation limit land uses to noise that measures 55 decibels or less at the property boundaries. On July 14, 2012, the noise consultants measured sound levels at two locations during seven events on the existing track. Location 1 was on the Mahan farm near the residences on 160th Lane SE. Location 2 was on the northern portion of the subject property near Vail Cut Off Road SE. The events were: a beginner and junior ride (25 motorcycles), a mini ride (10 motorcycles); a pro and intermediate ride (12 motorcycles), a "veterans"/women's/trail ride (38 motorcycles), a second beginners/junior ride (31 riders), a second mini ride (11 riders), and a second pro & intermediate ride (13 riders). At location 1, noise levels ranged from 42.8 to 54.7 decibels. At location 2, noise levels ranged from 48.1 to 53.2 decibels. The loudest event at both locations was the pro/intermediate ride with 12 bikes. All


measurements were compared to ambient sound measurements at location 1 of 47 decibels, while ambient sound levels at location 2 ranged from 45 to 52 decibels. On July 15, 2013, the consultants measured sound volumes at eight locations. The measurements at locations 2 and 3 were taken during three events on the existing track and compared to ambient sound levels ranging from 46 to 50 decibels. The events included: an open practice with 33 bikes, a beginner/junior ride with 18 bikes, and a mini ride with 23 bikes. Measurements taken at locations 4, 5, 6, 7, 8, and 9 were taken during unspecified activity on-site and not compared to ambient sound levels.12 Exhibit 3.7; Exhibit 3.38. The Applicants asserted and County Staff agreed that these sound measurements indicated compliance with State noise standards. Exhibit 1B.

14. In addition to the noise study, the Applicants' sound consultant developed a noise control plan for use at the facility intended to demonstrate that the proposal can comply with State noise standards (WAC 173-60). According to the plan, trained technicians would test each vehicle proposing to run on the tract for compliance with a maximum allowable level of 96 decibels at the exhaust pipe. Vehicles that fail to meet the maximum sound volume limit would have to use mufflers and those that exceed maximum sound levels on the track would be ejected. Additional sound monitoring would occur during the practice rides and events to ensure all vehicles maintain compliance. The Applicants asserted that, when implemented, the plan would ensure that sound levels at the property boundaries comply with State noise standards. Exhibit 3.7.

15. The Applicants proposed to keep the existing track on the long-term forestry designated portion of the Mahan farm for personal use. Mahan brothers testimony. There was a lot of comment at the hearing about future development of a second new track; a second new track is not included in the application. The Cadillac Ranch Motor Sports website, not referenced in the application materials but discussed in testimony, advertises overnight RV camping/parking and many different types of ORV events including mud bogging, tuff truck, jeep races, and other events not disclosed in the application. http://www.cadillacranchmotorsports.com/index.html.

Environmental Review of the SUP Application 16. Pursuant to the State Environmental Policy Act, the Department was designated lead

agency for review of the proposal's environmental impacts. As stated in the MDNS, the Department's threshold determination was based on information included in (but not necessarily limited to) the following documents: environmental checklist (2/7/12); application (6/9/11); project narrative (2/9/12) and additional narrative (undated); site plan (1/24/13); a sound study (8/15/12); noise control plan (11/19/12); native plant survey (1/23/12); site access analysis (4/19/12); pollution prevention plan (10/3/12); stormwater plan (4/26/12); hydrogeologic assessment and nitrate loading study (1/21/13); Public Works comments (12/12/12); County Health Department comments (2/12/13);

12 When measurements were taken at locations 4 trough 6, the sound consultants were not in radio communication and did not track whether bikes were going or not. Chris Real testimony.


Department of Ecology comments (2/27/12); and 167 public comment letters. Upon completion of environmental review, the Responsible Official determined that conditioned with mitigation measures and conditioned to comply with applicable County development standards and regulations, the proposal would not result in probable, significant adverse environmental impacts, issuing a mitigated determination of non-significance (MDNS) on March 28, 2013 with a 14-day comment period and seven-day appeal deadline following the comment period. Exhibit 1B, Attachment m.

17. Mitigation measures imposed through the MDNS included the following:

1. If contamination is currently known or suspected during construction, testing of potentially contaminated media must be conducted. If contamination of soil or groundwater is readily visible, or is revealed by testing, the Washington State Department of Ecology must be notified. ... 2. Erosion control measures must be in place prior to any clearing, grading, or construction. These control measures must be effective to prevent stormwater runoff from carrying soil and other pollutants into surface waters or stormdrains that lead to waters of the state. Sand, silt, clay particles, and soil will damage aquatic habitat and are considered to be pollutants. 3. During construction, all releases of oils, hydraulic fluids, fuels, other petroleum products, paints, solvents, and other deleterious materials must be contained and removed in a manner that will prevent their discharge into waters and soils of the state. The cleanup of spills should take precedence over other work on the site.

Exhibit 1B, Attachment m.

18. The Department determined that all other requirements for environmental analysis, protection, and mitigation are adequately addressed in the development regulations and comprehensive plan adopted by the County and did not impose other mitigation measures. However, the "notes" section of the MDNS called out the following (among other items):

The application materials state that the proposed ORV track will operate in compliance with State noise standards. However, applicable review criteria for approval of the Special Use Permit state that the proposed use cannot result in substantial or undue adverse effects on adjacent property and neighborhood character. Noise levels and [their] impact on adjacent property and neighborhood character will be considered during review of the Special Use Permit application. The hearing Examiner will decide whether the proposal complies with application criteria when considering the ...application after conducting a public hearing. Construction and operation of the ORV track is subject to air quality regulations of The Olympic Region Clean Air Agency (ORCAA).


This project may require a construction stormwater permit (also known as the National Pollutant Discharge Elimination System (NPDES) and State Waste Disposal Discharge General Permit for Stormwater Discharges Associated with Construction). [These permits are] required for projects which meet both of the following conditions: one or more acres of soil surface area will be disturbed by construction activities; and this site already has offsite discharge to waters of the state or stormdrains or will have offsite discharge during construction. Any ground water withdrawals in excess of 5,000 gallons per day or for the irrigation of more than one-half acre of lawn or noncommercial garden requires a water right permit from [Department of] Ecology. This project shall fully comply with the Thurston County Drainage Design and Erosion Control Manual. No work shall occur on-site during the SEPA review process and the resolution of any appeals.

Exhibit 1B, Attachment m.

Arguments and Evidence on Appeal 19. To set context for the following appeal findings, it is necessary to summarize the appeal

arguments here:13 Appellants argued that the proposed ORV track is not a permitted use in the RRR 1/5 zone, either because it is not expressly listed as a permitted use and only listed uses can be permitted, or because the proposal fails to satisfy the restrictions applicable to athletic facilities allowed by special use permit in the RRR 1/5 zone, and the MDNS must be withdrawn because the proposal's impacts cannot be mitigated. In the alternative, if the type of use can be permitted as a special use, Appellants argued the MDNS was issued in error because the scope of the use was not fully considered so the MDNS was based on insufficient information, and their evidence shows there would be unmitigated probable significant adverse environmental impacts as well as undue impacts on the rural character of the neighborhood. Exhibit 1A.1; Exhibit 4A; Exhibit 18A; Cushman Argument.

20. The Appellants presented the testimony of Brian Anderson, who lives on 160th Lane SE, directly east of the proposed new track location. Mr. Anderson testified as to the impacts he's experienced from past events held at Cadillac Ranch prior to issuance of the temporary use permit and since its issuance. He testified that he chose to retire to the rural area for quiet and intended to spend his retirement gardening, but he has found that the impacts of events on-site have significantly impacted his quiet enjoyment of his property, primarily from noise, traffic, exhaust, numbers of people, and dust. Mr. Anderson testified that the noise from the 2010 events (pre-code enforcement action) was "like a gas powered weed whacker... a continuous loud buzz." Citing the zoning code's

13 They are listed in more detail in the "Issues On Appeal" section in the summary of the record on pages 2 and 3 above.


statement of purpose for the RRR 1/5 district and related Comprehensive Plan language, he argued that a commercial ORV park is incompatible with other approved and existing uses and asserted that approval would change the nature of the area. Given the history of the code enforcement matter, he asserted that he has little faith in the Applicants' self-monitoring as is required in the MDNS. He noted that the dirt track would create dust, require regrading, and would use a lot of water to control dust. He testified that even with the Applicants' proposed sound control plan in place, the new track would be closer to his house and the sound impacts to him will be greater. Brian Anderson testimony.

21. Diana Peeples also testified for the Appellants as to the differing kinds of noise she has heard from the events on-site. In addition to the noise Mr. Anderson described, she spoke of a continuous deep low grinding sound that can sometimes last all day without break, which she assumed was from a different kind of vehicle than the motocross bike noise Ms. Anderson described. She testified that the volume of the noise was so loud, they couldn’t talk in their own house, much less enjoy their garden. She testified that if the events were held four or more days a week, she would consider the situation unliveable and would want to move but fears that the presence of the track would impede her ability to sell her home. Diana Peeples testimony.

22. Appellants offered testimony from Lucile Ryan, PhD, who is retired from a private clinical psychology practice in which she worked with clients on issues relating to chronic medical illness, chronic pain, stress management, and health and wellness among others. Ms. Ryan lives about one mile from the subject property and can hear the sounds from Cadillac Ranch, which she described as a nagging, constant, whiny, buzzing sound that interferes with peace of mind. Her testimony focused on noise sensitivity and the stress that arises from noise annoyance and the adverse impact of unwanted noise on quality of life. She asserted that noise is a non specific stressor that arouses the autonomic nervous system and the immune system, and that long term exposure to high levels of noise is associated with health, learning, and memory problems. Ms. Ryan asserted that there is 200-300% increased mortality rate among young men up to age 25, which she felt to be typical of motor cross riders, because of risk taking behaviors resulting from incomplete prefrontal cortex development and high levels of testosterone. Her testimony concluded that concentrating populations of such young men at the proposed ORV track would increase demand for law enforcement and emergency services, which was not adequately analyzed under SEPA. Lucile Ryan Testimony; Exhibit 2A-8.

23. Jennifer Preston testified for the Appellants. She is a doctor of veterinary medicine with 39 years of experience working with companion and live stock animals in rural southeast Thurston County. Dr. Preston testified that noise results in undue stress and disease in animals. She asserted that local animals already have to contend with unwanted sounds from nearby forestry practices as well as explosions from the Joint Base Lewis McCord JBLM). Dr. Preston testified that animals' instinct is to flee or hide from noise, and repeated incidents increase stress over time; animals do not acclimate. Resulting


outcomes include failure to thrive, increased disease and infertility, reduction in milk production, lower lamb survival rates, and other effects. She stated that horses and sheep are especially sensitive, as is wildlife, including the migrating Elk and other threatened species that inhabit the Ruth and Weir Prairies. She concluded by saying she wouldn’t want an ORV track near her herd if she ran a dairy. Jennifer Preston testimony.

24. The Appellants offered the testimony of Steve Craig, who worked for Department of Ecology for 25 years and currently lives just outside of Rainier. Among other topics, Mr. Craig testified regarding his former service on the Thurston County park board and his personal experience with the management of a public ORV Park. Thurston County used to operate a public ORV track in conjunction with neighboring Grays Harbor County on the shared boundary called the Straddleline ORV Park. According to Mr. Craig, management of the park was "an incredible headache and a constant agenda topic" and eventually Thurston County withdrew its participation in the operation due to vandalism, noise, fights, drinking, law enforcement demand, and the cost of continual track and facilities maintenance. Mr. Craig testified that Thurston County eventually quit claimed the property to Grays Harbor County in order to withdraw from involvement.14 Mr. Craig further testified that Straddleline is within two hours drive of Rainier and that there are "a lot" of ORV facilities in Washington and that the Straddleline ORV Park website contains a list.15 Mr. Craig voiced concern that the impacts on groundwater and the nearby Deschutes River resulting from grading 20,000 cy of earth and the constant regrading necessitated by track maintenance were not adequately considered. Finally, based on his environmental background, Mr. Craig testified that in his opinion, inadequate analysis of impacts to wildlife and the environment was conducted in the MDNS process. He was specifically concerned about potential impacts to the resident elk herd, to protected oaks and the oak savannah, and the prairie species currently recognized as being at risk of extinction. Steve Craig testimony.

14 The Straddleline ORV Park website states that the Thurston County portion of the park is zoned Rural Residential/Resource (RRR 1/5) and that the park is a non-conforming use, because the land use is no longer allowed in the zoning district but the legally established Straddleline park is allowed to continue. http://www.co.grays-harbor.wa.us/info/ORV/parkplan/ORVParkPlan2012.pdf. 15 The list of other ORV facilities, as of the 2012 Straddleline ORV Park Plan's publication, include: Spokane County (Airway Heights) ORV Park near Spokane, featuring 4-wheel drive, off-road, motorcycle, go-kart and ATV events between mid-March and mid-October; Horn Rapids ORV Park, near Richland, offering year-round an open riding area, a motocross track, 4x4 relay track, 4x4 obstacle course, sand drags, restrooms with showers, a campground, and go-kart track. Capital Forest, adjacent to Straddleline ORV Park, providing trail and forest road riding ORV opportunities, ATVs, 4x4s, and motorcycles. Elbe Hills, in Elbe, offering a seasonal trail built for short wheelbase four-wheel drives. Elochoman, near Cathlamet, designed for trail bikes only. Tahuya State Forest south of Bremerton, offering 39 miles of trails for trail bikes and for short-and long-wheelbase four-wheel drives. Evans Creek northwest of Mt. Rainier National Park, offering 20 miles of trails for short-wheelbase 4WD vehicles and trail bikes. Lower Dungeness – ten miles south of Sequim, offers a 14 mile loop using about eight miles of road. http://www.co.grays-harbor.wa.us/info/ORV/parkplan/ORVParkPlan2012.pdf.


