TABLE OF CONTENTS 1 - CENSE

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

PSE RESPONSE TO CENSE OPENING BRIEF

7 1 9 S e c o n d A v e n u e , S u i t e 1 1 5 0 S e a t t l e , W A 9 8 1 0 4 ( 2 0 6 ) 6 2 3 - 9 3 7 2

BEFORE THE KING COUNTY SUPERIOR COURT STATE OF WASHINGTON

COALITION OF EASTSIDE NEIGHBORS FOR SENSIBLE ENERGY, a Washington non-profit corporation,

Petitioner,

v.

CITY OF BELLEVUE, a Washington municipal corporation

Respondent,

PUGET SOUND ENERGY, INC.

Additional Party

CITIZENS FOR SANE EASTSIDE ENERGY,

Additional Party,

NORM HANSEN, LORETTA LOPEZ, WARREN HALVERSON,

Additional Parties.

No. 19-2-33800-8 SEA PUGET SOUND ENERGY, INC. RESPONSE TO CENSE OPENING BRIEF

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

TABLE OF CONTENTS - i


TABLE OF CONTENTS

I. BACKGROUND ......................................................................................................... 1

A. Regulatory Setting and Development of Proposal ............................................... 1

B. Environmental Review ......................................................................................... 8

C. Conditional Use Permit Review ......................................................................... 11

D. Pre-Decisional Public Hearing and Appeal to Bellevue City Council ............... 15

II. BELLEVUE ORDINANCES .................................................................................... 18

A. Conditional Use, Electrical Utility Facility ........................................................ 18

B. Bellevue Environmental Procedures Code ......................................................... 20

C. Hearing Examiner Authority .............................................................................. 20

D. Hearing Examiner Rules .................................................................................... 20

III. STANDARD OF REVIEW ....................................................................................... 20

IV. ARGUMENT ............................................................................................................. 23

A. CENSE’s Motion to Compel Was Properly Denied and Does Not Support Reversal Under LUPA ....................................................................................... 24

i. There can be no error under LUPA where the Hearing Examiner properly declined to exceed the authority granted to him by the BCC. .... 24

ii. An order compelling production is inappropriate in this proceeding. ....... 26

B. The Hearing Examiner Correctly Interpreted and Applied LUC 20.20.255 to Energize Eastside and His Decision to Issue the CUP Is Supported by Overwhelming Record Evidence ....................................................................... 30

i. There is no basis in law for the contention that land use permitting may not occur in phases. ........................................................................... 31

ii. The Hearing Examiner’s factual findings that the Project, expressly including the South Bellevue Segment, satisfies all the LUC 20.20.255 criteria are supported by substantial evidence. ......................... 34

C. The Three-Volume EIS Prepared by Bellevue and the Partner Cities Is Legally Sufficient ............................................................................................... 36

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

TABLE OF CONTENTS - ii


i. The Richards Creek substation and the 3.3 miles of transmission line upgrades (South Bellevue Segment) is not a reasonable alternative to solving the purpose and need for the Energize Eastside Project. .............. 36

ii. The EIS is sufficient because it evaluated reasonable alternatives, including the South Bellevue Segment specifically. ................................. 39

V. CONCLUSION .......................................................................................................... 41

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

TABLE OF AUTHORITIES - iii


TABLE OF AUTHORITIES

Cases

Batchelder v. City of Seattle, 77 Wn. App. 154, 890 P.2d 25 (1995) ..................................................................... 36 Cheney v. Mountlake Terrace, 87 Wn. 2d 338, 552 P.2d 184 (1976) ....................................................................... 24

Chinn v. City of Spokane, 173 Wn. App. 89, 95, 293 P.3d 401 (2013) ............................................................. 23

Cingular Wireless, LLC v. Thurston Cty., 131 Wn. App. 756, 129 P.3d 100 (2006 ................................................................... 29

Citizens All. to Protect Our Wetlands v. Auburn, 126 Wn. 2d 356, 894 P.2d 1300 (1995) ................................................................... 44

City of Redmond v. Cent. Puget Sound Growth Mgmt. Hr'gs Bd., 136 Wn. 2d 38, 959 P.2d 1091 (1998) ............................................................... 22, 23

City of Univ. Place v. McGuire, 144 Wn. 2d 640, 30 P.3d 453 (2001) ....................................................................... 23

Coal. of Eastside Neighborhoods for Sensible Energy v. Puget Sound Energy, 153 FERC ¶ 61,076 (2015) ............................................................................................. 32

Concerned Taxpayers Opposed to the Modified Mid-South Sequim Bypass v. Dep’t of Transp., 90 Wn. App. 225, 951 P.2d 812 (1998) ................................................................... 35

Hoberg v. Bellevue,

76 Wn. App. 357, 884 P.2d 1339 (1994) ..................................................... 22, 23, 37

Klickitat Cty. Citizens Against Imported Waste v. Klickitat Cty.,

122 Wn. 2d 619, 860 P.2d 390, 398-99 (1993) ............................................ 24, 25, 45

Lanzce G. Douglass, Inc. v. City of Spokane Valley,

154 Wn. App. 408, 225 P.3d 448 (2010) ................................................................. 23

Merkel v. Port of Brownsville, 8 Wn. App.

844, 509 P.2d 390 (1973) ......................................................................................... 36

Millennium Bulk Terminals, LLC v. Cowlitz Cty. Hr'g Exam'r,

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

TABLE OF AUTHORITIES - iv


SHB No. 17-017c (Apr. 20, 2018) ........................................................................... 24

Miller v. City of Bainbridge Island,

111 Wn. App. 152, 43 P.3d 1250 (2002) ................................................................. 24

Scott’s Excavating Vancouver, LLC v. Winlock Props., LLC,

176 Wn. App. 335, 308 P.3d 791 (2013) ................................................................. 38

SEAPC v. Cammack II Orchards, 49 Wn. App.

609, 744 P.2d 1101 (1987) ....................................................................................... 24

Sunderland Family Treatment Servs. v. City of Pasco,

107 Wn. App. 109, 26 P.3d 955 (2001) ................................................................... 21

Trout Unlimited v. Morton,

509 F.2d 1276 (9th Cir. 1974) .................................................................................. 25

Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish Cty.,

77 Wn. 2d 94, 459 P.2d 633 (1969) ......................................................................... 27

Rules

Chapter 36.70C RCW ....................................................................................................... 20

Chapter 43.21C RCW ............................................................................................. 8, 20, 31

Chapter 80.28 RCW ............................................................................................................ 2

Chapter 90.58 RCW .......................................................................................................... 31

RCW 36.70C.130(1)(a) ..................................................................................................... 24

RCW 36.70C.130(1)(a)-(d) ............................................................................................... 21

RCW 36.70C.130(a) .................................................................................................... 24, 26

RCW 36.70C.130(b) ............................................................................................. 24, 26, 29

RCW 36.70C.130(l)(a)-(f) ................................................................................................. 21

RCW 36.70C.130(l)(b) ...................................................................................................... 21

RCW 43.21C.090 ........................................................................................................ 23, 41

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

TABLE OF AUTHORITIES - v


RCW 80.01.040(3) .............................................................................................................. 2

RCW 80.28.010 ................................................................................................................... 2

Regulations

18 C.F.R. § 388.113(c)(2) ................................................................................................. 28

18 C.F.R. § 39.3 .................................................................................................................. 5

WAC 197-11-060(3)(a) ..................................................................................................... 36

WAC 197-11-060(3)(b) ..................................................................................................... 32

WAC 197-11-060(4)(e) ..................................................................................................... 32

WAC 197-11-330 .............................................................................................................. 32

WAC 197-11-440(5)(b) ............................................................................................... 38, 40

WAC 197-11-440(5)(b)(i) ........................................................................................... 38, 40

Bellevue Land Use Code

LUC 20.20.250.D.1 ........................................................................................................... 28

LUC 20.20.255 ............................................................................................................ 34, 36

LUC 20.20.255.C.1.a ........................................................................................................ 13

LUC 20.20.255.D .............................................................................................................. 13

LUC 20.20.255.D. ............................................................................................................. 35

LUC 20.20.255.D.2 ....................................................................................................... 6, 13

LUC 20.20.255.D.2.c ........................................................................................................ 35

LUC 20.20.255.D.2.C.i ..................................................................................................... 13

LUC 20.20.255.D.2.C.ii .................................................................................................... 14

LUC 20.20.255.D.2.D ................................................................................................. 14, 35

LUC 20.20.255.D.3 ................................................................................................. 6, 14, 35

LUC 20.20.255.D.4 ....................................................................................................... 6, 13

LUC 20.20.255.E ........................................................................................................ 14, 19

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

TABLE OF AUTHORITIES - vi


LUC 20.20.255.E.2-4 .......................................................................................................... 6

LUC 20.20.255.E.3-4 ........................................................................................................ 16

LUC 20.20.255.E.4 ..................................................................................................... 12, 27

LUC 20.30B.140 ......................................................................................................... 14, 18

LUC 20.35.015.B.1 ........................................................................................................... 16

LUC 20.35.100.C .............................................................................................................. 18

Bellevue Municipal Code

BMC 3.68.250.D ................................................................................................... 20, 25, 26

Chapter 20.02 BMC .......................................................................................................... 20

Other Authorities

R. Settle, The Washington State Environmental Policy Act: A Legal and Policy Analysis § 14(a)(i) (4th ed. 1993) ............................................................................. 23

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

PSE RESPONSE TO CENSE OPENING BRIEF - 1


The South Bellevue Segment is the first, critical part of the single Energize

Eastside Project (“Project”) that Puget Sound Energy, Inc. (“PSE”) must build to keep

electricity flowing reliably through the cities east of Lake Washington.1 The Project

proposes to replace existing 115 kilovolt (“kV”) lines with 230 kV lines using fewer, taller

poles in the same exact corridor where the company has held its property rights and

operated power lines to keep the City of Bellevue (“Bellevue” or “the City”), as well as

Redmond, Newcastle, and Renton electrified for nearly 100 years. The entire 16-mile

upgrade is needed and will be built by PSE to comply with federal and state regulations

ensuring that customers have reliable power at all times. Petitioner would have the Court

infer that PSE proposes to introduce transmission lines where none exist today. Nothing

could be further from the truth. PSE chose this site because the transmission lines and

corridor are already there. No amount of word-smithing can hide the fact that the homes,

businesses and other uses along this route have coexisted for decades with the existing

transmission lines. Energize Eastside does not change that: today’s land uses will be the

same tomorrow.

I. BACKGROUND

A. Regulatory Setting and Development of Proposal

PSE has provided power to Washingtonians for over 135 years, making it the

state’s oldest and largest energy utility. AR 000972. PSE serves more than 1.1 million

electric customers and 790,000 natural gas customers in a 6,000-mile service territory that

traverses 11 counties. Id. PSE is headquartered in Bellevue, Washington. Id.

1 See Testimony of Dan Koch, Verbatim Report of Proceedings (“VRP”) at 000046–48.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



PSE is the electric service provider in the Eastside. See AR 000008-11. PSE has a

mandatory duty to provide reliable power to its customers, including Bellevue in the

Eastside, at reasonable rates. RCW 80.28.010. The Washington Utilities and

Transportation Commission (“WUTC”) is the state agency charged with regulating PSE’s

provision of electricity to its customers. RCW 80.01.040(3); Ch. 80.28 RCW. Under

Federal Energy Regulatory Commission’s (“FERC’s”) independent regulatory authority,

PSE must also meet federal North American Electric Reliability Corporation (“NERC”)

regulations and standards when planning its transmission system to ensure its ongoing

reliability as part of the interconnected Western Grid. AR 013436 (Declaration of

Catherine Koch (“C. Koch Decl.”)). This additional regulatory overlay reflects the fact

that no individual electricity provider or transmission line segment operates in isolation.

Rather, the grid operates as a highway with electricity demand and flows affecting the

operation and reliability of each segment and sub-segment of transmission line.

As far back as the company’s 1993 transmission reliability assessment, PSE

expected that a time would come when the north-south 115 kV transmission lines that run

from Redmond to Renton—the backbone of PSE’s Eastside transmission system—would

no longer have sufficient capacity to meet federal transmission reliability standards. AR

013448 (Declaration of Jens Nedrud (“Nedrud Decl.”)). For that reason, PSE has

consistently included the upgrade of the existing 115 kV lines to 230 kV in its Electrical

Facilities Plan for King County (“System Plan”) since then. Id.; AR 000012 (Hearing

Examiner Findings of Fact, Conclusions, and Decision, ¶ 15 (June 25, 2019) (“HE

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Decision”)). 2 Accordingly, Bellevue identified the existing utility corridor as the preferred

route for this anticipated upgrade its Comprehensive Plan for decades. Attachment A at 7-

8 (HE Decision, ¶ 7); AR 001426-32 (Development Services Department (“DSD”) Staff

Report analyzing PSE’s application for compliance with the Comprehensive Plan (“DSD

Staff Report”)). It still does today. AR 001427 (“the location and conceptual alignment of

the proposal in PSE’s existing corridor is identified and included in the UT Element at

Map UT-7”); AR 002205 (UT-7).

Higher voltage 230 kV electricity is currently delivered only to the northern end of

the Eastside at the Sammamish substation in Redmond and to the southern end of the

Eastside at the Talbot Hill substation at Renton. AR 013410-11 (Declaration of Dan Koch

(“D. Koch Decl.”)). At each substation, the voltage is stepped down from 230 kV to 115

kV, meaning that power conveyed north-south through the Eastside from each substation

is at 115 kV. Id.; Attachment A at 8 (HE Decision, ¶ 12); AR 001321 (DSD Staff Report).

Although PSE regularly maintains and upgrades individual pieces of equipment in the

Eastside area, the transmission system backbone connecting the Sammamish and Talbot

Hill substations was last upgraded in voltage in the 1960s. Attachment A at 7-8 (HE

Decision, ¶ 7). Since then, the Eastside’s population has grown from approximately

50,000 to nearly 400,000 residents, with growth expecting to continue at a rate of

approximately 2-2.4% annually through 2024. Attachment A at 8 (HE Decision, ¶13)

(citing Puget Sound Regional Council and the Quanta, Supplemental Needs Assessment

Report, Transmission System (2015)).

2 The HE Decision is attached to PSE’s Response as Attachment A.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Compliance with NERC transmission reliability planning standards became

mandatory rather than voluntary with the passage of the Energy Act of 2005. AR 013437

(C. Koch Decl. at 3). NERC standards require PSE to complete forecasts and studies in

accordance with NERC rules to determine whether the Eastside’s electrical grid has

sufficient capacity to meet expected electricity demand now and in the future. Id. PSE

conducts transmission planning studies for its system every year. Verbatim Report of

Proceedings (“VRP”)3 at 483-84 (Hearing Testimony of J. Nedrud). Since becoming

mandatory, PSE has been successfully audited biannually for compliance with the NERC

standards. AR 013437-38 (Testimony of C. Koch). The company does its transmission

planning correctly. Id.; Attachment A at 10 (HE Decision, ¶¶ 17-19).

To meet the NERC standards, PSE runs over 35,000 scenarios to evaluate what

happens to the Eastside transmission system under various demand levels, power

generation configurations and levels, and conditions in which multiple system components

(e.g., a transmission line or transformer) are not working. AR 001046; AR 013438 (C.

Koch Decl.); VRP 000480 (Testimony of J. Nedrud). By 2013, PSE determined that

without upgrades, the existing transmission system would fail to meet federal reliability

requirements in the Eastside in the next decade. AR 013448 (Nedrud Decl.).

After this determination and before starting the permit application and

environmental review processes to upgrade the lines, PSE had an outside third-party

transmission reliability consulting firm, Quanta, verify PSE’s 2013 Eastside transmission

reliability planning work. Id. Quanta’s studies, initially in 2013 and updated in 2015

3 VRP as presented in Transcript pages 1–760.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



(“Quanta 2013,” “Quanta April 2015,” and “Quanta May 2015” herein) confirmed PSE’s

assessment of the need to upgrade its transmission system in the Eastside to ensure

continuous reliable power. Attachment A at 10 (HE Decision, ¶¶ 17-19) (listing studies

demonstrating project need); AR 001561.

Meanwhile, independent of these assessments, in 2012 Bellevue hired its own

third-party consultant, Exponent, to peer-review PSE’s transmission planning work (the

“Exponent Study”). Attachment A at 10 (HE Decision, ¶¶ 17-19). Bellevue’s study drew

the same conclusions: upgrading the Eastside transmission system would be needed for

PSE to comply with federal reliability standards. Attachment A at 10 (HE Decision, ¶17);

AR 001323-24. Bellevue does not have its own separate transmission reliability planning

standards that PSE must meet to demonstrate need. NERC alone has been delegated by

FERC to set federal transmission reliability standards. 18 C.F.R. § 39.3.4 Compliance with

NERC transmission reliability planning standards is something that PSE has been

repeatedly and successfully audited for by NERC since the standards became mandatory.

AR 013437-38 (C. Koch Decl.).

Bellevue’s Land Use Code (“LUC”) requires that PSE comply with applicable

statutes and regulations and demonstrate a need for a system upgrade in the proposed

location to improve reliability in the area in order to obtain a Conditional Use Permit

(“CUP”) for a transmission system upgrade proposal:

2. The design, use, and operation of the electrical utility facility complies with applicable guidelines, rules, regulations or statutes adopted by state law, or any agency or jurisdiction with authority;

4 See generally, FERC, Order on Five Year Performance Assessment, Docket No. RR19-7-000 (Jan. 23, 2020) (approving NERC’s performance review as the Electricity Reliability Organization).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



3. The applicant shall demonstrate that an operational need exists that requires the location or expansion at the proposed site; [and]

4. The applicant shall demonstrate that the proposed electrical utility facility improves reliability to the customers served and reliability of the system as a whole, as certified by the applicant’s licensed engineer.

LUC 20.20.255.E.2-4 (emphasis added). Based on this requirement, PSE began

demonstration of need for this project in 2013 and though not required by code, PSE

continued to affirm this need up until submittal of its permit application for the Energize

Eastside Project (“Project”), including the Quanta 2013 report which affirmed the need for

expansion at the proposed location (LUC 20.20.255.D.3) in order to improve customer

and system reliability (i.e., that an operational need existed as required under LUC

20.20.255.D.4) and comply with NERC planning criteria (LUC 20.20.255.D.2). AR

001321 (listing project objectives).

The Project itself consists of replacing existing transmission line poles with fewer,

taller poles to support the 16-mile 230 kV Eastside transmission lines from Redmond to

Renton within the existing utility corridor and the construction of the Richards Creek

substation. Attachment A at 7-8 (HE Decision, ¶¶ 3-7). These construction activities are

coupled with PSE’s continued aggressive electrical conservation program. AR 001314.

The Project is needed to improve the reliability deficit identified through NERC’s

planning criteria by preventing future overloads, reducing the use of corrective action

plans (“CAPs”),5 and minimizing the risk of load shedding (the technical word used for

5 CAPs are a series of operational steps used to prevent system overloads or loss of customers’ power. They are a short-term fix to alleviate potential operational conditions that could put the entire grid at risk. They protect against large-scale, cascading power outages; however, they can put large numbers of customers at increased risk of power outages. By federal standards, CAPs are not intended to be long-term solutions to system deficiencies. AR 001938.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



when certain areas’ power is cut off deliberately to avoid overloads). 6 AR 001321-24.

Relying on intentional load shedding to address required transmission reliability long

term, instead of implementing the upgrade, would be inconsistent with utility best

practices and bring instability to the electric system. Attachment A at 10 (HE Decision, ¶

21); AR 013447 (Nedrud Decl.).

Following the 2012 and 2013 studies and at the insistence of project opponents

including CENSE, in 2015 Bellevue hired Utility System Efficiencies, Inc. to undertake

another independent third-party peer-review of PSE’s needs assessments (“USE Report”).

In addition to reviewing PSE, Exponent and Quanta’s work, USE responded to a series of

concise questions about the reliability problems in Bellevue and the need for upgrades to

the Eastside (including Bellevue). These questions were developed by Bellevue in

consultation with CENSE and other stakeholders. AR 001978-2053. The USE Report

concluded that PSE, Exponent, and Quanta’s needs assessments accurately evaluated and

concluded that the Eastside (including Bellevue) faced a transmission reliability deficit

and that an upgrade to the system was necessary to maintain reliability. AR 002035.

To analyze and narrow the potential route alternatives, in 2014 PSE engaged a

Community Advisory Group to consider community values when evaluating the route

options. The advisory group was comprised of representatives from various interests

within the study area, including potentially affected neighborhood organizations, cities,

6 VRP 000046 (Testimony of D. Koch)(“Well, the simple explanation is that multiple studies projected that the demand for electricity would exceed the capacity of the backbone of the Eastside’s transmission system as early as the winter of 2017, 2018 and the summer of 2018. In fact, our actual summer peak demand for power in 2017 did exceed our forecasted summer peak demand for 2018, one year earlier than expected. And again in August 2018, the actual summer peak demand exceeded the demand that was forecasted for 2020.”).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



schools, social service organizations, major commercial users, economic development

groups, and other interests. See AR 001563-64. The advisory group met 22 times and

spent one year learning about the Eastside’s electrical system, participating in meetings

and workshops and evaluating 18 route options identified by PSE using a Linear Routing

Tool. Id. The advisory group looked at the factors used to develop different route options,

narrowed the route options based on values and constraints, and prepared route option

recommendations for further consideration. Id.

B. Environmental Review

Nearly four years of environmental review was conducted on the Project,

including the South Bellevue Segment, pursuant to both the State Environmental Policy

Act (“SEPA”), Ch. 43.21C RCW, and the Bellevue Environmental Procedures Code, Ch.

22.02 Bellevue Municipal Code (“BMC”). AR 001387-98. Under an Inter-Jurisdictional

Agreement among the four7 Eastside cities of Redmond, Bellevue, Newcastle, and Renton

(“Partner Cities”), a phased Environmental Impact Statement was prepared with Bellevue

serving as the nominal SEPA lead agency. AR 001387. A two-part Draft Environmental

Impact Statement (“Phase I DEIS” and “Phase II DEIS”) and a Final EIS (“FEIS”) (the

three collectively being the “EIS”) were prepared by the Partner Cities. AR 001325. The

Phase I DEIS, issued in January 2016, assessed the Project need and a broad range of

potential technological alternatives both for potential environmental impacts and ability to

address the identified transmission facility deficit. Id. The Phase I DEIS assessed both

wire solutions (i.e., overhead, underground, and underwater transmission lines) and non-

7 Kirkland is a signatory but no portion of the Project as proposed will ultimately traverse the city.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



wire solutions (ranging from battery storage, distributed solar, and the construction of

natural gas peak shaving facilities, among others). AR 001325.

Public comments on the Phase I DEIS were solicited and received through writing,

online, and via public meetings in each Partner City. AR 007441-8989 (EIS, Appendix J).

As part of the comments, a (now-dissolved) Washington non-profit group, CSEE and

CENSE respectively submitted and endorsed a load flow study prepared in part by a long-

past PSE employee, Richard Lauckhart (“Lauckhart-Shiffman Load Flow Study”). AR

008991-9031. Mr. Lauckhart performed transmission reliability planning work for PSE

for two years in the 1970s, over three decades ago and well before NERC’s transmission

reliability standards became mandatory in 2005. AR 005262 (R. Lauckhart resume). The

Lauckhart study purported to refute the audited work done by PSE, Quanta, and

Bellevue’s independent experts Exponent and USE all of which confirmed that PSE’s

transmission reliability planning and needs assessment work was consistent with NERC

planning criteria and that the Project was needed. See generally Attachment A at 21-23

(HE Decision, ¶¶ 57a-57e).

Notably, during the SEPA review process in addition to the Exponent and USE

studies commissioned by Bellevue, the Partner Cities also commissioned a peer-review of

PSE’s needs studies. The Partner Cities retained independent third-party consultant

Stantec, whose report (“Stantec Report”) also concluded that PSE had correctly conducted

the studies identifying a transmission deficit and the need for the Project in their cities.8

8 AR 000013 (HE Decision, ¶ 19); AR 000016-17 (HE Decision, ¶ 27); AR 000024 (“Having read and re-read the opposition reports and evidence, and the independent studies prepared by Stantec and USE, one finding and conclusion became crystal clear – the applicant reports, forecasts, and data analyses were in

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Following the Phase I DEIS’s confirmation of the need for a wires solution and

elimination of the Project alternatives that were shown to be infeasible, more impactful, or

incapable of meeting the Project’s purpose and need, the Phase II DEIS focused on

analyzing the potential environmental impacts of wire route options for the overhead

lines/Richards Creek substation alternative. AR 011619- 12463 (Phase II DEIS). The

Phase II Draft EIS (and ultimately, the FEIS) analyzed 14 routing alternatives, including

Bellevue north, central and south segments individually and cumulatively. AR 006837

(FEIS listing routing alternatives). The FEIS also evaluated four routing alternatives for

the South Bellevue Segment. Id.

