Clark County Land Use Hearings

0:00 [Music] We have a special request from CVTV to speak up a little loud. They want to make sure that you're coming across because they were having some audio issues. Okay. Can you hear me? Is this adequate? Yeah, just keep going. They'll let me know if there's any problems. Okay, I'll go with it. Good evening, everybody. Welcome to the May 14th, 2026 hearing of the Clark County Lane Use Hearings Examiner.

0:57 My name is Daniel Cairns and I'll be presiding over tonight's agenda, which consists of a single item. It's Morgan Creek Cluster Subdivision PLD 2024-111. Understand if you're here for the Felida Terrace site plan and zone change that had been scheduled for tonight, it's been canceled or set over, but it will not be heard tonight. We're only here for Morgan Creek Cluster. Let me begin after that with a brief introduction to me and an explanation as to how the process is going to work this evening. I and one other person, we serve by appointment from the Board of County Counselors to evaluate and decide development applications in unincorporated Clark County. It's our job to review the record, the staff report, all the public comments, the application materials, the relevant code criteria,

1:57 and then to convene a hearing such as this to take public testimony on these applications. And ultimately, it's our job to decide whether the proposal meets or does not meet the applicable approval criteria. Those are the standards that are in the Clark County Unified Development Code on the day each of these applications was submitted. It's our job to review those criteria, interpret them as fairly as we can using the plain language in them, and to determine if the applicant has submitted sufficiently credible evidence to show that each of those criteria is met. And if that evidence is there and we regard it as credible and covering the criteria as we interpret them, then we're obligated by state law to approve the application.

2:50 It's not our job to be more stringent nor more lenient than those criteria allow, but rather to interpret the plain language of those standards and determine if they're met or not. In making this evaluation, we're required to be objective, independent, and free of any conflicts of interest. And I believe that I am with regard to this item tonight. I don't have any business, personal or familial connection with the applicant or the proposal. What I know about the proposal, the facts about it are what I have gleaned from the record. I've had my record for approximately two weeks now, and I received as of today a couple more comments. I haven't digested those yet, but that's what I know about this application, plus what I will hear tonight in a public hearing.

3:45 And if anyone has any questions about potential conflicts of interest or biases or ex parte context, feel free to ask those during the public testimony portion of tonight's hearing. Here is kind of the basic schedule of events for this item tonight. We'll begin with a staff report, which is a verbal rendition of the written report that was issued approximately 14 days ago. Staff will go over those approval criteria that I mentioned. Those are the standards that apply. And if you believe that anything else or different applies as an approval standard, you need to tell me what that is and give some justification as to why it is an approval standard. After the staff report, I will take the applicant's presentation. For the applicant, you can assume I'm familiar with a proposal.

4:40 I understand basically what the development configuration is, but I need a couple of things in particular from you. First of all, are there any changes? What's the latest, most recent form of this development proposal? I think it's the revised plans in exhibit 32 is what I think are those, and then the final revised habitat plan, which is like exhibits. Revised mitigation plan, exhibit 62. So if it's something more recent than that, let me know. The second thing I need from the applicant is there's the staff report that was issued. It includes findings, proposed findings and proposed conditions. I need to know if the applicant has any objections or corrections or challenges to any of the findings or any of the conditions.

5:39 So let me know with particularity what corrections or changes you want to see to the those proposed findings and conditions. And the third thing is we've had a number of public comments, and we may get public testimony tonight in opposition to the proposal. The applicant should keep track, keep notes of the points raised in the neighbor and opponent testimony. And I would turn it during your rebuttal applicant to you to respond to those that are appropriate. Because a lot of times that the testimony that I get in these hearings is how is this proposal, how is this development going to impact me? How is the transportation system going to work? How's the stormwater system going to impact me? Make things worse, make things better. Those kind of questions that relate to how this development is going to function on the landscape are best addressed by the applicant and your development team.

6:37 So keep track of those points, be prepared to address them during your final rebuttal. Then during the applicant's primary presentation, anything else you want to add for my benefit. After the applicant, I'll take testimony from anyone else in favor of the proposal. After that, I'll take testimony from anyone with neutral testimony or questions. And then after that, anyone opposed to the proposal. Then after the public testimony is done, I will go back and the applicant will get final rebuttal. After that, the applicant gets final rebuttal in all these matters. It gets the last word because the applicant has the burden of proof, the burden of proving that they have met the approval criteria. So they're afforded every opportunity to demonstrate that they meet that burden.

7:31 Then after all the public testimony and the final rebuttal, I'll turn back to staff to see if there's any parting advice that staff has based on the testimony that comes in tonight. And it's my typical habit to close the record after that and take the matter under consideration. I'll issue my decision generally about two weeks after the record closes. But if anyone needs additional time to formulate your testimony or arguments, you can ask that the record be kept open longer than that. I believe the notice indicated the record would automatically be kept open for one week after tonight's hearing. That puts it till the 21st of May, just in case anyone has trouble signing into this WebEx Internet platform or wants to respond to anything that comes up tonight.