25. Regarding alleged traffic impacts, the Appellants offered the declaration of Jeanne Catherine Flick, whose statement asserted that all traffic coming to the proposed ORV park via Interstate 5 would have to travel 20 miles over State Highway 507, which has only two lanes. Turning off Highway 507, Vail Cut Off Road also has only two lanes, with no turn lanes, no traffic lights, has several sharp curves, and a narrow shoulder width in the subject property's vicinity. Ms. Flick characterized the traffic attending events on-site as a "huge increase of traffic on these two-lane rural roads". She noted that the Mahan's existing website for Cadillac Ranch lists events involving the following: mud bogging, mud drags, jeep barrel racing, sprint racing, tuff trucks, rally cars, quads, and 4x4 quads, in addition to motocross. Ms. Flick asserted that the size of vehicles and trailers needed to haul off-road trucks, jeeps, rally cars, and quads would be larger than those needed to haul motocross bikes, including large pickup trucks with wide and long trailers. She stated that the Cadillac Ranch website says the gates open Friday afternoon for camping and that overnight parking is available. Ms. Flick asserted that RVs, motor homes, and campers would also attend the site, some of which may pull trailers with off-road vehicles behind them. Finally, she stated that in her own experience, one school bus delivering children creates long lines of backed up traffic on these rural roads. She concluded that the proposed ORV track would create many occurrences of traffic congestion and backups, as well as increase the chances of deadly collisions from motocross participants or spectators attempting to "hop scotch" through the congestion. Exhibit 2A.9.

26. The Appellants presented the expert testimony of Patrick Skillings, who has specialized in environmental evaluation and particularly noise assessment for 12 years. Mr. Skillings testified about his experience with ORV facilities, which included being a principle author of the Washington State Department of Natural Resources' 2008 guidelines for developing ORV facilities on state lands. In that capacity and in other positions, he has tested ORVs, quads, jeeps, motorcycles, and other vehicles and become very familiar with vehicle exhaust testing. In his experience, trees dense enough to block line of sight can act as sufficient noise barrier to prevent ORV noise from exceeding the State standards at property boundaries if the trees are 200 to 300 feet deep. Mr. Skillings testified that receiving properties with a line of sight to the ORV track would experience noise from the track. He provided testimony regarding line sources of sound versus point sources of sound as they relate to noise attenuation over distance. With a line source of sound, which includes vehicles moving in a line such as highway traffic, sound is created in a 3D cylinder around that source. Attenuation for line sources of sound is three decibels with every doubling of distance. A point source can be stationary, like a parking lot, or individual, as in one individual vehicle. Noise spreads out hemi spherically from a point source like a bubble and reduces at the rate of six decibels with every doubling of distance from the source. According to Mr. Skillings' testimony, to the human ear ten decibels difference is a doubling in sound energy. Patrick Skillings testimony; Exhibit 2A.1; Exhibit 2A.2.


27. Mr. Skillings reviewed the Applicants' noise study and was present during the testimony of their sound expert Chris Real. Mr. Skillings took exception to several aspects of the noise study. He disputed Mr. Real's method of measuring ambient sound, stating that it appeared it was measured using instantaneous rather than Leq (sound levels averaged over a given period of time) measurements, resulting in measurements reflecting higher ambient noise levels than really exist, making it impossible to know what impacts the use would have on the environment. He noted there was no discussion regarding maximum potential use of facility. The Applicants proposed to allow 40 vehicles at once on the track, but the test heats in the noise study were in the range of 10 to 38 vehicles. He noted that State noise standards were almost exceeded with only 12 bikes in use. Overall, his assessment was that the Applicants' sound study doesn't allow us to know if they've measured the worst case scenario. The study should have measured the sound levels from 40 vehicles all operating at 96 decibels in order to know what the maximum possible off-site impacts could be. Also, the study measures noise levels from the existing track, but the proposal is for a new track (and potentially for multiple tracks in operation at once). Noise volumes at test locations are affected by distance from source, so Mr. Skillings does not believe the study is an accurate measurement of volumes at property boundaries. Based on these limitations and on the fact that the study doesn't address noise from the parking lot, the numbers of people warming up and queuing for races while one is in progress, and similar considerations, in his opinion, the Applicants' noise study is insufficient as a planning document and does not prove that the use can or will comply with State noise standards. On cross examination, he acknowledged that the events tested met State noise standards, but he did not feel the tested events represented full or accurate use of the project. Patrick Skillings testimony; Exhibit 3.7; Exhibit 2A.2.

28. Testifying on matters other than noise, Mr. Skillings noted that the Applicants would not be allowed to use irrigation water for dust suppression purposes. Regarding the potential for erosion and water runoff, he testified he was not able to analyze whether erosion or sedimentation would be problematic for the project because the information provided on track and stormwater system design were insufficient to show how water would run off the track and be conveyed to the four settling basins. Regarding parking at DNR ORV sites, Mr. Skillings observed an average of three bikes per vehicle or per parking space, which he noted could extrapolate to up to 291 bikes on-site. Skillings testimony.

29. Defending its environmental threshold determination, the County offered testimony from Robert Smith, senior planner. Mr. Smith reviewed the application materials and was responsible for drafting the MDNS. In his decision that the project would result in no probable, significant adverse environmental impacts, he considered the noise study as demonstrating compliance with state noise standards and the noise control plan as adequate mitigation of potential noise impacts. The proposed watering method of dust control was found to be adequate. The Olympic Region Clean Air Agency, which has standards for dust and emissions, was provided notice of the application and did not comment. The County Public Works Department accepted the Applicants' Level 1 traffic study and site access assessment and determined that area roads were sufficient to handle


the anticipated type and volume of traffic. The Applicants' conceptual drainage plan also passed Public Works review. Mr. Smith reviewed priority habitat and species data from Washington Department of Fish and Wildlife (WDFW); no priority species or habitat are known to inhabit the project area. The native plant survey done by the National Resource Conservation Service showed no native plants in the proposed project area. While there are oaks on the property, they are not in the proposed track area. Mr. Smith also conducted a site visit to observe conditions first hand and found no evidence of protected species. The project area is dominated by pasture grass. He saw no evidence of Mazama pocket gopher. Regarding the resident elk herd, WDFW was notified and did not submit concerns. Consistent with WAC 197-11-158, the Department issued an MDNS because compliance with County regulations, including critical areas protection, stormwater management, noise control, and other, was expected to reduce all potential impacts to a point of insignificance. Robert Smith testimony; Exhibit 1A.

30. Regarding demand for public services, the proposal was routed to Thurston County Fire District #4, the agency that provides emergency services (fire and emergency medical) to the subject property. They did not respond with comments or concerns. Planning Staff then contacted the Patrol Division Supervisor and relayed that the Supervisor stated that during previous events at the site the Sheriff’s Office received noise complaints and noticed a slight increase in littering along County roads, but no noticeable increase in other crimes. The Fire Chief indicated that they have not seen a measurable increase in emergency response calls during previous events on-site, stating there had been "one call in the past five years" and that upon the Fire Department's arrival, they found the patient had already been treated by the EMT on-site. For the proposed project, the Supervisor indicated that they would expect an increase in noise complaints but that would not cause a particular hardship to the Sheriff. The Supervisor stated that the Sheriff’s Office does not object to the proposed Special Use Permit. The Fire Chief followed up with written comments to the same effect before the close of the record. Robert Smith testimony; Exhibit 1A.3; Exhibit 1A.

31. On cross examination, Mr. Smith explained that SEPA review is conducted concurrently with review of underlying application. When asked whether the SEPA application was incomplete at time of review, Mr. Smith said it was not. When the Applicants initially submitted noise information they prepared themselves, he required that they provide noise study information prepared by professionals. They did and it was accepted. Mr. Smith stated that the Department reviews the project as proposed; any future expansions of a reviewed project are subject to additional review. Robert Smith testimony.

32. The Applicants' sound study and noise control plan were reviewed by Al Quiocho, Environmental Health Specialist from the Public Health and Social Services Department, who has expertise in noise measurement. His review concluded that the sound study and noise control plan demonstrated that the use could comply with State noise standards (WAC 173-60); therefore there would be no noise that rose to the level of probable, significant, adverse impact. Since the noise control plan is part of the Applicants'


proposal, there was no need to add noise conditions to the MDNS. Mr. Quiocho testified that the only noise evaluated for the MDNS was the proposed motor cross bikes, which he understands to be the loudest possible vehicles to be used on-site. He did not consider the use of more than one track at a time, because it was not proposed. He stated he has no reason to suspect the data in the Applicants' noise study; however, he testified that the Mahans told him that some of the bikes used in the study were louder than 96 decibels and the results therefore could be considered worst case scenario. He indicated that the reason wind speed is a standard measurement in noise studies is that the WAC requires wind speeds of less than 12 miles per hour at time of measurement. Wind breaks up sound waves, as other weather and topography also affect attenuation rates. Mr. Quiocho testified that he did some mathematical modeling looking for worst case scenario sound levels. With 15 pro riders on the track, all with bikes at 96 decibels, the resulting noise level on-site would be 138 decibels. With line source distance attenuation, that would be approximately 43.6 decibels at the property line, within State standards. Al Quiocho testimony; Exhibit 1A; Exhibit 1B, Attachment o.

33. Arthur Saint, Civil Engineer, testified for the County regarding the areas of the proposal under Public Works Department review, including traffic and storm drainage. Mr. Saint reviewed the Applicants' drainage plan, looking at treatment for pollution and flow control. He noted that the County's 2009 Drainage Design and Erosion Control Manual (DDECM) considers the track as an impervious surface due to expected compaction by vehicle use. Runoff would flow to the sides and be conveyed to infiltration ponds. He considered the Applicants' modeling and engineering, calculation based on square footage of surface, and anticipated flow direction to see if adequate facilities are proposed. He noted that all runoff from parking and driving surfaces would be treated in the wetpond, which would remove both sediments and floating contaminants. According to Mr. Saint, details such as how wide the track will be do not need to be known at the time of SEPA, so long as compliance is feasible based on the conceptual information. Review for strict compliance with drainage standards would occur during civil engineering review when construction plans are submitted, which is the typical timing for all development proposals. Arthur Saint testimony; Exhibit 1B, Attachment p; Exhibit 1A.

34. The Applicants submitted a Level 1 traffic impact analysis (TIA) and a site access analysis, looking at traffic impacts to area roads and specifically at the proposed access point to Vail Cut Off Road SE with an analysis for safe stopping distance. The reports concluded that there is adequate sight distance along Vail Cut Off Road for safe ingress and egress. Regarding traffic impacts, Mr. Saint found the Level 1 TIA met County requirements. Because the project's peak traffic would be generated during off-peak hours, no further traffic analysis was required. The proposal was sent to the Washington State Department of Transportation for review, which agency submitted no concerns regarding Highway 507. As to the fact that the proposal is likely to generate a lot of truck and trailer traffic, Mr. Saint explained that County and State review considers any street-legal vehicle, and still there were no concerns. Adequacy of emergency vehicle


access is addressed during construction plan review, which again typically occurs after SEPA. Exhibit 1A; Exhibit 1B, Attachment p; Arthur Saint testimony.

35. Regarding Appellants' assertion that there was inadequate analysis of potential impacts to ground and surface water, the County offered the testimony of Sara Brallier, Environmental Health Specialist, of the County's Public Health Department. As part of SEPA review, she reviewed the Applicants' preliminary septic system design, the hydrogeologic assessment and nitrate assimilative capacity report, the pollution prevention plan which included the proposed fueling station with spill containment, and a preliminary stormwater control and treatment plan. She determined that the proposed septic system would provide adequate wastewater treatment and disposal to protect surface and groundwater quality. Ms. Brallier noted that the proposed well site satisfied County sanitary code criteria, and that water supply was under the jurisdiction of the DOE rather than the County. She found that the proposed fueling station and spill containment plan would protect ground and surface water from possible chemical contamination from vehicle fluids. Regarding the Appellants' concerns about fuel and other chemicals leaking onto the parking area or the track itself, she noted that the hazardous materials review was conducted by County Staff member Gerald Tousely, who concluded that dripping from ORVs is considered minor; the more significant spills would be from refueling activities and engine blow outs. In either case, the spill response plan would be implemented, adequately addressing risks of contamination from the proposed use. Ms. Brallier noted that the County hydrogeologist's review was supportive of the proposal and contained no unaddressed concerns. Brallier Testimony; Exhibit 1A; Exhibit 1B, Attachment n.

36. The Applicants' civil engineering and land development consultant, Erik Ainsworth, testified on the Applicants' behalf in the SEPA appeal. Mr. Ainsworth characterized the proposal as a low intensity use compared to other possible uses, such as subdivision, because it has low impact development design features, doesn’t generate enough traffic to trigger Level 2 traffic analysis, is installing no pavement, and provides water quality treatment via the wet pond and a filter strip along the site access road. No grandstands are proposed; spectators would watch while standing at side of track or from the restaurant. Despite the clarifying information submitted over the course of time, there has been no change in the nature of the use proposed in the initial application since its submittal. Mr. Ainsworth noted that the documents submitted are conceptual/preliminary documents only, which is appropriate at the land use permitting stage. The day use lodge would have an 8,000 square foot footprint with a 4,000 square foot upper floor. He testified that the actual dimensions of the proposed track are not final, but that the nature of the project is a track with berms and corners which could relocate when the track is re-graded. He asserted that the conceptual stormwater plan is consistent with the requirements of the 2009 DDECM, as acknowledged by County Staff. Regarding nitrate loading from the proposed septic, he provided testimony about the EPA standards used in his modeling and in the conceptual design of the lodge, and reiterated that the septic design has received preliminary approval by the County. Finally, for protection of


ground and surface waters, he testified that the spill protection plan was designed in coordination with Gerald Tousley and that compliance with proposed spill plan would protect ground water. Mr. Ainsworth asserted that all probable, significant adverse impacts have been identified and mitigated or would be mitigated through compliance with County development standards. Erik Ainsworth testimony.