Let there be no question: one of the four South Bellevue Segment route

alternatives expressly studied in the FEIS was PSE’s existing 115 kV lines’ route in the

established utility corridor, i.e., the “South Bellevue Segment” that is the subject of this

appeal. AR 006842; AR 006860.

Based largely on the analysis in the Phase II DEIS and additional information on

potential interactions between the transmission line and other collocated facilities (two

petroleum pipelines operated by Olympic Pipeline), PSE identified the existing corridor

(identified in the EIS as “Willow 1”) as its preferred alternative for analysis in the FEIS.

AR 006819. The EIS analysis discussed how, due to its linear nature, the Project would

require multiple permits from each jurisdiction. AR 006823 (listing required permits

including separate listing of the North and South Bellevue Segment CUPs).

compliance with applicable industry standards. The opponents failed to rebut the independent consultant reviews of PSE’s work involved in this application process, all of which concluded that PSE was planning and reviewing data in accord with industry practice and standards.”).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



By using the existing utility corridor presently occupied by 115 kV transmission

lines and poles, PSE’s Energize Eastside proposal limits environmental impacts (e.g.,

required tree removal, the imposition of new impacts to adjacent uses that today are not

adjacent to high voltage transmission lines) to the extent practicable. Attachment A at 16

(HE Decision, ¶¶ 33-35); AR 000034-35. In fact, the FEIS confirmed that out of all the

alternative technologies and solutions as well as route options that were analyzed,

construction of an upgraded transmission line in the existing corridor best addressed the

need for improved transmission reliability in the Eastside while limiting costs and

environmental impacts. Attachment A at 16 ((HE Decision, ¶ 33(quoting EIS at 2-45 (“At

this time, [other than a transmission line upgrade] there are no currently known, widely

accepted technologies that PSE would employ that could feasibly and reliably address the

transmission capacity deficiency on the Eastside”)).

C. Conditional Use Permit Review

The existing north-south 115 kV transmission system is not robust enough to

maintain reliable service if the entire facility (all wires from Redmond to Renton) is taken

out of service at one time for construction. See AR 000226 (PSE CUP Application at 1).

Petitioner CENSE acknowledges as much in their Opening Brief at 17:11-12. Therefore,

the Project will be constructed in two phases. This will allow PSE to keep the existing 115

kV facilities partially in service during construction, which is the best approach to

ensuring service to PSE’s customers during construction.

PSE submitted its CUP application for upgraded 230 kV lines in the existing

utility corridor for the South Bellevue Segment and Richards Creek substation prior to the

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



publication of the FEIS. AR 006822; AR 001912-76 (PSE’s CUP application)). To

demonstrate compliance with applicable CUP criteria, PSE submitted various other

technical materials to the City, including materials regarding Vegetation Management

(AR 000741-889), photo simulations (AR 000919-46), Critical Areas (AR 000947-1464),

pole finishes (AR 001465-1510), A/C interference (AR 003968-4029), and an Alternative

Siting Analysis (AR 011908-65). The entire submission was accompanied by the

certification, under oath, from PSE’s Transmission Planning Manager and Washington-

certified engineer Jens Nedrud that the Project improves reliability to the customers

served and reliability of the system as a whole in accordance with LUC 20.20.255.E.4. AR

001975-76.

To ensure that the construction of the Energize Eastside upgrade does not put

Eastside customers at risk of outages, PSE must ensure that electricity continues to flow to

the Lakeside substation from at least the north or the south at all times. AR 006866 (EIS at

2-37); AR 000226 (PSE CUP Application at 1). If electricity from both the north and

south is turned off at the same time (which is contrary to industry best practice and PSE’s

mandate to provide reliable power), Lakeside’s ability to direct power to some substations

and prevent overloads on certain transmission lines in the Eastside is put at significant

risk. AR 006866 (EIS at 2-37). Two substations are radially fed off of Lakeside (College

and Phantom Lake) and have no other source of electricity. Id. Construction of the full 8.5

miles of transmission line upgrades required in Bellevue (both north and south from the

Lakeside and Richards Creek substations) cannot be completed in a single construction

season. AR 006866 (EIS at 2-37).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



As a consequence of these practical limitations, PSE has designed its construction

and permitting approach to provide a consistent source of electricity to the Lakeside

substation during all phases of the transmission line upgrade. Id. During the construction

of the south phase, the Lakeside substation will be served from the north and likewise,

once the south phase is complete, it will be served from the upgraded south portion while

the north half is constructed. In practical terms, this means applying separately for a

Bellevue south permits (and permits from the cities of Renton and Newcastle) prior to

permitting the north end permits from Bellevue and Redmond.

Based on its plan to start at Richards Creek and build southward first while

keeping the northern section of the Eastside energized during construction, PSE sought

approval of a CUP from Bellevue to authorize the procurement of construction permits for

the Richards Creek substation and the 3.3 mile South Bellevue Segment of the

transmission line upgrade to the Newcastle city limits.9 This is the same segment

described and studied in the FEIS as part of the preferred route for the 16-mile project. AR

006841-71. The CUP application was accompanied by the Alternative Siting Analysis

(“ASA”) required by LUC 20.20.255.C.1.a and LUC 20.20.255.D. In accordance with

LUC 20.20.255.D, among other things the ASA described the significant community

outreach conducted (LUC 20.20.255.D.4), the various sites (routes) analyzed and their

land use districts, including one located in the land use district primarily serviced by the

proposal (LUC 20.20.255.D.2), whether the location chosen was a consequence of needs

or demands of customers in that district (LUC 20.20.255.D.2.C.i), whether the operational 9 PSE also submitted applications to Newcastle and Renton to permit the other portions of the Project south from the Richards Creek substation to the Talbot Creek substation in Renton.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



needs of the applicant require locating in that area (LUC 20.20.255.D.2.C.ii),

consideration of the location selection hierarchy (LUC 20.20.255.D.2.D), and

technologies (including wires, natural gas peakers, batteries, and conservation) that were

considered by PSE to address the transmission deficiency in the Eastside (LUC

20.20.255.D.3). AR 000221-597.

Bellevue’s Development Services Department conducted over a year of review on

PSE’s CUP application. AR 001320. During that time, the City solicited public input

about the Project both in writing and at public meetings; materials received are included in

the record (AR 004540-5390; AR 011749-854), and a summary of the nature of public

outreach and comments received in response is included at AR 000086-102.

Following review of the ASA for completeness, the application materials, myriad

comments and three rounds of material provided by PSE in response to requests for

information issued by the City at the behest of CENSE, Bellevue issued the 151-page

DSD Staff Report. AR 001314-1464. In the DSD Staff Report, the City provided an

analysis of every applicable decision criteria in LUC 20.20.255.E - Electrical Utility

Facilities; and LUC 20.30B.140 - Conditional Use Permit, and detailed how the

application materials and the record demonstrated that the project complied with the city’s

code.10 The Project’s consistency with the Comprehensive Plan is detailed at AR

0001426-32.11 Notably, the staff’s conclusions regarding Project compliance were

predicated on imposition of pre-construction and construction conditions, as well as

10 The DSD Staff Report also addressed two code sections (LUC 20.20H.255 - Critical Areas Report Decision Criteria; LUC 20.30P.140 - Critical Areas Land Use Permit) related to a permit that is not challenged by CENSE in this action. 11 See also, AR 002206-2232 (DSD Staff Report, Attachment G).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



conditions that will apply for the duration of the Project. AR 000123-46. The conditions

address clearing and grading; pole locations and alignment; utility developer extension

agreements; sight distance; right-of-way use; engineering transportation plans; water

turbidity and pH monitoring; drainage; wetland enhancement; stream habitat

improvement; vegetation conversion; avian protection; critical areas and security devices

to ensure performance; geotechnical review; seismic design; landscaping planning;

lighting; tree removal and replacement; pesticides, herbicides and fertilizes; pole finishes;

substation planning; construction management and access planning; recreation uses and

school access; drilled shaft installation; seasonal construction restrictions; pavement

restoration; helicopter or large crane use; construction stormwater pollution prevention

plans; traffic management; coordination with other utilities providers; telecom facilities

limitations; electromagnetic fields; structural stability and a variety of conditions

pertaining to coordination with Olympic Pipeline and pipeline safety both during

construction and operations of Energize Eastside. AR 000124-46. With these conditions,

the City recommended that the Hearing Examiner approve the South Bellevue Segment

CUP for PSE, including authorizing PSE to use the exact corridor where the 115 kV lines

exist today as the site for the upgrade.

D. Pre-Decisional Public Hearing and Appeal to Bellevue City Council

Upon Bellevue’s completion of its review of PSE’s application, the Project’s

compliance with the Comprehensive Plan and Bellevue LUC was assessed by a duly

appointed Hearing Examiner. AR 000004-64; AR 000839-1309 (Hearing Examiner’s

Report (“HE Report”)). PSE’s utility-related CUP is a Type 1 decision, for which the

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Hearing Examiner makes a decision on the application (LUC 20.35.015.B.1) following

review of the City’s planning record, application materials, and receipt of testimony.

The purpose of the hearing is to allow the Applicant an opportunity to persuade the

Hearing Examiner that the Project meets the City’s LUC criteria. The City LUC requires

PSE alone to demonstrate, among other criteria, the need for the proposal and that the

solution to meet the need is satisfied. To discharge that obligation, PSE must submit the

certification of a licensed engineer. See LUC 20.20.255.E.3-4.

A public hearing was held on March 28-29, 2019, April 3, 2019, and April 8,

2019. AR 000007 (HE Report at 4). While not conventional, the Hearing Examiner gave

Project opponents CENSE and CSEE formal party status in the hearing proceeding, which

allowed them to file and participate in pre-hearing motions, present testimony and rebuttal

arguments, and have legal counsel representation at the hearing itself. AR 000921-1303

(HE Report at 66-442). Prior to the hearing, CENSE unsuccessfully sought to obtain a

subpoena from the Hearing Examiner compelling PSE to produce more information than

that already in the record. AR 001108-17; AR 001300 (Order Denying Motion for

Continuance and Motion to Compel). CENSE also unsuccessfully sought to have the

Hearing Examiner compel PSE to obtain all land use permits for the 16 miles of lines at

once and postpone the hearing until that time. AR 001300 (Order Denying Motion for

Continuance and Motion to Compel).

At the public hearing, PSE presented testimony detailing the federal and state laws

and regulations that require the company to plan in advance to ensure necessary

infrastructure is built before unplanned transmission deficiencies can give rise to

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



unplanned outages. VRP at 43-75, 450-510 (Hearing Testimony of D. Koch at 43-52;

Hearing Testimony of C. Koch at 52-64; Hearing Testimony of J. Nedrud at 64 -75, 450-

510). The company carefully described the many ways it studies transmission reliability to

ensure that the company stays abreast of potential system constraints on an on-going

basis. VRP at 5-75, 450-510. Proponents and opponents all were afforded the opportunity

to testify to their opinions and CENSE and CSEE were able to re-argue their previously

unsuccessful motions and present additional testimony prepared by their own selected

consultants, who offered their own opinions about the validity of the evidence in the case.

AR 000853-55 (HE Report at 4-6). Every person and organization whose representatives

attended and wished to testify and offer evidence was afforded the opportunity. Id.

The Hearing Examiner presided over the hearing, which put him in the unique

position of observing the witnesses and weighing the significance and credibility of their

testimony. Following review of the entirety of the Administrative Record, written

materials received during the four-day hearing (AR at 012047-3737) and all the testimony

included in the VRP, the Hearing Examiner weighed, evaluated and applied the evidence

to the LUC and Comprehensive Plan. AR 000850-915 (HE Report at 1-65). His

conclusion, after considering the evidence and the law, was that PSE had met its burden of

demonstrating by a preponderance of the evidence that the project complied with all

applicable City requirements, and that the South Bellevue Segment CUP should be issued

to PSE subject to conditions attached to his ruling. AR 000850 (HE Report at 1).

The decision is supported by eighty-five (85) Findings of Fact that scrupulously

cite to the record before the Hearing Examiner, and detail how and why he weighed the

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



evidence as he did. AR 000855-85 (HE Report at 6-36). His four Conclusions of Law, at

AR 000886 (HE Report at 37), include finding that PSE presented “credible, unrebutted

and substantial proof” that as conditioned, the application established compliance with

Bellevue’s LUC provisions for CUPs and Electrical Utility Facilities by more than a

preponderance of the evidence. His approval was subject to the imposition of 20 pages of

conditions including all those recommended by the City’s DSD Staff Report and four

additional conditions developed by the Hearing Examiner himself. AR 000888-907.

Among the findings of fact made by the Hearing Examiner, he noted the significant role

that the public, including CENSE, had in the permit process and hearing. AR 000846.

CENSE and others appealed to the Bellevue City Council, assigning error to nearly

every Hearing Examiner finding of fact and conclusion of law. AR 000126-69. In

accordance with LUC 20.35.100.C, a closed-record appeal was conducted on October 16,

2019. On December 2, 2019, the Bellevue City Council unanimously rejected all appeals.

AR 000001-3.

This appeal to the King County Superior Court followed.

II. BELLEVUE ORDINANCES

A. Conditional Use, Electrical Utility Facility

The Hearing Examiner’s duties are limited to those prescribed by the Bellevue

LUC. The Hearing Examiner is charged by LUC 20.30B.140 with approving or approving

with modifications an application for a CUP if:

A. The conditional use is consistent with the Comprehensive Plan; and

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



B. The design is compatible with and responds to the existing or intended character, appearance, quality of development and physical characteristics of the subject property and immediate vicinity; and C. The conditional use will be served by adequate public facilities including streets, fire protection, and utilities; and D. The conditional use will not be materially detrimental to uses or property in the immediate vicinity of the subject property; and E. The conditional use complies with the applicable requirements of this Code.

Further, the Hearing Examiner is charged by LUC 20.20.255.E with determining

whether:

1. The proposal is consistent with Puget Sound Energy’s System Plan; 2. The design, use, and operation of the electrical utility facility complies with applicable guidelines, rules, regulations or statutes adopted by state law, or any agency or jurisdiction with authority; 3. The applicant [] demonstrate[s] that an operational need exists that requires the location or expansion at the proposed site; 4. The applicant [] demonstrate[s] that the proposed electrical utility facility improves reliability to the customers served and reliability of the system as a whole, as certified by the applicant’s licensed engineer; 5. For proposals located on sensitive sites as referenced in Figure UT.5a of the Utility Element of the Comprehensive Plan, the applicant [] demonstrate[s]: a. Compliance with the alternative siting analysis requirements of subsection D of this section; b. Where feasible, the preferred site alternative identified in subsection D.2.d of this section is located within the land use district requiring additional service and residential land use districts are avoided when the proposed new or expanded electrical utility facility serves a nonresidential land use district; [and]

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



6. The proposal [] provide[s] mitigation sufficient to eliminate or minimize long-term impacts to properties located near an electrical utility facility.

The Bellevue Land Use Code does not provide the Hearing Examiner with

jurisdiction to make his decision in this case on any other bases.

B. Bellevue Environmental Procedures Code

Bellevue has its own code, Bellevue Municipal Code (“BMC”) Ch. 20.02, under

which it performs environmental review. The code incorporates, by reference, SEPA, ch.

43.21C RCW, and contains additional provisions specific to the City.

C. Hearing Examiner Authority

The Hearing Examiner has limited authority to act. His powers are constrained by

Bellevue City Code (“BCC”) 3.68.250.D (emphasis added):

The examiner shall have the power to prescribe rules and regulations concerning procedures for hearings and other proceedings authorized herein, subject to confirmation by the city council, to issue summons for and compel the appearance of witnesses, to administer oaths and to preserve order. The privilege of cross-examination of witnesses shall be accorded all interested parties or their counsel in accordance with rules of the examiner.

D. Hearing Examiner Rules

The Hearing Examiner has authority to adopt rules that are consistent with the

limited scope of his authority in BMC 3.68.250.D. A copy of these Hearing Examiner

Rules (“HER”) is appended hereto as Attachment B.

III. STANDARD OF REVIEW

Judicial review of land use decisions is governed by the Land Use Petition Act

(“LUPA”), chapter 36.70C RCW. The Superior Court exercises appellate jurisdiction

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



when reviewing a land use decision. Sunderland Family Treatment Servs. v. City of Pasco,

107 Wn. App. 109, 117, 26 P.3d 955 (2001). The Court may grant relief from a land use

decision if the petitioner carries its burden of establishing one or more of the six standards

in RCW 36.70C.130(l)(a)-(f). The standards relevant here are:

(a) The body or officer that made the land use decision engaged in unlawful procedure or failed to follow a prescribed process, unless the error was harmless;

(b) The land use decision is an erroneous interpretation of the law,

after allowing for such deference as is due the construction of a law by a local jurisdiction with expertise;

(c) The land use decision is not supported by evidence that is

substantial when viewed in light of the whole record before the court; and

(d) The land use decision is a clearly erroneous application of the law

to the facts.

RCW 36.70C.130(1)(a)-(d).

Under the first and second standards, the Court reviews de novo any legal issues,

while according deference to the local agency with expertise, which in this case is the

Hearing Examiner and Bellevue City Council. RCW 36.70C.130(l)(b). Where alleged

procedural violations implicate Bellevue’s code, the City’s interpretation of its own code

(including both the Electric Utility Facility and Environmental Procedure code) is entitled

to deference. See, e.g., Hoberg v. Bellevue, 76 Wn. App. 357, 360, 884 P.2d 1339 (1994);

City of Redmond v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 136 Wn. 2d 38, 46,

959 P.2d 1091 (1998).

Under the third standard, the Court defers to the fact-findings of the highest forum

below that exercised its fact-finding authority, which in this case is the Hearing Examiner.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



The City’s interpretation of its own code is again entitled to deference. See, e.g., Hoberg,

76 Wn. App. at 360; City of Redmond, 136 Wn. 2d at 46.

Under the fourth standard, the Court applies the law directly to the facts, and

overturns the land use decision if it reaches “a definite and firm conviction that the

decision maker committed a mistake.” Chinn v. City of Spokane, 173 Wn. App. 89, 95,

293 P.3d 401 (2013) (internal quotation marks and citations omitted). Evidence and any

inferences are viewed “in a light most favorable to the party that prevailed in the highest

forum exercising fact-finding authority.” Lanzce G. Douglass, Inc. v. City of Spokane

Valley, 154 Wn. App. 408, 415, 225 P.3d 448 (2010) (citing City of Univ. Place v.

McGuire, 144 Wn. 2d 640, 652, 30 P.3d 453 (2001)). “On review of a land use decision

that presents mixed questions of law and fact, [the Court] determine[s] the law

independently and appl[ies] it to the facts as found by the hearing examiner.” Miller v.

City of Bainbridge Island, 111 Wn. App. 152, 161, 43 P.3d 1250 (2002). In this case, PSE

is the party that prevailed in the highest forum exercising fact-finding authority, that being

the Hearing Examiner proceeding. Consequently, evidence and any inferences are to be

viewed by the Court “in a light most favorable to” PSE.

Under SEPA, the “[a]dequacy of an EIS is a question of law subject to de novo

review,”12 however, the general de novo review standard is supplemented with SEPA-

specific review standards. The Board has, for example, regularly explained that “EIS

adequacy refers to the legal sufficiency of the environmental data contained in the impact

12 Klickitat Cty. Citizens Against Imported Waste v. Klickitat Cty., 122 Wn. 2d 619, 633, 860 P.2d 390, 398-99 (1993), amended, 866 P.2d 1256 (1994).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



statement.”13 The adequacy of an EIS is also tested under the “rule of reason”14 which

requires that an EIS present decision-makers with a “reasonably thorough discussion of

the significant aspects of the probable environmental consequences” of the agency’s

decision. Cheney, 87 Wn. 2d at 344-45, 552 P.2d 184 (quoting Trout Unlimited v.

Morton, 509 F.2d 1276, 1283 (9th Cir. 1974)). The rule of reason is “in large part a broad,

flexible cost-effectiveness standard” in which the adequacy of an EIS is best determined

“on a case-by-case basis guided by all of the policy and factual considerations reasonably

related to SEPA’s terse directives.” Klickitat Cty., 122 Wn. 2d at 633 (quoting R. Settle §

14(a)(i), at 156, 155). Finally, SEPA requires that “the decision of the governmental

agency shall be accorded substantial weight.” RCW 43.21C.090.

IV. ARGUMENT

Petitioner claims the CUP for the South Bellevue Segment approved by Bellevue

Hearing Examiner Gary MacLean and upheld by the Bellevue City Council should be

reversed by this Court on three bases:

(1) The Hearing Examiner Failed to Require The Applicant to Provide Significant Information Relevant to Mandatory Code Criteria (CENSE Opening Br. at 16);

(2) DSD’s Decisions Failed to Comply with [LUC 20.20] Section 255 (CENSE

Opening Br. at 21); and

(3) The EIS Prepared for the Project Are Inadequate and Insufficient Because They Did Not Consider the South Bellevue Segment (CENSE Opening Br. at 34).

13 Millennium Bulk Terminals, LLC v. Cowlitz Cty. Hearing Examiner, SHB No. 17-017c (Apr. 20, 2018) (“Order on Motions”) (citing Klickitat Cty., 122 Wn. 2d 619, 633, 860 P.2d 390, 398-99); R. Settle, The Washington State Environmental Policy Act: A Legal and Policy Analysis § 14(a)(i) (4th ed. 1993)). 14 SEAPC v. Cammack II Orchards, 49 Wn. App. 609, 614-15, 744 P.2d 1101 (1987); Cheney v. Mountlake Terrace, 87 Wn. 2d 338, 344-45, 552 P.2d 184 (1976).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



As described in detail below, CENSE’s arguments fail. A. CENSE’s Motion to Compel Was Properly Denied and Does Not

Support Reversal Under LUPA

Notwithstanding the extraordinary 12,000 page staff record developed by the City

DSD when reviewing this application, including multiple PSE studies, independent third-

party peer-reviews by Bellevue and the SEPA Partner Cities, the Lauckhart-Shiffman

Load Flow Study endorsed by CENSE, and the multiple rounds of information procured

by the DSD at the behest of project opponents including CENSE during permit review,

CENSE insisted that it was entitled to more information regarding the sufficiency of

evidence of Project need and reliability in the proceeding below and that the Hearing

Examiner’s failure to issue a subpoena to compel further production by PSE deprived

CENSE of the opportunity for a fair hearing. CENSE Opening Br. at 19:8-20:24.

Consequently, CENSE contends that “[u]nder 36.70C.130(1)(a) the Examiner failure to

provide the requested information indicates he engaged in unlawful procedure and his

decision was an erroneous interpretation of the law.”15 Id. at 20:24-27.

CENSE’s argument that the Hearing Examiner erred by not issuing a subpoena for

information fails as a matter of law.

i. There can be no error under LUPA where the Hearing Examiner properly declined to exceed the authority granted to him by the BCC.

CENSE requested that the Hearing Examiner compel PSE to produce modeling

material beyond the company’s, Bellevue’s, and the Partner cities’ respective studies

confirming the need for the Project and the information independently obtained by

15 Petitioner incorrectly cites RCW 36.70C.130(a) as the “erroneous interpretation of the law” standard of review. The correct standard is set forth in RCW 36.70C.130(b).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



opponent’s experts through data requests to PSE. AR 001008. However, the City’s code at

BMC 3.68.250.D limits the Hearing Examiner’s authority as follows:

The examiner shall have the power to prescribe rules and regulations concerning procedures for hearings and other proceedings authorized herein, subject to confirmation by the city council, to issue summons for and compel the appearance of witnesses, to administer oaths and to preserve order.

(emphasis added). By its plain terms, the City’s Land Use Code does not authorize the

Office of the Hearing Examiner to issue subpoenas for documents. Petitioner’s reliance on

HER 1.4 to unilaterally expand his power beyond that expressly authorized by BMC

3.68.250.D is of no avail, either before the Hearing Examiner or this Court.

The City’s code clearly and unambiguously limits the Hearing Examiner’s power

to the authority to compel the appearance of witnesses. Id. Just as the City was purposeful

in granting enumerated powers to the Hearing Examiner, its decision to omit any power to

compel production of documents be deemed intentional.16

Although the Hearing Examiner’s rules contemplate broader authority, such as

Rule of Procedure 1.4 cited by Petitioner,17 those rules are necessarily limited by the

authority delegated under the City’s code as discussed above, under which he is limited to

compelling personal appearances only. BCC 3.68.250.D. No BCC provision or other

ordinance authorizes the Hearing Examiner to unilaterally expand his power beyond the

ability to compel the appearance of witnesses, and Petitioner cites none to this Court.