8:24 So the record will be kept open for at least one week. But if you want more time, you need to ask for that while the record is still open. And you need to give me some explanation as to why you need that time because it will change the schedule. And there is a certain revolving door aspect to this because, as I mentioned, the applicant gets final rebuttal. If the record is left open, the applicant will get further final rebuttal in writing after that. So be mindful of when the record closes and if you need more time, ask for it. Also, my decisions are the county's final decision in this matter, but it's appealable to Superior Court through the Land Use Petition Act. To appeal one of my decisions, though, you have to participate either orally at this hearing tonight or in writing while the record is still open.

9:18 And you need to raise for me either orally and writing any issue that you want to preserve for an appeal to Superior Court. And you need to present to me any evidence, any document that you want me to consider or that you want to rely upon in a Superior Court appeal later on. So you need to be mindful of when the record closes, because once the record closes, that ends your ability to raise new issues, submit new evidence or submit new comments. So just be mindful that once it closes, that ends your ability. This is what we call a raise it or waive it type proceeding. You need to raise your issues while the record is still open. When you testify, here's some basic do's and don'ts. We're operating in this, as I mentioned, WebEx internet platform. And we'll get a primer on how to function in this environment from staff before we get rolling here.

10:18 But when it's your turn to testify in those three categories, pro, neutral or con, there's a raise your hand function and you'll be called upon. The host will unmute your mike and you can testify when you begin to testify. Start with your name and spell your name for me. So I get that straight. You'll need to provide us your contact information so that we can send you a copy of my final decision when it comes out. We're required by state law and the local code to do that. And so that's why we need to get that information from you. When you testify, please, as I mentioned, the approval criteria control my decision. So I want you to tailor your testimony to those approval criteria. I can't take into account any issue that's outside of those approval standards. Those standards are dealt with, analyzed and recited in the staff report that was issued prior to tonight's hearing.

11:17 That's exhibit 74 and staff will be going over those criteria somewhat in a verbal staff report. But limit your testimony to those criteria, because that's the only basis for my decision. I'm not a judge. I'm a hearings officer and my authority is limited by the code, limited to the approval criteria. If you represent someone else, let me know who you represent. And if you have any documents you want me to take into account, you need to submit those into the record. You can do that by emailing them to the staff planner on this, who is Marion Bateman. I don't know if there's any other portal for submitting those electronically, but don't forget to submit your exhibits. Also, if you're going to be reading your testimony from a script or have notes, it's useful for me. This is kind of like an insider's tip.

12:14 When I go to write my decision, it's very useful for me to have a written copy of your testimony so that I have it straight. I don't have to rely on my skimpy notes. And I have basically your script, your comments in writing in the record is very helpful for me. So consider submitting your testimony if you have it written down as an exhibit, it'll be made an exhibit and part of the record. That's it by way of procedural rundown. If people have questions going forward, feel free to ask those. But we will move next to staff has this primer on how to function in the WebEx universe here. Yes, thank you so much, Mr. Examiner, for everyone participating in tonight's hearing. If you're wishing to testify about a specific agenda item, staff ask that you raise your hand so that we can gauge who wishes to testify. If you're a call in user, you could dial star three.

13:14 If you're a Web participant, you need to click the hand icon located in the lower right hand corner of your screen or next to your name in the list of participants. Here is a graphic showing where you can find the hand icon shown by the red arrows. You may first need to turn on the list of participants. You can do this by clicking the participants button shown by the purple arrow. And once you've given your testimony, we would ask that you put your hand down. You can accomplish that by either clicking the hand icon again or dialing star three again. We will also ask everyone to keep their microphones on mute at any time that they are not speaking. I'll show you how to do that in the next slide. And prior to the close of each agenda item, we will open all microphones for everyone in attendance to ensure that everyone who wants to testify has the opportunity. Please be aware that any noise in your personal environment will be broadcasted at that time.

14:11 If you miss your opportunity to testify for some reason, the record on each case will be open for a period of time so you can submit your testimony in writing. And finally, the chat function has been disabled for public records purposes. So, as I mentioned, we ask everyone to keep their microphones muted at any time that they are not speaking. There are a few ways in which to mute yourself. If you're a web user and you're using your computer for audio, you can simply click the mute button at the bottom of your screen or next to your name in the list of participants shown by the red arrows. And if you're a web user and using a phone for audio, you can either mute yourself on your computer or use your phone's mute capability. Phone only users can use the mute capability on their phone. We would ask that you stay muted at any time that you are not speaking. All right, thank you everyone. That concludes the instructional portion of my presentation.

15:11 So, good evening, Mr. Examiner, County staff and the general public. For the record, my name is Marion Bateman. I'm a land use planner with Clark County Community Development and the project before you tonight is the Morgan Creek cluster subdivision. And just for the record, Mr. Examiner, I wanted to clarify exhibits that are coming in. Our best just emailed to me. You had mentioned that since we've had a bunch coming in, I wanted to mention that just off the top. So send them to me, I'll get them in the record and forward them on to you and everyone, the parties of record list. So, for this development, the applicant is proposing to divide one parcel containing approximately 27 and a half acres zoned R5 into five cluster lots and one buildable remainder lot for a total of six new lots.

16:04 And of course, they're utilizing the rural development cluster standards, which are allowed in the R5 zoning district. The proposed development site is currently owned by the Waterman family. And the applicant is Chris Avery with Minister Glaser serving. And the site is located at 19537 Northeast 174th Street in Brush Prairie. So as I mentioned, my name is Marion Bateman. I am the review planner for this project. The review engineer is Hannah Deedle Isakson. The review biologist is Keith Radcliffe. Craig Cottle is the transportation concurrency reviewer. Jason Noble reviewed the application for fire safety and Hunter Decker is the county forester. He reviewed the forest practices side of the development.