37. In opposing the SEPA appeal, the Applicants offered the telephonic testimony of Chris Real, the sound consultant who prepared their sound study and noise control plan. Mr. Real has raced personally since 1972 and has worked in sound measurement and mitigation related to motorcycles for the last ten years. He plans to participate in training the Applicants in sound measurements and management. In preparing the sound study in the record, Mr. Real worked with one associate measuring sound volumes at the identified locations. They used radio communications with someone on-site and a log kept by someone at the track to determine how many bikes in were operation during testing. The on-site information was given by Jeff Mahan and one other individual working the start line. Mr. Real did not have any information verifying that each heat was conducted at race speeds; however, he noted that the test heats were time constrained and that he felt safe in assuming that people were riding at the maximum speed for their ability levels. All data in the study was based on motorcycles. Regarding the fact that other vehicle types were not tested, Mr. Real noted that mud jeeps are acoustically different from bikes, not necessarily louder than motorcycles; some sound like cars or regular jeeps and some are substantially louder. Many of the obstacle/mud style races are run with the vehicles at low engine speeds. Any vehicle used at the track would be sound controlled/restricted by a sound test procedure, so although he prepared no data for other vehicle types, he is confident they could be mitigated to remain below the State standard of 55 decibels. Regarding noise from non-competing riders warming up their bikes, Mr. Real noted that the study's sound measurements include all bikes that were warming up at the time. He also noted that the warm up period is short, because the vehicles have no cooling fan and overheat very quickly. On cross examination, Mr. Real acknowledged that he had no independent verification that the information provided from on-site during his sound measurements was accurate and that he had no data for full heat of adult sized bikes. However, in his professional opinion, the data is adequate to demonstrate that the proposed track would operate within the required standards. Chris Real testimony; Exhibit 3.7; Exhibit 40.

38. One reason for his certainty is the mitigation plan Mr. Real developed for the proposal, restricting each vehicle to a maximum sound level and the Applicants' proposal to restrict the maximum number of vehicles on track at any one time. The Applicants would screen each vehicle prior to track use and eject any bike that fails the sound test and refuses to use noise reducing equipment or removes the muffling equipment after entering the track. He noted that the recommended sound measuring equipment is portable and hand held. He testified that it is quite easy to detect a loud bike in use at the track and that one can visually see the muffling device and tell if it’s missing. Part of the noise control plan is abuse intolerance and it would be enforced through self policing, which is common in the


industry. Mr. Real asserted that if each bike is restricted to 96 decibels at the exhaust pipe, then sound levels at the property line should equal 55 decibels or less. Chris Real testimony; Exhibit 3.7.

39. During his 2012 site visit, Mr. Real visited the Rainier flat track. Regarding ambient noise sources in the area, he noted that flat track hosts larger bikes that are usually four to five decibels louder than the 96 decibel limit proposed at the instant track, meaning he expects the existing flat track to be significantly louder than proposed use. Another source of ambient noise in the area is the Olympic pipeline pumping station about one mile from the subject prop, which measured at approximately 66 decibels. Chris Real testimony.

40. Kim Peterson-Coker testified on behalf of the Applicants. Ms. Peterson-Coker's family manages the Rainier flat track and is at the track every weekend. She has ridden motorcycles since she was five years old, always off road, and has ridden in the hills around Rainier all her life. When she was a kid, her family participated together in the poker runs, which were primarily held as fundraisers for nonprofit causes. Ms. Peterson-Coker views ORVs as a way to motivate kids and a great way to divert kids to something positive. There is a financial commitment, due to the costs of bikes, gear, and gas. It’s physically demanding sport, not one that attracts people who are partiers; she doesn’t see most riders drink. In her experience, she has always known Rainier as "an ORV area". She stated that people move to Rainier so they can participate in this sport. Flat track events garner up to 1,500 spectators and most are fans from the local area. The riders are from everywhere. Ms. Peterson-Coker has attended events at Cadillac Ranch. In her opinion, she found their track not to be loud, but rather quiet for 150 riders. She contrasted its scale to the flat track, which she considers a regional facility. Kim Peterson-Coker testimony.

41. Mayor Randy Schleis of Rainier, former Rainier Chief of Police, testified on behalf of the Applicants. He met with the Mahan brothers to discuss their proposal. The mayor testified he has not received any negative comments from the public about the proposal and in his opinion, the project represents the kind of economic development needed in south Thurston County. In his opinion, races at the flat track are much louder than those at Cadillac Ranch because the flat track is in a hole. Speaking as the former Chief of Police, he expressed the opinion that, if approved, there would not be an increased demand on local public services, law enforcement, or fire department, or more aid calls, in part, because the project would have its own EMT on-site. Mayor Schleis testified that ORV recreation is consistent with the community values in Rainier and that a lot of potential users of the proposed project would participate as families. Currently ORVs have no place to ride, and they end up riding illegally on public roads and trails. He disputed testimony that the project would significantly alter the area by increasing noise because there is already a high amount of noise from military activities at JBLM. He is not aware of other industrial or resource noises, such as that from logging, but he does


note that logging trucks using "jake brakes" through town cause a lot of noise. Mayor Schleis strongly supported the proposal. Mayor Randy Schleis testimony.

42. Rainier area resident Bill Largent testified on behalf of the Applicants. He currently lives about three-quarters of a mile from the proposed track, and has lived in and around Rainier for 50 years. Mr. Largent worked for Weyehaeuser for 43 years and is retired. His sons rode ORVs and learned to maintain bikes, so he joined them. In Mr. Largent's experience, people who participate in organized ORV events are good people. These days, his grandsons need a place to go ride, and he thinks it would be better if they didn't have to drive so far to pursue their pastime. Mr. Largent can hear the vehicles from the Cadillac Ranch from his property, but testified that "it is not as bad as it’s being made out to be" by project opponents. He also hears logging, helicopters, the quarry, and mortars from the military base. He stated that his sons run jeeps instead of bikes now and you can hardly hear them. He has seen elk calves born this year and they don't seem affected by the events at the site. Mr. Largent testified that Weyehaeuser has closed its properties for public use by ORVs due to liability reasons, but that the region has a long history of ORV use. He testified that he would rather see the Mahans develop an ORV park than a subdivision. Bill Largent testimony.

43. In support of their proposal, the Applicants offered the testimony of Ross Merker. Mr. Merker owns the parcels between roughly the southern half of the Mahan farm and Vail Cut Off Road. Being directly adjacent to the farm, he can see the proposed ORV track site from his kitchen table. He resides, operates a wholesale nursery, and raises sheep on his property. He grows wholesale greenhouse annuals and perennials, which he sells up and down the I-5 corridor. His business uses a fleet of smaller tractors, forklifts, trucks, a bob cat, sprayers, and other equipment. Mr. Merker testified that he has seen no dust at all from the ORV events on-site, nor has he ever noticed vehicle exhaust from the track, but he can hear the ORVs. In 2012, there was not much noise, but during the events from 2010 to 2011, the sound from the track was like chainsaws, like Weyehaeuser or Georgia Pacific activity across the river, but not such that he could not have a conversation. He stated that the noise is audible but is not a quality of life issue for him. He's never heard the ORV noise as continuous, because there are ten minute breaks often. Mr. Merker testified that his sheep do not appear to be affected by the ORV use; he has not noticed any change in fertility, survival rate, feed consumption, or immune function. He has not seen elk in the Mahan pasture or on his land for at least 10 years. He does have a heavy deer population (which is a problem for the green houses) and a huge bird and insect population, along with rabbits, squirrels, and other wildlife and has seen no effect on them from ORV activities next door. As someone engaged in a growing business, he understands that non-farm revenues are sometimes needed. He knows it is difficult to keep a farm going and believes that the added income from the ORV track would help the Mahans keep their farm operating. Ross Merker testimony.


44. Tim Nelson, who lives on Vail Cut Off Road one mile from the flat track, testified for the Applicants. He has lived in Rainier for 50 years and owns 20 acres on which he has a small, private ORV track for use by family and friends. Mr. Nelson testified that there is nowhere for ORV riders to go locally now that Weyehaeuser shut its trails down. He asserted that half the people in Rainier own dirt bikes, quads, or jeeps that they drive off road. Based on his experience, Mr. Nelson said that ORV use is a family oriented activity that has been incorrectly characterized by the Appellants as pursued only by young men in their 20s seeking thrills. He testified that he can barely hear activities at Cadillac Ranch, stating that the power lines near his property are louder. In his opinion, the Appellants' noise complaints are overblown. Tim Nelson Testimony.

Special Use Permit Findings 45. The Environmental Health Section of the Public Health and Social Services Department

reviewed the proposed ORV park for compliance with health codes including requirements for water supply, wastewater treatment and disposal, noise standards, and protection of ground and surface waters. In reviewing the project for wastewater treatment and disposal, Staff reviewed preliminary system designs and a hydrogeologic assessment and nitrate assimilative capacity report submitted by the Applicants. This report was required because the property lies within a Category 1 aquifer sensitive area. The report provides information that the wastewater flows from the facility would be below applicable standards, meaning ground water and surface waters would not be harmed. Exhibit 1B, page 4; Exhibit 1B, Attachment n.

46. The Applicants proposed to use either the existing or a new on-site well to provide water for dust control, domestic and sanitary purposes, and irrigation. Exhibit 5. Environmental Health Staff noted that, based on the intended population served by the water system, a Group A public water system would be required. Environmental Health Staff reviewed the proposed well site for the new water system and found the well site to meet applicable standards. Group A systems are reviewed by the Washington State Department of Health. Such a system could require water rights if the total ground water withdrawal for the system is 5,000 gallons per day or greater. Exhibit 1B, page 4; Exhibit 1B, Attachment n. Planning Staff noted that irrigation water cannot be used for commercial purposes and that reliance on irrigation water would call the project's dust control plan into question. Orior to building permit issuance the Applicants would have to demonstrate water rights, which are under the jurisdiction of the Department of Ecology. Robert Smith testimony.

47. The site plan shows a proposed covered fueling structure with a concrete floor and a sump and collection system for gas and oil that may spill. Environmental Health Staff reviewed the submitted Pollution Prevention Plan and found the plan to be complete and adequate for the handling of fueling and repair/maintenance activities for the proposed use. Exhibit 1B, page 4; Exhibit 1B, Attachments i and n.


48. Public Health and Social Services Department staff reviewed the submitted sound study and noise control plan. Their review concluded that the sound study was acceptable and that implementation of the noise control plan would ensure that noise from the facility complies with applicable noise standards (WAC 173-60). Based upon review of the application for compliance with Health Code requirements, Environmental Health Staff recommended approval subject to conditions. Exhibit 1B, pages 4-5; Exhibit 1B, Attachments k, l, n, and o.

49. The Development Review Services section of the Public Works Department reviewed the project for traffic impacts and storm water control requirements. Public Works Staff considered the preliminary stormwater control and treatment plan, Level 1 Traffic Impact Analysis, and a Site Access Analysis submitted by the Applicants. All studies were found to be adequate. Public Works Staff concluded that runoff from the proposed improvements could be managed to comply with County collection and treatment requirements. Staff also concluded that the proposed site access to Vail Cut Off Road SE would be safe and that area roads are adequate to accommodate the traffic generated by the proposal. Public Works Staff recommended approval of the special use permit subject to conditions. Exhibit 1B, page 5; Exhibit 1B, Attachment p.

50. Despite being able to comply with various development standards and despite MDNS issuance, Resource Stewardship Staff recommended denial of the special use permit application. They did so because in Staff's opinion, the use is not allowed in the RRR 1/5 zone and because the proposal complies with neither the general special use criteria for approval nor the use-specific criteria applicable to athletic facilities. Robert Smith testimony; Exhibit 1B, pages 6-7. This position is explained in more detail in the following findings.

51. ORV parks are not an identified land use in the County Code; they are not included as a permitted or prohibited use in any zoning district. The Applicants characterized the proposed special use as an athletic facility. The County's zoning ordinance defines athletic facilities as "a building or place that is used for athletic training, fitness activities or sports-related activities." TCC 20.03.040(4.5). Staff agreed that motocross or off road vehicle riding is a sports-related activity and agreed that "athletic facility" is the most similar and appropriate listed land use for the purpose of reviewing the proposal. Robert Smith testimony; Exhibit 1B, pages 6-7.

52. Special use criteria applicable to athletic facilities state: “This category shall not be construed to include major sporting facilities or large indoor facilities. Facilities shall be sized to serve the local community.” TCC 20.54.070(3.5). The term “major sporting facilities” is not defined in the County Code. However, the requirement that the facility be sized to serve the local community would mean that the size of an allowed facility would be limited. The proposal is for an outdoor athletic facility, which is size restricted by the number of parking spaces allowed, or 30 spaces. This relatively limited number of parking spaces would mean that the facility could only be used by a limited number of


people, presumably t ensure it's only big enough to serve the local community. The instant proposal for 97 parking spaces is more than three times the established maximum for athletic facilities and Staff submitted the position that the number of proposed parking spaces constitutes a “major sporting facility”, or one that would serve the broader region rather than just the local community. Robert Smith testimony; Exhibit 1B, pages 6-7.

53. While it is true the special use criteria provide for some level of discretion in tailoring the number of parking spaces to serve a given athletic facility, Department Staff submitted the position that the materials submitted by the Applicants are not consistent with an intent to serve only the local community. The application itself states that a track in this area has long been needed for the people of Thurston, Pierce and King Counties. A number of letters submitted by the Applicants in support of their project are from people who live in communities distant from southeast Thurston County. Together, these factors indicate that the potential service area is much greater than the “local community”. Robert Smith testimony; Exhibit 1B, pages 6-7; Exhibit 1B, Attachment f, and Attachments d through j.

54. Special uses are required to demonstrate compliance with the Comprehensive Plan. Relevant to the proposal, the Thurston County Comprehensive Plan Land Use Chapter Goal 1, Objective A, Policy 14 states: “Special uses that may be permitted in the rural area should be constrained in size and scale so as to maintain rural character. The primary purpose of special uses should be to serve the rural area residents of Thurston County.” Based on the size of the proposed parking lot, the number of anticipated attendees, and some letters in support of the use, Department Staff concluded that the target users of the proposed facility are from the greater western Washington region, rather than the local community. Staff submitted the position that the proposed special use would conflict with the Thurston County Comprehensive Plan. Exhibit 1B, pages 7-9; Robert Smith testimony.