16 Wash. Nat. Gas Co. v. Pub. Util. Dist. No. 1 of Snohomish Cty., 77 Wn. 2d 94, 98, 459 P.2d 633 (1969)) (explaining “[w]here a statute specifically designates the things or classes of things upon which it operates, an inference arises in law that all things or classes of things omitted from it were intentionally omitted by the legislature under the maxim expressio unius est exclusio alterius—specific inclusions exclude implication.”). 17 CENSE Opening Br. at 16:19-27.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Petitioner’s reliance on HER 1.7. (“Every party in any proceeding before the

examiner shall have a right to the following: . . . I: any other rights essential to a fair

hearing”) suffers from the same fatal flaw. As discussed above, the Hearing Examiner has

only those powers expressly prescribed to him, and is limited to only the power to compel

personal appearances. BCC 3.68.250.D. Petitioner’s invitation to collaterally attack the

plain terms of BCC 3.68.250.D should be rejected.

CENSE’s Motion to Compel was outside the scope of the Hearing Examiner’s

authority and the Hearing Examiner properly declined to take an action not intentionally

granted to him. His action was neither an unlawful procedure under RCW 36.70C.130(a)

nor was it an erroneous interpretation of the law under RCW 36.70C.130(b), particularly

in light of the deference he is due as an official of a local jurisdiction applying his own

expertise in construing the jurisdiction’s own law. See Cingular Wireless, LLC v.

Thurston Cty., 131 Wn. App. 756, 768, 129 P.3d 100 (2006).

ii. An order compelling production is inappropriate in this proceeding.

In addition to the argument above (which is dispositive of the lack of Hearing

Examiner authority to subpoena documents), compelling production of additional

information is inappropriate in this proceeding. Bellevue’s HERs establish three types of

hearings: (1) Pre-Decisional hearings; (2) Appeals hearings; and (3) Code Enforcement

hearings. Attachment B at 1. The proceeding before the Hearing Examiner below was a

Pre-Decisional hearing:

(1) Pre-Decision Hearings – held before a decision has been made on a proposal in order to gather information and create a record upon which a decision can be based. In a pre-decision hearing, the City staff makes a presentation and the applicant and public are invited to testify. Depending

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



on the type of proceeding, after the hearing the examiner will either make a decision or make a recommendation to the City Council.

Id. CENSE misapprehends its role in such a proceeding. This is not an adversarial

proceeding subject to the Superior Court Civil Rules of Discovery or to shifting burdens

of proof between an applicant and opponents. Rather, the Hearing Examiner gathers

information from the record, testimony from City staff, the Applicant and the public, after

which the Hearing Examiner alone questions the applicant directly in the process of

determining whether the applicant has met his or her burden of proof. See Attachment B

(HER 4.5.F) (“Questions by the examiner of any party, witness or interested person.”)

(emphasis added).18

The HER defines all participants in a Pre-Decisional Hearing as “parties,”19

making the pool of possible parties co-extensive with the population. If discovery in the

form of subpoenas for documents and data were afforded to all “parties,” then every Pre-

Decisional Hearing would invite unlimited motions for orders to compel production. Such

a scenario is entirely inapposite to the first charge of the Hearing Examiner and to their

duty “to make every reasonable effort to avoid delay at each stage of every proceeding

consistent with fairness to all parties.” Attachment B (HER 1.1).

It is significant that the City LUC requires the utility to certify through its licensed

engineer, under oath, to the necessity for and suitability of the facility. LUC

20.20.255.E.4; AR 001975-76. “Need” in the context of transmission reliability planning

18 In a pre-decisional CUP proceeding, “[t]he applicant shall have the burden of proof and must demonstrate by a preponderance of the evidence, that the application merits approval or approval with modifications.” Attachment A (HER 2.6; HER 1.11.A). 19 There is no “super-party” status afforded to an organized group of project opponents able to afford legal counsel that is not provided to the public at large.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



is established though a regulated utility’s compliance with federal standards established by

NERC. The process used by PSE to determine need (and demonstrate it to the City

pursuant to LUC 20.20.250.D.1) is conducting the annual transmission reliability planning

assessments required by NERC. PSE must consistently meet the federal NERC

requirements and is periodically audited for such compliance. AR 013437-38 (C. Koch

Decl.). Reliability standards dictate the data necessary to analyze the resource needs to

serve peak demand while maintaining a sufficient operational capacity to address

contingency events. It is NERC—and not the City, CENSE, or PSE—that establish the

criteria to be applied in performing prescribed planning studies.20 Once the utility has

applied its own engineer’s certification, it has discharged its (successfully audited) duty to

demonstrate need in compliance with the regulations of the agency with authority to set

transmission reliability planning standards. Neither CENSE nor the City, or by extension

the Hearing Examiner, are charged with performing all the calculations required by

federal regulations for needs assessments. The information sought by CENSE is

accordingly not required for the Hearing Examiner to discharge his duties.21

20 In correspondence dated November 6, 2015 to PSE’s Jens Nedrud from Richard Lauckhart, co-author of the Lauckhart-Shiffman Load Flow Study, Lauckhart indicated that he had received the FERC Form 15 Base Case information that he planned to use to do his own study of PSE’s “need” for Energize Eastside although he did not obtain it directly from PSE and stated that “[t]here shouldn’t be any difference anyway.” Attachment C to Declaration of Erin L. Anderson in Support of Puget Sound Energy’s Response in Opposition to CENSE’s Motion to Compel. 21 Due to national security concerns and pursuant to FERC Order No. 890, transmission providers, including PSE, may restrict disclosure of Critical Energy/Electric Infrastructure Information (“CEII”). CEII includes “specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that: (i) Relates details about the production, generation, transportation, transmission, or distribution of energy; (ii) Could be useful to a person in planning an attack on critical infrastructure; (iii) Is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; and (iv) Does not simply give the general location of the critical infrastructure.” 18 C.F.R. § 388.113(c)(2). CENSE and representatives from CENSE requested the information sought in CENSE’s Motion to Compel at least five separate times. Some of the information was given to CENSE and some of the requests sought CEII

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



The administrative record before the Hearing Examiner already contained PSE’s

certification of need, the Quanta reports, USE Report, Stantec Report, and the Lauckhart-

Shiffman Load Flow Study that spoke to need. AR 001975-76; AR 000013 (HE Decision,

¶¶ 17-19) (listing studies demonstrating project need).

In fact, CENSE had already unsuccessfully challenged PSE’s Eastside

transmission reliability and needs in a lawsuit brought before FERC. This evidence was in

the record reviewed by the DSD, and was in the file transmitted to the Hearing Examiner.

AR 001006-35 (Coal. of Eastside Neighborhoods for Sensible Energy v. Puget Sound

Energy, 153 FERC ¶ 61,076 (2015) (Order Dismissing Complaint)). In dismissing the

action, FERC found that

Complainants [CENSE, CSEE] discuss alleged flaws in the load flow studies that Puget Sound conducted for the Energize Eastside Project. However, Complainants do not demonstrate that the studies violated any applicable transmission planning requirements or were otherwise unjust, unreasonable, or unduly discriminatory or preferential. Complainants do not cite anything that would require Puget Sound to use the study inputs and assumptions that Complainants prefer instead of the inputs and assumptions that Puget Sound used.

AR 001032.

In sum, it was not an erroneous application of the law to the facts under RCW

36.70C.130(b) for the Hearing Examiner to decline the request by CENSE to subpoena yet

more data from PSE for a Pre-Decisional hearing (assuming for argument he has the

power of subpoena, which PSE disputes).

information. The process for how to obtain CEII is clear, the responsibilities for handling the information confidentially are clear, and CENSE failed to submit to that process.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



B. The Hearing Examiner Correctly Interpreted and Applied LUC 20.20.255 to Energize Eastside and His Decision to Issue the CUP Is Supported by Overwhelming Record Evidence

The Energize Eastside Project is a 16-mile transmission system upgrade project to

addresses an existing transmission deficiency throughout the Eastside (Redmond,

Bellevue, Newcastle, and Renton). Keeping power flowing through the Lakeside

switching station at all times is a practical operational reason for PSE to start development

at the Richards Creek substation and proceed in only one direction at a time. CENSE

acknowledges as much: “the linearity of electric lines requires construction that does not

unplug the circuit at both ends.” CENSE Opening Br. at 27:11-12.

Nevertheless, the Project has been the subject to relentless attacks to halt it by CENSE in

numerous forums. In an early effort to stop it on the grounds that there is no need for the

Project, an unsuccessful complaint was brought by CENSE at FERC. AR 001006-35. The

FERC dismissed all aspects of the complaint, concluding: “We find that the Energize

Eastside Project was proposed and evaluated in accordance with the then-applicable

transmission planning requirements.” Id.

In fact, every technical expert not hired by CENSE (as well as FERC) has

confirmed that the Project is needed to comply with applicable transmission planning

standards. The Hearing Examiner found this particularly compelling:

Having read and re-read the opposition reports and evidence, and the independent studies prepared by Stantec and USE, one finding and conclusion became crystal clear – the applicant reports, forecasts, and data analyses were in compliance with applicable industry standards. The opponents failed to rebut the independent consultant reviews of PSE’s work involved in this application process, all of which concluded that PSE was planning and reviewing data in accord with industry practice and standards.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Attachment A at 21 (HE Decision, Findings of Fact, ¶ 57a).

i. There is no basis in law for the contention that land use permitting may not occur in phases.

Notwithstanding the Hearing Examiner’s lack of legal authority to refuse

consideration of a permit application that the City’s DSD has deemed complete, Petitioner

insists that PSE’s practical decision to obtain land use permits for the approximately 5.2

miles of transmission line north of the Lakeside substation separately from the 3.3 miles

that run south, constitutes improper segmentation. In other words, Petitioners allege

permitting only the south section without simultaneously requiring PSE to obtain land use

permits for the entire route concurrently constitutes legal error. CENSE Opening Br. at

27:12-13.

Petitioner is incorrect. Improper project segmentation as a principle does not exist

in land use permitting law.22 Improper segmentation is prohibited in the context of SEPA

and SMA but not as a matter of land use permitting. Nonetheless, CENSE asks that the

Court find the Hearing Examiner erred by inappropriately extending SEPA and SMA law

to a land use CUP permit proceeding. Not only is their contention legally flawed, it

22 For non-land use legal practitioners, land use development permits are regulated pursuant to town, city and county ordinances under a host of state laws, development activities in the shorelines are regulated pursuant to the Shoreline Management Act (“SMA”), Ch. 90.58 RCW, and environmental review of development is a process (not a permitting regime) regulated by SEPA, Ch. 43.21C RCW, and compatible local environmental procedures codes. The enabling statutes, regulations, and case law pertaining to land use permits, shoreline development and environmental review are distinct and separate bodies of law that are not interchangeable.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



ignores practical and accepted approaches to permitting linear facilities such as Energize

Eastside, which in this case traverse miles of adjacent uses, residents, and businesses.23

SEPA provides a process for identifying and evaluating all the direct, indirect and

cumulative impacts of proposed actions. WAC 197-11-060(4)(e). It is not a permit or

authorization of any sort. See, e.g., WAC 197-11-070 (precluding the issuance of any

permit prior to the completion of environmental review). An EIS is the most rigorous

environmental review and public engagement process required under SEPA. See WAC

197-11-330. Once complete, the EIS provides an umbrella under which all actual project-

related significant impacts must fall. Consequently, SEPA requires analysis of the entirety

of the proposed action in a single EIS. WAC 197-11-060(3)(b). Studying less than the

entire project in a single EIS is not allowed. Id. Breaking up environmental review

segment by segment (e.g., doing a separate EIS for each segment of the Project) is

impermissible segmenting. Concerned Taxpayers Opposed to the Modified Mid-South

Sequim Bypass v. Dep’t of Transp., 90 Wn. App. 225, 231 n.2, 951 P.2d 812 (1998). The

City’s two-phased EIS process properly and fully disclosed and analyzed the potential

impacts of the entire Project (Redmond, Bellevue, Newcastle, and Renton). Within the

single three-volume document, it also assessed the impacts specific to subsections and

under a range of alternative routing option—including the South Bellevue Segment. AR

005434 (EIS at 2-1 (listing 14 alternatives analyzed)). There is no credible claim that the

Project’s SEPA review was improperly segmented.

23 See, e.g., AR 000980 (citing City of Bellevue, Department of Transportation, Light Rail Permitting CAC, https://transportation.bellevuewa.gov/projects/east-link-light-rail/light-rail-permitting-c-a-c/c-a-c-documents (permitting of four “segments” of the East Link light rail)).

https://transportation.bellevuewa.gov/projects/east-link-light-rail/light-rail-permitting-c-a-c/c-a-c-documents

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



Similarly, there is no basis for the Hearing Examiner, the Council or this Court to

apply the SMA to this proceeding. As explained by the Court of Appeals, “a single project

may not be divided into segments for purposes of avoiding compliance with the SMA.”

Batchelder v. City of Seattle, 77 Wn. App. 154, 160, 890 P.2d 25, 29 (1995) (emphasis

added). No portion of the South Bellevue Segment triggers a requirement under SMA.

And so, as in Batchelder, “‘piecemealing’ a single project affecting uplands and

shorelands, to allow one portion of the project to proceed while the other portion of the

project awaits approval, is not present here.” Id. Petitioner’s recourse to Merkel v. Port of

Brownsville, 8 Wn. App. 844, 509 P.2d 390 (1973) is of no avail. Merkel merely confirms

that the impermissible segmentation prohibition applies to SEPA and the SMA. Id. at 850-

51. It makes no statement as to the permissibility of sequenced land use permitting of a

16-mile linear facility.

Overlooking the fact that a segmentation claim is specific to SEPA and SMA,

Appellants contend that a CUP can suffer from the same defect. A land use permit such as

a CUP is not subject to the same limitations because it serves a different purpose

(providing for a more focused review of an otherwise permitted use) and focuses solely on

impacts to adjacent uses.

The City accepted PSE’s South Bellevue Segment CUP application, deemed it

complete, processed it and forwarded it for hearing with a recommendation for approval.

AR 000001-1510. If permitting 8.5 miles of transmission line through Bellevue through

two CUP applications were contrary to the code, the City would have rejected PSE’s

application as incomplete. The City’s interpretation of its own code merits deference and

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



arguments for the extension of SMA and SEPA law to a permitting context in which it

does not lawfully apply should be denied.24

Neither the City DSD nor the Hearing Examiner erred in processing the South

Bellevue Segment CUP.

ii. The Hearing Examiner’s factual findings that the Project, expressly including the South Bellevue Segment, satisfies all the LUC 20.20.255 criteria are supported by substantial evidence.

Petitioner would have the Court ignore the Hearing Examiner’s extraordinarily

detailed findings of fact showing how the Project meets the City’s Electric Utility Facility

code. Not only were the Hearing Examiner’s Findings of Fact robust in their detail, they

included scrupulous citations to the 15,000 page hearing record, including references to

the CUP application, the ASA, all three volumes of the EIS, the DSD Staff Report, and

the conditions imposed to ameliorate the specific impacts of rebuilding the line in the

same corridor that it exists today. The 85 Findings of Fact provide a roadmap leading to

his conclusions, including Conclusion of Law 2, that PSE presented credible, unrebutted,

and substantial proof that its CUP application satisfied the criteria under LUC 20.20.255

to merit issuance of the CUP. AR 000886.

In a LUPA proceeding, the Court reviews whether substantial evidence supports

the findings of fact and whether those findings support the conclusions of law. Scott’s

Excavating Vancouver, LLC v. Winlock Props., LLC, 176 Wn. App. 335, 341, 308 P.3d

791 (2013). Substantial evidence is evidence sufficient to persuade a rational fair-minded

person that the premise is true. Id. at 341-42. The evidence is to be viewed by the Court in

24 See, e.g., Hoberg, 76 Wn. App. at 360; City of Redmond, 136 Wn.2d at 46.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



the light most favorable to the prevailing party below, which in this case is PSE. Id. at

342. In instances of where issues of conflicting evidence, witness credibility, and the

persuasiveness of the evidence arise, the Court defers to the finder of fact. Id. The party

challenging a finding of fact bears the burden to show that it is not supported by the

record. Id.

All 85 Findings of Fact are not repeated here, but several critical ones must be

called to the Court’s attention. The ASA that accompanied the CUP application

adequately addressed how PSE analyzed alternative sites (LUC 20.20.255.D.1);

operational and area needs that drove the selection of the specific location (LUC

20.20.255.D.2.c); land use compatibility of adjacent uses in the siting hierarchy, including

residential land use districts (LUC 20.20.255.D.2.d); and the range of technologies

considered (LUC 20.20.255.D.3). Attachment A at 16 (HE Decision, Findings of Fact, ¶

36). The EIS analyzed all 16 miles of lines under a variety of route alternatives, included

analysis of impacts segment by segment, and specifically included the South Bellevue

Segment when concluding the existing route had the fewest environmental impacts. Id. at

17-18 (HE Decision, Findings of Facts, ¶¶ 43-45). The EIS disclosed that the Project

would be built in phases. AR 006866 (EIS at 2-37); AR 000226 (PSE CUP Application at

1); Id. at 18 (HE Decision, Findings of Fact, ¶ 46). The Hearing Examiner himself

expressly found that “[t]he Review Process for the South Bellevue Segment was the

antithesis of any alleged failure to study, failure to disclose, or improper “segmentation”

or piecemealing, as some opponents argued.” Id. at 17 (HE Decision, Findings of Fact, ¶

43).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



The Hearing Examiner’s findings and conclusion that the proposal satisfied LUC

20.20.255 are supported by substantial evidence. CENSE’s contention that “the City

decided that PSE did not have to analyze the Project before it, the South Bellevue

Segment, apparently because PSE had stated that it would – at some indefinite time in the

future – be filing for other permits to finish the larger proposal” is wholly without a

factual basis and must be rejected. CENSE Opening Br. at 31:22-25.

C. The Three-Volume EIS Prepared by Bellevue and the Partner Cities Is Legally Sufficient

There is a logical order to developing an EIS. First, the project to be studied must

be correctly defined: “Proposals - Agencies shall make certain that the proposal that is the

subject of environmental review is properly defined.” WAC 197-11-060(3)(a). Thereafter,

reasonable alternatives are defined and studied.

CENSE last argues that the EIS was inadequate because it never studied the South

Bellevue Segment as a stand-alone alternative to the entire Project. This fails as a matter

of fact and law.

i. The Richards Creek substation and the 3.3 miles of transmission line upgrades (South Bellevue Segment) is not a reasonable alternative to solving the purpose and need for the Energize Eastside Project.

Defining the scope and elements of a project correctly is critical under SEPA,

because the EIS will be the single environmental document that multiple agencies will

later rely on to inform themselves of project impacts prior to making permit decisions.

The scope of an EIS and the scope of a permit do not have to be co-extensive. What gets

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



analyzed in an EIS for a large or complicated proposal is far broader than the focused

examination of specific permits necessary to develop various aspects of the project.

The Washington Department of Ecology (“Ecology”) is responsible for SEPA

rule-making and publishes a handbook to assist SEPA lead agencies in interpreting and

performing SEPA review. The Ecology handbook advises that:

Defining the total proposal involves identifying all the proposal’s related and interdependent pieces. An appropriate environmental review looks at the impacts of all related activities. For example, a proposal involving mining material at one site to be transported and processed at another is a prime example of defining the entire proposal.

Actions are related if they are dependent on each other and would not happen otherwise. Related actions may also be spread over time, such as a project’s construction, operation, and closure phases. Related actions may have a single or several proponents. 25

The purpose of the Energize Eastside Project is to address reliability issues and

comply with federal transmission reliability planning requirements. Specifically, the

Project is needed to improve the reliability Eastside transmission system from the

Sammamish substation in Redmond to the Talbot Hill substation in Renton.

Consequently, the proposal studied in the Energize Eastside EIS (in addition to non-wire

solutions analyzed in the Phase I DEIS) was correctly described as the 16 miles of

transmission lines end-to-end along various routes through Redmond, Bellevue,

Newcastle, and Renton as well as the Richards Creek substation. A proposal that fails to

connect the Sammamish and Talbot Hills substations would not correct the transmission

deficiency. AR 012518-27, 012573-80, 012586-96 (Phase I DEIS describing PSE’s

25 Washington Department of Ecology, Determining whether SEPA is required, https://ecology.wa.gov/Regulations-Permits/SEPA/Environmental-review/SEPA-guidance/Guide-for-lead-agencies/Determining-if-SEPA-is-required (last visited May 12, 2020).

https://ecology.wa.gov/Regulations-Permits/SEPA/Environmental-review/SEPA-guidance/Guide-for-lead-agencies/Determining-if-SEPA-is-required

https://ecology.wa.gov/Regulations-Permits/SEPA/Environmental-review/SEPA-guidance/Guide-for-lead-agencies/Determining-if-SEPA-is-required

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



purpose and need and the overhead transmission line alternative); VRP 000637:12-39:10

(D. Koch Testimony). That different segments might be built at different times does not

make each discrete segment its own a “proposal” for the purposes of SEPA.

Only after a project is fully defined can alternatives be developed. Alternatives to

the proposal must be reasonable (WAC 197-11-440(5)(b)), and only include those

“actions that could feasibly attain or approximate a proposal’s objectives, but at a lower

environmental cost or decreased level of environmental degradation.” The term

“reasonable” is used with the intent of “limit[ing] the number and range of alternatives, as

well as the amount of detailed analysis for each alternative.” WAC 197-11-440(5)(b)(i).

CENSE disregards the purpose and need for which project alternatives were

developed. The Energize Eastside Project is 16 miles of upgraded lines with a new

substation. Reasonable alternatives to PSE’s Energize Eastside would have to feasibly

resolve the transmission reliability deficiency between the Sammamish and Talbot Hill

substations.

No facts whatsoever support the contention that the South Bellevue Segment (3.3

miles and the new substation) is a reasonable alternative that could feasibly solve the

Eastside’s 16-mile transmission reliability deficit. CENSE’s observation, in its Opening

Brief at 37:10-11, that the South Bellevue Segment could “function independently” does

not make it a reasonable alternative to the entire Energize Eastside proposal. 230 kV

transmission lines that run from Talbot Hill to Richards Creek and no further might

function independently (i.e., transmit electricity between two points). In reality, however,

constructing only the Richards Creek substation and 3.3 miles of transmission lines

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



would result in a non-functional system because the new 230 kV substation would not be

connected to a source of 230 kV electricity until the Renton and Newcastle segments are

complete. Even after connecting to the 230 kV Talbot Hill substation, however, building

the south segment alone would preclude 230 kV power from extending all the way to the

Sammamish substation in the north, leaving all customers with a less reliable system.

This would not allow PSE to meet the NERC transmission reliability planning standards

and would leave significant portions of Eastside customers (north of Richards Creek

substation to the Sammamish substation) at risk of unplanned outages. Both NERC and

the WUTC require PSE to provide reliable power to all customers. The Hearing Examiner

found PSE’s engineer Jens Nedrud’s certification that the entire 16 miles would improve

reliability to be credible and unrebutted. Attachment A (HE Decision, Findings of Fact, ¶¶

22a, 28-29, 57b). Building only the South Bellevue Segment is not an alternative solves

PSE’s need. The EIS is not inadequate for not having studied it as a stand-alone

alternative to Energize Eastside.

ii. The EIS is sufficient because it evaluated reasonable alternatives, including the South Bellevue Segment specifically.

PSE defined its broad objectives for the Energize Eastside Project as follows: (1)

address PSE’s identified deficiency in transmission capacity; (2) find a solution that can

be feasibly implemented before system reliability is impaired; (3) be of reasonable Project

cost; (4) meet federal, state, and local regulatory requirements; and (5) address PSE’s

electrical and non-electrical criteria for the Project. AR 001321. The Partner Cities agreed

to conduct a two-phase draft assessment of the project, Phase I of which identified the

need and objectives for the project and evaluated reasonable alternatives to determine

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



whether they could feasibly remedy the 16-mile transmission line deficit between the

Sammamish and Talbot Hill substations.

The Phase I DEIS alternatives to the Project included options such as building

natural gas peaker plants around the Eastside, use of batteries, added conservation

measures, demand side response technologies, and doing nothing (the “No Action”

alternative). AR 012469-70. Each alternative was studied exhaustively in the Phase I

DEIS. Each was found to be incapable of feasibly satisfy the proposal’s objectives. See

AR 012464-13385 (Phase I DEIS).

The Phase II DEIS studied 14 different routing alternatives that could be taken to

over 16-18 miles from Redmond to Renton, and based on public comment and analysis of

environmental impacts, the FEIS specifically analyzed the option of remaining in the

existing corridor (the South Bellevue Segment) as well. AR 006823 (listing required

permits including separate listing of the North and South Bellevue Segment CUPs).