16:58 So just a quick outline for you. During this presentation, I will provide an overview and summary of the proposal, identify any major outstanding issues or concerns, and then ultimately we will make our recommendation to the examiner. So on to the project. So here's the vicinity map. The subject site is identified by the black dot. And as you can see, the site is located in Hawkinson, which is part of Brush Prairie. Morgan Creek abuts the site to the north. So the creek itself makes up the north property line. And then you've got Northeast 174th Street just north of that. And then you've got Northeast John Nelson Road abutting the site to the east. So here's the zoning map. The site is located within the R5 zoning district, and it abuts other R5 zoned parcels in each direction, with the exception of Morgan Creek along the north boundary.

17:56 This map shows the configuration of the site and the surrounding parcels and streets a bit more. This next one here is the site map. So this is an aerial view of the site showing a bit more as far as current conditions. You can see there's quite a bit of trees on the property and of course the existing residents. There's actually two residences and several accessory structures. Both houses are going to be retained on two of the new lots, which we'll get to. Most of the accessory structures, I believe, are going to be retained or relocated to comply with setbacks. I believe there's one barn that will for sure be removed. And then as far as the topography of the site, there are some steep slopes, some severe erosion hazard areas. Of course, you have the creek along the north perimeter, so there is an associated flood hazard area as well as some wetlands and riparian habitat on the site.

18:52 So all of these critical areas were looked at and reviewed as part of the application. So you said there are two existing dwellings and they'll remain, one on Lot 1, the other on Lot 5, is that right? Yeah, and I'll go into that a bit more, actually, I think. My next slide here. Yeah, so here's the proposed preliminary plot. This is in the record as Exhibit 32, as I mentioned, and I'll zoom in in just a second. This is a proposed cluster development, and the applicant is proposing six new buildable lots. Lots 1 through 5, again, are the smaller cluster lots. Let me see if I can... So also there's that red dashed line. Is that the boundary of the wetland buffer? Yeah, so it designates wetland and habitat buffers and building envelopes. And then in the areas that have already been developed, it says area of historic use, so it's just mapping out those developed areas.

19:50 So that shows where development is and where development can be relative to the designated wetland buffer boundaries. And the big area, Lot 6, that's the remainder lot. There's no development there. So it is going to be a buildable lot, and so it looks a little confusing because it almost looks like you're going to be encroaching on the critical areas, but this driveway, I don't know if you can see my mouse. Yes. Okay, so that's existing. So it's already there. The building envelope indicates that you'd build in this area here. So yeah, you're avoiding wetland seed and all the surrounding buffers. But since that's existing, that's just part of the development, that driveway.

20:45 When it does settle on this years from now, there will be six dwellings. Is that right? Yes, there will be six. Let's see. So yeah, you've got Lot 1, existing residence there, existing garage. I believe the applicant's going to try and retain that garage by shifting a lot line a little bit, and I'll touch on that again because that came into the record after the staff report. Let's see, there's two access easements. So you've got one serving Lot 1, 5, 4, and 6. And then you've got a smaller one north of that serving Lots 2 and 3. Again, most of those structures are going to be retained. I think there is one barn to be removed.

21:42 So yeah, that's kind of the gist of that. We can always come back to the plan. Do you have any other questions on the plan before I move on? No, I just want to confirm my understanding of it. Perfect. One other thing. Does that, those boundaries, does that reflect the, I guess the final mitigation, revised mitigation plan for the habitat is in exhibit, what was that? 62. Does that reflect the final determination where these boundaries are? It should, yeah, and I'll let Keith speak to that. I believe he is here tonight. He's the biologist, but yes, that's my understanding. Okay. Okay, so now I'll show some site photos.

22:42 Okay, so here I am standing at the Northeast 174th Street and Northeast John Nelson Road intersection looking southeast. So the site's kind of behind me there. And then here I'm standing in that same intersection, this time looking southwest. So I'm looking towards the site. You can see how heavily treated it is. And I wanted to get some good angles of the intersection, mostly because we've got some public comments around site distance and things. So I tried to kind of capture the intersection there. And then here I'm standing a little bit further onto Northeast John Nelson Road, looking south towards the site. And you can see Morgan Creek where it bisects the site in the northeast corner of the parcel there. It goes under the street a little bit. And the only stream we're talking about in this whole development is Morgan Creek. Yes.

23:41 Okay, so here I'm again I'm on Northeast John Nelson Road, looking northwest towards the site. And you can see their development sign there. The site was is pretty flattened in some areas and then the steep slopes and erosion I think are mostly around the creek area. And then, yeah, here is another shot of Morgan Creek I wanted to show just the proximity to the adjacent right away so that's 174 street there to the right and this is looking west down the creek so it's friends kind of along the street there for ways.

24:21 And, yeah, this is kind of just back for good measure, looking just straight down john nelson road. You can see that the topography does slope up, kind of as you go further south down john nelson road, but not not to slopes back in there so yeah we can always go back to the photos again as we talk through some of the public comments and things if we need to. So I will move on to the staff report. So, the application submittal was received by the county on November 12 2024. The application was deemed fully complete December 24 2024, and the notice of development application was issued on March 25 2025. The application was on hold at that point so we didn't have a hearing date at the time and so as soon as it came off hold.