55. Special uses are also required to demonstrate that they will not result in substantial or

undue adverse effects on adjacent property and neighborhood character. The proposed use has generated a substantial amount of public comment, before and after submission of the application, both in favor of and against approval. A significant number of the comments from nearby property owners express concerns about adverse impacts to neighborhood character and their properties from previous and current use, with the added concern that approval would increase the impacts. Such neighbors have based their opposition to the proposal on firsthand knowledge of the effects of such an operation on their property and enjoyment of their homes. Staff submitted the position that the comments from area property owners are evidence of an undue adverse impact. Exhibit 1B, pages 7-9; Robert Smith testimony.

56. The Weyerhaeuser Company, owners of the commercial forest lands adjacent to the site, submitted public comment indicating that public access to their lands is limited to non-motorized access. They contended that in the past, they have observed signs of ORVs


entering their property land from the Applicants' land. They requested that if the proposal is approved, the Applicants be required to erect and maintain fencing on the shared property boundaries to keep ORV park attendees off of the adjacent Weyerhaeuser lands. Exhibit 1B, page 5; Exhibit 1B, Attachment q.

57. In support of their application, the Mahan brothers testified that events at the park would concentrate primarily in the summer, and that they don't anticipate a high attendance on week days at anytime, even in the summer. From late fall to early spring, activity would be the lightest. The brothers confirmed for the record that 40 vehicles would be the most allowed on the track at any one time, whether they are motorcycles, jeeps, or other ORVs. Race events might vary in number of laps. Not all heats would be limited to 15 minutes, because beginner riders take longer while the pros go faster. Races are one day events, not weekend events. They testified that there would not be overnight camping. Mahan brothers' testimony.

58. Regarding the sound study, the Mahan brothers testified as follows. On the test dates, they opened the track for use and allowed riders to volunteer for a stationary sound test. About half of the bikes were stationary tested. Approximately 80 to 90% of the tested bikes were over 100 decibels; the rest were not tested at all. They asserted that because of this, the data in the sound study reflects a worst case scenario in that no vehicles would be allowed to exceed 96 decibels with the noise control plan in effect, so readings at property boundaries would be lower. Because motorbikes are the loudest, they only used them in the sound testing to help predict the worst case scenario. Regarding other vehicles, the Applicants stated that only one to four jeeps would be on the track at a time and so jeep events would result in much less sound. Mahan brothers' testimony.

59. The Applicants indicated that vehicles would be checked as they enter the property and they would be given a decal upon passing the sound test. If they measure over 96 decibels, they would have to agree to muffle their exhaust or they would not be allowed to ride. A pass-by sound meter sitting off the track would detect individual bikes as they passed; vehicles louder the limit would be flagged off the track and muffled or ejected. The Applicants asserted the past and current neighbor noise complaints are based on uncontrolled sound levels, but with the noise control plan in effect, there would be no uncontrolled vehicles in use on-site and thus off-site noise levels would be lower. The Applicants offered to commission twice annual sounds tests by third party professionals. They proposed that they would pay the cost of the testing and reporting if sound measurements at property boundaries were over limit, but if sound measurements were within State standards, they proposed that the Appellants would pay the cost of sound testing and reporting. The Applicants would like to be present during such sound tests. Mahan brothers' testimony.

60. Regarding parking, the Applicant indicated that Staff would turn people away if the parking lot is full as they pull up to the entrance road stand before getting to the parking lot. The Applicants offered to provide parking stalls for larger rigs within the ORV track


area, enlarging the proposed parking area to accommodate the extra space required. Mahan brothers' testimony.

61. Regarding dust, the Applicants indicated that, to date, they have not experienced large clouds of dust during events on-site. Dust is a hazard for riders, and spectators would be miserable. Mahan brothers' testimony.

62. Regarding allegations of changing rural character of the area, the Applicants contended that there are many local supporters who were born in the area and don’t consider ORV noise out of character with the community. They contended that agriculture, the military, and logging noises are part of daily life in the neighborhood. The Applicants noted that many people testified they moved to the area for the quiet and asserted that it is these people who want to change the neighborhood character. They also argued that there are lots of dirt bike riders in locations other than their property, but that their track gets the blame for all ORV noise. Mahan brothers' testimony.

63. The Applicants argued that their proposal should be considered a local athletic facility, and suggested that the Washougal, Washington MX Park, which can attract 30,000 spectators, should be considered a major sporting facility. They argued that more people attend local high school football games and come in from out of the area than the 200 who would attend events at their proposed track. Mahan brothers' testimony.

64. The Applicants contended that rural Thurston County is a large area and that there are a lot of ORV riding residents. They asserted there is a big demand for the proposed track and noted that people are riding illegally now. Mahan brothers' testimony.

65. The Applicants testified that they are selling their development rights and that the conservation easement will allow them to keep the farm. Mahan brothers' testimony. Three hundred two acres of the 370-acre Mahan farm is part of a Conservation Futures Program request.16 According to the map in the record, the proposed ORV track area is excluded from the conservation easement. If finalized, the project request would grant the Mahans $800,000.00 to establish a conservation easement on the farm, half of which would be funded by Thurston County and the other half by NRSC. To protect the intent of the conservation easement, Thurston County Planning Staff requested that if the SUP were approved, two additional conditions of approval be added that would fence off the ORV track area from the conservation easement and prohibit the use of lands subject to the easement for "any ORV-related activities including camping, parking, or other land use activities that are not commensurate with a conservation easement...", including riding ORVs. Exhibit 16.

16 The tax parcels subject to the easement request are: 21616340000, 21616430000, 21621200100, 21621120000, 21621100200, 21621410000, 21621400000, and 21621300100. Portions of APN 21621300100, 21621410000, 21621100200, and 21621120000 were excluded from the conservation easement along with the area of the proposed ORV tract in APN 21621400000. Exhibit 16.


66. Regarding the comment from Weyehaeuser, the Applicants asserted that it is untrue that vehicles have been entering commercial forestland from their property because their land is fenced. They indicated that they would be willing to fence in the 26-acre ORV track. Mahan brothers' testimony.

67. Written notice of the public hearing was sent to all parties of record on July 16, 2013. Notice of the public hearing was published in The Olympian on July 19, 2013, at least ten (10) days prior to the hearing. Notice was posted on site on July 19, 2013. Exhibit 1B, page 3; Exhibit 1A.3; Exhibit 1B, Attachment a.

68. The record contains 414 written public comments submitted to the County during the public hearing comment period. The written public comments echoed the concerns both in favor and in opposition offered during testimony, detailed below. Of the total number, 115 supported the proposal and 299 opposed it. Of those in favor, 29 were from the Vail area and the City of Rainer and 35 did not include an address; 51 were from outside the area from places including Seattle, Bellevue, Sammamish, Renton, Camano Island, Gig Harbor, Ellensburg, and Buckley, as well as Happy Valley and Portland Oregon, Lewiston Idaho, and Hurricane Hills Tennessee. Of the 299 comments opposing the proposal, 253 were residents of the Vail area, Rainier, or Yelm. Exhibits 15A, 15B, 15C, and 18C.

69. The following testimony (paraphrased) was offered in opposition to the proposal:

Noise: People complained that ORV noise disrupts their quiet enjoyment of their properties. Several asserted that ORV noise is not similar in nature or duration to farm equipment noise; one stated the noise sounds like someone is milling wood all day. Neighbors on 160th Lane SE stated it can be difficult to have conversations in their yards during events. Both neighbors who live nearby as well as neighbors living farther away asserted that, due to topographical features, the Vail Cut Off Road area has a "bowl" effect that magnifies the ORV noise. People contended that with four practice days per week and unlimited race events on weekends, there would be no respite from the noise. Others noted that the Cadillac Ranch website discusses live entertainment and neighbors don't want to hear amplified music in addition to ORVs. They expressed concerns about the use of loud speakers to address the crowds. One person testified that he suffers from PTSD as a result of his military service and that the noise from the use has significantly adversely affected him. Several expressed the opinion that the Applicants' noise study appears to be flawed. Several had concerns that livestock, wildlife, and companion animals living in the noise-affected area would be harmed without redress. One gentleman who worked at South Sound Speedway for 24 years said they continually dealt with noise complaints from surrounding property owners and that he moved to the area to escape the sounds of racing.


Neighborhood character: Many stated that they moved to the area expressly for the pastoral, farming, quiet neighborhood character and that, based on the experience of the existing ORV track on-site, they feel the project's impacts would completely alter the character of the area. Some voiced concerns that the area already has to deal with noise from logging, JBLM, and the flat track, and this additional noise is unjustified. While several project opponents sympathized with the plight of the Mahan farm, they didn't feel it was fair that the Applicants be allowed to operate a commercial race track next to their rural residential properties, sacrificing the rights of all other land owners in the neighborhood to save their own land. Several testified that in their opinions this use is more appropriate in a commercial zone. Some asserted the fear that if this commercial, noisy use is allowed in, it will be a slippery slope towards allowing any commercial, loud use to come in. Opponents noted that a significant percentage of testimony and written comment in support of the project came from people who live outside the area, and that people who travel to the track to ride will leave and go home to neighborhoods that do not contain ORV tracks. Some expressed the opinion that the land use proposed is inconsistent with zoning and planning regulations. Safety and public welfare concerns: There was concern for ORV riders due to the fact that there is no trauma center locally and anyone seriously injured would have to be flown by helicopter to Harborview in Seattle. There were concerns about increases in litter on area roads and increased crime as a result of the additional influx of people from out of the area, especially given that Rainier no longer has its own police force and it can take sheriffs up to 45 minutes to respond. There were concerns that people engaged in motocross events would consume alcohol and that problems would result. There was concern about increased dust in the air affecting people with allergies and other medical conditions, as well as affecting the plants, animals, and habitat of Ruth and Weir Prairies. Several expressed concerns about traffic congestion and safety, relating to the number and type of vehicles the ORV park would attract, as well as the potential for increased ORV use of public roads in the area. Some were concerned about pollution of the site soils and infiltration of motor fluids from crashes, spills, leakage, and stormwater running off the track into the ground water or the Deschutes River. Several people expressed concerns about how much water the use would withdraw from the aquifer for dust suppression and domestic water purposes, potentially affecting surrounding water supplies. Some questioned the Applicants' use of irrigation water for a commercial recreational use. There was concern that nitrate loading was underrepresented in the Applicant's study because the septic plan doesn't reflect maximum attendance. Self Policing: There were allegations that the Applicants have exceeded the restrictions of the current temporary use permit and that this indicates that they would not respect the restrictions placed on the proposal if approved. Several people expressed concern regarding the degree to which the Applicants would be left to "self police" to ensure they meet conditions and noise and other limits. Some opponents noted that if


enforcement is to be complaint driven and entail calls to the sheriff's office, in actuality that means no one will be enforcing permit conditions or noise restrictions. Uncertainty about nature of project: Opponents questioned the validity of characterizing ORV riding as an athletic activity. Several people expressed concerns that the exact nature of the proposed use still seems to be a topic of confusion, leading to the following questions: What kinds of vehicles would be allowed to race? Would there be overnight parking/camping? Would they be restricted from allowing overflow parking on the pastures, because they have room for 1,000 cars on the pastures? Would they be allowed to bus people in? One person noted that Google maps shows there are already two tracks on the property, and the proposal would be a third track: he asked, would each track have 40 vehicles each at once? and if not, who would enforce this? Who would enforce noise restrictions? Is there no limit on number of attendees, aside from parking spaces? Considering that the temporary use permit "family and friend events" have drawn up to 180 guests, how many more will come to the site once it is a legal, approved land use that is advertising to its target audience? Economic concerns: Some neighbors expressed doubts that the project would benefit local merchants, because park attendees would spend their money on-site. Some neighbors took exception to the Applicants' characterizing their desire for the ORV park as the only way they can save their family farm, calling it a disingenuous claim. Some asserted that the intent of the conservation grants the Applicants will receive when they sell their development rights would be thwarted by adding an ORV park next to the farm and prairie land intended to be saved. Some testified that they had sunk their life savings into purchasing their rural properties in the area to retire or to raise families and that the project would diminish their quality of life and make their land less marketable, so they would not be able to move away from the track. Two real estate professionals gave their opinions that the project would adversely affect property values, which they asserted is particularly onerous in the Rainier area where property values are not keeping pace with the rest of Thurston County. Many project opponents spoke in support of the Mahans as good people and also in support of ORV activities as a family-oriented pastime that is great for the community, but still asserted that it is not the right location for the proposed use due to the intensity of impacts.

Testimony of Kathi Jo Moore, Richard Banach, Bob Corl, Dr EJ Zita, Patty Miller, Trish Pecerra, Rick Roberts, Diane D’acutie, Diane Peeples, Dan Johansen, Roger Porter, Diane Frank, Judy Luczak, Helena Goslin, Daniel Johansen, Maya Silliman, Debra Jacqua, Susan Mayer, Cameron Jayne, Dr. John Ruhland ND, Walter Korte, Charles Pracna, John Everett, Lisa Geier, Mickey Beadle, Cameron Day, Peggy Ledyard, Susy Kyle, Antonia Wood, Mary Colton, Bruce Davison, Linda Tarrant, Myron Bouchakian, Dale Riston, Valentine Fyrst, Melody Rae, Daniel Lihach, and Diane Dondero; Exhibit 18C.