Bellevue’s SEPA official determined that the five alternatives for solving the

transmission reliability deficit in the Eastside, the programmatic impacts of the entire 16-

18 miles of transmission upgrade and the 15 various route segments—specifically

including the South Bellevue Segment—were sufficiently reasonable as to feasibility

(WAC 197-11-440(5)(b)) and as to number (WAC 197-11-440(5)b)(i)).26

26 While the feasibility and number of alternatives studied in a given EIS is case-specific, see, e.g., Citizens All. to Protect Our Wetlands v. Auburn, 126 Wn. 2d 356, 367, 894 P.2d 1300 (1995) (regarding number of alternatives studied in Auburn to replace Emerald Downs racetrack: “The FEIS also examines three sites within Auburn as potential alternatives: Auburn Downs, the Hendley or Riverbend site, and the Glacier Park site. All three contain flaws which render them unfeasible for development into a racetrack. This finding alone is sufficient consideration of alternatives. Auburn nonetheless included Auburn Downs as an alternative site throughout the FEIS. We find the FEIS sufficiently discloses, discusses, and substantiates the lack of alternative sites within the city.”).

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



While the adequacy of an EIS is a question of law that a court reviews de novo, the

SEPA Responsible Official’s determination that the number of solution and route

alternatives examined in the four years and thousands of pages of SEPA review was

sufficient to fully inform the decision-makers of the Project’s impacts must be accorded

substantial weight. RCW 43.21C.090; Pres. Our Islands v. Shorelines Hearings Bd., 133

Wn. App. 503, 539, 137 P.3d 31, 49 (2006), as amended (May 15, 2007), review denied,

162 Wn. 2d 1008, 175 P.3d 1092 (2008).

The Court applies the “rule of reason” when determining the legal sufficiency of

the environmental data contained in the EIS. Preserve our Islands, 133 Wn. App. at 539

(citing Klickitat Cty., 122 Wn. 2d at 633). An EIS is adequate under the rule of reason if it

presents a “reasonably thorough discussion of the significant aspects of the probable

environmental consequences” of the proposed development. Id. (citation omitted).

In light of the four years of study, purposefully phased approach that enabled the

specific examination of need and alternative solutions to overhead wires, and the separate

analysis of route alternatives throughout the Eastside, the numerous technical appendices,

and extraordinary amount of public comments received that informed PSE’s selection of

the least impactful route (remaining in the existing corridor) is it respectfully submitted

that the sufficiency of the EIS should be upheld under the rule of reason.

V. CONCLUSION

The Energize Eastside Project is required to meet federal transmission planning

requirements and Bellevue’s comprehensive plan goals of fostering future growth and

electricity needs. See, e.g., AR 001422-24 (DSD 000109-111); Utilities Element

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



(“Goals”); UT-99 (requiring that PSE provide “highly reliable” electricity). PSE proposes

to upgrade the system in the existing utility corridor. This is the location contemplated for

the upgrade by the City as shown in Map UT-7 in the Bellevue Comprehensive Plan. The

adjacent uses have developed compatibly around the existing 115 kV lines over the last 50

plus years. No changes to existing land uses will occur as a result of the Project. The DSD

Staff Report and PSE’s CUP Application detail how the Project complies with the specific

regulations and goals found within the City’s Comprehensive Plan, CUP, and electric

utility facilities code. PSE respectfully yet firmly posits the review conducted by Bellevue

to keep transmission lines in the same place has been exacting, exhausting and

extraordinary. The Hearing Examiner’s Findings and Conclusions are robust and carefully

cite to evidence well beyond sufficient to support his decision. Issuance of the Energize

Eastside CUP is supported by substantial evidence, is a correct interpretation of the law, is

a correct application of the law to the facts, and complies in all manner with the Bellevue

LUC. As such, the permit for this transmission system to be upgraded in its existing

location should be upheld and the Petitioners’ action be dismissed.

///

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25



DATED this 12th day of May, 2020.

VAN NESS FELDMAN LLP s/ Erin L. Anderson

Erin L. Anderson, WSBA #23282 Sara Leverette, WSBA #44183 Clara Park, WSBA #52255

719 Second Avenue, Suite 1150 Seattle, WA 98104 T: 206-623-9372| F: 206-623-4986 E: [email protected]; [email protected]; [email protected]

Attorneys for Respondent Puget Sound Energy, Inc.

mailto:[email protected]



ATTACHMENT A

DECISION APPROVING CONDITIONAL USE PERMIT FOR THE SOUTH BELLEVUE SEGMENT OF THE ENERGIZE EASTSIDE PROJECT, PUGET SOUND ENERGY, APPLICANT – FILE NO. 17-120556-LB Page 1 of 38

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

BELLEVUE HEARING EXAMINER’S OFFICE

450 – 110TH AVENUE NE P.O. BOX 90012

BELLEVUE, WASHINGTON 98009-9012

Before Hearing Examiner

Gary N. McLean

BEFORE THE HEARING EXAMINER FOR THE CITY OF BELLEVUE

In the Matter of the: Conditional Use Permit Application for the South Bellevue Segment of the Energize Eastside Project PUGET SOUND ENERGY, Applicant ________________________________

) ) ) ) ) ) ) ) ) )

DSD File No. 17-120556-LB FINDINGS OF FACT, CONCLUSIONS, AND DECISION

I. SUMMARY of DECISION.

The applicant has met its burden of proof to demonstrate that a preponderance of the evidence supports the conclusion that its application for a Conditional Use Permit (CUP) merits approval. Accordingly, the pending Conditional Use Permit application is approved, subject to conditions.

II. BACKGROUND and RELEVANT CODE PROVISIONS.

There is no dispute that a conditional use permit is mandated for this project because the application is for new or expanding electrical utility facilities proposed on sensitive sites described and depicted on Figure UT.5a (revised to Map UT-7) of the Utilities Element of the City of Bellevue Comprehensive Plan. (LUC 20.20.255.C; Staff Report, pages 7-8, and Attachment F, a copy of Comp. Plan Map UT-7). In this matter, the Hearing Examiner has jurisdiction to conduct an open record public hearing regarding the Conditional Use Permit application at issue. Under applicable City codes, a CUP is a Process I land use decision processed in accord with LUC 20.35.100-140.

AR 000004


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




As explained in LUC 20.35.140.A, the Hearing Examiner shall approve a project or

approve with modifications if the applicant has demonstrated that the proposal complies with the applicable decision criteria of the Bellevue City Code, and the applicant carries the burden of proof and must demonstrate that a preponderance of the evidence supports the conclusion that the application merits approval or approval with modifications. In all other cases, the Hearing Examiner shall deny the application. The preponderance of the evidence standard is equivalent to “more likely than not.”1 Conditional Use Permit Decision Criteria: The decision criteria for a Conditional Use Permit is found in LUC 20.30B.140, which explains that the City may approve or approve with modifications an application for a conditional use permit if:

A. The conditional use is consistent with the Comprehensive Plan; and B. The design is compatible with and responds to the existing or intended character, appearance, quality of development and physical characteristics of the subject property and immediate vicinity; and C. The conditional use will be served by adequate public facilities including streets, fire protection, and utilities; and D. The conditional use will not be materially detrimental to uses or property in the immediate vicinity of the subject property; and E. The conditional use complies with the applicable requirements of this Code.

Additional Criteria for Electrical Utility Facilities: Because the proposal is to construct or expand electrical facilities, the provisions of the City’s Land Use Code specifically addressing Electrical Utility Facilities, found in LUC 20.20.255.E, must be satisfied. Prior to submittal of any Conditional Use Permit application, a detailed Alternative Siting Analysis was required. See LUC 20.20.255.D. In addition to the requirements set forth above for a Conditional Use Permit, as detailed in Part 20.30B LUC, all proposals to locate or expand electrical utility facilities shall comply with the following:

1. The proposal is consistent with Puget Sound Energy’s System Plan; 2. The design, use, and operation of the electrical utility facility complies with

1 In re Pers. Restraint of Woods, 154 Wn.2d 400, 414 (2005).

AR 000005


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




applicable guidelines, rules, regulations or statutes adopted by state law, or any agency or jurisdiction with authority; 3. The applicant shall demonstrate that an operational need exists that requires the location or expansion at the proposed site; 4. The applicant shall demonstrate that the proposed electrical utility facility improves reliability to the customers served and reliability of the system as a whole, as certified by the applicant’s licensed engineer; 5. For proposals located on sensitive sites as referenced in Figure UT.5a of the Utility Element of the Comprehensive Plan, the applicant shall demonstrate: a. Compliance with the alternative siting analysis requirements of subsection D of this section; b. Where feasible, the preferred site alternative identified in subsection D.2.d of this section is located within the land use district requiring additional service and residential land use districts are avoided when the proposed new or expanded electrical utility facility serves a nonresidential land use district; 6. The proposal shall provide mitigation sufficient to eliminate or minimize long-term impacts to properties located near an electrical utility facility. See LUC 20.20.255.E.

III. ASSOCIATED PERMIT.

Given the scale of the project, a Critical Areas Land Use Permit (CALUP), which is a Process II Administrative Land Use Decision, was also required. The Director approved the CALUP as explained in the same Staff Report issued for the pending Conditional Use Permit. The CALUP was not appealed, so it was not on review as part of the Hearing Examiner’s public hearing process. Specifically, the City thoroughly reviewed application materials for, duly noticed, sought and considered public feedback for, and issued a Critical Areas Land Use Permit for aspects of the South Bellevue Segment of the applicant’s Energize Eastside Project, under File No. 17-120557-LO. Under the City’s code, the CALUP approval is subject to appeal before the Hearing Examiner. Again, no appeal was filed, so the Critical Areas permit stands without modification, as issued, and serves as support for the Conditional

AR 000006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




Use permit addressed in this Decision.2 All findings, conclusions and conditions of approval in the CALUP are now beyond review. Any appeal of this Decision cannot be used to collaterally attack any aspect of the CALUP or determinations made therein. See Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 182, 4 P.3d 123 (2000), and Habitat Watch v. Skagit County, 155 Wn.2d 397, 410–11, 120 P.3d 56 (2005).

IV. RECORD AND EXHIBITS. Exhibits entered into evidence as part of the record, and an audio recording of the public hearing, are maintained by the City of Bellevue, and may be examined or reviewed by contacting the Clerk in the Hearing Examiner’s Office. Throughout the hearing process, some participants were represented by counsel. Matt McFarland and Cheryl Zakrzewski from the Bellevue City Attorney’s Office represented city staff who generated the Staff Report and oversaw preparation of environmental review documents included in the record; Erin Anderson and Sara Leverette, from the Van Ness Feldman law firm, represented the applicant, Puget Sound Energy; Richard Aramburu represented CENSE (Coalition of Eastside Neighborhoods for Sensible Energy); and Larry Johnson represented CSEE (Citizens for Sane Eastside Energy). Exhibits: The Record includes all pre-hearing orders, motions, and briefs filed or issued prior to the public hearing, copies of which are maintained by the Clerk for the Hearing Examiner’s Office, and all exhibits described and numbered on the attached Exhibit List. In sum, the record for this matter is somewhere near 15,000 pages. Hearing Testimony: The following individuals presented testimony under oath at the duly noticed public hearing for the underlying application, which spanned several days, beginning on the evening of March 28th, continuing through March 29th, April 3rd, and April 8, 2019. The following individuals provided testimony at some point on March 28th:

For the City of Bellevue:

Heidi Bedwell, Environmental Planning Manager, and Liz Stead, Land Use Director

2 As a Process II Decision, the CALUP had a 14-day appeal deadline, which expired on February 7, 2019. See LUC 20.35.250.A.3. Any appeals would have been included in the Hearing Examiner’s public hearing process for the project. There were none. See Staff Report for details on relevant dates, including date of issuance and appeal deadline listed on page 2.

AR 000007


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




For the Applicant, PSE:

Dan Koch, PE, Director of Electric Operations; Elizabeth Koch, PE, Director of Planning for PSE; and Jens Nedrud, PE, Manager of Electrical System Planning for PSE.

General Public: Ms. Cofield; Mr. Anderson; Ms. Hirshci; Mr. Bannon; Mr. Alavi; Mr. Dachnahl; Mr. Wallace; Mr. Oleson; Mr. Anderson; Ms. Hansen; Ms. Akiyama; Ms. Smith; Mr. Borgmann; Mr. Funk; Mr. Sutton, Mr. Wagner, Mr. Shay, Mr. Townsend, Mr. Gilchrist, Mr. Yu, Mr. Finkbeiner, Ms. Trescases, Mr. Davis, Mr. Kasner, Dr. Kaner, Ms. Kapela, Ms. Swenson, Ms. Ma, Mr. Fleck, Ms. Talneja.

For CENSE:

Robert McCullough and Dean Apostol. The following individuals provided testimony at some point on March 29th:

For the applicant, PSE:

Lowell Rogers, re: pipeline safety issues; and David Kemp, re: effects of transmission lines on adjacent pipelines.

General Public:

Mr. Halverson, Ms. Jacobson, Mr. Woosley, Ms. Sander, Mr. Joe, Mr. O’Donnell, Ms. Kim, Ms. Dean, Mr. Jaeger, Ms. Keller, Ms. Fischer, Mr. Allred, Mr. Davis, Mr. Zimmerman, Mr. Johnson, Mr. Derdowski, Mr. Rumega, Ms. DeMund, Mr. Elworth, Ms. Elworth, Ms. Stronk, Ms. Ossenkop, Mr. Albert, Mr. Cliff, and Ms. Lopez.

For the applicant, PSE:

Tom Priestley, re: visual impacts.

For CENSE:

Mr. Marsh and Karen Esayian, with legal arguments presented by Mr. Aramburu.

For CSEE:

Mr. Lauckhart, with legal arguments presented by Mr. Johnson.

For the City of Bellevue:

Wolfgang Fieltsch, re: pipeline safety issues.

AR 000008


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




Testimony on April 3rd provided the applicant and staff the opportunity to offer rebuttal testimony to any comments or evidence submitted during the course of the hearing.

Rebuttal testimony from the applicant, PSE:

Mr. Nedrud, Ms. Koch, Mr. Rogers, Mr. Thatcher, Mr. Strauch, and Mr. Koch.

Rebuttal testimony from City staff:

Mr. Johnson, who managed the EIS process from start to finish, Ms. Stead, and Ms. Bedwell, all of whom confirmed that they heard nothing through the course of the hearing that would change their opinions reflected in the EIS and/or Staff Report; and legal arguments from Mr. McFarland.

April 8th was the date used for closing Arguments presented by counsel for the applicant, city staff, CENSE and CSEE.

Given the size of the record and the volume of opposition comments received throughout the process, the Examiner sought to read every exhibit with attention and a fair mind. This involved site visits, to better appreciate comments from local residents, research, and reviewing a lengthy record of public outreach and feedback, administrative reviews, and a multi-phase set of environmental documentation that culminated in a Final EIS, which included detailed review on specifics presented in this pending CUP application. This was not a “small and simple” matter. Instead, it required considerable time and focus. All participants were advised at the close of the hearing that generating a Decision for this application would take significant time and attention. Having completed such review and mindful of the legal standards involved, this Decision is now in order.

V. FINDINGS of FACT.

Based on the entire Record, estimated to be around 15,000 pages, the undersigned Examiner issues the following Findings of Fact. Any statements contained in previous or following sections of this Decision that are deemed to be Findings of Fact are hereby adopted as such and incorporated by reference. 1. In September of 2017, Puget Sound Energy, Inc. (PSE) applied to the City of Bellevue for a Conditional Use Permit and a Critical Areas Land Use Permit for the construction of a new substation and 230 kilovolt (kV) transmission lines that will be located within the Bellevue City Limits. (DSD 000002, 000006, and 000007). 2. The project elements that are at issue in this application are known as the “South Bellevue Segment” of PSE’s Energize Eastside Project.

AR 000009


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




3. The larger “Energize Eastside Project” is the PSE proposal to construct a new substation in Bellevue (the “Richards Creek substation”) and to upgrade 16 miles of two existing 115 kV transmission lines with 230 kV lines running from Redmond to Renton. 4. The Staff Report explains that PSE is applying for permits to construct the Energize Eastside Project in two phases. PSE has applied for permits for the first construction phase of the total Project in Bellevue, unincorporated King County, the City of Newcastle, and the City of Renton. (DSD 000006). 5. The first phase of the Energize Eastside Project in Bellevue (the “South Bellevue Segment”) is fully addressed and analyzed in the 151-page Staff Report, which includes a detailed summary of public comments received (DSD 000086-000102), and ten attachments described as follows:

A. Project Plans B. Alternative Siting Analysis C. PSE South Bellevue Segment CUP Analysis D. Independent Technical Analysis of Energize Eastside (USE2015) E. Vegetation Management Plan F. Comprehensive Plan, Map UT-7 G. Comprehensive Plan Policy Analysis H. Photo Simulations I. Critical Areas Report J. Pole Finishes Report-City of Bellevue (South)

With all attachment materials included, the “Final Combined Staff Report”, as it labeled in the electronic project files, exceeds 1,500 pages. (DSD 000001-001510). 6. The South Bellevue Segment includes construction of a new “Richards Creek” substation and upgrading 3.3 miles (the Bellevue portion) of existing 115 kV transmission lines with 230 kV lines between the existing Lakeside substation and the southern city limits of Bellevue. The remainder of the south portion of the Project continues through Newcastle, unincorporated King County, and Renton. Bellevue only has permitting authority for work proposed in its jurisdiction. The Project and PSE’s specific proposal for the South Bellevue Segment involves the replacement of existing wooden H-frame poles with steel monopoles. Within the existing utility corridor, the proposed pole locations for the rebuilt lines will generally be in the same locations as the existing poles. (DSD 000006). 7. There is no credible dispute that the 3.3 miles of transmission line upgrades that will be part of this South Bellevue Segment are to be constructed within an existing corridor that was established in the late 1920s and early 1930s, and that current uses, including homes and

AR 000010


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




various commercial uses, were developed over time after the original utilities (including PSE powerlines) were installed. In the 1960s, the PSE lines were upgraded from 55 kV to 115 kV, which included replacement of original poles with H-frame poles. (DSD 000232, part of Attachment B to Staff Report, Alternative Siting Analysis). Maintenance has occurred over time, and in 2007, PSE replaced or reframed approximately 200 H-frame structures on the existing corridor. (Final EIS, at Sec. 2.2.1.2.2 re: Overview of the New 230 kV Transmission Lines, included in the Record at DSD 005445-5446). As part of the proposed Energize Eastside Project, the existing, H-frame structures would be replaced primarily with a combination of single-circuit and double-circuit steel monopoles, with some wood poles remaining, particularly near substations. Id. The applicant notes that it identified the need to upgrade the lines within the same corridor to the next higher transmission voltage (230 kV) in the early 1990s, and that the 230 kV upgrade concept has been included in the Bellevue Comprehensive Plan since such time period. (DSD 000233; Testimony of PSE witnesses). 8. The Richards Creek substation, which is needed to step down voltage from 230 kV to 115 kV, will be constructed directly south of PSE’s existing Lakeside switching station. The new substation will be located on parcel 102405-9130 (13625 SE 30th Street), currently used as a PSE pole storage yard. The parcel is 8.46 acres in size and contains critical areas (steep slopes, wetlands, and streams). Access to the substation site is from SE 30th Street. (DSD 000006). 9. Despite some comments, arguments, and requests to the contrary, the City of Bellevue only has jurisdiction over segments of the Energize Eastside Project that lie within the Bellevue City Limits. And, the Hearing Examiner only has jurisdiction to review this pending application, not possible, future applications for other segments in the City that have not been filed. Accordingly, the Examiner’s review has been limited to the 3.3 miles of transmission line upgrades and the new Richards Creek Substation that are proposed within the City of Bellevue, collectively known as the South Bellevue Segment. Purpose and Need for project. 10. The Staff Report credibly explains that the purpose of the Energize Eastside Project is to meet local demand growth and to protect reliability in the Eastside of King County, roughly defined as extending from Redmond in the north to Renton in the south, and between Lake Washington and Lake Sammamish. There is no dispute that it is PSE’s responsibility to plan and operate the electrical system while complying with federal standards and guidelines. (DSD 000008-11; Testimony of Ms. Koch, PSE’s Director of Planning, and Ex. A-7, copy of Ms. Koch’s written remarks provided at the public hearing). Ms. Koch thoroughly explained current federal, regional, and state mandates and regular system audit requirements that electric utilities must meet.

AR 000011


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




11. PSE defines its broad objectives for the Energize Eastside Project as follows:

• Address PSE’s identified deficiency in transmission capacity. • Find a solution that can be feasibly implemented before system reliability is impaired. • Be of reasonable Project cost. • Meet federal, state, and local regulatory requirements. • Address PSE’s electrical and non-electrical criteria for the Project. (DSD 000008).

12. Electricity is currently delivered to the Eastside area through two 230 kV/115 kV bulk electric substations – the Sammamish substation in Redmond and the Talbot Hill substation in Renton – and distributed to neighborhood distribution substations using 115 kV transmission lines (see Staff Report, Figure II-1). Although numerous upgrades have been made to PSE’s 115 kV systems (including new transmission lines), the primary 115 kV transmission lines connecting the Sammamish and Talbot Hill substations have not been upgraded since the 1960s, and no 230 kV-to-115 kV transformer upgrades have been made at these substations. (DSD 000008-11). 13. Since then, the Eastside population has grown from approximately 50,000 to nearly 400,000. Both population and employment growth are expected to continue, but at a slower pace of around 2% per year, according to Puget Sound Regional Council (PSRC) estimates. A report prepared for PSE projects that electrical customer demand on the Eastside will grow at a rate of approximately 2.4% per year through 2024. (Id.). 14. As required by federal regulations, PSE performs annual electric transmission planning studies to determine if there are potential system performance violations (transformer and line overloads) under various operational and forecasted electrical use scenarios. These studies are generally referred to as “reliability assessments.” (Id., and Testimony of PSE witnesses). 15. The need for additional 230 kV-to-115 kV transmission transformer capacity and 230 kV support in the Eastside was identified in the 1993 annual reliability assessment, and has been included in PSE’s Electrical Facilities Plan for King County (System Plan) since that time. In 2009, PSE’s annual reliability assessment found that if one of the Talbot Hill substation transformers failed, it would significantly impair reliability on the Eastside. (DSD 000010). 16. Replacement of a failed 230 kV transformer can take weeks, or even months, to complete depending on the level of failure and other site-specific parameters. Since 2009, other reliability deficits have been identified. These include concerns over the projected future loading on the Talbot Hill substation and increased use of Corrective Action Plans

AR 000012


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




(CAPs) to manage outage risks to customers in this portion of the PSE system. (DSD 000010). 17. Between 2012 and 2015, PSE and the City of Bellevue commissioned three separate studies by two different parties that confirmed the need to address Eastside transmission capacity (DSD 000010):

• City of Bellevue Electrical Reliability Study prepared by Exponent, 2012. • The Quanta Eastside Needs Assessment Report, 2013. • The Quanta Supplemental Eastside Needs Assessment Report, 2015.

18. The Quanta Eastside Needs Assessment Report and Supplemental Eastside Needs Assessment Report, performed by Gentile (with Quanta Technology) for PSE in 2013 and 2015, respectively, confirmed that if growth in demand continued as projected, then the Eastside’s existing grid would not meet federal reliability requirements by the winter of 2017/2018 and the summer of 2018 without the addition of 230 kV-to-115 kV transformer capacity in the Eastside area. (DSD 000010-11). 19. More significantly, and enhancing the credibility of reports submitted by the applicant, the City of Bellevue commissioned a separate study to evaluate PSE’s system, which also confirmed the need for the Energize Eastside Project. And, as part of the EIS prepared for the Energize Eastside Project, Stantec Consulting Services Inc. also reviewed PSE’s analysis and determined that PSE’s approach to the needs assessment determination followed standard industry practice. (DSD 000011; Staff Report, Attachment D, “USE” [Utility System Efficiencies, Inc.] Report, ‘Independent Technical Analysis of Energize Eastside for the City of Bellevue, WA’, dated April 2015; and Stantec Review Memo on the Eastside Needs Assessment Report, July 2015, included in the Record at DSD 000550-559, and referenced throughout the hearing). 20. In June 2018, PSE notified the City of Bellevue that the actual peak demand in the summer of 2017 was equal to the peak demand projected for summer 2018, and warned that during peak summer demand periods CAPs would be in place that include intentional load shedding (rolling blackouts) for Eastside customers. (DSD 000011; Testimony of Mr. Koch, PSE Director of Electric Operations). 21. The application materials and materials referenced in the Staff Report provide a more-detailed explanation regarding the use of load shedding. (Quanta, Supplemental Needs Assessment Report, at DSD 000453). PSE recognizes that applicable federal and regional agencies allow dropping “non-consequential” load for certain contingencies, but does not endorse the practice of intentionally dropping load for serious contingencies in order to meet federal planning requirements. (Id.). All electrical loads modeled in the Needs Assessment work performed for PSE was considered “firm load” and PSE does not consider any of its

AR 000013


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




firm requirements to be non-consequential. This is the practice of most utilities. It is also consistent with the views of virtually all community officials who do not consider intentionally blacking out segments of customers as a responsible way to operate a modern electricity delivery system. (Id.). 22a. At the public hearing, several opponents questioned Mr. Koch’s warning, because they haven’t seen any of the rolling blackouts occur. It appeared as though they viewed his concerns about potential blackouts to be idle threats of doom to generate support for the project that they oppose. The Examiner finds that Mr. Koch, Mr. Nedrud, Ms. Koch, and other PSE witnesses appeared credible and forthright during their testimony presented at the public hearing. Even after hearing challenges and dismissive remarks about their opinions and work related to this project, Mr. Koch, Mr. Nedrud and other PSE witnesses appeared thoughtful and genuinely concerned that the current PSE system could soon be forced to use load-shedding (rolling blackouts) to address problems arising from peak demand on existing substations and powerlines, negatively impacting Bellevue residents and businesses. 22b. At the hearing, Mr. Koch provided a personal account of a meeting that he attended in Woodinville on July 24, 2018, with Emergency Management personnel, during which time the PSE transmission system in that location experienced a rapid cascade of events, one planned de-energization for a work-detail, one involving a squirrel that tripped off a line, all followed by a pole-top fire, resulting in what is known in the industry as an “N minus 1 minus 1 minus 1” (N-1-1(-1)) situation that forced PSE to “drop load” in order to prevent damage to equipment, i.e. the sequence of events caused PSE to intentionally black-out some customers for a period of time because the transmission system exceeded its limits in the area. While this project will not address the problems up in that part of King County, he offered the example to demonstrate that PSE must plan for many unexpected things, not just an occasional tree falling, but many events that, when happening at the same time, cause undue stress on transmission capacity, resulting in unreliable power supply, and possible blackouts. (Testimony of Mr. Koch, and Ex. A-3, a copy of his written remarks provided at the public hearing). 23. Following a request for additional information from the City, PSE explained that it did not perform any analysis on the electrical loads for the August 2017 dates, but that increased air conditioning was a likely contributor. PSE’s planning-level modeling found that both summer and winter peak customer load were driving the need for additional transmission capacity. (Additional information regarding PSE’s determination of operational need is discussed in Section VIII.C of the Staff Report in connection with Electrical Utility Facilities Decision Criteria LUC 20.20.255.E.3). (DSD 000011).