25:19 We followed that up with sending a notice of hearing date separately to notify of this hearing, and we issued that on April 1 2026. The last recommendation to the hearing examiner was issued on April 29 2026, which is exhibit 74 as mentioned. And then after the staff report we have a few items so I entered the forestry findings as exhibit 76, I realized after word that the, I think it was just a copy and paste error so they've been cut out of the staff report so I noticed it right away, added a memo exhibit 76 I tried to just enter them exactly how they would have been in the staff report so that was, that was 76 and then exhibit 77 is an email from the fire marshal regarding a hydrant location.

26:13 There's a couple plat notes that are required based on a approval from the fire marshal. So that's that 1 and then exhibits 78 through 80 is a discussion about the site not being in within Louis. The applicant wanted to double check and the fire marshal confirm that it's not in Louis. So there are 2 places that need to change in the staff report where. We is mentioned. So just just for the public's benefit that's the wild land urban interface, it's a fire hazard area that has enhanced requirements design and construction and buffer requirements. Exactly. Yeah, and there's some increased setbacks, due to fire flow availability is my understanding not necessarily stemming from Louis, which we would increase the setbacks to 30 as well so that might have been the confusion but the 2 spots in the staff

27:13 report that mentioned, Louis. There's one spot on page. Let's see. It's page nine of the staff report, it's about halfway down the page under land use finding six. If you if you want to find it and then page 18 is the second one at the very bottom. It's in fire marshal finding seven. Okay, so I can always touch back on that, but I wanted to point that out really quickly. And then let's see exhibits 82 through 84 were some additional public comments and I'll get to those separately after this slide.

27:55 Let's see exhibit 85 was an email from the applicant regarding the 30 foot setback on lot one. That was the exhibit where he indicated that they plan to shift that Northwest lot line a little bit to meet the 30 foot setback to a garage to keep that garage on lot one. And then. And then exhibit 86 snuck in right before the hearing it was another public comment, and I was able to capture it in my next slide, and you'll send it to me. I did. Do you want to check really quick to see if you've gotten it. I sent it right before we got started here so if you haven't seen it come through. Okay, perfect.

28:46 Okay, so let's see for project issues. I wanted to just highlight the public comments we got most of these were addressed in the staff report couple of them were not. So, William blazer submitted exhibit 25. He submitted comments, addressing concerns regarding loss of wildlife, deer, birds, beavers due to the development. He mentioned stormwater runoff and flood hazard concerns and then concerns regarding the small lot sizes of the proposed cluster lots. And how the smaller lot sizes will undermine the urban rural balance in the area of the development. And then Steve Hansen submitted exhibit 26. He had some questions about where construction activities can occur. So those were answered in the staff report.

29:40 Let's see clocks in lieu submitted exhibit 72 highlighting concerns about the narrow road. I assumed it was north the northeast john nelson road, they were speaking about, I'm not sure if they actually specifically called out that road. And then inadequate vehicle turning movements had light intrusion privacy loss and the effect of the on the quiet enjoyment and marketability of their rental property. So, those were some of the comments again those were addressed in the staff report. And then the ones that haven't been because they came in afterward were a few from Donna England. So exhibits 82 and 83.

30:25 And then there was a written request from Donna to preserve the 200 foot riparian habitat buffer to protect Morgan Creek, and and she mentioned, you know the fish and the other animals who depend on the creek, salmon, trout, and the other animals that rely on on it for food, owls and woodpeckers and herons and everything so Donna, and then Donna mentioned some site distance concerns too so mostly about wildlife, some site distance, and then Donna submitted at three exhibit at three so that's actually a video of co host salmon spawning and Morgan Creek, which I thought was pretty neat. And let's see, exhibit at four from Steve Hansen with additional concerns about just more environmental, you know impacts and the request for the county to ensure that avoidance and minimization will be utilized as much as possible to preserve those

31:24 critical areas. And then, let's see, yeah so Donna England submitted 86, so that is the last one so I didn't get it on my slide but I have a note here about it. So, yeah, I didn't, I didn't have a chance to read through 86 it looks like it was more environmental concerns but I haven't been able to dig through. And I would ask if when Keith Radcliffe is here if he could give a, if he has he seen the comments that deal with natural resources and preservation. It's my impression that the county has pretty elaborate ordinances that were adopted pursuant to state law that address the protection of these sorts of resources so he might give kind of a kind of a quick response to these comments if he has them in hand.

32:17 Yeah, and I haven't sent the newest ones to him specifically so I can shoot those over or grab them out of the file either way but yeah there there are maybe one or two that he hasn't seen the earlier ones. Okay, so for SAS recommendation. Ultimately staff recommends that this application be approved subject to conditions of approval identified in the staff report, also known as exhibit 74. And here is a just another copy of the plans that we can have it pulled up as we move forward with the hearing. But that concludes my presentation so I will remain available for any questions. Okay, thank you. So this this site has public water but not public sewer so each of these loss will be served with on site, septic right.