70. The following testimony (paraphrased) was offered in support of the proposal:

ORV racing is a wholesome, community-oriented, family event. ORV enthusiasts testified that participation generates a strong sense of community, that people who were strangers become like family and look out for each other. Most testified that their entire families engage in the activity together - up to five generations - which draws them closer and provides a wholesome pastime shared across generations. Supporters asserted that participation in this sport teaches responsibility, because gear and fuel are expensive and kids have to work to earn the right to ride, and that they also learn to build or maintain their own vehicles, leading to useful skills and employment opportunities. Enthusiasts raise money for injured riders and also participate in events that raise money for causes. Those testifying in favor of the proposal asserted that ORV riding is most definitely an athletic activity, requiring good physical condition, and that it is not consistent with the alleged partying and alcohol-related concerns asserted by opponents. Regarding safety and crime: Many supporters took exception to the characterization of participants as "testosterone-pumped 18 year old males". Several women and men over 30 years old testified that they participate in motorsports. Many regular participants asserted that in their experience, there is little to no alcohol, drug use, or crime at racing events because of how family-focused the activity is. Several stated that denial of the permit would lead to more problems than approval, because kids would be forced to trespass on private property or ride their ORVs illegally on public roads. Supporters stated they don't have problems with dust or crime at race events. One neighbor and ORV rider testified that he is the EMT who has been present at every event on-site and he has been comfortable with the Applicants' management of rider and spectator safety. High local demand for the project: Many in favor of the project asserted that there are insufficient opportunities for people to ride ORVs locally and that this facility would satisfy a large demand. Some testified that other ORV facilities are located a prohibitive distance away due to the cost of gas and the time for travel, and that the community needs a local facility. Regarding self policing, several riders testified that they would be motivated to obey sound restrictions and avoid alcohol, littering, and crime because they desperately want this facility to open for business. Noise and rural character: Many testified that concerns about noise from opponents are, in their opinions, exaggerated, and that sounds from JBLM and logging trucks are louder than the ORV events. Supporters testified that ORV use and any associated noise and traffic are part of the rural character of the Rainier area as much or more than the quiet and enjoyment of nature that opponents referenced in testimony. One self-styled "motomom" testified that she is disabled from a nerve disease and that her neurologist has encouraged her to continue to attend events because the positives she gets from it outweigh any harm the noise might do her. Several people engaged in animal husbandry (horses, sheep, etc) and farming (strawberries) near the subject


property testified that their livestock and crops appear to be unaffected by noise, dust, or other impacts from the site. One supporter, who's been racing since age 12, previously worked for years in motorcycle dealership, and now works as a race mechanic at the amateur and pro levels, testified that bike and after market manufacturers are already working on reducing noise from bikes; he stated that some current bikes make 94 decibels maximum and that noise will go down over time as technology improves. He also asserted that the average rider doesn't remove baffles because it’s too technically difficult. Economic benefits: Many asserted that approval is necessary to save the Mahan farm and that the County should support retention of this large acreage farm in the rural area. Supporters asserted that the community would benefit economically from permitting this new business which would provide some jobs and draw in people from outside to spend money in and around Rainier. Supporters argued that the community of Rainier has lost businesses during the economic downturn and the County should support this on economic development basis. Support of the Applicants as community members: Several members of the public testified in support of the Mahans as stewards of their land and upstanding members of the community. Several offered their opinions that the Applicants' cattle are very well cared for and not negatively affected by ORV use on-site. Some testified that they have attended events at Cadillac Ranch and have been impressed with how conscientious the Applicants are concerning enforcing the rules and protecting the community at large from negative effects, as well as how effective they are managing riders and spectators. One supporter noted that the Applicants put the proposed track in the middle of their property on purpose to reduce impacts to neighbors. Some testified that they enjoy the opportunity to tour the Mahan farm and learn about dairy operations.

Testimony of Alexandria Hillman, Shane Ennis, Rocky Lyon, Jamie Heflin, Pete Van Lierop, Nick O’Brien, Darren Taylor, Sarah Wooten, Connie Largen, Ericka Stancil, John O’Brien, Shaun Simmons, Rob Neibauer, Kendra Trummert, Shane Barton, Rachel Barton, Ian Gehrke, Danner Barton, Brandon Marek, Robert Gehrke, Tim Nelson, Tiffany Scott, Jennifer Mustoe, Gary Johnson, Ginger Mueller, Logan Mueller, Barbara Eriksen, and Bernie Michaelis.

CONCLUSIONS

Jurisdiction The Hearing Examiner has jurisdiction to decide this Special Use Permit application under Sections 2.06.010 and 20.54.015 of the Thurston County Code, and Section 36.70.970 of the Revised Code of Washington. The Examiner is authorized to decide appeals of environmental threshold determinations made pursuant to the State Environmental Policy Act pursuant to TCC 2.06.010(E) and TCC 17.09.160(A).


Criteria and Standards for Review SEPA Appeal The State Environmental Policy Act (Chapter 43.21C RCW or “SEPA”) specifies the environmental review procedures the County must follow for proposals that may have an impact on the environment. RCW 43.21C.030 (b). The SEPA threshold determination is a determination as to whether a proposal is “likely to have a probable significant adverse environmental impact.” WAC 197-11-330. If the responsible official determines that a proposal will not have a probable, significant adverse environmental impact, a Determination of Non-Significance (DNS) is issued. If the responsible official determines that a proposal will have a probable, significant adverse environmental impact, a Determination of Significance (DS) is issued and an Environmental Impact Statement (EIS) must be prepared. SEPA provides a process in which a Mitigated Determination of Non-Significance (MDNS) may be issued to address identified probable significant adverse environmental impacts so that an EIS need not be prepared. WAC 197-11-350. The lead agency must make its threshold determination “based upon information reasonably sufficient to evaluate the environmental impact of a proposal.” WAC 197-11-335. The lead agency’s reliance on existing laws and plans to mitigate some of the environmental impacts of a project need not be disclosed in the MDNS. Moss v. City of Bellingham, 109 Wn. App. 6, 21-23 (2001). Use of mitigation to bring a project into compliance with SEPA, without promulgation of an EIS, has been viewed favorably by Washington Courts. Anderson v. Pierce County, 86 Wn. App. 290, 303 (1997). Clear error is the standard of review applicable to substantive decisions under SEPA. Cougar Mt. Assocs. v. King County, 111 Wn.2d 742, 747, 765 P.2d 264 (1988). The determination by the governmental agency is clearly erroneous only if the reviewing tribunal is left with “the definite and firm conviction that a mistake has been committed.” Id. at 747 (quoting Polygon Corp. v. Seattle, 90 Wn.2d 59, 69, (1978)). The burden of proof is on the Appellant to show that the proposal will have probable, significant adverse environmental impacts. Boehm v. City of Vancouver, 111 Wn. App. 711, 719, 47 P.3d 137 (2002). The procedural determination of the County's Responsible Official shall be accorded substantial weight in appeals. TCC 17.09.160.I.2; TCC 17.09.160.S; RCW 43.21C.075(3)(d); RCW 43.21C.090. General SUP Criteria for Review The Hearing Examiner may approve an application for a Special Use Permit only if the following general standards set forth in TCC 20.54.040 are satisfied:

A. Plans, Regulations, Laws. The proposed use at the specified location shall comply with the Thurston County Comprehensive Plan, and all applicable federal, state, regional, and Thurston County laws or plans.

B. Underlying Zoning District. The proposed use shall comply with the general purposes

and intent of the applicable zoning district regulations and subarea plans. Open space, lot, setback and bulk requirements shall be no less than that specified for the zoning


district in which the proposed use is located unless specifically provided otherwise in this chapter.

C. Location. No application for a special use shall be approved unless a specific finding

is made that the proposed special use is appropriate in the location for which it is proposed. This finding shall be based on the following criteria:

1. Impact. The proposed use shall not result in substantial or undue adverse effects

on adjacent property, neighborhood character, natural environment, traffic conditions, parking, public property or facilities, or other matters affecting the public health, safety and welfare. However, if the proposed use is a public facility or utility deemed to be of overriding public benefit, and if measures are taken and conditions imposed to mitigate adverse effects to the extent reasonably possible, the permit may be granted even though said adverse effects may occur.

2. Services. The use will be adequately served by and will not impose an undue burden on any of the improvements, facilities, utilities, or services existing or planned to serve the area.

Use-Specific Criteria for Special Use Approval TCC 20.54.070 Use—Specific standards:

(3.5) Athletic Facilities. a. This category shall not be construed to include major sporting facilities or large

indoor facilities. Facilities shall be sized to serve the local community. b. Indoor facilities shall be limited to the following:

1. Maximum building size: four thousand five hundred square feet. 2. Minimum lot size: two acres. 3. All structures and parking areas shall be set back from adjacent

residential properties a minimum of one hundred feet. The one hundred foot setback shall include sight-obscuring plantings.

4. Any building shall be of a design that will be compatible with the residences in the area.

c. Outdoor facilities shall be limited as follows: 1. Maximum number of parking stalls: thirty. However, the approval

authority shall determine if additional spaces will be needed to guarantee that all user parking will be on the premises and will be adequate for the use.

2. All parking areas shall be set back from adjacent residential properties a minimum of one hundred feet. The one hundred foot setback shall include sight-obscuring plantings.


Other Applicable Code Provisions TCC 20.03.040 (4.5): "Athletic facility" means a building or place that is used for athletic training, fitness activities or sports-related activities. TCC 20.03.040(22): "Commercial recreation" means any use of land for commercial recreation purposes, including, but not limited to, such uses as bowling alleys, billiard parlors, theaters, golf driving ranges and marinas.

TCC 20.03.040(111): Recreation, Active. "Active recreation" means leisure activities, usually performed with others, often requiring equipment and taking place at prescribed places, sites or fields. The term "active recreation" includes, but is not limited to, swimming, tennis and other court games, baseball and other field sports, and playground activities. TCC 20.03.040(116.5): "Rural character" means the patterns of land use and development established by the rural element of the Thurston County Comprehensive Plan:

(a) In which open space, the natural landscape, and vegetation predominate over the built environment;

(b) That foster traditional rural lifestyles, rural-based economies, and opportunities to both live and work in rural areas;

(c) That provide visual landscapes that are traditionally found in rural areas and communities;

(d) That are compatible with the use of the land by wildlife and for fish and wildlife habitat;

(e) That reduce the inappropriate conversion of undeveloped land into sprawling, low-density development;

(f) That generally do not require the extension of urban governmental services; and (g) That are consistent with the protection of natural surface water flows and ground

water and surface water recharge and discharge areas.

TCC 20.03.040(129): "Special use" means uses which are not permitted outright in a zone because of incompatibility with the permitted uses of the zone. However, when such a special use is considered with reference to a particular site in a zone, or if the special use may be made compatible by attaching conditions to the maintenance of such a use, uses which otherwise would be prohibited in a zone may be allowed by special use authorization. In order to determine whether such compatibility may be achieved, a discretionary review process is employed. Even if a proposed special use meets all the special standards for that particular use, the use must also meet the general standards of this title for special uses, and shall be denied if the special and general standards are not met. TCC 20.54.010 Purpose and intent (Special Use Chapter): Each zoning district lists special uses that, because of their special impact or unique characteristics, can have a substantial adverse impact upon or be incompatible with other uses of land. This impact often cannot be determined in advance of the use being proposed for a


particular location. Such uses may be allowed to locate within given districts only through the review process of the special use permit and under the controls, limitations and regulations of such permits. This chapter establishes general and specific development standards for special uses and provides for a review process which will evaluate the location, scale, compatibility with rural character and development characteristics of such uses and their impact on adjacent properties and the community as a whole, to the end that such uses may be approved, modified, or disapproved fairly and objectively. TCC 17.09.030, Additional Definitions (from the County's SEPA regulations): "Impacts upon neighborhood character" means the potential effects that a development may have upon the ways in which residents use and perceive their neighborhood. These impacts include such areas as pedestrian usage, personal safety and privacy, aesthetics, and recreational use of outdoor spaces.

TCC 20.09A.010 Purpose (RRR 1/5 zoning district): The purpose of this chapter is to encourage residential development that maintains the county's rural character; provides opportunities for compatible agricultural, forestry and other rural land uses; is sensitive to the site's physical characteristics; provides greater opportunities for protecting sensitive environmental areas and creating open space corridors; enables efficient road and utility systems; and does not create demands for urban level services. TCC 20.09A.020 Primary uses (allowed in the RRR1/5 zone): Subject to the provisions of this title, the following uses are permitted in this district: 1. Agriculture, including forest practices; 2. Single-family and two-family residences, as defined in Section 20.07.020, (limited to one

primary residential structure per lot); 3. Home occupations per standards in Section 20.54.070(16); 4. Farm housing accessory to a farm residence on property meeting the definition of a farm in

RCW 84.34.020 to accommodate agricultural workers and their families employed on the premises, as provided: ...

TCC 20.03.040(67): "Home occupation" means any activity undertaken for gain or profit and conducted in a dwelling, or building accessory to a dwelling, by a member or members of the family residing in the dwelling. This includes home office activity for service occupations where the service is performed away from the home office. TCC 10.36.010 Declaration of policy (regarding public disturbance noise): It is the policy of Thurston County to minimize the exposure of citizens to the physiological and psychological dangers of excessive noise and to protect, promote and preserve the health, safety and welfare of the general public. It is the express intent of the board of county commissioners to control the level of noise in a manner which promotes commerce; the use, value and enjoyment of property; sleep and repose; and the quality of the environment. ... Sound is a principal medium of communication. By its nature, however, it is a potentially intrusive medium to those who do not wish to hear the specific noise or message. The purpose of this chapter is to protect to the


greatest extent possible both the right of free speech and the right to privacy within the home and upon real property. Its purpose is to guarantee ample channels of communication for all ideas, whether welcome or unwelcome by recipients, yet also secure the private property as a refuge from unwelcome noise. TCC 10.36.020 Finding of Special Conditions (regarding public disturbance noise): The Thurston County sheriff and county commissioners are apprised of numerous citizen complaints regarding specialized noise occurrences, such as the ... [noise] of motorized vehicles, ... at such volume and duration as to unreasonably disturb and interfere with the peace, comfort and repose of others. Such noises constitute a public disturbance. These noise occurrences adversely affect the public health and welfare, the value of property and the quality of the environment and constitute special conditions within the county which make necessary any and all differences between this chapter and regulations adopted by the Department of Ecology. (emphasis added) Conclusions Based on Findings 1. Special Use Permit

A. Land use approvals are an inherently iterative process in which the nature of the proposal

changes frequently prior to permit issuance. The County did not err in allowing the Applicants to supplement the application up to the close of the open record public hearing and to identify the proposed use as an athletic facility as late as July 2, 2013. Special uses are not restricted to those expressly listed in the special uses table. TCC 20.03.040(129).17 Per TCC 20.03.040 (4.5), "athletic facility" means a building or place that is used for athletic training, fitness activities or sports-related activities. Based on the record, the Examiner concurs that the listed special use most similar to the proposal is an athletic facility. Findings 8, 9, 51, and 70.