AR 000014


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




24. At the public hearing, PSE witnesses explained how powerlines lose efficiency when they are overheated, and that when severe overloads/overheating occurs, some loads may need to be lowered or turned off to prevent “sparks”, fire, other substantial failures in the electrical system. This is obviously the case during summer months – when high air temperatures combined with heavy electrical loads needed to power infrequently-used but increasingly-common air conditioners, fans, as well as regular system users – all stress the existing electrical transmission system. PSE witnesses explained how hotter lines cannot carry the same loads as they can during cooler weather, making the system less efficient during such hot weather events. Opposition comments that generally challenged the “project need” because there has not been enough discussion and analysis of system loads during summer months were not as credible or reliable as testimony provided by the applicant witnesses, who have the professional training, education, and background to reasonably ascertain that overheated powerlines can cause serious problems. Common sense supports their concerns that extreme heat in summer months, or even like that experienced recently during the past month with area temperatures in the high 80s and low 90s, poses a very real risk of failure for a system that has not been upgraded for decades to address increased demand caused by significant growth in the Eastside of King County. 25. The record includes ample information and evidence to support the need for the pending project. More recent explanations and justifications pointing to risks/overloads that can occur during hot weather only add to the evidence supporting the need for upgraded powerlines in Bellevue and the Eastside. PSE’s planning-level modeling found that both summer and winter peak customer load were driving the need for additional transmission capacity. None of the project opponents provided testimony or evidence of comparable weight or substance as that provided by the applicant or the analysis provided in the Staff Report. 26. Arguments and comments challenging the need for the project because most study information is focused on high demand during cold weather events, and recent winter demand has not been as high as originally forecasted, were not convincing and do not serve as a basis to deny the pending application. This is largely because such arguments fail to recognize that just because the system hasn’t failed yet, does not mean that it cannot at some point in the near future, and the consequences could be severe for Bellevue residents and businesses. PSE witnesses credibly described steps they have taken to address peak demand during winter, as well as summer, to avoid the need to use rolling blackouts. As the applicant has directed attention throughout the record, prudent planning is required by applicable state and federal utility system regulations to assure electrical system reliability. Hoping for warmer winters and cooler summers, or speculating about future battery options, or the generosity of a neighboring utility to help in a pinch, is not enough. No action is not a reasonable approach. Not long ago, it was commonly thought that the tolerance for being without power was about

AR 000015


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




2-3 days. Nowadays, for the vast majority of people, it is little more than the life of a cell phone battery. (Testimony of Mr. Koch; Ex. A-3). 27. Some comments challenged the “need” for the project, arguing that carrying power for loads headed to Canada or other distant locations could be or are already carried by other powerlines; or that simple, local emergency generators could be fired up to produce additional power supply, all somehow clearing up capacity in or generating additional power supply needed for the existing lines, and obviating or delaying the urgency for new lines as proposed in this application. These comments and related arguments run contrary to the City’s unrebutted, independent consultant report on the topic, which provided the following relevant and highly persuasive conclusions regarding the existing 115 kV powerlines and facilities currently located along the Energize Eastside corridor, which specifically includes the South Bellevue Segment at issue in this matter:

[A]n overloaded electrical system overheats. During peak load periods, operators use CAPs to turn off (referred to as opening) lines from either Sammamish or Talbot Hill substation to reduce heating on certain system transformers and lines so that they will not be destroyed. They may be able to keep the Eastside area supplied with electricity, but in doing so large areas of the Eastside may only be fed from one source. If something happens to that source, such as a tree falling into a line, or a car accidentally taking out a pole, or a piece of equipment fails due to fatigue, at that moment the last viable connection to a power source is gone and the lights go out. Even worse, as load continues to grow, or the area hits the coldest winter or hottest summer on record, the operator will be left with a decision: who will have power and who will not. Until the peak period is over, in order to reduce overloads to an acceptable level, large portions of the Eastside area could be left without power. A further possible consequence would be that hospitals, nursing homes, fire departments, police stations and other critical support services must run on emergency power or are without power. In this situation the event has become not just an inconvenience but a hazard. There are a lot of questions surrounding the probability of these events occurring on the Eastside. Most people are likely unaware of how many times an outage is imminent or narrowly avoided. Attempting to specifically predict these events is nearly impossible because of the number of potential scenarios and permutations. Is it an extreme peak? Are 100% conservation levels being met? Is there a system component out for repair? Has an accident removed a piece of equipment from service? Has a natural or man-made disaster occurred that no

AR 000016


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




one thought would ever happen? Was the forecast wrong and loads grew faster than expected? The permutations are endless. Regional electrical reliability is important to local communities. Without a reliable regional backbone, energy generated by a wide variety of sources could not be efficiently delivered to the population areas that need it. All the utilities in the Northwest bear some responsibility to keep the transmission system in working order. However, a local utility’s main role is its customers and each has a legal duty to provide electricity to customers in its service area. The local utility has two roles to play. On the community level, it needs to provide an adequate infrastructure of facilities and equipment that can reliably deliver energy to its local customers. As a regional player, the utility provides its customers access to the larger interconnected system while making sure its system is as reliable as its regional neighbors’ systems and not a detriment to the whole.

The Energize Eastside Project is designed to bring the needed infrastructure to supply the local need. Any regional benefits that it provides would be added benefits of a stronger regional source, but these are not the primary reasons why the project has been proposed. The transmission capacity deficiency is driven primarily by local rather than regional growth. If the entire region surrounding the Eastside was eliminated or disconnected from Sammamish and Talbot Hill substations, and replaced with an independent 230 kV source of power at both ends, the result would be the same. The Eastside 230 -115 kV system as it exists cannot supply the projected load under all circumstances, with the required levels of reliability that the community and neighboring utilities expect. (Stantec Report, at DSD 000557-558).

28. Mr. Nedrud credibly testified that opposition comments relied too heavily on consumption data instead of peak-demand data, which PSE must plan for. He emphasized that the issue is not just about one or a few “what-if” scenarios, but many, and that the through-put in existing lines is just too small. He described how “peak-generators” intended to provide additional power supply would be of no value if the existing lines are too small to carry the load during peak-demand situations. (Testimony of Mr. Nedrud on April 3rd). 29. Responding to challenges and complaints that the data used by PSE to demonstrate “need” for the project is now too old, from 2015 or so, Mr. Nedrud credibly testified that PSE has gone back to review whether deficiencies exist using more current data. He confirmed

AR 000017


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




that PSE analyzed data again, in December of 2016, 2017, and 2018, and that updated data from each time period showed peak-demand exceeding system capacity. Id. Environmental Review and Public Engagement. 30. The Staff Report explains, and Department witnesses testified, that the City of Bellevue, in cooperation with the “Partner Cities” of Kirkland, Newcastle, Redmond, and Renton, conducted an environmental review of the entire Energize Eastside Project over the course of several years. The Partner Cities stipulated that the City of Bellevue would act as the SEPA lead agency. The culmination of the environmental review process was the Final Environmental Impact Statement (EIS) issued on March 1, 2018. The Final EIS built upon the previous Phase 1 Draft EIS and Phase 2 Draft EIS, released in January 2016 and May 2017, respectively. (DSD 000074, and DSD 005404). 31. PSE and the Partner Cities agreed to the rigorous two-phase environmental review. (DSD 000012). During Phase I of the environmental review, the Partner Cities evaluated a broad range of potential technological alternatives to address the identified transmission facility deficit. Phase I review assessed the feasibility and environmental impacts of wire solutions (i.e., overhead, underground and underwater transmission lines, including using Seattle City Light’s existing corridor in the City of Bellevue) and non-wire solutions (ranging from battery storage, distributed solar and the construction of natural gas peak shaving facilities, among others). Id. As PSE witnesses summarized at the public hearing, running high power transmission lines under Lake Washington presents expensive and time-consuming challenges, and using City Light transmission lines is not a viable option for several reasons discussed in the Phase I EIS, including without limitation because it would mean that PSE would have to perform an entire “rebuild” of the existing City Light structures and all conductors along the entire line, and create a new connector-route leading to PSE substations. (Testimony of Mr. Nedrud; and Ph. I EIS, Sec. 2.3.2.3 discussion of Option B, to use Seattle City Light 230kV Overhead Transmission Lines, at DSD 011181). 32. Following the elimination of Project alternatives that were infeasible or failed to meet the Project’s purpose and need, Phase II focused on analyzing the potential environmental impacts of route options for the overhead line alternative. Id. The Phase II Draft EIS and Final EIS analyzed 14 routing alternatives including a north, central and south Bellevue segment. (DSD 005435, listing routing alternatives). The EIS analyzed two central Bellevue routing alternatives (including two by-pass routes that do not cross the East Bellevue Community Council’s (“EBCC’s”) jurisdiction) and four routing alternatives for the south segment. Id.

AR 000018


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




33. The Partner Cities’ analysis confirmed that, of all alternatives and route options analyzed, construction of an upgraded transmission line in the existing corridor best addressed project need while limiting costs and environmental impacts. (DSD 005472, FEIS at 2-45, which reads in relevant part: “At this time, [other than a transmission line upgrade] there are no currently known, widely accepted technologies that PSE would employ that could feasibly and reliably address the transmission capacity deficiency on the Eastside”; and DSD 000014-15 (describing how siting limits environmental impacts). 34. Following the publication of the Phase II DEIS, PSE changed its preferred route alternative from the “Willow 2” route to the “Willow 1” route, the analysis of which provides the basis for this CUP application. PSE explained that it undertook this change in response to data showing that the Willow 1 route, which follows the existing transmission line corridor, was the safest, least impactful route. (See PSE discussion of its preferred site alternative at DSD 000240-41; and PSE Response Brief to Motion to Continue, dated Feb. 11, 2019). 35. All of the option routes considered through the EIS and alternate site review process, including Willow 1, traverse residential land use districts, but PSE determined that utilizing the existing corridor would minimize impacts associated with the Project on surrounding areas. As noted in the Staff Report and confirmed by Department and PSE witnesses at the public hearing, PSE’s decision to use the existing corridor minimizes tree removal as compared to establishing a new corridor and allows for better assessment of potential interactions with the co-located Olympic pipeline. The existing corridor also minimizes the creation of new impacts to adjacent uses, including residential uses. As properties adjacent to the transmission line corridor currently have utility facilities in their viewsheds and neighborhoods, the Willow 1 route has lower impacts compared to establishing a new corridor. (DSD 000044). 36. The Alternative Siting Analysis (included in the Record as Attachment B to the Staff Report) contains sufficient information regarding the methodology employed, the alternative sites analyzed, the technologies considered, and the community outreach undertaken to satisfy the requirements of LUC 20.20.255.D. The Analysis includes numerous appendices addressing Project need, public outreach and input, and tracks the extensive environmental review undertaken in connection with the Project. The Analysis also explains how, by constructing the proposed transmission line facilities in the existing 115 kV transmission line corridor and selecting the Richards Creek substation, site compatibility impacts are limited by this preferred alternative. See LUC 20.20.255.D.2.d. Therefore, PSE’s Alternative Siting Analysis complies with the provisions of LUC 20.20.255.D. (See discussion at DSD 000044).

AR 000019


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




37. As noted in the Staff Report, an EIS is the most detailed form of environmental review required under SEPA and is prepared when an agency determines that it is probable that a project would have significant environmental impacts. The Phase 1 Draft EIS assessed a range of impacts and implications associated with broad alternatives for addressing PSE’s objectives in a non-project, or programmatic, EIS. (DSD 000074). 38. The environmental review undertaken by the Partner Cities and memorialized in the Phase 2 Draft EIS and Final EIS considered the impacts on the environment of the entire Energize Eastside Project throughout each jurisdiction – extending from Redmond in the north to Renton in the south. The Phase 2 Draft EIS incorporated the Phase 1 Draft EIS by reference and presented a project-level environmental review. (DSD 000074). 39. Based on the results of the Phase 2 Draft EIS analysis, PSE refined the proposed route of the transmission lines and associated Project components. The Final EIS assessed PSE’s project level proposed alignment (referenced as “Willow 1”) and considered environmental impacts of the entire Energize Eastside Project in light of this proposed alignment (see Chapters 1, 2, 4, 7, and 8 of the Final EIS). (DSD 000074). 40. While environmental analysis in the Staff Report focused on the impacts reviewed for the portions of the Project currently under consideration in connection with the two Bellevue Permits (specifically this CUP, and the associated, unchallenged Critical Areas permit, identified as Permit Nos. 17-120556-LB and 17-120557-LO), the environmental review in the Final EIS was not limited to any segment or portion of the Energize Eastside Project. Instead, the Final EIS presented a comprehensive environmental assessment of the entire Energize Eastside Project, including a full analysis of potential impacts and cumulative impacts associated with the construction and operation of PSE's proposed alignment. (DSD 000074). 41. Staff properly found and concluded that the Energize Eastside Project Final EIS and supporting documentation fulfill SEPA requirements for the pending proposal and the larger Energize Eastside Project and, consistent with BCC 22.02.020 and WAC 197-11-635, incorporated such documentation into the Staff Report by reference. (DSD 000074). 42. The Examiner concurs. The Final EIS, and the multi-year public outreach process undertaken by the Partner Cities, fulfills applicable SEPA review requirements for the project addressed in this permit. 43. The Final EIS reflects analysis of the South Bellevue Segment based on the application details at issue in this matter. Again, it also includes a full analysis of potential impacts and cumulative impacts associated with the construction and operation of the entire

AR 000020


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




Energize Eastside Project and PSE's proposed alignment. The Final EIS facilitated broad public participation and informed decision-making for both requested permits, the unchallenged CALUP and the Conditional Use Permit addressed herein. The review process for the South Bellevue Segment is the antithesis of any alleged failure to study, failure to disclose, or improper “segmentation” or “piecemealing” as some opponents argued. 44. For instance, the Final EIS explains: “For the Richards Creek substation site and the Bellevue South and Newcastle Segments, the analysis included a review of the project design as presented in the permit applications submitted to Bellevue and Newcastle (PSE, 2017b and PSE, 2017c, respectively). The results below have been revised relative to the Phase 2 Draft EIS, incorporating the more detailed information in the permit applications on pole locations and critical areas (including wetlands, streams, and their buffers). The conclusions regarding significant impacts on land use, however, are the same as presented in the Phase 2 Draft EIS.” (DSD 005495).

45. Instead of using a “general” study, or guesstimate as to what average impacts on views and other aspects of the environment might be, as one might come to expect from a very broad environmental review document, the impacts on views for the Energize Eastside Project were analyzed by “segment” – which is the level of detail that specific neighborhoods frequently demand. See Impact Analysis by Segment in the Final EIS, at DSD 005524, which reads in part: “The following pages summarize the potential impacts on scenic views and the aesthetic environment for PSE’s Proposed Alignment, presented for the Richards Creek substation and by segment. For the Redmond, Bellevue North, Bellevue Central, and Renton Segments, the analysis included a review of refined project design details for PSE’s Proposed Alignment and updated simulations, with results revised relative to the Phase 2 Draft EIS to reflect the new information. For these segments, the new information and analysis have not altered the conclusions presented in the Phase 2 Draft EIS regarding significant impacts to scenic views and the aesthetic environment.”

46. The Final EIS fully disclosed and discussed how the new transmission line project would be developed in segments or phases. See for example the explanation provided in the Sec. 2-37 of the Final EIS, at DSD 005464, which expressly informs the reader, the public, and decision-makers, as follows:

“Construction Phasing and Schedule. Construction of the transmission lines would typically take approximately 12 to 18 months (over two construction phases) and would be constructed concurrently with construction of the Richards Creek substation. Under certain conditions, construction can be accelerated or slowed down depending on the number of crews working at the same time. The project is expected to be built in phases, with the south end (from the Talbot Hill substation to the proposed Richards Creek substation) being the first phase, followed by the north phase as soon as design, permitting, and energization of the south phase would allow. The project needs to be built in two construction phases to keep the Lakeside substation energized,

AR 000021


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




thereby keeping the transmission system on-line to serve customers. During the construction of the south phase, the Lakeside substation will be served from the north and likewise, once the south phase is complete, it will be used to serve the Eastside while the north half is constructed.”

47. Opposition arguments that challenged the pending application as improper “segmentation”, “piecemealing”, an undisclosed last-minute change, a strategic surprise, and the like, are factually incorrect. The Final EIS used to inform the public and decisionmakers in reviewing the pending application fully discloses that the South Bellevue Segment can function independently, and that the new transmission line will be developed in phases. It also explains a public benefit rationale for PSE’s proposed phased construction schedule for the Energize Eastside Project – keeping the transmission system on-line to serve customers during construction. 48. PSE notes that the public review for its Energize Eastside Project has included the following community outreach efforts (See DSD 000043-44; DSD 000249-252; and PSE Response Brief to Motion to Continue, dated Feb. 11, 2019):

• 22 Community Advisory Group-related meetings, including six public open houses, two question and answer sessions, and two online open houses at key project milestones (four CAG meetings, three Sub-Area meetings, and an open house took place in Bellevue);

• Nearly 650 briefings (~320 in Bellevue) with individuals, neighborhoods, cities and other stakeholder groups;

• More than 300 comments and questions received, with more than 1,000 from Bellevue residents;

• 40+ email updates to more than 1,600 subscribers, with 775 residing in Bellevue; • 10 project newsletters to 55,000+ households (20,000+ of which are in Bellevue); • Ongoing outreach to 500+ property owners, including door-to-door and individual

meetings, including approximately 130 parcels in Bellevue; and • Participation in 16 EIS-related public meetings, five of which took place in Bellevue.

49. The Staff Report includes a detailed listing of public notices and public meetings conducted over the last few years regarding the construction of a new transmission line to connect the Talbot Hill and Lakeside substations, including the proposed Richards Creek substation addressed in this permit. See DSD 000086-87. Staff confirmed that public noticing requirements for the pending application were fully satisfied. 50. About 50 local residents, business owners, community leaders and interested citizens testified at the public hearing portion regarding the CUP application, and many live in neighborhoods that already have powerlines in their viewshed if they look at their windows or drive along streets in their community. Given the size of the crowd in the room when the

AR 000022


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




hearing opened, the Examiner granted a request to allow Bellevue residents the opportunity to speak first, followed by people from other places. Most people observed the hearing rules. People offered a wide-range of comments, with project supporters focusing on the need for reliable power in the City, and opponents repeating themes and issues raised in written comments analyzed throughout the EIS process and in the Staff Report. Several of the public witnesses spoke twice. 51. A large share of the public comments opposing the project focused on pipeline safety concerns. The applicant and staff properly note that pipeline safety issues are some of the most detailed topics addressed in mitigation measures and conditions of approval proposed in the FEIS and the Staff Report. Many of the opposition comments and presentations made during the public hearing focused on the “need” issue, with little pushback given to portions of the Staff Report that address how the project can be designed and conditioned to comply with applicable city standards for such facilities. Many opponents questioned whether any alternatives or routes ever really needed to be studied in the first place, reasoning that if there’s no real need, then there is no reason for the project. 52. As noted in previous findings, “need” was analyzed over the past few years, and one thing has not and shows few signs of changing – Bellevue and the Eastside are booming. Even if growth were to grind to a halt, the rapid pace of growth and demand since the 115kv lines along the corridor were last substantially improved, decades ago, makes challenges to “need” and assertions that “demand just does not support the project” problematic. 53. Doing nothing, and simply maintaining the status quo, is not a responsible choice. The Phase 2 Draft EIS concluded that “Under the No Action Alternative, PSE would continue to manage its system in largely the same manner as at present. This includes maintenance programs to reduce the likelihood of equipment failure, and stockpiling additional equipment so that in the event of a failure, repairs could be made as quickly as possible. Implementation of the No Action Alternative would not meet PSE’s objectives for the proposed project, which are to maintain a reliable electrical system and to address a deficiency in transmission capacity on the Eastside. Implementation of the No Action Alternative would increase the risk to the Eastside of power outages or system damage during peak power events.” (Phase 2 DEIS, discussion of No Action Alternative at Sec. 2.1.1, included in the Record at DSD 010246-247, emphasis added). 54. While thoughtful and caring about their homes, neighborhoods, families, neighbors and environmental stewardship, the vast majority of comments opposing the project came from people with personal motivations like potential view impacts they believe will occur if the project goes forward. While some people complained about the existing powerlines and stray static events that can make your hair stand up on a misty day, most opposition witnesses

AR 000023


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




would have to acknowledge that the existing powerlines and utility corridor were already in place when they moved into their homes. Their questions and challenges to details in environmental reviews, load studies, demand studies, and the like, appeared jaded and heavily influenced by their desire to stop the project at any cost, to preserve existing conditions. Some expressed their desire to see all lines removed and the corridor used as a greenway. 55. Like other project opponents, CENSE and CSEE representatives voiced concerns but did not offer sufficient, relevant, authoritative, or credible evidence that would rebut the findings and recommendations made in the Staff Report. 56. The “need” studies, analysis of alternatives, pipeline safety reports and other substantive materials provided by the applicant were thoroughly reviewed, challenged, and revised by Staff and independent consultants engaged by the City to review applicant submittals for this project. Independent consultants confirmed that PSE studies and reports were conducted in a manner generally accepted by professionals specializing a particular subject matter, like system reliability, pipeline safety, pole design and the like.

57a. Again, third-party reviews confirmed the substance of the applicant’s key submittals at issue in this CUP application. At the close of the hearing, attorneys for the two opposition groups, CENSE and CSEE, asked the Examiner to carefully read the Lauckhart and McCullough materials, included in the record, to see how the applicant has failed to satisfy approval criteria, mostly the requirement to show operational need. Having read and re-read the opposition reports and evidence, and the independent studies prepared by Stantec and USE, one finding and conclusion became crystal clear – the applicant reports, forecasts, and data analyses were in compliance with applicable industry standards. The opponents failed to rebut the independent consultant reviews of PSE’s work involved in this application process, all of which concluded that PSE was planning and reviewing data in accord with industry practice and standards. 57b. On the other hand, PSE firmly established that several key aspects of opposition reports were defective and simply not credible, because they failed to follow industry practice. Rebuttal testimony from Mr. Nedrud was powerful and credible. He showed how Mr. McCullough’s presentation, which showed far less demand than PSE forecasts, failed to properly account for several considerations required by industry practice and applicable federal electrical system planning mandates (NERC requirements) described by Ms. Koch during her testimony. Mr. Nedrud showed how Mr. McCullough’s research analysis presented at the hearing only considered current loads to make load forecasts. This leads to erroneous results, because such analysis fails to include consideration of weather events (at peaks/extremes), projections of economic activity, population projections, building permits,

AR 000024


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




and conservation goals. Testimony of Mr. Nedrud, and his rebuttal slides presented at the hearing, included in the record as Ex. A-17. Further, Mr. Nedrud demonstrated how Mr. Marsh’s illustrations challenging demand data used by PSE were problematic, because the focus was on consumption (use) and not peak demand. 57c. Consumption is the amount of electricity that customers use over the course of a year. “Consumption” is also called “use” or “energy”. “Demand” is customer usage at any given moment in time. “Peak Demand” is the maximum amount of electricity that PSE customers will demand at any given time. 57d. The City’s consultant addressed the difference of “use versus demand” in its Independent Technical Analysis:

“Bellevue’s Resource Conservation Manager (RCM) program stats on declining energy use are reflecting a decline in the average use per customer. The DSM programs, solar, etc. are showing success with this decline. But, that is one piece of the story - the energy piece on a per customer basis. The number of customers continues to increase, and the aggregate peak usage (peak demand), is continuing to increase. Growth in peak demand drives the size and amount of infrastructure required and drives the issue of grid reliability.” (USE report, included as Attachment D to the Staff Report, found at DSD 000663-000739, on page 9 of 76; emphasis added).