33:15 Okay. And that's those also those septic systems have to stay outside of the, these boundaries, the red boundaries that show the habitat, wetland and riparian habitat boundaries buffer boundaries, as well, and also in the building envelopes. Is that true. Yeah, you're so you're talking still the red dashed line. Yes, slash critical area buffers yeah that's my understanding. Okay, so this, this, this plan which is the revised plan exhibit 32 is critical to understanding how this development proposal is going to comply with the critical areas and habitat, habitat and wetland ordinance, which is chapter 40 dash or four or five I think. Yes. Yeah. Okay, absolutely.

34:14 Let's see. Okay. All right, I think that's it for the planning issues, or what one other thing is, this was a traffic study was not required here because with a total grand total of six developable lots it didn't meet the threshold to trigger the need for traffic study right which I think is 10 pm peak trips. Correct. Okay. So concurrency was easy. And I guess I have some questions. Let me turn first. I want to call for land use I have a couple questions, Mr Decker, on forestry hunter there. Yeah. Okay, great. And this is probably a question I should have asked years ago.

35:14 I have your recommendation your staff report it's exhibits 60s, 76, and you have proposed findings that address the forestry requirements and a set of conditions. The question I have is the, the proposal. The staff report anticipates that those findings will be in my final decision those conditions will be in my final decision. Will there be a separate standalone forestry permit that also has those conditions. Yeah. If, and if the conditions were to change. They would be so I haven't approved anything I wait until after your approval and your conditions so if something is to change then it's based off of your conditions of approved.

36:11 You'll issue a hard copy type forestry permit that gets handed to the forest operator, and it'll have the findings and the conditions that matter. Okay, I just want to make sure because, you know, a lot of times these land use decisions are kind of kind of bulky, and this is a critical roadmap for the forest operator to wade through and have basically a 50 page land use decision after find the you know the 12 conditions that matter buried in the middle of it so that'll be an easier thing to understand. Okay. Were there seem like a fairly standard forest permit, forest practices permit, anything of note that you want to mention in particular?

37:00 Um, you know, there is possibly one thing, and it's something that I might have missed as a condition of approval would be any areas that are currently in a current use tax deferral program would need to be withdrawn prior to the land use approval. As part of the condition, and there is a couple, it would be like where lot two and three are and lot six have these overlays on them, and I can send this over to Marion. After this, and so you have a copy and I'll point out where that is in the forest practice code.

37:57 Okay, yeah, so I guess a good way to handle that, and for anyone else for land use and habitat, any changes that you want to see we can talk about that tonight. If it's short and simple, or if it's a little more involved in terms of crafting proposed language, you could submit that during the, at least that first week post hearing open record period that work. Okay. That works for me. Okay, perfect. Okay, I've got those notes. Thank you. Is Mr Radcliffe out there on habitat and wetland issues.

38:57 But we have a lot of, well, a half a dozen public comments advocating for the preservation of fish habitat and wildlife habitat riparian areas and wetlands and so I wonder if you could. Kind of given a risk, an overview of how the program you administer works to address those issues. Okay, first I'll start by saying that this project is vested under the old weather and habitat ordinance. We had two chapters that dealt with that one for habitat and another one for wetlands, right? Correct. We're for 40 and 4450. Okay. Apparently, they took advantage. Well, I'll start there are besides Morgan Creek there's another three see the man they pond you see on the development plan.

39:54 There's a tributary to Morgan Creek. And we type that as an MP stream non-fish breeding perennial, so it has a 100 foot riparian zone based on the old habitat ordinance. Okay. Okay. And they took advantage of the riparian zone average gene and 4440, and the wetland buffer averaging and 4450. Let's see. The riparian zone on the old code 4440. The riparian zone can be reduced up to 50%.

40:40 If there's a 200 foot riparian zone, they could reduce it down to 100 feet, as long as they average the buffer elsewhere on the parcel equivalent habitat functions. And that that applies to wetlands as well and the 44. Is there anything else I should catch on before we move on. I think that that kind of addresses it I mean, I hear this a lot in in subdivision development proposals that are kind of far from the urban core. They always seem to have streams wetlands habitat wildlife habitat.

41:37 And so I get a lot of comments, and just for for you know the public's information that the county has adopted over the years, very detailed elaborate wetland protection ordinances habitat protection ordinances shorelines regulations. This is required by state law and has very exacting and quantified requirements that are extremely sort of tricky to administer, but these plans that are submitted with a development proposal in this case the habitat and mitigation plan and think the amended

42:22 best version is this exhibit 62 correct yeah yeah is deals with those requirements and so it's not just Fisher there in on this development site, and therefore development has to be prohibited. That's not how this works. Those habitat areas have to be protected. And that means generally a buffer, and then the setbacks from buffers and from streams and those habitats, and it's so it's a mapping, and a quantification and measurement and exercise. And that's what makes these projects so I know so complicated to design and evaluate, but that's that has happened I see this as a very old application started it was first submitted in 2024 so it's been sitting on the shelf for quite a while.

43:19 Correct. Yes, we, you know, I've been working with the applicant quite a while, getting this this mitigation plan approved, so it's, it has been going on quite a while. Okay. Yeah. All right, thank you. I think with that we're ready to go and hear the applicants primary presentation. So is Mr. Avery here for the is that he's the person on this one. Yeah, Chris Avery was. Okay, take it away Mr Avery when you're ready. Yeah, good evening Mr examiner, Chris Avery with Mr glacier serving here. I'm going to interrupt you guys for a second I'm going to start the timer for 20 minutes. We do in post pandemic area we have timers, the applicant had their primary presentation we're going to limit it to 20 minutes. Usually I mean, that's, we don't come close to that, because the application is already documented in the record.