B. Athletic facilities allowed by special use permit in the RRR 1/5 zone exclude "major sporting facilities or large indoor facilities" and are expressly limited to those "sized to serve the local community". The County Code doesn't define "major sporting facility"; however, applicable use-specific standards restrict athletic facilities in size and scale. Indoor athletic facilities are limited to maximum building size of 4,500 square feet. Outdoor athletic facilities do not have a building size restriction, but there is no basis in the Code for assuming this means an outdoor athletic facility is allowed to have greater

17 TCC 20.03.040(129). "Special use" means uses which are not permitted outright in a zone because of incompatibility with the permitted uses of the zone. However, when such a special use is considered with reference to a particular site in a zone, or if the special use may be made compatible by attaching conditions to the maintenance of such a use, uses which otherwise would be prohibited in a zone may be allowed by special use. authorization. ... TCC 20.54.Table 1 speaks to listed uses; it does not state that only listed uses may be allowed as special uses: "Uses listed below are prohibited unless specifically identified as allowable through special use review, or unless listed as a permitted or primary use within an individual zoning district chapter."


impact on the neighborhood than a 4,500 square foot indoor facility. Outdoor athletic facilities are restricted to 30 parking spaces, subject to the following discretionary standard: "the approval authority shall determine if additional spaces will be needed to guarantee that all user parking will be on the premises and will be adequate for the use." TCC 20.54.070(3.5). The proposal seeks to: occupy a 26-acre tract; allow an unspecified/unlimited number of people, 97 passenger vehicles (with and without trailers), and an unlimited number of off road vehicles on-site; and to permit up to 40 off road vehicles operating simultaneously for six to ten hours per day up to four weekdays and on one or both weekend days each week, with no restriction on the number of ORV engines operating at the same time. There is also uncertainty as to whether all three tracks would be used, and if yes, whether sequentially or simultaneously, and whether amplified music and/ or overnight camping or parking would be allowed. The proposal far exceeds the impacts reasonably expected from a 4,500 square foot building. As such, the proposed commercial athletic facility is not sized and scaled to serve only the local neighborhood and exceeds the use-specific parameters of athletic facility allowed by special use permit in the RRR 1/5 zone. Findings 12, 13, 14, 15, 57,and 69.

C. Although the Public Health Department accepted the sound study and noise control plan as evidence that the project was capable of complying with State standards, the evidence as further developed at hearing demonstrates that worst case scenario sound levels have not been measured. The noise study did not measure the sound of the track being used at maximum capacity and did not measure the sound volumes resulting from activity at the actual location of the proposed track, which is closer to nearby residences. As a result, it is not known whether implementation of the noise control plan would restrict noise at property boundaries to 55 decibels. Even assuming sound levels could be shown to comply with State noise standards, the project would still result in noise that substantially interferes with the right of quiet enjoyment of property owners in the area. Testimony regarding the nature of the noise impacts, the duration and character of the noise, and its undesirability to so many neighbors called to mind the intent of the Thurston County public disturbance noise ordinance.18 This testimony was not based on conjecture by neighbors who just don't enjoy motorsports. Area residents have had the opportunity to experience ORV noise from the site over the course of at least four years, according to evidence in the record. Their testimony is credible and of sufficient duration and number to demonstrate undue impacts from the track on property owners in the area. The Applicants' proposal to have a third party consultant measure and report sound twice annually as a means of verifying compliance with noise standards does nothing to address the impacts of the constant, undesirable noise five or more days per week for much of the

18 The Thurston County public disturbance noise ordinance expressly acknowledges that the noise of motorized vehicles at certain volumes and durations is capable of unreasonably disturbing and adversely affecting the public health and welfare, the value of property, and the quality of the environment. TCC 10.36.020. In this ordinance, the County legislative body acknowledged the physiological and psychological dangers of excessive noise and expressed a clear intent to control noise levels in a manner that promotes: commerce; the use, value and enjoyment of property; sleep and repose; and the quality of the environment. TCC 10.36.010.


year. (It also seeks to place the financial burden of ensuring compliance on neighbors.) Because of the substantial and undue noise impacts of the proposed commercial ORV track, the use is not appropriate in the proposed location and fails to satisfy the general special use criteria. Findings 7, 20, 21, 26, 27, 29, 32, 37, 48, 58, 59, 68, and 69.

D. The Applicants seek to satisfy a County-wide, if not regional, demand for ORV recreation areas. Regardless of the Applicants' intentions, the record clearly demonstrates that the facility would be used by a larger population that just the local community. The proposal is inconsistent with rural area designations in the land use chapter of the Thurston County Comprehensive Plan, which restrict commercial uses in rural areas to "be small in scale [providing] convenience services to the rural neighborhood." Thurston County Comprehensive Plan, page 2-11. The proposed commercial 26-acre ORV track, associated parking, and schedule of events are not consistent with a "small in scale" commercial use and are arguably not proposed to provide convenience services to the local neighborhood. Findings 12, 13, 14, 15, 68, and 70.

E. The purpose of the RRR 1/5 zoning district is to encourage residential development that maintains the County's rural character and provides opportunities for compatible agricultural, forestry, and other rural land uses. TCC 20.09A.010 (emphasis added). Uses permitted outright in the zone are limited to agriculture (including forestry), residential uses, and home occupations. TCC 20.09A.020 . Regarding noise generated by the ORV track, Applicant witnesses and members of the public in favor of the use testified that agricultural, forestry, and military uses in the vicinity are already loud and that the track is not louder or more annoying to them than these existing rural sound sources. However, the sounds of agriculture and forestry are expressly anticipated in the RRR 1/5 zone. Because the noise resulting from the proposed commercial recreational use would not be compatible with existing and approved residential uses, it is inconsistent with the purpose of the RRR 1/5 zone. Findings12, 13, 14, 15, 68, 69, and 70.

F. Finally, both because the use (commercial ORV track) is not included in the County Code's definitions or permitted/special use listings and because of the discretion conferred to the decision maker to adjust strict standards relating to athletic facilities, the County Code provisions regarding this application are arguably ambiguous and require code interpretation. In questions of code interpretation, Washington courts give great weight to the contemporaneous construction of an ordinance by the officials charged with its enforcement.19 The Resource Stewardship Department recommended denial on the grounds that the use fails to comply with the use-specific and general special use criteria and is inconsistent with the purpose of the RRR 1/5 zone and the Thurston County Comprehensive Plan. Review of the record as a whole does not demonstrate that the Department erred in its interpretation.

19 Morin v. Johnson, 49 Wn.2d 275, 279 (1956). Also, “[a]n agency acting within the ambit of its administrative functions is best qualified to interpret its own rules[.]” D.W. Close Co., Inc. v. Dept. of Labor and Industries, 143 Wn. App. 118, 129 (2008).


G. The Examiner recognizes that permit denial was argued by the Appellants at the pre-

hearing conference and in their pre-hearing motion to dismiss. However, the examiner does not have authority to dismiss an application without hearing it fully and allowing the proponent to make a case for consistency with criteria for approval. The Applicants have had a full and complete opportunity to make their case but have not shown that the project complies with applicable criteria.

H. The Examiner also acknowledges that evidence in the record overwhelmingly supports the conclusion that motorsports offer a unique opportunity for family-oriented, wholesome pastimes that build community, provide healthy physical activity, foster responsibility and motivation in youth, and teach skills that are beneficial to individuals and the community. The record also demonstrates a clear demand for a facility such as that proposed. Yet upon thorough review of all evidence presented, as detailed and cited in the conclusions above, the Examiner is left with the firm conviction that the project is not allowed in the zone because it fails to satisfy both the use-specific and the general special use criteria for approval and because the proposal is inconsistent with the purpose of the RRR 1/5 zone and the Thurston County Comprehensive Plan's rural land use designation.

2. SEPA Appeal:

A. Because the use is prohibited in the zone, the appeal of the environmental threshold determination is moot and the MDNS should be withdrawn.

DECISION

Because the proposed land use is not allowed in the underlying zoning district, the permit must be denied and environmental review pursuant to the State Environmental Policy Act is moot. The application for SUP is DENIED, the SEPA MDNS must be WITHDRAWN, and the SEPA Appeal is DISMISSED. DECIDED August 29, 2013.

________________________________ Sharon A. Rice

Thurston County Hearing Examiner


Appendix A Public Comments Submitted

Exhibit 2C Email comments opposing the proposal, from the Appellant (144) 1. 4/17/13 – Lyn Quayle 2. 4/13/13 – Lucille & Terry Ryan 3. 4/13/13 – Lori Drayson 4. 4/12/13 – Mary Colton 5. 4/11/13 – Michael Beadle 6. 4/11/13 – Jeffrey Springer 7. 4/11/13 – Marlene Goodman 8. 4/11/13 – Kathi Jo & Eric Moore 9. 4/11/13 – Teri Fellows 10. 4/11/13 – Brian Anderson & Diana Peeples 11. 4/10/13 – Walter Cedar Korte 12. 4/10/13 – Daniel Johansen 13. 4/9/13 – Steven Odd 14. 4/9/13 – Cameron Day 15. 4/10/13 – David J. Perry, PhD & Linda Perry 16. 4/9/13 – Antonia Wood 17. 4/9/13 – Belinda Dawson 18. 4/8/13 – Peggy Ledyard 19. 4/8/13 – Jeanne Catherine Flick 20. 4/8/13 – Janet Semsak Hilger 21. 4/8/13 – Jilian Latimer 22. 4/8/13 – Susan McLean 23. 3/29/13 – BJ Lemke 24. 3/28/13 – Marcia Keizer 25. 3/30/13 – Lina Seidman 26. 4/2/13 – Susan Janus 27. 4/3/13 – Lynne L. Stewart 28. 4/3/13 – Paula M. Wall 29. 4/4/13 - Bettye Johnson 30. 3/31/13 – Brian Anderson 31. 4/5/13 – Richard & Mary Banch 32. 6/24/13 – Terry & Lucille Ryan 33. 4/3/13 – Ana Maria Mihalcea, M.D. 34. 1/4/12 – Susan McLean 35. 1/6/12 – Walter Korte 36. 1/5/12 – Helen Rolls 37. 1/5/12 – Carl Burgasser 38. 1/5/12 – R.M. Beasley 39. 1/5/12 – Charles & Dr. Jenifer Preston and Family


40. 1/5/12 – Judith Lashley 41. 1/5/12 – David Naughton 42. 1/5/12 – Bettye Johnson 43. 1/5/12 – Miro Bouchakian 44. 1/5/12 – Mr. & Mrs. Anderson 45. 1/5/12 – Janet L. Ferrari 46. 1/5/12 – Carole Yano 47. 1/5/12 – Marian Lancaster 48. 1/5/12 – Bill Dallavo 49. 1/5/12 – Pat Kelly 50. 1/5/12 – Donald Schmidt 51. 1/5/12 – Cameron Jayne 52. 1/5/12 – Tony Engler 53. 1/5/12 – Stanley Lee 54. 1/5/12 – Weigl Stephan 55. 1/5/12 – Jacqueline Smith 56. 1/5/12 – Paulette Alaena 57. 1/6/12 – Jean Dickson 58. 1/6/12 – Nancy Bronner 59. 1/6/12 – Patricia Richker 60. 1/6/12 – Janice Maddox 61. 1/6/12 – Bob Maddox 62. 1/6/12 – Cameron Day 63. 1/6/12 – Inge Piller 64. 1/6/12 – Ron Smith 65. 1/6/12 – Susan Tabor 66. 1/6/12 – Marlene Goodman 67. 1/6/12 – Judy O’Neal 68. 1/6/12 – Margaret Gilbride 69. 1/6/12 – Belinda Dawson 70. 1/6/12 – Susan Janus 71. 1/6/12 – Charlie Davidson 72. 1/6/121 – Gary Minor 73. 1/6/12 – Susan Bailen 74. 1/6/12 – David Weintraub 75. 1/6/12 – Antonia Wood 76. 1/6/12 – Eva Lester 77. 1/1/12, 1/4/12 – Sharon Olson 78. 1/4/12 – Daniel Johansen 79. 1/5/12 – John Bowman 80. 1/31/12 – Roger Pitts 81. 1/20/12 – Norma Klinger 82. 1/13/12 – Joan Wunderlich 83. 1/7/12 – Joyce Anaya


84. 1/7/12 – Kelly Van Dusen 85. 1/7/12 – Cheryl Powers 86. 1/8/12 – Aaron Gilbride 87. 1/8/12 – Elizabeth Kriesten 88. 1/8/12 – Clare Berg 89. 1/8/12 – Nancy Hillman 90. 1/8/12 – Chantal Lafont 91. 1/8/12 – Mary Tereszkiewicz 92. 1/8/12 – Valerie Plaschka 93. 1/9/12 – Patsy Smith 94. 1/9/12 – Victoria Harper-Parsonson 95. 1/12/12 – Melody Rae 96. 1/6/12 – Valentin Fyrst 97. 1/6/12 – Eva Fyrst 98. 1/6/12 – Raymond Blocher 99. 1/7/12 – Diane Dondero 100. 1/5/12 – Patti Chapman and Family 101. 1/5/12 – Christine Hartman 102. 1/5/12 – Molly Gordon 103. 1/5/12 – Timothy Seabod 104. 1/5/12 – Kathleen Devin 105. 12/23/11 – Donna Love 106. 12/23/11 – Walter Korte 107. 12/22/11 – Carlo Giorno 108. 12/22/11 – Stanley Lee 109. 12/22/11 – Kathi Jo & Eric Moore 110. 12/22/11 – Susan McLean 111. 12/18/11 – Petition opposing race track by 160th Lane residents: Brian Anderson, Diana

Peeples, Cathy Everett, John Everett, Richard Banach, Mary Colton, Janice Holien, Patricia Fabian Chavez, Milton Bjorklund, Jeanne Catherine Flick

112. 12/22/11 – Paulina Amador & Charles Collins 113. 12/22/11 – Susan Mayer 114. 12/22/11 – Radu Auf der Heyde, Ph.D. 115. 12/21/11 – Rory Sagner 116. 12/21/11 – Tammie & Gene Tabor 117. 12/21/11 – Jack & Kathi Holt 118. 12/21/11 – Daniel Johansen 119. 12/21/11 – Wally Brown 120. 12/21/11 – Lydia Wood 121. 12/20/11 – Lucille & Terry Ryan 122. 12/14/11 – Richard & Mary Banach 123. 12/15/11 – Steven & Wanda Odd 124. 12/18/11 – Jeffrey B. Springer 125. 12/19/11 – Jack Pot