57e. In October of 2015, the Federal Energy Regulatory Commission (FERC) dismissed a complex challenge to the Energize Eastside Project raised by CENSE, CSEE, Larry Johnson, and others (identified by FERC as “Complainants”), which was supported by sworn testimony from Mr. Lauckhart, CSEE’s principal witness in this matter. The FERC decision includes the following passage, which applies just as well to this Decision: “Complainants discuss alleged flaws in the load flow studies that Puget Sound conducted for the Energize Eastside Project. However, Complainants do not demonstrate that the studies violated any applicable transmission planning requirements or were otherwise unjust, unreasonable, or unduly discriminatory or preferential. Complainants do not cite anything that would require Puget Sound to use the study inputs and assumptions that Complainants prefer instead of the inputs and assumptions that Puget Sound used.” (FERC Order Dismissing Complaint by CENSE, CSEE, et al., issued Oct. 21, 2015, included in the record at DSD 000656, complete Order at DSD 000630-000659). As in the FERC challenge, in this hearing process Mr. Lauckhart alleged flaws in the load flow reports that PSE relied upon to demonstrate need for its Energize Eastside Project, among other things. He did not rebut the favorable reviews provided by independent consultants engaged by the city regarding PSE’s supporting studies. Mr. Lauckhart and other project opponents did not demonstrate that the studies used by PSE violated any applicable transmission planning requirements or were otherwise unjust, unreasonable, or unduly discriminatory or preferential. Opponents do not cite anything that

AR 000025


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




would require PSE to use the study inputs and assumptions that they prefer instead of the inputs and assumptions that PSE used. 58a. Several opposition speakers directed attention to parts of the city’s code that they read to say to that electrical facilities should be located where the need exists. In response, City staff argued that city codes do not mandate an entirely new utility corridor if fewer site compatibility impacts occur in a residential area than some other zoning district, and that the South Bellevue Segment proposal is the most feasible, lowest-impact option, emphasizing that the existing powerline route has been in the same place for decades, that poles have been in place in the same neighborhoods for many years, and that no new right-of-way is required as part of this project. The Staff Report, at pages 41-47, explains how the route selected by PSE has fewer site-compatibility impacts than other options. 58b. Even if the City’s code could be read to require electrical facilities to only locate in areas that benefit or need the new or expanded electrical facility in question, in this situation, that is precisely what is proposed, because “load-shedding” – i.e. rolling blackouts – is currently part of PSE’s corrective action plan (CAP) options in neighborhoods throughout the Eastside, including residential neighborhoods that are located along the route of the South Bellevue Segment. Given these circumstances, there truly is a critical “need” for the project to prevent such problems going forward in the residential areas located along the route. 58c. Pole designs, placement, heights, and wire-connections on poles, were all analyzed to generate conditions that minimize view impacts to the fullest extent reasonable, while still achieving the project objectives, including enhancing the reliability and redundancy in the power-transmission system that serves the City of Bellevue, including neighborhoods and businesses in the area affected by this South Bellevue Segment proposal. 59. The Examiner adopts and incorporates the City of Bellevue’s administrative decision approving the associated Critical Area Land Use Permit (CALUP) issued for this project, under File No. 17-120557-LO, which was not appealed, as unchallenged findings, conclusions, and conditions of approval, that all provide support for the requested Conditional Use Permit, including without limitation:

• Findings and Conclusions re: Critical Areas Report Decision Criteria – General Criteria, LUC 20.25H.255.A.4, on page 104 of the Staff Report, which reads as follows:

The resulting development is compatible with other uses and development in the same land use district.

AR 000026


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




Finding: The project involves the replacement of an existing transmission line; therefore, no change in land use proposed. The proposed substation is located adjacent to an existing substation and other light industrial uses and non-residential development. PSE’s proposal is anticipated by and included in Bellevue’s Comprehensive Plan (see Attachment F [Map UT-7] to this Staff Report). The proposal is limited to the existing corridor, and the Project, as modified, is compatible with and responds to the uses and development that has been built up around the transmission line corridor for decades.

• Findings and Conclusions re: Critical Areas Land Use Permit Decision Criteria – item

4 re: LUC 20.30P.140.D, on page 106 of the Staff Report, which reads as follows:

4. The proposal will be served by adequate public facilities including street, fire protection, and utilities. Finding: The proposed transmission lines will not impact any existing public facility service level. The Phase 1 Draft EIS and Final EIS concluded that the Energize Eastside Project would not significantly increase the demand for public services, or significantly hinder the delivery of services. Refer to Technical Reviews conducted by the Fire, Utilities, and Transportation in Section V of this Staff Report.

• Findings and Conclusions re: Critical Areas Land Use Permit Decision Criteria – item

6, re: LUC 20.30P.140.F, on page 107 of the Staff Report, which reads as follows:

6. The proposal complies with other applicable requirements of this code. Finding: As discussed in Section IV of this Staff Report, PSE’s proposal complies with all other applicable requirements of the Land Use Code.

60. Section IV.A of the Staff Report analyzes and explains how the pending proposal is consistent with applicable Land Use Code and Zoning Requirements, specifically PSE’s obligation to comply with the Alternative Siting Analysis and design requirements found in LUC 20.20.255.D and 20.20.255.F, which apply to Electrical Utility Facilities. (See Staff Report at page 41). Given that the Critical Areas Land Use Permit was not appealed, any arguments or opposition to the requested Conditional Use Permit that are based on challenges to the Alternative Siting Analysis or design requirements found in the Land Use Code must fail. All findings, conclusions and conditions of approval in the CALUP are now beyond review. Any appeal of this Decision cannot be used to collaterally attack any aspect of the CALUP or determinations made therein. (See Wenatchee Sportsmen Ass’n v. Chelan County, 141 Wn.2d 169, 182, 4 P.3d 123 (2000), and Habitat Watch v. Skagit County, 155 Wn.2d 397, 410–11, 120 P.3d 56 (2005)).

61. City staff appropriately relied upon the Final EIS in its review of the requested CUP, and in crafting proposed conditions of approval for the South Bellevue Segment project. The

AR 000027


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




potential impacts studied in the EIS included a comprehensive set of worst-case scenarios and detailed mitigation measures for the larger project as well as this specific portion of the larger Energize Eastside Project, all of which should serve to adequately avoid, minimize, rectify, reduce, or eliminate adverse impacts associated with the South Bellevue Segment proposal. Several items in the conditions of approval require monitoring and data collection as part of the project, to assure that powerline/pipeline conflicts do not result in adverse impacts. (See Conditions of Approval, including without limitation No. 17, mandating that PSE must file a mitigation and monitoring report with the City documenting consultations held with Olympic Pipeline to address pipeline safety related issues at least quarterly during construction, and post start-up monitoring to ensure that mitigation measures related to operational issues are followed, at DSD 000144). Olympic Pipeline System. 62. At the public hearing, multiple local residents expressed their genuine and legitimate concerns with hazards posed by existing electrical lines spanning over the Olympic petroleum pipeline though the City of Bellevue. Similar concerns were already provided in written comments summarized in the Staff Report, including without limitation at DSD 000093. 63. The Olympic Pipeline system is an underground petroleum pipeline system that is co-located with the existing PSE 115 kV transmission line corridor throughout the entire Energize Eastside Project area, except in the central portion of the Renton Segment. The Olympic Pipeline system is a 400-mile interstate pipeline system that runs from Blaine, Washington to Portland, Oregon. The system transports gasoline, diesel, and jet fuel through two pipelines – one 16 inches and one 20 inches in diameter. In the Energize Eastside Project area, the pipelines are generally co-located with PSE’s transmission line within all of the segments, although in the Renton Segment it only co-located in the north portion of the segment (although it crosses the corridor in the southern portion of the segment). (DSD 005451). 64. The PSE transmission line corridor predates the pipeline by approximately three decades. (Id.; Testimony of PSE witnesses). 65. In most of the segments, the pipeline system is along either the east or west side of the PSE right-of-way, crisscrossing the right-of-way from east or west in numerous locations. In parts of the corridor (especially the Newcastle Segment), however, the pipeline system is buried in the center of the right-of-way. BP is the operator of the Olympic Pipeline system, and partial owner of the Olympic Pipe Line Company, with Enbridge, Inc. (Olympic Pipe Line Company, 2017). Typically, the proposed poles would be located at least 13 feet from

AR 000028


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




the Olympic Pipeline system where it is co-located with the transmission lines to reduce the need for additional arc shielding protection. (DSD 005451). 66. Due to the level of public concern expressed during scoping for both Phase 1 and Phase 2 regarding the potential risk of a leak, fire, or explosion that could occur as a result of constructing or operating the transmission lines in the same corridor as the Olympic Pipeline system, the pipeline safety issue is addressed specifically as one of two environmental health issues. Information on pipeline safety, both during construction and operation, is presented in the Final EIS, at Sections 4.9 and 5.9, re: Environmental Health – Pipeline Safety. (DSD 005451). 67. As the City’s Land Use Director, Ms. Stead, noted during her testimony, the Final EIS concludes that the potential for conflicts/risks involving PSE powerlines and the Olympic Pipeline running beneath most all of the corridor in question will be lower or about the same with the project than with no action. 68. The Final EIS provides the following “Impact Conclusion for PSE’s Proposed Alignment”, which expressly includes the South Bellevue Segment addressed in this permit:

Based on the results of the risk assessment, the probability of a pipeline release and fire occurring and resulting in fatalities remains low under PSE’s Proposed Alignment. However, the potential public safety impacts would be significant if this unlikely event were to occur. Under PSE’s Proposed Alignment, including mitigation for corrosion and arc risk incorporated into the design, the probability of a significant pipeline safety incident would likely be the same or lower than the No Action Alternative. Because of the variability of soils, it is possible that the arcing risk could be slightly higher in some locations when compared with the No Action Alternative. In these areas, testing, monitoring, engineering analysis, and implementation of mitigation measures would lower these risks. See Section 4.9.8, Mitigation Measures for measures that would lower the risks. The individual and societal risks described in Section 3.9.5.2 of the Phase 2 Draft EIS would be similar across all segments of PSE’s Proposed Alignment. The risk would be proportional to the distance that the transmission lines are co-located with the Olympic Pipeline system. For PSE's Proposed Alignment, the Renton Segment has the lowest number of co-located miles. Table 4.9-1 lists the length of the Olympic Pipeline system (both the 20-inch and 16-inch diameter pipelines) collocated with the transmission lines in each segment. As described above, the lack of available data for existing fault and arc distance conditions required the risk assessment to use certain assumptions for the No Action Alternative condition that would allow for a worst-case analysis of the proposed 230 kV lines. Using these assumptions likely understates the existing risk (No Action), thereby possibly overstating the actual difference in risk between the No Action Alternative and PSE’s Proposed Alignment. The likelihood of a pipeline rupture and fire would remain low, with no substantial change in risk. As a result, the potential impact on environmental health with regard to pipeline safety is not considered

AR 000029


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




significant. With implementation of the mitigation described in Section 4.9.8 of this Final EIS, conditions related to potential for fault damage due to coating stress and arc distances would likely improve under PSE’s Proposed Alignment over the existing operational baseline condition (No Action Alternative) (DNV GL, 2016 – A Detailed Approach to Assess AC Interference Levels Between the Energize Eastside Transmission Line Project and the Existing Olympic Pipelines, OLP16 & OPL20. Memo to Puget Sound Energy, dated September 9, 2016. Note 15 on page 15 of the Staff Report [DSD 000015] explains that the entire DNV GL 2016 report is included in the Phase 2 Energize Eastside Project EIS materials, and is included in the DSD official files for Permit Nos. 17-120556-LB and 17-120557-LO). For additional details about the analysis of risks under Alternative 1, see the Pipeline Safety Technical Report (EDM Services, 2017).

(FEIS, Chapter 4.9 Re: “Environmental Health – Pipeline Safety”, at DSD 005699. Full discussion and thorough analysis of Pipeline Safety topics provided on pages DSD 005676-005715. Proposed mitigation measures re: pipeline safety issues are addressed on pages DSD 005714-15).

69. Wolfgang Fieltsch is a qualified expert on issues regarding pipeline safety, particularly when pipelines are located in corridors near powerlines such as the case presented in this matter. During the public hearing, Mr. Fieltsch testified within his area of expertise. His testimony was credible.

70. At the public hearing, the City called Mr. Fieltsch, a recognized expert in the field of pipeline corrosion and safety issues where pipelines are co-located near powerlines, which he testified is very common. Mr. Fieltsch was retained by the City to serve as its independent expert on pipeline safety issues. He verified that he reviewed the DEN GL report (submitted by the applicant) and summarized some of his work performed to address pipeline safety issues discussed in the Environmental Impact Statement. He explained how mitigation measures proposed in the EIS should result in a powerline/pole design that will include “optimal phase arrangement” among other things, to cancel much of the potential AC interference problems that could occur. 71. Mr. Fieltsch’s written report illustrates how the environmental review process for this project has resulted in design changes and strict mitigation requirements that make the proposal less likely to cause adverse impacts, particularly with respect to pipeline safety. His professional opinion on the subject served as the basis for additional mitigation measures addressed in the Final EIS, and the specific pipeline safety related conditions of approval proposed in the Staff Report. The Fieltsch Report, identified as the TECHNICAL REVIEW re: ENERGIZE EASTSIDE AC INTERFERENCE ANALYSIS, dated May 2, 2017, prepared by Wolfgang Fieltsch, P. Eng. Team Lead – CP and AC Mitigation, for Stantec Consulting Services, which was prepared for the Energize Eastside EIS review team, is included in the Record at DSD 004532-4539, and provides the following detailed “Opinion” and recommendations:

AR 000030


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




The primary objective of the AC interference study performed by DNV GL was to perform a sensitivity analysis to determine the optimal route and powerline configuration to minimize the AC interference risks on the two collocated pipelines. An optimal route, phasing, and conductor orientation was selected to minimize the steady-state induced AC voltages on the paralleling pipelines. Shield wires were recommended to minimize the conductive coupling and arcing risks due to a phase -to -ground fault on the powerline structures. Based on Stantec’s experience and industry standards, it is our opinion that the technical approach used to achieve this objective in the subject AC interference study is consistent with industry practice. The report concluded that the modeling indicated that selection of the recommended optimal route and configuration would result in no AC mitigation requirements on the pipelines. The report further recommends that final mitigation design should be based on field data collected after system energization. In Stantec’s opinion, although the study and modeling performed is sufficient as a sensitivity analysis, it cannot be used to determine the mitigation requirements for the pipelines related to the final design of the powerlines. Furthermore, mitigation based on field testing after energization is also not an acceptable approach, as measurements can only be taken at test stations, which are not necessarily located at locations with highest induced AC voltages and at greatest AC corrosion risk. Additionally, it is not possible to assess safety and integrity risks under powerline fault conditions in the field. DSD 004537 As such, we recommend the following be performed in the detailed design stage of the project prior to energization of the new powerline:

• Perform an AC interference study incorporating the final powerline route, configuration, and operating parameters. • Obtain and incorporate all of the pipeline parameters required for detailed modeling and study (i.e., locations and details of above-grade pipeline appurtenances/stations, bonds, anodes, mitigation, etc.). This should include a review of the annual test post Cathodic Protection (CP) survey data. • Fully assess the safety and coating stress risks for phase-to-ground faults at powerline structures along the entire area of collocation. This assessment should include both inductive and resistive coupling. • Fully assess the safety and AC corrosion risks under steady-state operating conditions on the powerline. • Reassess the safe separation distance to minimize arcing risk based on NACE SP0177 and considering the findings in CEA 239T817. • Ensure that the separation distance between the pipelines and the powerline structures exceeds the safe distance required to avoid electrical arcing. • Design AC mitigation (as required) to ensure that all safety and integrity risks have been fully mitigated along the collocated pipelines. • Design monitoring systems to monitor the AC corrosion risks along the pipelines. • Install and commission the AC mitigation and monitoring systems prior to energization of

AR 000031


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




the 230 kV powerline. • After energization, perform a site survey to ensure that all AC interference risks have been fully mitigated under steady-state operation of the powerline.

Based on the sensitivity analysis performed by DNV GL, it is Stantec’s opinion that any remaining AC interference risks to the pipeline identified in the detailed design stage of the project can readily be mitigated via use of standard mitigation strategies. (DSD 004538).

72. The Fieltsch Opinion is largely mirrored in the mitigation measures recommended in the EIS, at DSD 5712-5715, and the proposed pipeline safety related conditions of approval (which include about 23 subparts) addressed in the Staff Report at pages 78-80, 134-137 and 143-146. 73. Pipeline safety arguments against the requested permit were not persuasive, as most all opposition comments based on pipeline coordination and the like are fully addressed in specific conditions of approval that should serve to improve the overall safety and oversight of the Olympic pipeline that runs beneath most portions of the existing powerlines. Opponents did not present any expert testimony to rebut evidence included in the Staff Report, the FEIS, or witness testimony, which established that specific conditions of approval can be included as part of this permit to prevent/avoid/mitigate/minimize potential adverse impacts that could arise due to construction and operation of the powerlines over the Olympic Pipeline. 74. The pipeline risk analyses provided in the record consistently explain that some of the highest risks of pipeline ruptures/emergency incidents occur when people are digging or performing construction work in close proximity to a petroleum pipeline. The Conditions of Approval recommended for the requested permit should serve to enhance and hopefully improve public safety by reducing current risks, as the pipeline corridor will be the subject of strict oversight by city officials and greater public awareness, compared with the complacency or inattention by residents and regulators that often accompanies conditions that have gone unchanged for many years, i.e. where an aging petroleum pipeline runs through neighborhoods beneath high transmission power lines. Discussion. 75. The Staff Report explains that, with the exception of comments from various agencies and tribes, virtually all written comments submitted before its issuance opposed or challenged the pending permit. (DSD 000087). At the public hearing, and in written comments submitted as part of the public hearing process, the balance of comments was more balanced. About twenty speakers expressed support for the CUP application, while about thirty people expressed their opposition. In any event, land use decisions may not be based solely upon

AR 000032


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




community displeasure. Maranatha Mining v. Pierce County, 59 Wn. App. 795, at 804 (Div. II, 1990). In Maranatha, the court overturned denial of a permit, because the local agency disregarded the record before it, basing its decision instead "on community displeasure and not on reasons backed by policies and standards as the law requires." Maranatha, 59 Wn. App. at 805. 76. The record in this hearing process includes a reflection of broad support for reliable and consistent electric service throughout the City of Bellevue. 77. The themes and topics raised in opposition comments from concerned citizens were fully vetted and analyzed by Staff and consultants who aided in preparation of the multi-year effort to generate the Final Environmental Impact Statement. Speculation about alternatives and skepticism about PSE’s study data used to demonstrate “need” for the project is healthy, and it led to a thorough analysis of almost every substantive comment or suggestion made by topic throughout the review process. In the end, the City’s independent consultant verified “need”, and the thorough EIS lays out specific mitigation measures that should apply to the project, leading Staff to recommend approval, subject to lengthy and detailed conditions of approval. Written comments about potential view impacts, especially those in the Somerset neighborhood, were thoroughly analyzed in the Staff Report. Many speakers reiterated their aesthetic/viewshed concerns at the public hearing, even though the project includes design changes and conditions of approval intended to address such issues. (See Staff Report, at page 119, and Finding 83(B) below). 78. Several public comments expressed opposition to the project without reservation, and discounted all studies, reports, or proposed conditions to the contrary. Again, community displeasure alone cannot be the basis of a permit denial. Kenart & Assocs. v. Skagit Cy., 37 Wn. App. 295, 303, 680 P.2d 439, review denied, 101 Wn.2d 1021 (1984). Multiple studies regarding “need” and alternative site analysis are included in the Record. Substantial evidence in the Record – far more than the preponderance needed – establishes that the requested permit satisfies all applicable approval criteria. Accordingly, the city code mandates that the permit shall be approved, subject to conditions. 79. While opposition testimony, presentations, and materials were thoughtful and well-organized for the most part, none of the individuals testifying at the hearing or submitting written comments opposing the project offered any persuasive expert reports, studies or other compelling environmental analysis that would rebut the expert reports, certifications and/or environmental analyses provided by the applicant, staff, or independent consultants engaged by the City.

AR 000033


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




80. The findings, recommendations and conclusions provided in the environmental documentation submitted on behalf of the applicant, as well as the City’s reviewing consultant reports, are credible and well-reasoned summaries of complicated regulations, conditions, possible impacts and appropriate mitigation measures associated with the South Bellevue Segment proposal. No person or organization presented comparable expert witnesses or evidence with power transmission system planning, engineering, pipeline safety, urban planning, design, or other relevant credentials to support opposing views. 81. The Staff Report includes a number of specific findings and conditions that establish how the pending CUP application satisfies provisions of applicable law and/or can be conditioned to comply with applicable codes and policies. Except as modified in this Decision, all Findings contained in the Staff Report for the pending Conditional Use Permit are incorporated herein by reference as Findings of the undersigned hearing examiner.3 82. In sum, city staff review was robust, thorough, and challenging to the applicant – as it should be in a project of this scale and impact on local residents. As shown above, real, substantive changes that will benefit affected parties, the city, and even the applicant, have been made to the project from its initial conceptual notion to the present as a result of public feedback, staff review, and exhaustive studies on various aspects of the project. The application satisfies the City’s decision criteria for a Conditional Use Permit. 83. As noted above, the City’s decision criteria for the pending conditional use permit is found in LUC 20.30B.140. Unlike the decision criteria specifically applied to electrical facilities in LUC 20.20.255, the general conditional use permit requirements are the same as would be applied to any conditional use permit decision. Applying facts and evidence in the record to the decision criteria for a Conditional Use Permit (found in LUC 20.30B.140.A-E), the Examiner finds and concludes as follows: A. The conditional use is consistent with the Comprehensive Plan. Staff Report, Attachment G, detailed review of Comprehensive Plan – Policy Analysis, addressing more than 59 Comp. Plan Policies, at DSD 000892-000918; Staff Report, analysis provided on pages 113-119; Application materials at DSD 000600-617; EIS at DSD 005495, 005502-3; Testimony of B. The design is compatible with and responds to the existing or intended character, appearance, quality of development and physical characteristics of the subject property

3 For purposes of brevity, only certain Findings from the Staff Report are highlighted for discussion in this Decision, and others are summarized, but any mention or omission of particular findings or analysis provided in the Staff Report should not be viewed to diminish their full meaning and effect, except as modified herein.

AR 000034


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




and immediate vicinity. Staff Report, pages 119-120, and pages 133-134, mandating “pole finishes” to reduce aesthetic impacts, implementing recommendations set forth in Pole Finishes Report, Attachment J to Staff Report, at DSD 001465-001510; EIS at DSD 005502-03, 005520, 005525, 005540-5546, 005495, 010303, 010325-26; and application materials at DSD 000617-618. Because so much testimony came from speakers with concerns about potential impacts on views in the Somerset neighborhood, the following excerpt from page 119 of the Staff Report is incorporated as findings supporting this decision as it provides a detailed summary of site-specific changes that have been made in the design to address such concerns, in addition to a thorough consideration of trees, pole-heights, and pipeline safety in the Somerset neighborhood:

PSE’s proposal is designed to respond to the existing and intended character appearance, quality of development, and physical characteristics of the subject property and the immediate vicinity. Because the Project is sited in an existing corridor shared with another utility (the Olympic Pipeline system), the Project will not introduce a change in land use. It will consolidate the lines onto fewer poles, which, although larger, will not increase visual clutter and could reduce it in some areas. Various pole treatments will be employed to complement the natural environment, and vegetation management will maintain the general appearance of landscaping in a similar manner as the present. Although a number of trees will be removed, the remaining and proposed trees will partially screen views of the taller poles. Likewise, the proposed substation will be screened by a slope and native vegetation. Reinstallation of telecommunications facilities on the same transmission facilities following construction will ensure that there will not be an increase in the number of telecommunications facilities to the maximum extent feasible. The City’s Comprehensive Plan states that electrical utility facilities should be designed, constructed, and maintained to minimize the impact on surrounding neighborhoods (UT-8). The Somerset neighborhood developed around the transmission line corridor, so the increase in height of the current transmission line is not a new use. In the portion of the existing corridor within the Somerset neighborhood where the Project will significantly impact neighborhood character (see Figure 4.2-12 in the Final EIS), the pole design was modified to reduce the necessary height, using dual monopoles instead of single monopoles preferred in other locations within the corridor. These modifications to pole design respond to the existing physical characteristics of the Somerset neighborhood, which has lower building and vegetation heights than other areas of the corridor. The visual impacts in this area, while considered significant, will not cause blight, as defined in the Revised Code of Washington (RCW) 35.81.015, or cause substantial dilapidation or deterioration in this portion of the Somerset neighborhood. Further modifications to necessary pole heights within the Somerset neighborhood would increase the number of poles in the neighborhood and result in additional impacts to the character and appearance of the immediate vicinity. For example, the City requested that PSE provide additional information regarding pole heights in the Somerset neighborhood as part of the land use process. The analysis provided in response by PSE indicates that pole heights in the Somerset neighborhood could, on average, be reduced by around 16 feet. In order to facilitate this further reduction in pole height, however, the number of poles would more than double (approximately 24 additional poles) and poles would be sited on properties that do not have poles currently (approximately 17 poles sited on new properties). (PSE 9-21-18).