44:19 And for public testimony, each person will get what is it Richard three minutes or five minutes three minutes, three minutes, which I would again reiterate, if you have, if you already have a letter if you're a member of the public and you submitted written comments, you can assume if I haven't already read it, I will. And so, I asked you not to read your, your comments you can hit the high points. And if you don't have something submitted already submitted written comments are kind of a permanent record that I can then use when I sit down to write the opinion so 20 minutes for the applicant three minutes for each member of the public. Mr Avery, go ahead. I just verify that you guys can all hear me. Yes. Okay, good. Well, I'm not gonna take anywhere close to 20 minutes.

45:13 verified that our most recent proposed development plan and mitigation plans are included as exhibits 32 and 62 in the record. I've got nothing further to add. We're satisfied with the staff report and the discussion that's gone on. And some side of the staff court as it has been modified by the subsequent exhibits that Marion mentioned in the exhibit 76 through 86 night. That's all I got. I think the only change that I saw that you suggested was to the wildland urban interface issue otherwise you're satisfied with the findings. Correct. Yeah. And then also, we will modify the lot line on lot one around the northwest corner of the garage to meet the 30 foot set back there. Okay.

46:13 That makes it pretty simple. Anything else? Good. Okay. All right. Stand by for your final rebuttal. We may have public comments. Okay. Okay. All right. With that, I'll take testimony from anyone else in favor of this proposal. Anyone raising their hand, Richard? Anyone? Anyone wish to testify in a neutral capacity or with questions? Raise your hand. Anyone, Richard, raising their hand for those two categories? Yes. And I am unmuting Mike now. Oh, Bill's Mike first. Sorry.

47:13 Okay. Mike. Go ahead. I'm not hearing anything. So, who is this person, do you know? Mike, it's just Mike on there. Mike is muted. It still has his mic. So, does Mike have to do something to speak? Okay. Thank you. And my question is, as a neighbor down the road. Wait, what's your name? Mike Kenneman. How do you spell that? K-I-N-N-A-M-A-N. Okay. And what capacity are you speaking in? Pro or neutral? I'm neutral. Okay. Good enough. Go ahead.

48:10 Okay. My question is, is the distance that the development is going to encroach into Morgan Creek, what is the setback for the riparian areas from the creek? So, like the distance between those red dash lines in the creek? Yeah. Okay. We will get an answer to that. Mr. Radcliffe will pipe up after we get everyone else's testimony and he can respond to that. Any other questions you have? Just the habitat is my main concern is being able to maintain, you know, we live in a rural area and it would be nice to maintain the habitat that we've got right now and not disturb it too much. Well, that's always the objective. And I got to tell you, a number of people put in their comments argued the various policies for rural development and protection of habitat.

49:10 The zone and the zoning requirements are intended to implement those policies. So, the setbacks that we talked about, they're prescribed by the habitat and the wetland ordinances. And so, you know, the preservation of rural character is implemented through these cluster developments. So, rather than having a diffuse subdivision scattered across the rural landscape, they're allowed to be clustered and preserving, keeping, you know, large tracks intact. So, that's why this lot six is 17, over 17 acres with one house on it. And the others are small lots that are under two acres. So, those design features that are dictated by the code, that's how we give voice to the rural character and preservation of wetlands, wildlife habitat, and riparian habitat.

50:07 So, we'll get, Mr. Radcliffe will give a response to that and when all the public testimony is in, okay? Okay, you know, and the last thing I had is, you know, this is an R5 zoning area. So, you're going to be dropping it down to a two acre. Right, but the lots will be clustered. Right, but the overall density is no greater than five acre. So, right. Okay. All right. That was my question. Thank you. Okay, you're welcome. Anyone else in a neutral type or capacity here? Want to testify? No, just for neutral, we're not seeing anything yet. I think we do have some other people that want to speak in opposition. Okay, I think we're, are we ready for opposition then? Yes.

51:00 Okay, opposition. Who's first? Go ahead. Everyone who wants to speak in opposition, raise your hand and Richard Davia will take you in some sort of order. Right now I'm not seeing any. Bill had his hand raised before. Oh, here's, here's, we got, we got somebody now. Wait a minute. Oh, Mike, he was the same guy before, right? We've heard from, maybe Mike wants, has some real opposition comments? Yeah, yeah. That's fair. Go ahead. Let's see what Mike has to say to add to what he had. I'm sorry. No, I don't have a follow up question. No. Okay. I'm Virginia. All right. So you're, you're, you're in the same room as Mike there? I am.

51:59 And you're opposite, you're in opposition, whereas Mike's only neutral? Right. All right, go ahead. I walk the road every day and I appreciate the trees and the nature and the quiet and it's going to change so much. And that's the reason we moved out here was to enjoy the countryside and six more houses on there. It's going to change a lot and add traffic. And I am really concerned if they do have a good size buffer to protect the creek and so it can still look pretty and natural. That will be a big plus. Yeah. I'm going to consider that and plus protecting the habitat. Right. And you, you can you see that on the screen is this exhibit that shows the, the layout with the wetland buffer boundary, this red dashed line. Uh huh.

