Ponderosa Neighborhood Appeal Successful

Yesterday, the Washington Court of Appeals ruled that a proposed subdivision adjacent to the Ponderosa neighborhood in Spokane Valley is a potential safety hazard in the event of a wildfire, making it subject to an environmental impact statement.

This case is full of twists and turns. The City of Spokane Valley issued a mitigated determination of nonsignificance (MDNS) in approving a preliminary plat in March 2007 on the hillside above the Ponderosa neighborhood. (An MDNS says that there are some things that a developer must do--in this case, preserving any archeological sites--to gain approval for the project.) This approval was appealed by the Ponderosa Neighborhood Association (PNA) on the grounds that Ponderosa is a high fire danger area, and additional housing units on the east side of Browne's Mountain would add traffic to an area which has insufficient evacuation routes.

The hearings examiner, Michael Dempsey, received testimony from the developer's traffic engineer that evacuation was not a problem, even under the worst-case scenario. However, the hearings examiner performed his own statistical analysis and under the same conditions and found that, in fact, the evaluation was performed under ideal conditions: that there were no stalled cars, no fallen trees, and no smoke near a major fire. He concluded as a matter of fact that 20 percent of the existing residents, and none of the new residents, could escape within a 30-minute time frame. The hearings examiner directed the city to perform an environmental impact statement.

The hearings examiner reasoned that, "Preparation of an EIS [environmental impact statement] for the project would allow for consultation with local law enforcement, fire districts and emergency planning authorities regarding an evacuation plan for the Ponderosa, the search for and the feasibility of a third (3) public access, consideration of the various wildfire scenarios in the Ponderosa, and the exploration of other strategies to evacuation in wildfire events that may have merit in the Ponderosa area." He also stated that a similar EIS was performed for a similar development and was successful.

Lanzce Douglass, the developer, appealed the hearing examiner's ruling to superior court. Amongst the arguments were: there is no legal basis for a 30-minute time frame, and that, even if it were the case, there was an existing deficiency that he was not responsible for fixing. He concluded that the hearings examiner had improperly denied the plat. Superior court agreed with Douglass.

However, the PNA appealed this ruling stating that the plat had not been denied, merely sent back to the City for an EIS. The court also found that while the 30-minute standard was mentioned in the hearing examiner's ruling, it was not applied as a matter of law, but as a matter of fact. This fact was used to determine that there was a probable environmental impact of the development. This is the standard by which an EIS is deemed necessary.

Additionally, the court found that the plat was not conditioned upon improvement of an existing deficiency. Cumulative traffic impacts are precisely the kind of issue analyzed by an EIS. Consequently, the appellate court overturned the superior court and agreed with the PNA.