AR 000035


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




An increase in the number of poles in the Somerset neighborhood would also impact the physical characteristics of the corridor and the immediate vicinity because the quantity of excavation would more than double due to the increased number of poles. Similarly, additional vegetation impacts, including additional tree removal and fewer replanting options, would occur in the immediate vicinity of the shorter poles. With taller poles, the conductors are installed with more sag (i.e., they curve more), so the conductor attachment poles are farther from the ground, which allows for taller vegetation options. Thus, the increase in pole number required for shorter poles would result in increased excavation, more tree removal to accommodate the additional poles, and fewer screening options for both the existing and new pole locations within the corridor. Shorter poles (or a significant increase in the number of poles) may also increase the potential for interaction with the co-located Olympic pipeline. While increased EMF levels and potential interaction with the pipeline are unrelated to the visual impacts to the Somerset neighborhood identified in the Final EIS, this information does suggest that the current proposal strikes a better balance. The Comprehensive Plan lacks policies to protect private residential views. Nevertheless, because building and vegetation heights are lower in the Somerset neighborhood than other areas of the corridor due to private covenants, viewer sensitivity in portions of Somerset is higher than in other areas of the corridor. It is recognized that the contrast between the taller poles proposed by the Project and the current pole heights in Somerset, combined with high viewer sensitivity, could cause some Somerset residents to choose to move. However, the entire residential community surrounding the transmission line has been built next to the existing corridor, and the Project, as modified, is consistent with and responds to the existing or intended character, appearance, quality of development, and physical characteristics the Somerset community. Despite the visual impacts identified in the Final EIS, the Somerset neighborhood will continue to be a healthy, vibrant, and unique community. With the Conditions of Approval specified below for aesthetic impacts and vegetation management, the Project is consistent with LUC 20.30B.140.B.

C. The conditional use will be served by adequate public facilities including streets, fire protection, and utilities. On this topic, there was minimal, if any, material dispute that this criterion has been fully satisfied. Staff Report, pages 121-122, and discussion of relevant technical reviews on the subject that appears on pages 70-73; Application materials at DSD 000618-621; EIS at 005420. D. The conditional use will not be materially detrimental to uses or property in the immediate vicinity of the subject property. Staff Report at 121-122; Application materials at DSD 000618-621; EIS at DSD 005502-3, 005525, 005540-5546, 005495. E. The conditional use complies with the applicable requirements of this Code. As conditioned, the pending Conditional Use Permit application meets the applicable

AR 000036


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




performance standards and requirements included in the City’s Land Use Code; Staff Report, page 122, and pages 107-113; Application materials at DSD 000621. The application satisfies the City’s additional criteria for Electrical Utility Facilities. 84. Because the proposal is to construct or expand electrical facilities, the provisions of the City’s Land Use Code specifically addressing Electrical Utility Facilities, found in LUC 20.20.255, must be satisfied. Prior to submittal of any Conditional Use Permit application, a detailed Alternative Siting Analysis was required. See LUC 20.20.255.D. Applying the facts and evidence in the record to the additional requirements for new or expanding electrical utility facilities, as detailed in LUC 20.20.255.E.1-6 and .F, the Examiner finds and concludes as follows: A. Re: 255.E.1. The proposal is consistent with Puget Sound Energy’s System Plan. Testimony of PSE Manager of System Planning, Jens Nedrud; Staff Report at pages 107-108; Application materials at DSD 000621, which reads in relevant part as follows: “The need for additional 230 kV capacity in the Eastside region was identified, and has been included in PSE’s Electrical Facilities Plan for King County (“Plan”), since 1993. As explained in the Plan, “[t]he 230 kV sources for the 115 kV system in northeast King County are primarily the Sammamish and Talbot Hill substation. The loads on the 230-115 kV transformers in these stations will be high enough to require new sources of transformation.” Additionally, the “Lakeside 230 kV Substation project [now referred to as Energize Eastside] will rebuild two existing 115 kV lines to 230 kV between Sammamish and Lakeside [where PSE proposes the construction of the Richards Creek substation], and between Lakeside and Talbot Hill.” B. Re: 255.E.2. The design, use, and operation of the electrical utility facility complies with applicable guidelines, rules, regulations or statutes adopted by state law, or any agency or jurisdiction with authority. Staff Report at pages 108-109; Application materials at DSD 000621-622; Testimony of Ms. Koch. C. Re: 255.E.3. The applicant demonstrated that an operational need exists that requires the location or expansion at the proposed site. Staff Report at pages 109-111, noting that between 2012 and 2015, PSE and the City commissioned three separate studies confirming the need to address Eastside transmission capacity. The Staff Report relies on the analysis in the USE Report verifying operational need, and the entire USE Report, and the other studies commissioned by PSE on the subject of need, are attached to the Staff Report and included in the Record for this matter. See DSD 000663-739, the “USE” Report, commissioned by the City. The review on “need” went further, as an independent electrical system planning and engineering consultant (Stantec) reviewed PSE’s needs assessment as

AR 000037


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




part of the EIS process and found PSE’s assessment “very thorough” and concluded that PSE had followed standard industry practice. See DSD 004521-4531, the Stantec Report. The Staff Report explains that the City’s Comprehensive Plan shows a potential need to expand both the transmission line and the Lakeside substation [the “Richards Creek substation”), which are the two parts of the pending CUP application. See Comp. Plan Map UT-7, at DSD 000891, showing general locations and conceptual alignments for PSE’s planned facilities in the City of Bellevue. See Finding 84(F), below. D. Re: 255.E.4. The applicant demonstrated that the proposed electrical utility facility improves reliability to the customers served and reliability of the system as a whole, as certified by the applicant’s licensed engineer. Same as item C, above; Testimony of Mr. Nedrud, a Washington State licensed engineer and PSE’s Manager of System Planning; Mr. Nedrud’s July 20, 2017 reliability certification letter to Ms. Bedwell, the City’s Environmental Planning Manager, referenced at page 111 of the Staff Report, included in the record at DSD 000661-662; Staff Report discussion on page 111; Application materials at pages 000623-626; EIS at DSD 005438, 005413-15, 011102-5, and 011168-70. E. Re: 255.E.5.a. Because the proposal is located on sensitive sites as referenced in Figure UT.5a (now Map UT-7) of the Utility Element of the Comprehensive Plan, the applicant fully complied with the Alternative Siting Analysis requirements of LUC 20.20.255.D. Staff Report, pages 41-44 and 111-113; Application materials at DSD 000623 and 626; DSD 011049-747, Ph. 1 Draft EIS, evaluating technological alternatives; DSD 010205-11048, Ph. II Draft EIS, evaluating siting alternatives. See entire Alternative Sighting Analysis included as Attachment “B” to the Staff Report, at DSD 000222-597. See Findings 59 and 60 above, and Finding and Conclusion No. 6 in the CALUP issued for this proposal. F. Re: 255.E.5.b. Where feasible, the preferred site alternative is located within the land use district requiring additional service and residential land use districts are avoided when the proposed new or expanded electrical utility facility serves a nonresidential land use district. As explained in the five separate studies performed by four separate parties confirming the need to address Eastside transmission capacity – 1) Electrical Reliability Study by Exponent, 2012 (City of Bellevue); 2) Eastside Needs Assessment Report by Quanta Services, 2013 (PSE); 3) Supplemental Eastside Needs Assessment Report by Quanta Services, 2015 (PSE); 4) Independent Technical Analysis by Utility Systems Efficiencies, Inc. (“USE”), 2015 (City of Bellevue); and 5) Review Memo by Stantec Consulting Services Inc., 2015 (EIS consultant), all of which are provided in the Alternative Siting Analysis – PSE’s proposed transmission line upgrade is responsive to projected growth in the Eastside generally and the City of Bellevue specifically. Even if the City’s code could be read to require electrical facilities to only locate in areas that benefit or need the

AR 000038


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




new or expanded electrical facility in question, in this situation, that is precisely what is proposed, because “load-shedding” – i.e. rolling blackouts – is currently part of PSE’s corrective action plan (CAP) options in neighborhoods throughout the Eastside, including residential neighborhoods that are located along the route of the South Bellevue Segment. Given these circumstances, there truly is a critical “need” for the project to prevent such problems going forward in the residential land use districts located along the route. G. Re: 255.E.6. The proposal, as conditioned, will provide mitigation sufficient to eliminate or minimize long-term impacts to properties located near an electrical utility facility. Staff Report, at page 113, and Conditions of Approval on pages 124-146. Mitigation measures and conditions include requirements to address impacts related to visual impact, tree and vegetation removal, pipeline safety, historic and cultural resource protection, among other things. See full discussion of mitigation measures, conditions and requirements provided in Sections III, IV, V, VI, VIII, and X of the Staff Report. DSD 000626, 001745-3477,003528-3541 (re: vegetation and trees); DSD 003582-3626 (re: pole color); DSD 003629-63 (re: cultural resources); DSD 003664-72 (re: substation mitigation plan); EIS at DSD 005424-33 (re: impact summary and mitigation options), and DSD 005696 (re: proposed AC interference mitigation). H. Re: 255.F. The proposal, as conditioned, complies with the additional design standards that apply to projects to locate or expand electrical utility facilities. Staff Report, pages 44-47, describing how project has been designed or can be conditioned to comply with specific design standards, including without limitation those addressing site landscaping, fencing, setbacks, and height; application materials at DSD 000626-628. 85. The Conditions of Approval included as part of this Decision are reasonable, appropriate, fully supported by testimony and evidence in the record, and capable of accomplishment. // // //

AR 000039


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




VI. CONCLUSIONS of LAW.

1. As explained above, the record includes credible, unrebutted, and substantial proof that the Conditional Use Permit application satisfies all applicable decision criteria specified in applicable city LUC 20.30B.140, as conditioned herein. 2. Similarly, the record includes credible, unrebutted, and substantial proof that the proposal satisfies the additional criteria for Electrical Utility Facilities, set forth in LUC 20.20.255, as conditioned herein. 3. Based on the record, and all findings set forth above, the applicant established that more than a preponderance of the evidence supports the conclusion that its permit application merits approval, meeting its burden of proof imposed by LUC 20.35.340(A). 4. Any finding or other statement contained in this Decision that is deemed to be a Conclusion of Law is hereby adopted as such and incorporated by reference.

VII. DECISION.

Based on the record, and for the reasons set forth herein, the requested Conditional Use Permit for the South Bellevue Segment of the Energize Eastside Project should be and is hereby approved, subject to the following conditions of approval, which are incorporated herein by reference. ISSUED this 25TH Day of June, 2019

_____________________________ Gary N. McLean Hearing Examiner Attachments: Conditions of Approval, 20 pages; and Exhibit List.

AR 000040


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




NOTICE OF RIGHTS

TO REQUEST CLARIFICATION OR RECONSIDERATION, AND TO APPEAL

This Decision has been issued by the Hearing Examiner who has specific authority to address Type I quasi-judicial matters following a public hearing. See LUC 20.35.100. REQUEST FOR CLARIFICATION OR RECONSIDERATION – As provided in Rule 1.25 and 1.26 of the Bellevue Hearing Examiner Rules of Procedure, a party may file a written request for clarification or reconsideration of this Decision within five (5) working days after the date of issuance. Additional requirements and procedures concerning Requests for Clarification or Reconsideration are found in Rule 1.25 and 1.26 of the Hearing Examiner Rules of Procedure. RIGHT TO APPEAL – TIME LIMIT – Persons and entities identified in Land Use Code (LUC) 20.35.150, may appeal a Process I decision of the Hearing Examiner to the Bellevue City Council by filing a written statement of the Findings of Fact or Conclusions of Law which are being appealed, and paying a fee, if any, as established by ordinance or resolution, no later than 14 calendar days following the date that the decision was mailed. The written statement must be filed together with an appeal notification form, available from the City Clerk. The written statement of appeal, the appeal notification form, and the appeal fee, if any, must be received by the City Clerk no later than 5:00 p.m. 14 calendar days following the date that the decision was mailed. (Because this Decision has been mailed on June 25, 2019, the appeal deadline is July 9, 2019). TRANSCRIPT OF HEARING – PAYMENT OF COST – An appeal of the Hearing Examiner’s decision requires the preparation of a transcript of the hearing before the Hearing Examiner. Within thirty (30) days of the decision which is appealed from, the appellant shall order from the City Clerk, on a form provided by the Clerk, a full transcript of the hearing before the Hearing Examiner. At the time the order for transcription is placed, the appellant shall post security in the amount of One Hundred Dollars ($100.00) for each hearing hour to be transcribed. If appellant fails to post security, the appeal shall be considered abandoned. Additional requirements and procedures concerning appeals filed with the Council are found at Resolution 9473 and in the City of Bellevue Land Use Code.

AR 000041

Conditions of Approval,

PSE South Bellevue Segment – CUP File No. 17-120556-LB

Page 1 of 20

CONDITIONS OF APPROVAL For the

South Bellevue Segment of PSE’s Energize Eastside Project

File No. 17-120556-LB *(NOTE: Conditions imposed as part of the unchallenged Critical Areas Land Use Permit

issued for the project in File No. 17-120557-LO are also included)

AA. General Conditions added by the Hearing Examiner.

1. The Project addressed in this permit is known as the South Bellevue Segment of PSE’s Energize Eastside Project, specifically including construction of a new “Richards Creek” substation and upgrading 3.3 miles of existing 115 kV transmission lines with 230 kV lines between the existing Lakeside substation and the southern city limits of Bellevue, as described in the Staff Report and depicted in Project Plans, included as Attachment A to the Staff Report.

2. The applicant, PSE, shall be responsible for consulting with all other state, federal, local, or regional agencies, and/or tribal entities with jurisdiction (if any) for applicable permit or other regulatory requirements that pertain to any aspect of the project addressed in this permit. Any conditions of other regulatory agency permits/licenses/approvals issued for any aspect of the project shall be considered conditions of approval for this Project.

3. Compliance with these Conditions of Approval shall be reflected on all plans and supporting documentation submitted for construction permits and design review approvals required by the City in connection with this project.

4. PSE shall comply with all applicable Bellevue City Codes, Standards, and Ordinances in effect at the time of filing a complete application for any permit or approval required by the City, including without limitation the following development regulations:

Clearing & Grading Code – BCC 23.76 Fire Code – BCC 23.11 Land Use Code – BCC Title 20 Noise Control Code – BCC 9.18 Transportation – BCC 14.60 Transportation ROW – BCC 11.70 & 14.30 Utilities Codes – BCC Title 24

AR 000042



Page 2 of 20

A. GENERAL CONDITIONS based on recommendations in Staff Report.

1. CHANGES TO POLE LOCATION AND/OR ALIGNMENT: Changes to the pole location and/or alignment submitted as part of this Conditional Use application shall be reviewed as a Land Use Exemption to this Conditional Use approval prior to construction.

AUTHORITY: LUC 20.30B.175 REVIEWER: Heidi Bedwell, Land Use

2. CONCEPTUAL DESIGN UTILITIES: Utility Department approval of the subject permits is based on the conceptual design only. Changes to the site layout may be required to accommodate the required utilities after utility engineering is approved.

AUTHORITY: BCC Title 24.02, 24.04, 24.06 REVIEWER: Arturo Chi, Utilities

3. CLEARING AND GRADING PERMIT REQUIRED: An application for a clearing and grading permit must be submitted and approved before construction can begin. Plans submitted as part of any permit application shall be consistent with the activity permitted under this approval.

AUTHORITY: LUC 20.30P.140; BCC 23.76.035 (Clearing & Grading Code) REVIEWER: Thomas McFarlane, P.E.; Bellevue Development Services;

Clearing & Grading Section

4. UTILITY PERMIT AND/OR UTILITY DEVELOPER EXTENSION AGREEMENTS: The water, sewer, and storm drainage systems shall be designed per current City of Bellevue Utility Codes and Utility Engineering Standards. All design review, plan approval, and field inspection shall be performed under the individual permits and/or Utility Developer Extension Agreements depending on the extent of the work.

AUTHORITY: BCC Title 24.02, 24.04, 24.06 REVIEWER: Arturo Chi, Utilities

5. SIGHT DISTANCE: All structures installed under terms of this proposal must meet the City’s sight distance requirements.

AUTHORITY: BCC 14.60.240, 14.60.241; Transportation Design Manual (RL-100-1, RL-110-1, RL-120-1).

REVIEWER: Fay Schafi, (425) 452-4574

AR 000043



Page 3 of 20

B. Conditions that apply prior to issuance of any Building, Engineering, or Clearing and Grading Permits.

1. RIGHT-OF-WAY USE PERMIT: Prior to issuance of any construction or clearing and grading permit, the applicant shall apply for required right-of-way use permits from the City’s Transportation Department, which may include:

• Designated truck hauling routes. • Truck loading/unloading activities. • Location of construction fences. • Hours of construction and hauling. • Requirements for leasing of right of way or pedestrian easements. • Provisions for street sweeping, excavation and construction. • Location of construction signing and pedestrian detour routes. • All other construction activities as they affect the public street system.

In addition, the applicant shall submit for review and approval a plan for providing pedestrian access during construction of this project. Access shall be provided at all times during the construction process, except when specific construction activities such as shoring, foundation work, and construction of frontage improvements prevent access. General materials storage and contractor convenience are not reasons for preventing access.

The applicant shall secure sufficient off-street parking for construction workers before the issuance of a clearing and grading, building, a foundation or demolition permit.

AUTHORITY: BCC 11.70 & 14.30 REVIEWER: Tim Stever, (425) 452-4294

2. CIVIL ENGINEERING PLANS – TRANSPORTATION: Where required, civil engineering plans produced by a qualified licensed engineer must be approved by the Transportation Department prior to issuance of the clearing and grading permit. The design of all street frontage improvements and driveway accesses must be in conformance with the requirements of the Americans with Disabilities Act, the Transportation Development Code, the provisions of the Transportation Department Design Manual, and specific requirements stated elsewhere in this document. All relevant standard drawings from the Transportation Department Design Manual shall be copied exactly into the final engineering plans. Requirements for the engineering plans include, but are not limited to:

• Traffic signs and pavement markings. • Curb, gutter, sidewalk, and driveway approach design. The engineering plans shall be the

controlling document on the design of these features; architectural and landscape plans must conform to the engineering plans as needed.

• Curb ramps and crosswalks constructed per ADA standards. • Installation or relocation of streetlights and related equipment. • Show the required sight distance triangles and include any sight obstructions, including

those off-site. Sight distance triangles must be shown at all driveway locations and must

AR 000044



Page 4 of 20

consider all fixed objects and mature landscape vegetation. Vertical as well as horizontal line of sight must be considered when checking for sight distance.

• Landings on sloping approaches are not to exceed a 7% slope for a distance of 30 feet approaching the back edge of sidewalk. Driveway grade must be designed to prevent vehicles from bottoming out due to abrupt changes in grade.

• Driveway aprons must be constructed in accordance with Design Manual Standard Drawings SW-140-1 through SW-190-1.

• Location of fixed objects in the sidewalk or near the driveway approach. • Trench restoration within any right of way or access easement.

The following street and access improvements are required to be designed and shown in the civil engineering plan set:

• Provide a concrete driveway approach at SE 30th Street Per City of Bellevue’s Transportation Design Manual. Driveway approach shall be a minimum of 26-feet wide. Minimum of 30-feet distance is required from the right-of-way line to the new gate location.

• No fixed objects, including fire hydrants, trees, and streetlight poles, are allowed within ten feet of a driveway edge, defined as Point A in standard drawings SW-140-1 through SW-190-1. Fixed objects are defined as anything with breakaway characteristics greater than a four-inch by four-inch wooden post.

• A street light analysis is required for SE 30th Street. Street lighting shall meet Bellevue’s minimum standards contained in the Transportation Design Manual Appendix A or as amended.

• The applicant shall be required to provide appropriate clearances as provided for in the most recent National Electric Safety Code (NESC) from existing overhead signal equipment for the installation of the overhead transmission lines.

• Construction of all street and access improvements must be completed prior to closing the clearing and grading permit and right of way use permit for this project. A Design Justification Form must be provided to the Transportation Department for any aspect of any pedestrian route adjacent to or across any street that cannot feasibly be made to comply with current ADA standards. Design Justification Forms must be provided prior to approval of the clearing and grading plans for any deviations from standards that are known in advance. Forms provided in advance may need to be updated prior to project completion. For any deviations from standards that are not known in advance, Forms must be provided prior to project completion.

AUTHORITY: BCC 14.60, Transportation Department Design Manual, and the Americans with Disabilities Act

REVIEWER: Fay Schafi, (425) 452-4574

3. TURBIDITY AND PH MONITORING REQUIRED: A turbidity and pH monitoring plan must be submitted and approved prior to issuance of the clearing and grading permit. The plan must be developed

AR 000045



Page 5 of 20

in accordance with the Turbidity & pH Monitoring Requirements contained in the Bellevue Clearing & Grading Development Standards, indicating appropriate locations and timing of turbidity and pH sampling and testing. The plan must be implemented during site work and shall be modified as appropriate during construction to reflect pace and extent of construction activity.

AUTHORITY: BCC 23.76.160 (Clearing & Grading Code) REVIEWER: Thomas McFarlane, P.E.; Bellevue Development Services,

Clearing & Grading Section

4. DRAINAGE REPORT REQUIRED: Provide a final drainage report that documents the storm drainage minimum requirements triggered for the project. In the report include either figure 2.2 or 2.3 from the Utilities Surface Water Engineering Standards. PSE shall document if the project qualifies as either new development or redevelopment and include a project summary. Document the amount of new, replaced and pollution generating impervious surface changes. PSE shall also document any work within any critical area, wetlands and/or buffers in the report.

AUTHORITY: Title 24.02, 24.04, 24.06 BCC REVIEWER: Arturo Chi, Utilities

5. FINAL WETLAND ENHANCEMENT PLAN: PSE shall submit a Final Wetland Enhancement Plan consistent with the plans submitted as part of this application in Attachment I (Critical Areas Report). The Plan shall be submitted as part of the required clearing and grading permit. All plant species, size, and spacing shall be consistent with the standard found in the City’s Critical Areas Handbook.

AUTHORITY: LUC 20.25H.220; 20.25H.230 REVIEWER: Heidi Bedwell, Land Use

6. FINAL STREAM HABITAT IMPROVEMENT PLAN: PSE shall submit a Final Stream Habitat Improvement Plan consistent with the plans submitted as part of this application in Attachment I (Critical Areas Report). The Plan shall be submitted as part of the required clearing and grading permit. All plant species, size, and spacing shall be consistent with the standards found in the City’s Critical Areas Handbook. The Plan shall include methods for fish exclusion, construction sequencing, monitoring and maintenance.

AUTHORITY: LUC 20.20H.210, 20.25H.220, 20.25H.230 REVIEWER: Heidi Bedwell, Land Use

7. FINAL MITIGATION PLAN FOR PERMANENT IMPACTS AND VEGETATION CONVERSION IN CRITICAL AREAS AND CRITICAL AREA BUFFERS: PSE shall submit a final mitigation plan for all permanent impacts and vegetation conversion activities consistent with Attachment I (Critical Areas Report) for review and approval by the City of Bellevue prior to issuance of the Clearing and Grading Permit. The Plan shall depict tree and other vegetation to be removed within all critical area or critical area buffers. Trees within a critical area or critical area buffer shall be replaced at a minimum of a 3:1 ratio. All other areas of vegetation removal shall be mitigated in an equivalent area consistent with the replacement ratios contained in Attachment I (Critical Areas Report). Final design shall also include wildlife snags designed as recommended from the State of WA Department of Fish and Wildlife where feasible and in consideration of PSE’s Avian Protection Plan. The mitigation plan shall include BMPs for construction

AR 000046



Page 6 of 20

sequencing, monitoring, and maintenance and shall be developed consistent with the City’s Critical Areas Handbook for species choice, plant size, and spacing.