52:54 So, yeah, that, yeah, I'm hoping they do protect some of the trees and everything so that it's still looks country and still country. And yeah, the perverse side of this too is, this is Clark County, Washington, and these, a lot of this is trees and so there will be a certain amount of logging, a forest practice associated with this so you know that's that's that's where that's this is a timber state, you know. Right, that's the way it goes, and it's sort of counter to the sort of qualities that you move there for, but that, but being able to walk down the road and being able to have some trees protecting and keeping the creek as full as possible for the habitat and from viewing would be and for quiet would be wonderful. Yes, would be. Okay, got that duly noted, you didn't submit a written comment, did you? Not yet.

53:54 Okay, we have a weeks after this, so thank you. You're welcome. Anyone else wish to testify in opposition? Yes, we have Bill here, who is, and I'm going to, I just sent, I just sent to unmute him, Bill. Yeah, and he's got a green light on. All right, Bill. Did I just unmute myself? Yeah, and start with your name and maybe spell it for me if it's tricky. Well, I think I can handle the spelling parts, Bill Blaser, B-L-A-Z-E-R. Yeah, that is easy. Okay, go ahead. Yeah, enjoy some local recognition. So I'm on the property immediately east of what you're showing here. So east of John Nelson? Yeah, I'm east of there, there's one property between my little home and the lot three.

54:53 So excuse nerves, this is kind of interesting participating all these things. We've been there for quite a while. I sent the copy of what I was going to do, my three minute testimony probably took about eight hours to prepare. And so I've just managed to back myself off of reading that I've sent it to Marion. Yeah. You may have it. Okay, good. That's good. We'll alleviate the agony of having to read through that thing. Okay, it'll be part of the record, given an exhibit number, I'll get it maybe before the hearing's over tonight, but certainly tomorrow morning. Yeah, absolutely. I enjoy the, or appreciate the dilemma you're in of having to go through all this stuff. Yeah. And if you could hit the highlights now if you want, or just, you know, it'll be a surprise for me. I savor it in the morning with my coffee. You betcha. Hope you have a good strong cup of coffee. So it gives me a little bit more freewheeling opportunity. I won't violate your three minute thing.

55:47 One issue that specifically bothers me is the saving of quote unquote of Morgan Creek. The picture that we saw earlier shows the creek at its summertime mode in the wintertime. And I think I mentioned this in my earlier correspondence about a year ago, that creek, it turns into a river. So I'm highly suspect of the red line, green line and offsets and easements and all that kind of thing. Just from the reality back in ninety six. And this is not going to sound like, you know, my granddad's story from wherever we ninety six. I was here in ninety six. You remember the storm? Oh yeah. That winter flood. Yes. Willamette with the river. Yeah. Reached its banks and flooded downtown Portland. Yes. And I was getting back from Portland. The mayor kicked everybody out. One seventy four street that you see on your diagram here. That was flooded.

56:47 In fact, after that episode, the county came in and I Scott Sawyer, what a guy. He came in. I said, I got a problem there because you guys have flooded my driveway because of work you did to mitigate after that flood. There's been all kinds of stuff going on down there. I'm sure the people that deal with engineering level stuff have degrees and so forth could explain this better. But that creek don't mistake the little picture you saw as what is typical for that stream, particularly in the what? That's the summer stage that that was normal summer stage. What you just saw in the photo is summer stage. Correct. Wow. That's a lot of water for summer. Well, no, no, no, no. I need to be clear. I might be misleading you. What you saw in the photo as far as what Mary presented is the summertime. It looks like a tame little stream, you know, little wintertime. It's a different story.

57:42 That's the core of my main concern. The letter I sent you and it'll be some other stuff, minor, but it's all riparian and ecology stuff. That's my central trust here. Lots two, three and the lower part of six are all in that sensitive area. Yeah. Yes. OK. And we'll get the the applicant will have a few comments at the end and they might take a stab at responding to how they map this thing with the understanding that in the winter it's much broader. Than than the narrow stream that was shown in photographs. Because that would affect these buffers that are measured out from generally top of bank. OK, what else? Right now, I'm not seeing anybody else who's raised their hand yet.

58:42 OK. Anyone else want to testify in opposition? Understanding I have everyone who's weighed in is like half a dozen of you with written comments. I have those. The applicant has most of them. And but is there anyone who wants to testify tonight in opposition? The record will stay open for a week after this. So if you're out there lurking, you can submit written comments for the next week as well. Anyone? No, but nobody's got their hands raised. OK, I'm going to turn it back over to start with Mr. Avery for his final rebuttal. See if he wants to respond to some of the issues that were raised in public testimony tonight. Yeah, just two quick things to point out. The special flood hazard line is mapped and indicated. It's shown it's in green on the site.

59:41 So that's that the stream mainstream courses in between those two green lines and the green line shows where it broadens out during flood stage. The green line is FEMA's 100 year flood plan. OK. And then the setback for Morgan Creek is based on the ordinary high water line and the ordinary high water line was delineated and flagged by our biologists. And confirmed by the county's biologist. These would have to weigh in on that.

1:00:25 OK, ordinary high water mark high water line. OK, anything else you want to respond to in particular? Let's see. There's one other little thing. You can see that we did map the creek. It was January 24th of 24 when we mapped the creek. All right, so it was winter time, winter stage when it was mapped.