126. 12/19/11 - G. Mar 127. 12/20/11 – Antonia Wood 128. 12/20/11 – Mujdat Ozgunay 129. 12/19/11 – Dr. Jenifer Preston and Family 130. 12/19/11 – Lina Seidman 131. 12/14/11 – Richard & Mary Banach 132. 12/13/11 – Sheryl Palmer 133. 12/8/11 – Brian Anderson & Diana Peeples 134. 5/18/11 – Brian Anderson & Diana Peeples 135. 12/18/11 – Jeffrey B. Springer 136. 8/10/10 – Mary Banach & Richard Banach 137. 8/20/10 – Nancy Agan 138. 8/9/10 – Paula M. Wall 139. 8/9/10 – Susan Mayer 140. 6/29/10 – Daniel Johansen 141. 8/16/10 – Mary Colton 142. 8/21/10 – Bertha Rainen 143. 8/18/10 – Tim Seabold 144. 9/17/10 – Kim Springer

Exhibit 15A Public comments submitted to the County between notice of hearing and close of the record on August 1, 2013 (205):

1. 7/30/13 Greg Gipe 2. 7/30/13 Scott L. Campbell 3. 7/30/13 Steve Corrie 4. Undated Walter Korte 5. 7/29/13 Daniel Johansen, hand written 6. 7/29/13 Daniel Johansen, letter 7. 7/29/13 Linda Gunn 8. 7/28/13 Sean Derek 9. 7/29/13 Judy G. Luczak 10. 7/29/13 Dr. E.J. Zita 11. Undated Anthony Mills, letter 12. Photos submitted by Cameron Jayne 13. 7/29/13 Rod Maupin 14. 7/29/13 Debra Jacqua, letter 15. 7/29/13 Debra Jacqua, correct email 3:38 p.m. 16. 7/29/13 Cameron Day 17. 7/29/13 Angie Larsh 18. 7/28/13 Mark Lasley 19. 7/29/13 The Harris Family 20. 7/29/13 Dana & Alan Spivey 21. 7/26/13 Douglas Mackar


22. 7/26/13 Sarah Jenkins 23. 7/28/13 Sean Derek 24. 7/28/13 Dr. John Ruhland 25. 7/29/13 Kathy Capron 26. 7/29/13 Nadja Galadram 4:43 a.m. 27. 7/29/13 Nadja Galadram 5:00 a.m. 28. 7/29/13 Nadja Galadram 5:15 a.m. 29. 7/29/13 Patsy Smith 30. 7/29/13 Heidi Haslinger 31. 7/28/13 Milton M. Gordon 32. 7/28/13 Linda Evans 33. 7/28/13 Rev. Dr. Richard W. Banach 34. 7/28/13 Douglas Mackar 35. 7/28/13 Karen Retter 36. 7/28/13 Dr. John Ruhland 37. 7/28/13 Daniel Johansen 38. 7/28/13 Jack & Kathi Holt 39. 7/28/13 Chris Miller 40. 7/28/13 Sean Derek 41. 7/28/13 Thomas Matlack 42. 7/27/13 Sabrena Neff 43. 7/27/13 Jaime Leal Anaya 44. 7/27/13 Diane Frank 45. 7/27/13 Jay Smith 46. 7/26/13 Sara Jenkins 47. 7/26/13 Eric Tekin 48. 7/26/13 Michael Hood 49. 7/26/13 Diane Dondero 50. 7/26/13 David Huttula 51. 7/26/13 Nancy Montan 52. 7/26/13 Douglas M. Mackar 53. 7/25/13 Kathy Greenwood 54. 7/25/13 Sylvia Morales & Arturo Alonso 7:43 a.m. 55. 7/25/13 Sylvia Morales & Arturo Alonso 8:14 a.m. 56. 7/25/13 Mallery Brown 57. 7/25/13 Preston Collins 58. 7/25/13 Diane Dondero 59. 7/25/13 Dale Riston 60. 7/25/13 Harley Robertson 61. 7/25/13 Christine Hartman 62. 7/25/13 Gerry Winner 63. 7/24/13 Paul Brigandi 64. 7/24/13 Rob Churchill 65. 7/24/13 Robert W. Corl


66. 7/24/13 Linda Tarrant 67. 7/24/13 Charles & Mildred Pracna 68. 7/24/13 Beatrice Coleman 69. 7/24/13 Mark Frey 70. 7/24/13 Jana Muller 71. 7/24/13 Helen Hardie 11:48 a.m. 72. 7/24/13 Helen Hardie 11:40 a.m. 73. 7/24/13 Sybille Vital 74. 7/23/13 Glynn Davis 75. 7/23/13 Clare Berg 76. 7/23/13 Karen Kenney 7:49 p.m. 77. 7/23/13 Karen Kenney 8:17 p.m. 78. 7/23/13 Melinda Turner 3:04 p.m. 79. 7/23/13 Melinda Turner 3:03 p.m. 80. 7/23/13 Ken & Kathy Lien 81. 7/23/13 Steve Duerksen 82. 7/23/13 Barry Levin 83. 7/23/13 Charles Gilman 84. 7/22/13 Dale Riston, with attachment 85. 7/22/13 Helene Goslin 86. 7/22/13 Cody Peterson 9:04 p.m. 87. 7/22/13 Cody Peterson 9:17 p.m. 88. 7/22/13 Sean Wells 89. 7/22/13 Kyle Wiebold 90. 7/22/13 Ben Green 91. 7/22/13 Angela Marek 92. 7/22/13 Willie O. Hunt 93. 7/21/13 Rella D. Schafer 94. 7/21/13 Ms. Charlie Davidson 95. 7/21/13 Eric Turner 96. 7/20/13 Mary Colton 97. 7/20/13 Ralph W. Black 98. 7/20/13 Karen Silliman 99. 7/20/13 Walter Korte 100. 7/19/13 Cindy Andersen 7:46 p.m. 101. 7/19/13 Cindy Andersen 8:43 p.m. 102. 7/19/13 Scott McNairy 103. 7/19/13 Christopher Arfman 104. 7/19/13 Dan Marek 105. 7/19/13 Lance Schiedler 106. 7/19/13 Richard R. Quint 107. 7/19/13 Steve Grittman 108. 7/19/13 Jan Olson 109. 7/19/13 Brett Hull


110. 7/19/13 Victor Buchanan 111. 7/19/13 Brandon Marek 112. 7/19/13 Angela Marek 113. 7/19/13 Carmen Trummert 114. 7/19/13 Barry Levin 115. 7/19/13 Mary Colton 116. 7/18/13 Tim W. Swartz 117. 7/18/13 William Steele 118. 7/18/13 David Larsen 119. 7/18/13 Joe Holtrop 120. 7/17/13 Joyce Hess 121. 7/17/13 Rick Thompson 122. 7/17/13 William Crawley 123. 7/16/13 Paulina Amador 124. 7/13/13 Jean Handley 125. 7/05/13 Melinda Turner 126. 4/18/13 Diana Peeples 127. 7/27/13 Dr. Jenifer Preston 128. 7/29/13 Shane Barton 129. 7/29/13 Rachael Barton 130. 7/29/13 Cynthia Shuman 131. 7/30/13 Lyn Quayle 132. 7/28/13 Janice Seaton 133. 7/29/13 Susan Mayer (2 comment letters) 134. 7/28/13 Linda Evans 135. 7/30/13 Dennis Child 136. 7/30/13 Robert Bartholomew 137. 7/30/13 Don McBride 138. 7/31/13 Kevin Dahlen 139. 7/31/13 Din Wilkie & Patricia Keenan-Wilkie 140. 7/31/13 James Welsh & Michele Sameulson 141. 7/31/13 Shaun Simmons 142. 7/31/13 Cameron Day 143. 8/01/13 Dale Riston, with attachment 144. 8/01/13 Sabrena Neff 145. 7/31/13 Douglas Cabrera, MsEE 146. 7/31/13 Brian Shelby & Austin Sheldon 147. 7/31/13 Heidi Gould 148. 7/31/13 Marcia Keilee 149. 7/31/13 Brandon Bray 150. 7/31/13 Sean Derek 151. 7/31/13 Walter Korte 152. 7/31/13 Sharon Olson 153. 8/01/13 Dr. John Ruhland, with attachment


154. 7/31/13 Priscilla Hoback 155. 7/31/13 Heidi Gould 156. 8/01/13 Terry Ryan 157. 8/01/13 Daniel Johansen 158. 8/01/13 Lisa M. Beverly 159. Undated Ross Reichel 160. 8/01/13 Connie Largen 161. 7/31/13 Susan McLean 162. Undated Antonia Wood 163. Undated Walter Korte 164. Undated Sarah Wooten 165. 7/31/13 Darren Taylor 166. Undated Cameron Day 167. Petitions to Oppose Cadillac Ranch Motocross Race Track (8 pages) 168. Undated Charles A. Pracna 169. 8/01/13 Susie Kyle 170. 7/29/13 Leilani Macmillan 171. 8/01/13 Bian Anderson and Diana Peeples 172. 7/30/13 Diana Peeples 173. Undated Charles A. Pracna 174. 7/29/13 Debra Jaqua 175. 7/29/13 Susan Mclean 176. 7/29/13 Marian Clement 177. Undated Helene Goslin 178. 8/01/13 Lucille Ryan, including attachments 179. 7/29/13 Terry Ryan, including attachment 180. 7/29/13 Shane Barton 181. 7/29/13 Rachael Barton 182. 7/29/13 Cynthia L. Shurman 183. 7/30/13 Alan & Dana Spivey 184. 7/31/13 Tamara Stancil 185. Undated Rick Keane & Family 186. 7/31/13 Katie Merwick 187. 8/01/13 Carlo Giorno 188. 8/01/13 Priscilla B. Dodge 189. 8/01/13 Nadja Galadram for Mickey Beadle, President, MMB Marketing, Inc.

(attachment) 190. 8/01/13 Pamela Cannefax 191. 8/01/13 Ronald D. Smith 192. 8/01/13 David Kramer, Vice Presidend, Pacific NW Vintage Motocross 193. 8/01/13 Joanne Tarascio 194. 8/01/13 Thomas Mani 195. 8/01/13 Trish Becerra 196. 8/01/13 Ian Murphy, including attachment


197. 8/01/13 Pamela Roberts-Aue and for Sherry Adolphi 198. 8/01/13 Priscilla Hoback 199. 8/01/13 Linda Chiles 200. 8/01/13 Ruth Sparrow 201. 8/01/13 Dr. John Ruhland, including attachment 202. 8/01/13 Jean Handley (3 emails) 203. 8/01/13 Belinda Dawson 204. 8/01/13 Chris Nubbe 205. 8/01/13 Joy from Rainier Exhibit 15 B Public comments submitted in response to published noticed of MDNS:

Comments (35):

1. 7/13/13 Steve Duerksen 2. 4/17/13 Lyn Quayle 3. 4/13/13 Lucille & Terry Ryan 4. 4/13/13 Rev. Lori Drayson 5. 4/12/13 Mary Colton 6. 4/11/13 Terri Fellows 7. 4/11/13 Kathi Jo & Eric Moore 8. 4/11/13 Department of Ecology 9. 4/11/13 Marlene Goodman 10. 4/11/13 Jeffery B. Springer 11. 4/11/13 Michael Beadle 12. 4/11/13 Brian & Diane Peeples 13. 4/10/13 David J Perry, PhD and Linda Perry 14. 4/10/13 Wally Brown 15. 4/10/13 Marcia Keilee 16. 4/10/13 Marissa Carver 17. 4/10/13 Walter Korte 18. 4/10/13 Daniel Johansen 19. 4/10/13 Brian Anderson & Diana Peeples 20. 4/09/13 Belinda Dawson 21. 4/09/13 Antonia Wood 22. 4/09/13 Cameron Day 23. 4/09/13 Steven Odd 24. 4/08/13 Jeanne Catherine Flick 25. 4/08/13 Jan Semsak Hilger 26. 4/08/13 Jillian Latimer 27. 4/08/13 Susan McLean 28. 4/08/13 Peggy Ledyard 29. 4/04/13 Bettye Johnson 30. 4/03/13 Ana Maria Mihalcea, M.D. 31. 4/03/13 Lynne L. Stewart


32. 4/03/13 Paula M. Wall 33. 4/02/13 Susan Janus 34. 3/30/13 Lina Seidman 35. 3/29/13 B.J. Lemke Exhibit 15C Public comments in the County file related to the property predating MDNS

and hearing notice (178): 1. 7/13/13 Tracey Bingham 2. 7/13/13 Jean Handley 3. 7/13/13 Tracey S. Bingham 4. 7/13/13 Janet L. Ferrari 5. 7/11/13 Terry & Lucille Ryan 6. 7/10/13 Donna Powers 7. 7/09/13 Walter Korte 8. 7/08/13 Joyce Hess 9. 7/06/13 Susan Mayer 10. 7/06/13 Ted Mindt 11. 7/05/13 Madeline Ogle 12. 7/05/13 Melinda & Eric Turner 13. 7/05/13 Sarah Jenkins 14. 7/03/13 Milton Gordon 15. 7/02/13 (received) Letter from Senator Dan Swecker, Retired 16. 6/24/13 Letter from Terry & Lucille Ryan 17. 5/27/12 Daniel Johansen 18. 1/31/12 Roger Pitts 19. 1/20/12 Norma Klinger 20. 1/13/12 Joan Wunderlich 21. 1/12/12 Melody Rae 22. 1/09/12 Victoria Harper-Parsonson 23. 1/09/12 Waylon Smith 24. 1/08/12 Valerie Plaschka 25. 1/08/12 Mary Tereszkiewicz 26. 1/08/12 Chantal Lafont 27. 1/08/12 Clare Berg 28. 1/08/12 Elizabeth Kriesten 29. 1/08/12 Aaron Gilbride 30. 1/08/12 Nancy T. Hillman 31. 1/07/12 Kelly Van Dusen 32. 1/07/12 Joyce Anaya 33. 1/07/12 Diane Dondero 34. 1/07/12 Cheryl Powers 35. 1/06/12 Antonia Wood 36. 1/06/12 Ms. Charlie Davidson