1:01:15 So what year was at 24? Yeah, you can see it's labeled on the site plan OHWM of Morgan Creek as field located 012424. OK, in the right hand corner. And then OK, there's another couple other. OK, and what is the red line setback? Mr. Kinnerman asked if you could just tell us what if you recall with the buffer setback, the setback? The best thing to look at is the habitat wetland mitigation plan, but you can see there's one to the closest we're allowed to get to the creek with the development disturbance area is 100 feet. So in adjacent to lot two and we're on lots two and three there, we're going to be 100 feet setback from Morgan Creek up there in the northwest corner of lot two.

1:02:15 Then we've got that wetland buffer, that wetland that will transition to a 55 foot setback around wetland A and then again up on the north side of lot three, we will be 100 foot setback to the ordinary high water of Morgan Creek. OK. Is that better? I pulled up exhibit 62. OK, this and 62 is the revised mitigation plan that after a lot of back and forth and back and forth and back and forth with staff, this was the final product that staff signed off on, as I understand it. That is correct. So that's utilizing the county's buffer averaging, adding buffer back. We have to add an equivalent area to other parts of the site. So that's it. OK.

1:03:15 OK, that's very useful. Thank you. Anything else by way of final rebuttal? Understanding that we'll keep the record open, as I mentioned. It sounds like there's at least one new written submission. The record is supposed to close one week after tonight, but you still get final rebuttal and you'll we'll talk about the schedule before we're done tonight. But keep in mind, if anything comes in you want to respond to, you can you have that right to respond final rebuttal in writing after the record closes to everybody else. OK, we're good. OK, with that, I will bring it back to staff to see if there are any parting comments staff has in response to what's come in tonight. Not for me, Mr. examiner.

1:04:10 I think Keith it where there were some things, but Mr. Avery might have covered them. Anything that any of your notes that show that you need to weigh in on? Well, yeah, let me you know, I always hate to open a can of worms, but there may have been an oversight here. Morgan Creek is a type F fish buried stream. And the riparian zone extends 200 feet from the ordinary high watermark or to the edge of the 100 year floodplain, whichever is greater. So Lot 2, you see the floodplain extends in a little further than where they have 100 foot sit back. So they can't take advantage of the riparian zone averaging, but if it was 200 feet, they can do 50 percent as long as they increase it elsewhere.

1:05:07 But in this case, we're looking at a little bit of floodplain on Lot 2. So what's the upshot of that? They may have to take the building envelope out of that. So what does that do? Let me see where the building envelope on this is just Lot 2 is also Lot 3, just 2. So, let's see. So how does that change things for the development area on Lot 2? 200 feet from the ordinary high watermark or the edge of the 100 year floodplain, so 200 feet, obviously 50 percent for riparian zone averaging is 100 feet. But that floodplain is greater. And a floodplain is the green line.

1:06:07 Correct. So it would be 100 feet from the gateway? Maybe I spoke too soon. Okay, if we could put up the abrasion, if you could put up the, no this is it. This is from the mitigation plan. Correct. This is correct. I'm sorry, I made a mistake here. I spoke too soon. They did reduce that because if you see the 200 foot distance, it is greater than the floodplain. Yeah, it looks like the hatched area, so they can develop outside the hatched area. Yes, correct. That's my error, my error. The 200 foot distance is greater than the 100 year floodplain, so it's good. Okay, so the approved mitigation plan exhibit 62 conforms, in your view, it conforms to the code. Correct, yes.

1:07:03 And so what's shown here, the part that doesn't have hatching is the building envelope. It's pretty limited. It's pretty far from Morgan Creek for lot two and lot three. It's 100 feet. Yeah, okay. Okay. I'm sorry. Any other misstatements you want to make? No. Okay. All right. So with that, I am going to address the open record schedule here. We've got at least one new exhibit in from Mr. Blazer that we all need to digest. It sounds like an eight pager, which is the biggest comment so far. So that's worth looking at. So the record, we remain open until, and the way this works is there's a time of day, like is it five o'clock when the shop closes?

1:08:01 Five o'clock on May 21st is when any people can have until then to submit any comment on any relevant subject relative to this project. And the approval criteria has to be in the mailbox of Marion Bateman, the planner on this by five o'clock on May 21st. And then the applicant has the opportunity for final rebuttal, as I mentioned, and usually that's a one week deal. So that would take it to five o'clock on May 28th and that if the applicant can waive that too, and that would close the record totally prior to the 28th, but the applicant has that right. So does everyone understand that and is everyone okay with that schedule?

1:08:54 So at the latest, I anticipate the record will close five o'clock on Thursday, the 28th of May, possibly sooner than that. But for members of the public at large, you have until five o'clock on the 21st to submit anything in writing. Everyone understand that and does anyone have any objection to that? We're good? Okay, so that's how we're going to conclude this one record closes. I'll have approximately two weeks to issue my written decision and anyone out there in Zoom land who wants a copy of the decision. Make sure you get your contact information to Miss Bateman so that you can be on the distribution list for notice of the final decision. I will digest everything that people have submitted or will submit during this first week. And with that, I think I think we're done with this hearing tonight.

1:09:53 So I thank all of you for participating. Stay in touch and we'll be back to you with a decision. Thank you very much and good night.