37. 1/06/12 Raymond L. Blocker 38. 1/06/12 Eva Fyrst 39. 1/06/13 Balentin Fyrst 40. 1/06/12 Eva Lester 41. 1/06/12 David Weintraub 42. 1/06/12 Susana Bailen 43. 1/06/12 Gary Minor 44. 1/06/12 Susan Janus 45. 1/06/12 Belinda Dawson 46. 1/06/12 Margaret Gilbride 47. 1/06/12 Judy O’Neal 48. 1/06/12 Marlene Goodman 10:49 a.m. 49. 1/06/12 Marlene Goodman 10:43 a.m. 50. 1/06/12 Susan Tabor 51. 1/06/12 Ron Smith 52. 1/06/12 Inge Piller 53. 1/06/12 Cameron Day 54. 1/06/12 Bob Maddox 55. 1/06/12 Janice Maddox 56. 1/06/12 Patricia Richker 57. 1/06/12 Nancy Bronner 58. 1/06/12 Jean Dickson 59. 1/06/12 Walter Korte 60. 1/05/12 Timothy Seabold 61. 1/05/12 Pattie Chapman and family 62. 1/05/12 John Bowman 63. 1/05/12 Kathleen Devin 64. 1/05/12 Milt Gordon 65. 1/05/12 Christine Hartman 66. 1/05/12 Russell Morgan 67. 1/05/12 Judith Lashley 68. 1/05/12 Charles & Dr. Jenifer Preston and Family 69. 1/05/12 R.M. Beasley 70. 1/05/12 Carol Burgasser 71. 1/05/12 Helen Rolls 72. 1/05/12 Tony Engler 73. 1/05/12 Cameron Jayne 74. 1/05/12 Donald Schmidt 75. 1/05/12 Pat Kelly 76. 1/05/12 Bill Dallavo 77. 1/05/12 Marian Lancaster 78. 1/05/12 Carole Yano 79. 1/05/12 Janet L. Ferrari 80. 1/05/12 Mr. & Mrs. Anderson


81. 1/05/12 Miro Mouchakian 82. 1/05/12 Bettye Johnson 83. 1/05/12 David Naughton 84. 1/05/12 Stanley Lee 85. 1/05/12 Stephan Weigl 86. 1/05/12 Jacqueline Smith 87. 1/05/12 Paulette Alaena 88. 1/05/12 Bob & Bev Edminster 89. 1/04/12 Daniel Johansen 90. 1/04/12 Sharon Olson 91. 1/04/12 Susan Mayer 2:15 p.m. 92. 1/04/12 Susan Mayer 9:17 a.m. 93. 1/01/12 Sharon Olson 94. 12/23/11 Walter Korte 95. 12/23/11 Donna Love 96. 12/22/11 Stanley Lee 97. 12/22/11 Roberto Mazzarella 98. 12/22/11 Letter from Kathi Jo & Eric Moore 99. 12/22/11 Carlo Giorno 100. 12/22/11 Radu Auf der Heyde, Ph.D. 101. 12/22/11 Paulina Amador & Charles Collins 102. 12/22/11 Susan Mayer 103. 12/21/11 Rory Sagner 104. 12/21/11 Daniel Johansen 105. 12/21/11 Wally Brown 106. 12/21/11 Tammie & Gene Tabor 107. 12/21/11 Walter Korte 108. 12/21/11 Jack & Kathleen Holt 109. 12/21/11 Lydia Wood 110. 12/20/11 Lucille & Terry Ryan 111. 12/20/11 Antonia Wood 112. 12/20/11 Mujdat Ozgunay 113. 12/19/11 Dr. Jenifer Preston & Family 114. 12/19/11 Mrs. Lina Seidman 115. 12/19/11 Jack Pot 116. 12/19/11 G. Mar 117. 12/18/11 Letter from Jeffery B. Springer 118. 12/18/11 Letter from Brian Anderson, Diana Peeples, Cathy Everett, John Everett,

Richard Banach, Mary Colton, Janice Holien, Patricia Fabian Chavez, Milton Bjorklund and Catherine Flick

119. 12/15/11 Letter from Steven & Wanda Odd 120. 12/14/11 Richard & Mary Banach with attached letter 121. 12/13/11 Sheryl Palmer 122. 12/09/11 Brian J. Anderson


123. 12/08/11 Brian Anderson & Diana Peeples with attached Exhibit A 124. 12/05/11 Charles & Ada Gilman 125. 8/02/10 Sam Furer 126. 8/02/10 Douglas, Mary & Micheal Neff 127. 8/01/10 Bruce, Linda, Sean and Bruce Wallin Sr. 128. 8/01/10 Derick M. Clary 129. 7/31/10 Rick & Bobbi Jones 130. 7/31/10 Jayson Liess 131. 7/31/10 Daryl Gitt 132. 7/31/10 Jeff Clark 133. 7/31/10 Josh Bonagofsky 134. 7/31/10 Max Erickson 135. 7/31/10 Ken Workman 136. 7/30/10 Rob Leighty 137. 7/30/10 Shannon Loiacono 138. 7/30/10 Robert Bartholomew 139. 7/30/10 Derrick Paras 140. 7/30/10 Jeff Mathews 141. 7/30/10 [email protected] 142. 7/30/10 Lorendo Gumaru 143. 7/30/10 Chris Kitchens 144. 7/30/10 Lari & Kami Clark 145. 7/30/10 Letter from Christa D. Buergin 146. 7/29/10 Cathy & Tim Fisher, Kris, Mallory, Madelyn, Hannah and Jake Shephard 147. 7/29/10 Valerie @ Tacoma Motorsports 148. 7/29/10 Jessika Lackie 149. 7/29/10 Don McBride 150. 7/29/10 Robert Gehrke 151. 7/29/10 Jeff Money 152. 7/28/10 Curt & Joyce Julsrud 153. 7/28/10 Letter from Mark Orgill 154. 7/28/10 Letter from Chris Kettman 155. Undated Letter from Bob Melloy 156. 7/27/10 Adam Neiminen 157. 7/27/10 John Lybecker 158. 7/26/10 Letter from Ann Roggenkamp & Charles R. Merker 159. 7/26/10 Letter from Bob & Rhonda Turnmire 160. 7/25/10 Letter from Connie Willis 161. 7/25/10 Letter from unknown author 162. 7/24/10 Letter from Mark Keller 163. 7/23/10 Letter from Robert E. Schilt 164. 7/23/10 Letter from Bob & Lois Chatwood 165. 7/22/10 Letter from unknown author 166. 7/22/10 Letter from David Foote


167. 7/22/10 Letter from Tanya Foote 168. 7/21/10 Letter from Carolyn Hunsinger 169. Undated Letter from Robert Sury 170. Undated Letter from James Caty 171. Undated Jesse Auston 172. Undated Tiffany Nelson 173. Undated Margaret Miller 174. Undated Jelena Smith 175. Undated Les Reschel 176. Undated Roy Longmire 177. Undated Hoodman, Palm, Goodwin, Smith, Englund 178. Undated Petition titled “Much Needed Outdoor Activities for Families and Younger

Generations,” 20 pages of signatures

THURSTON COUNTY

PROCEDURE FOR RECONSIDERATION AND APPEAL OF HEARING EXAMINER DECISION TO THE BOARD

NOTE: THERE MAY BE NO EX PARTE (ONE-SIDED) CONTACT OUTSIDE A PUBLIC HEARING WITH EITHER THE HEARING EXAMINER OR WITH THE BOARD OF THURSTON COUNTY COMMISSIONERS ON APPEALS (Thurston County Code, Section 2.06.030).

If you do not agree with the decision of the Hearing Examiner, there are two (2) ways to seek review of the decision. They are described in A and B below. Unless reconsidered or appealed, decisions of the Hearing Examiner become final on the 15th day after the date of the decision.* The Hearing Examiner renders decisions within five (5) working days following a Request for Reconsideration unless a longer period is mutually agreed to by the Hearing Examiner, applicant, and requester. The decision of the Hearing Examiner on an appeal of a SEPA threshold determination for a project action is final. The Hearing Examiner shall not entertain motions for reconsideration for such decisions. The decision of the Hearing Examiner regarding a SEPA threshold determination may only be appealed to Superior Court in conjunction with an appeal of the underlying action in accordance with RCW 43.21C.075 and TCC 17.09.160. TCC 17.09.160(K). A. RECONSIDERATION BY THE HEARING EXAMINER (Not permitted for a decision on a SEPA threshold determination)

1. Any aggrieved person or agency that disagrees with the decision of the Examiner may request Reconsideration. All Reconsideration requests must include a legal citation and reason for the request. The Examiner shall have the discretion to either deny the motion without comment or to provide additional Findings and Conclusions based on the record.

2. Written Request for Reconsideration and the appropriate fee must be filed with the Resource Stewardship Department within ten (10) days of

the written decision. The form is provided for this purpose on the opposite side of this notification. B. APPEAL TO THE BOARD OF THURSTON COUNTY COMMISSIONERS (Not permitted for a decision on a SEPA threshold

determination for a project action) 1. Appeals may be filed by any aggrieved person or agency directly affected by the Examiner's decision. The form is provided for this purpose on

the opposite side of this notification. 2. Written notice of Appeal and the appropriate fee must be filed with the Resource Stewardship Department within fourteen (14) days of the

date of the Examiner's written decision. The form is provided for this purpose on the opposite side of this notification. 3. An Appeal filed within the specified time period will stay the effective date of the Examiner's decision until it is adjudicated by the Board of

Thurston County Commissioners or is withdrawn. 4. The notice of Appeal shall concisely specify the error or issue which the Board is asked to consider on Appeal, and shall cite by reference to

section, paragraph and page, the provisions of law which are alleged to have been violated. The Board need not consider issues, which are not so identified. A written memorandum that the appellant may wish considered by the Board may accompany the notice. The memorandum shall not include the presentation of new evidence and shall be based only upon facts presented to the Examiner.

5. Notices of the Appeal hearing will be mailed to all parties of record who legibly provided a mailing address. This would include all persons who

(a) gave oral or written comments to the Examiner or (b) listed their name as a person wishing to receive a copy of the decision on a sign-up sheet made available during the Examiner's hearing.

6. Unless all parties of record are given notice of a trip by the Board of Thurston County Commissioners to view the subject site, no one other than

County staff may accompany the Board members during the site visit.

C. STANDING All Reconsideration and Appeal requests must clearly state why the appellant is an "aggrieved" party and demonstrate that standing in the Reconsideration or Appeal should be granted.

D. FILING FEES AND DEADLINE If you wish to file a Request for Reconsideration or Appeal of this determination, please do so in writing on the

back of this form, accompanied by a nonrefundable fee of $620.00 for a Request for Reconsideration or $820.00 an Appeal. Any Request for Reconsideration or Appeal must be received in the Permit Assistance Center on the second floor of Building #1 in the Thurston County Courthouse complex no later than 4:00 p.m. per the requirements specified in A2 and B2 above. Postmarks are not acceptable. If your application fee and completed application form is not timely filed, you will be unable to request Reconsideration or Appeal this determination. The deadline will not be extended.

* Shoreline Permit decisions are not final until a 21-day appeal period to the state has elapsed following the date the County decision

becomes final.

Check here for: RECONSIDERATION OF HEARING EXAMINER DECISION

THE APPELLANT, after review of the terms and conditions of the Hearing Examiner's decision hereby requests that the Hearing Examiner take the following information into consideration and further review under the provisions of Chapter 2.06.060 of the Thurston County Code:

(If more space is required, please attach additional sheet.)

Check here for: APPEAL OF HEARING EXAMINER DECISION

TO THE BOARD OF THURSTON COUNTY COMMISSIONERS COMES NOW ___________________________________

on this ________ day of ____________________ 20 , as an APPELLANT in the matter of a Hearing Examiner's decision

rendered on __________________________________, 20 , by ________________________________ relating to_________

______________________________________________________________________________________________________

THE APPELLANT, after review and consideration of the reasons given by the Hearing Examiner for his decision, does now, under the provisions of Chapter 2.06.070 of the Thurston County Code, give written notice of APPEAL to the Board of Thurston County Commissioners of said decision and alleges the following errors in said Hearing Examiner decision: Specific section, paragraph and page of regulation allegedly interpreted erroneously by Hearing Examiner: 1. Zoning Ordinance ________________________________________________________________________________ 2. Platting and Subdivision Ordinance __________________________________________________________________ 3. Comprehensive Plan ______________________________________________________________________________ 4. Critical Areas Ordinance __________________________________________________________________________ 5. Shoreline Master Program _________________________________________________________________________ 6. Other: _________________________________________________________________________________________

(If more space is required, please attach additional sheet.)

AND FURTHERMORE, requests that the Board of Thurston County Commissioners, having responsibility for final review of such decisions will upon review of the record of the matters and the allegations contained in this appeal, find in favor of the appellant and reverse the Hearing Examiner decision.

STANDING On a separate sheet, explain why the appellant should be considered an aggrieved party and why standing should be granted to the appellant. This is required for both Reconsiderations and Appeals.

Signature required for both Reconsideration and Appeal Requests

______________________________________________________ APPELLANT NAME PRINTED ______________________________________________________ SIGNATURE OF APPELLANT

Address _______________________________________________

_____________________________Phone____________________

Please do not write below - for Staff Use Only: Fee of $620.00 for Reconsideration or $820.00 for Appeal. Received (check box): Initial __________ Receipt No. ____________ Filed with the Resource Stewardship Department this _______ day of _____________________________ 20 . \\Mc1\data\DevServ\Track\Planning\Forms\2011.Appeal-Recon form.he.doc

Project No. Appeal Sequence No.:

PetersCs

Text Box

2012101927

HEARING EXAMINER - Thurston County, Washington · Ben Cushman, Attorney, represented the...

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