AUTHORITY: Part 20.30P LUC REVIEWER: Heidi Bedwell, Land Use

8. FINAL RESTORATION PLAN FOR TEMPORARY IMPACTS IN CRITICAL AREAS AND CRITICAL AREA BUFFERS: PSE shall submit a final restoration plan showing temporary construction impacts. Restoration of impacts shall be with native plants where native plants are being removed. All other areas of temporary impact shall be re-vegetated except for those areas which contained impervious surfaces prior to construction activities.

AUTHORITY: LUC 20.25H.220 REVIEWER: Heidi Bedwell, Land Use

9. AVIAN PROTECTION PROGRAM: PSE shall implement their Avian Protection Plan consistent with Attachment I (Critical Areas Report), including methods and equipment to reduce avian collisions, electrocution, and problem nests. To reduce impacts to birds, the timing and location of construction work shall consider critical time periods such as the nesting season for species of local importance present in the Project area. A habitat biologist or other qualified professional shall submit a plan documenting recommended measures to limit impacts.

AUTHORITY: Part 20.30P LUC, LUC 20.20.255.G REVIEWER: Heidi Bedwell, Land Use

10. CRITICAL AREAS AND CRITICAL AREA BUFFERS MAINTENANCE AND MONITORING REPORTS: Mitigation plans shall include methods for vegetation maintenance and monitoring and shall be submitted as part of the required clearing and grading permit. Mitigation sites are required to be maintained and monitored for five years to ensure the plants successfully establish. Annual monitoring reports are required to be submitted to document the plants are meeting approved performance standards. Photos from selected photo points shall be included in the monitoring reports to document the planting. Land Use inspection is required by Land Use staff to end the plant monitoring period.

Reporting shall be submitted no later than the end of each growing season or by December 31st, and shall include a site plan and photos from photo points established at the time of Land Use Inspection. Reports shall be submitted to Heidi Bedwell, or the City of Bellevue’s successor Environmental Planning Manager, by the above-listed date and can be emailed to [email protected] or mailed directly to:

Environmental Planning Manager Development Services Department City of Bellevue PO Box 90012 Bellevue, WA 98009-9012 AUTHORITY: Land Use Code 20.30P.140; 20.25H.220 REVIEWER: Heidi Bedwell, Land Use

AR 000047



Page 7 of 20

11. ASSURANCE DEVICE- CRITICAL AREAS MITIGATION: As part of the Clearing and Grading Permit, PSE shall submit a cost estimate prepared by a qualified professional for the proposed planting materials and installation costs. An installation security shall be provided to the City of Bellevue in the amount of 150% of the total cost. After the final mitigation plans have been implemented and inspected by the City, the installation assurance device will be released and the City shall request and retain a maintenance assurance device in the amount of 20% of the total cost estimate. The maintenance assurance device shall be kept by the City until the performance objectives have been met.

AUTHORITY: LUC 20.40.490 REVIEWER: Heidi Bedwell, Land Use

12. GEOTECHNICAL REVIEW: The project geotechnical engineer (see BCC 23.76.030.G) must review the final construction plans, including all foundation, retaining wall, shoring, cut, and fill designs. A letter from the geotechnical engineer stating that the plans conform to the recommendations in the geotechnical report and any addendums and supplements must be submitted to the clearing and grading section prior to issuance of the construction permit.

AUTHORITY: BCC 23.76.050 (Clearing & Grading Code) REVIEWER: Thomas McFarlane, P.E.; Bellevue Development Services; Clearing &

Grading Section

13. SEISMIC DESIGN: The project geotechnical engineer shall certify that PSE has conducted geotechnical hazard evaluations for all proposed elements of the substation foundations, walls, and transmission poles, and that all geotechnical recommendations have been incorporated into project design. PSE shall provide required certification and supporting documentation to the City of Bellevue. The geotechnical report shall address all code requirements and provide a discussion of how the design meets or exceeds following:

• The 2012 International Building Code (IBC), or as amended, parameters for short period spectral response acceleration (SS), 1-second period spectral response acceleration (S1), and Seismic Coefficients FA and FV presented in Table 2 of the geotechnical report.

• Consistent with the project geotechnical engineer’s recommendation, use soil input parameters for lateral load design that consider the effects of liquefaction through the application of p-multipliers for LPile parameters (LPile is a computer program used to analyze deep foundations under lateral loading).

• North of the proposed Richards Creek substation, reevaluate the lateral spreading risk to the proposed poles in this area once their final locations have been selected, to determine appropriate foundation dimensions.

• Where areas subject to liquefaction are present, extend foundations below the loose to medium density liquefiable deposits into underlying dense, non- liquefiable soils.

• Reevaluate the axial capacity of the pole foundations and potential downdrag loads for poles in areas subject to liquefaction once final locations are selected, and consider these in the structural design.


AR 000048



Page 8 of 20

14. FINAL LANDSCAPE PLAN RICHARD CREEK SUBSTATION: PSE shall submit a final landscape plan as part of the required construction permits consistent with the landscape plan submitted as part of this application (Attachment A [Project Plans]). In addition to the vegetation proposed, all disturbed areas not mitigated for critical area impacts shall be planted with low growing native vegetation. Landscape plan shall include plant species, quantity, spacing and cost estimate for plant material and installation. To ensure plant establishment, the applicant shall provide a landscape assurance device that shall cover 20% of the fair market value of labor and materials for the initial landscape installation of all areas of restoration required for the substation landscaping. This assurance device will cover the landscape maintenance of the project for a period of one year from the date of final inspection.

AUTHORITY: LUC 20.20.520.K.1 & 2, 20.40.490 REVIEWER: Heidi Bedwell, Land Use

15. LIGHTING PLAN RICHARDS CREEK SUBSTATION: PSE shall submit a lighting plan as part of the required clearing and grading permit showing proposed lighting at the substation. Lighting shall be designed to direct light away from the stream and wetland areas including the use of shields or other methods to reduce spillover into critical areas.

AUTHORITY: LUC 20.25H.080A and 100 REVIEWER: Heidi Bedwell, Land Use

16. TREE REMOVAL NON-CRITICAL AREAS: PSE shall submit a final Tree Replacement plan as part of the required clearing and grading permits consistent with Attachment E (Vegetation Management Plan) submitted as part of this application.

AUTHORITY: LUC 20.20.255.G REVIEWER: Heidi Bedwell, Land Use

17. MITIGATION FOR TREE REMOVAL IN CITY OF RIGHT-OF-WAY (FEE IN LIEU PLAN): PSE has agreed to mitigate for the loss of trees located in the City right- of-way with a fee in lieu method. Mitigation will be based on a total value of the trees to be removed using the methods outlined in the Council of Tree and Landscape Appraisers, Guide for Plant Appraisal. The fee will be used for replanting in the City right-of-way or on other city owned parcels.

PSE shall prepare a final tree removal plan depicting trees to be removed in the right-of-way including their size and species. This plan shall be submitted to the City of Bellevue for approval. PSE and the City will identify and agree upon an independent third-party certified arborist to determine the total value of trees removed from the City right-of-way. The arborist shall use the methods outlined in the Council of Tree and Landscape Appraisers, Guide for Plant Appraisal. PSE shall pay for the arborist appraisal. No tree removal is allowed until acceptance of the plan, appraisal, and payment to the City of Bellevue has occurred.


AR 000049



Page 9 of 20

18. INSTALLATION SURETY-TREE REPLACEMENT (NON-CRITICAL AREAS): PSE shall submit as part of the required Clearing and Grading permit a cost estimate in the amount of the total trees proposed for replacement in non-critical areas. The estimate shall be based on the following replacement ratios contained in Table VI-1 of the Staff Report:

The estimate and surety provided by PSE as required by this condition shall be in the amount of 100% of the estimated cost of tree replacement (including materials and labor). The surety will be released one year after tree replacement, consistent with the applicable Tree Replacement plan, is complete.


19. FINAL RESTORATION PLAN FOR TEMPORARY IMPACTS (NON-CRITICAL AREAS): PSE shall submit a final restoration plan showing temporary construction impacts. The impacts shall be restored with vegetation consistent with the pre-project condition when vegetation has been removed. Other improvements impacted by construction activities shall be restored in coordination with the underlying property owner.


20. PESTICIDES, HERBICIDES AND FERTILIZERS: Applicant shall submit written information identifying the pesticide, herbicide and/or insecticide to be used AND written confirmation that the product used has been reviewed and approved by a consulting arborist. Work shall be done in accordance with the City of Bellevue’s “Environmental Best Management Practices.”

Prior to any use of pesticides, herbicides, and/or fertilizers associated with the proposal, the applicant must receive approval from Land Use under the required Clearing and Grading Permit.

AUTHORITY: LUC 20.25H.080, LUC 20.20.255G REVIEWER: Heidi Bedwell, Land Use

21. POLE FINISH: To reduce aesthetic impacts to the surrounding environment and reduce contrast with the surrounding environment, PSE shall implement proposed pole finishes consistent with the recommendations found in Attachment J (Pole Finishes Report City of Bellevue (South)).


PSE – Energize Eastside South Bellevue SegmentProject #’s 17-120556-LB and 17-120557-LO

Page 133 of 151

estimate in the amount of the total trees proposed for replacement in non-critical areas. The estimate shall be based on the following replacement ratioscontained in Table VI-1 of the Staff Report:

The estimate and surety provided by PSE as required by this condition shall bein the amount of 100% of the estimated cost of tree replacement (includingmaterials and labor). The surety will be released one year after treereplacement, consistent with the applicable Tree Replacement plan, iscomplete.

AUTHORITY: LUC 20.20.255.GREVIEWER: Heidi Bedwell, Land Use

Final Restoration Plan for Temporary Impacts (Non-CriticalAreas): PSE shall submit a final restoration plan showing temporaryconstruction impacts. The impacts shall be restored with vegetation consistentwith the pre-project condition when vegetation has been removed. Otherimprovements impacted by construction activities shall be restored incoordination with the underlying property owner.

AUTHORITY: LUC 20.20.255.GREVIEWER: Heidi Bedwell, Land Use

Pesticides, Herbicides and Fertilizers: Applicant shall submit writteninformation identifying the pesticide, herbicide and/or insecticide to be usedAND written confirmation that the product used has been reviewed andapproved by a consulting arborist. Work shall be done in accordance with theCity of Bellevue’s “Environmental Best Management Practices.”

Prior to any use of pesticides, herbicides, and/or fertilizers associated with theproposal, the applicant must receive approval from Land Use under therequired Clearing and Grading Permit.

AUTHORITY: LUC 20.25H.080, LUC 20.20.255GREVIEWER: Heidi Bedwell, Land Use

Pole Finish: To reduce aesthetic impacts to the surroundingenvironment and reduce contrast with the surrounding environment, PSE shall

DSD 000133AR 000050



Page 10 of 20

22. FINAL PIPELINE INTERACTION ASSESSMENT AND DESIGN REPORT: To protect nearby pipelines from interaction with the new transmission lines due to AC current density, faults caused by lightning strikes, mechanical/equipment failure, or other causes, PSE shall continue to coordinate with Olympic and include safeguards in the project design. PSE shall optimize conductor geometry, where a true delta configuration provides the greatest level of field cancellation. PSE shall operate both transmission lines at equivalent voltage ratings. These safeguards shall be certified by an engineer licensed in the state of Washington. PSE shall also install an Optical Ground Wire (OPGW) shield wire or equivalent shield wire recommended by DNV GL 2016 on the transmission line poles.

PSE shall perform an AC Interference Study incorporating the final transmission line route, configuration, and operating parameters to confirm that current densities remain within acceptable levels. PSE shall provide Olympic with the Study and provide the City with documentation establishing that the Study was performed and submitted to Olympic.

The Study shall include a report detailing how the following have been addressed:

• PSE shall obtain and incorporate all of the pipeline parameters required for detailed modeling and study (i.e., locations and details of above-grade pipeline appurtenances/stations, bonds, anodes, mitigation, etc.).

• PSE shall assess the safety and AC corrosion risks under steady-state operating conditions on the transmission lines.

• PSE shall fully assess the safety and coating stress risks for phase-to- ground faults at transmission line structures along the entire area of co- location, including both inductive and resistive coupling.

• PSE shall reassess the safe separation distance at each pole location to minimize arcing risk based on NACE SP0177-2014 and considering the findings in CEA 239T817.

• Specify appropriate distances for pole grounds from the pipeline to avoid electrical arcing as recommended by the licensed engineer.

• PSE shall incorporate mitigation measures into the project design to prevent or minimize ground fault arcing to the pipelines in areas where the pipelines are within the modeled arcing distance of transmission line pole grounding rods.

AUTHORITY: BCC 22.02.140.B.1, 22.02.140.C REVIEWER: Heidi Bedwell, Land Use

23. FINAL SUBSTATION PLAN: Consistent with the project plans for the proposed substation, PSE shall comply with State and Federal standards to address the risk of substation fire. Designs should include the following:

• Control systems to shut down equipment experiencing a fault or malfunction; • Systems to conduct lightning to the ground rather than through lines or equipment; and • Alternative insulation systems for closely spaced equipment.

AUTHORITY: LUC 20.20.255.G, 20.20.255.E.6 REVIEWER: Heidi Bedwell, Land Use

AR 000051



Page 11 of 20

24. CONSTRUCTION MANAGEMENT AND ACCESS PLAN (PIPELINE SAFETY): PSE shall develop Construction Management and Access Plan in coordination with Olympic’s Damage Prevention Team that are mutually agreed upon by both parties. These plans shall outline the specific actions that PSE will take to protect the pipelines from vehicle and equipment surcharge loads, excavation, and other activities in consideration of Olympic’s general construction and right- of-way requirements and in consultation with Olympic on the Energize Eastside project design specifically. The following general measures, at a minimum, shall be included in the Construction Management and Access Plan:

• Notify ‘one-call’ 811 utility locater service at least 48 hours prior to PSE or PSE-designated contractors conducting excavation work. (Olympic’s line marking personnel will then mark the location of the pipelines near the construction areas. These procedures are designed to ensure that excavation will not damage any underground utilities and to decrease potential safety hazards.)

• Field verify the distance between the pipelines and transmission line pole grounds.

• Add the pipeline location and depth to project plans and drawings, and submit to Olympic for evaluation. To the extent that Olympic determines pipeline location and depth is secure or confidential information, this information is not required to be submitted to the City of Bellevue under this condition.

• Arrange for Olympic representatives to be on-site to monitor construction activities near the pipelines.

• Identify demarcation and protection measures as recommended and required by Olympic.

• Provide all necessary information for Olympic to perform pipe stress calculations for equipment crossings and surface loads (surcharge loads). Based on pipe stress calculations and in coordination with Olympic, provide additional cover that may include installing timber mats, steel plating, or temporary air bridging; utilize a combination of these; or avoid crossing in certain identified areas to avoid impacts on the Olympic pipelines.

• Incorporate additional measures related to minimizing surcharge loads included in Olympic’s general construction and right-of-way requirements.

• The Construction Management and Access Plan will identify contractor responsibilities including appropriately sized construction zones to protect the general public, construction timing limits, and other mitigation measures that will limit the exposure of the general public to potential pipeline incidents.

• No excavation or construction activity will be permitted in the vicinity of a pipeline until appropriate communications have been made with Olympic’s field operations and its Right-of-Way Department. A formal engineering assessment (conducted by Olympic) may be required.

• No excavation or backfilling within the pipeline right-of-way will be permitted for any reason without a representative of Olympic on-site giving permission.

• Coordinate with Olympic regarding excavation and other construction activities to ensure that pipeline operating pressures are reduced prior to these activities when necessary.

AR 000052



Page 12 of 20

• As directed by Olympic, use soft dig methods (e.g., hand excavation, vacuum excavation, etc.) whenever the pipeline(s) are within 25 feet of any proposed excavation or ground disturbance below original grade.

• Coordinate with Olympic to ensure that an Olympic representative, trained in the observation of excavation and pipeline locating, is on-site at all times during excavation and other ground-disturbing activities that occur within 100 feet of the pipelines where the pipelines are co-located with the proposed transmission lines.

• Where excavations are within 20 feet of the Olympic Pipeline system, the project geotechnical engineer shall consider temporary casing to reduce the risk of sloughing under the pipeline.

• As required by Olympic, steel plates or mats will be placed over the pipelines to distribute vehicle loads where construction equipment needs to cross over the pipelines.

• Utility settlement monitoring points will be established on the Olympic Pipeline corridor at the direction of Olympic where drilled shafts will be within 15 feet of a pipeline (or another distance as stipulated by Olympic) to monitor settlement during installation of the drilled shafts. Settlement monitoring points will be installed so that baseline readings of the settlement monitoring points may be completed prior to the contractor mobilizing to the site. Monitoring will continue during construction on a daily basis and twice a week in the 3 weeks following construction. The monitoring readings will be reviewed by the Engineer on a daily basis. If measured settlement exceeds 1 inch, or an amount specified by Olympic, the integrity of the utility will be tested and PSE will work with Olympic to repair any damage to the utilities as a result of construction.

• The Construction Management and Access Plan shall include monitoring procedures to ensure that all mitigation measures related to construction activities are followed.

The Construction Management and Access Plan shall be submitted to the City of Bellevue for its review and approval before construction permit issuance. After permit issuance, any revisions or updates to the Plan shall be provided to the City in a Final Construction Management and Access Plan before construction begins.


25. CONSTRUCTION MANAGEMENT AND ACCESS PLAN (RECREATION USES AND SCHOOLS): To reduce impacts to recreation sites as a result of project construction, PSE shall include in their Construction Access and Management Plan the following:

• Steps to coordinate with the City of Bellevue Parks Department. • Phasing plan schedules to avoid construction activity near recreation sites, including but not limited

to public parks and Tyee Middle school, during time periods when the sites are most frequently used.

• Plans for alternative access points to recreation sites and trail detours where necessary.

AR 000053



Page 13 of 20

• Notification of local schools, or private owners (including the Somerset Recreation Club) 60 days in advance of project construction within the recreation sites and again at least 2 weeks in advance of work commencing.

• The location of signs notifying users of any temporary closure of trails or recreations sites and installation of these signs 2 weeks in advance of closure.

The Construction Management and Access Plan shall be submitted to the City of Bellevue prior to the issuance of construction permits.


26. PUBLIC OUTREACH PLAN: PSE shall submit to the City of Bellevue a public outreach plan that details how PSE will provide information to the public about the types and locations of expected construction impacts and mitigation measures. As part of the plan, a construction outreach team shall work with affected residents and business owners to minimize construction-related impacts throughout the duration of project construction. PSE will provide a contact with whom community members can address specific concerns both prior to and during project construction. Also as part of the plan, PSE shall submit to the City quarterly reports summarizing status of public outreach efforts including issues raised by the community and how PSE is addressing concerns. Reports shall be submitted to the Development Services Department Director through project completion.


AR 000054



Page 14 of 20

C. Conditions that apply After Construction Permit Issuance and During Construction.

1. STATE AND FEDERAL PERMIT COMPLIANCE: To reduce indirect and direct water quality impacts associated with construction of the new substation and transmission lines, PSE shall comply with applicable state and federal regulatory requirements. Before any direct wetland impacts occur, PSE shall obtain the necessary state and federal authorizations. PSE shall provide the City of Bellevue copies of all required permits from the WDFW and the U.S. Army Corps of Engineers, including any requirements from the U.S. Fish and Wildlife Service and National Marine Fisheries Service prior to the City of Bellevue’s pre-construction meeting.

AUTHORITY: BCC 24.06.015, 24.06.020; LUC 20.20.255.E.2 REVIEWER: Heidi Bedwell, Land Use

2. CULTURAL RESOURCES PROTECTION: Prior to construction, PSE shall conduct archaeological resource surveys for the selected route that include subsurface testing and a second pedestrian and subsurface survey to assess staging areas, laydown areas, stringing sites, and access roads after more information on these locations is available. Prior to construction, PSE shall develop resource-specific mitigation measures during consultation with the Washington Department of Archaeology and Historic Preservation (DAHP), affected Tribes, King County Historic Preservation Program (KCHPP), and other appropriate stakeholders if a protected archaeological resource is identified during the pre-construction archaeological survey or historic property inventory.

PSE shall prepare an Inadvertent Discovery Plan (IDP) for the project and discuss the IDP with contractor during pre-construction meeting(s). PSE shall apply for an archaeological excavation permit from DAHP (WAC 25-48-060) if impacts to a protected archaeological resource cannot be avoided.

If any resources are determined eligible for listing in the National Register of Historic Places (NHRP) by DAHP, mitigation measures specific to those resources shall be developed during consultation with DAHP, affected Tribes, and any other appropriate stakeholders. Any final determination and mitigation measures developed based on this determination shall be reported to the City of Bellevue to the extent allowed by law.

During construction, PSE shall follow outlined procedures in the IDP in the event that archaeological resources are identified during construction activities.

During construction, PSE shall follow the procedures identified for any historic resources through consultation with DAHP.


3. DRILLED SHAFT INSTALLATION PLAN: Prior to construction PSE shall submit a detailed Drilled Shaft Installation Plan prepared by their construction contractor describing casing and drilled shaft construction methods. The submittal will include a narrative describing the contractor’s understanding of the anticipated subsurface conditions, underground pipelines, the overall construction sequence, access to the pole locations, and the proposed pole foundation installation equipment. The contractor shall submit a

AR 000055



Page 15 of 20

detailed direct embedment pole installation plan describing both uncased and temporary casing methods. If drilled shafts are used where groundwater is present, the concrete for drilled shafts will be placed using the “tremie” method will be considered and evaluated by an onsite geotechnical engineer (described in the geotechnical report). The Plan shall be reviewed by the project geotechnical engineer before construction commences; the Plan shall include documentation of this review, which shall be provided to the City of Bellevue Development Services Department.


4. GEOTECHNICAL INSPECTION: The project geotechnical engineer must provide geotechnical inspection during project construction when applicable. The geotechnical engineer must monitor and test soil cuts and fills for substation and pole foundations. The geotechnical engineer also must observe, monitor, and test any unusual seepage, slope, or subgrade conditions.

AUTHORITY: BCC 23.76.050, 23.76.160 (Clearing & Grading Code) REVIEWER: Thomas McFarlane, P.E.; Bellevue Development Services; Clearing &

Grading Section

5. RAINY SEASON RESTRICTIONS: Clearing and grading activity may be initiated during, or continue into the rainy season, which is defined as October 1 through April 30, only with written authorization of the Development Services Department. Should approval be granted for work during the rainy season, increased erosion and sedimentation measures, as appropriate for the anticipated rainy season conditions, must be implemented prior to beginning or resuming site work.

AUTHORITY: BCC 23.76.093.A (Clearing & Grading Code) REVIEWER: Thomas McFarlane, P.E.; Bellevue Development Services; Clearing &

Grading Section 6. STREET AND ACCESS IMPROVEMENTS: All street and access improvements and other required transportation elements including street lights revisions, must be constructed by the applicant and accepted by the Transportation Department inspector. This includes improvements on SE 30th Street.

All areas disturbed (i.e., pavement, curb and gutter, landscaping, driveways, temporary access roads, etc.) by the project shall be restored after construction to its previous or an improved state per City of Bellevue ROW standards including current ADA standards.

AUTHORITY: BCC 14.60, Comprehensive Plan Policy UT-39, and the Transportation

Department Design Manual REVIEWER: Fay Schafi, (425) 452-4574

7. PAVEMENT RESTORATION: A no-street-cut moratorium is in effect on SE 30th Street. Should street cuts prove unavoidable or if the street surface is damaged in the construction process, a half-street or full-street (depending on the extent of street cuts or damage) grind and overlay will be required.

AR 000056



Page 16 of 20

The applicant will be required to restore all damaged pavement within City right-of-way caused by construction activities related to this project. Limits and extent of pavement restoration shall be as required by the Right-of-Way use permit.

AUTHORITY: BCC 14.60.250; Design Manual Design Standard #23 REVIEWER: Tim Stever (425) 452-4294

8. HELICOPTER OR LARGE CRANE USE: PSE shall identify any areas where a helicopter or large crane will be used to lift foundation rebar and/or poles over adjacent properties and into place, or to facilitate stringing the new transmission lines. PSE or its contractor shall provide copies of the “congested air” permit from the Federal Aviation Administration (FAA). PSE shall also coordinate with the City of Bellevue to determine where this type of construction is allowed.

AUTHORITY: Part 20.30M LUC REVIEWER: Heidi Bedwell, Land Use

9. CONSTRUCTION STORMWATER POLLUTION PREVENTION PLAN (CSWPPP):

The clearing and grading permit application must include a CSWPPP. The structure and content of the CSWPPP must follow the requirements of the Bellevue Clearing and Grading Code and the Bellevue Clearing and Grading Development Standards. BMPs in the plan include the following:

• Operating procedures to prevent spills. • Control measures such as secondary containment to prevent spills from entering nearby surface

waters. • Countermeasures to contain, clean up, and mitigate the effects of a spill. • Construction vehicle storage and maintenance and fueling of construction equipment will be

located away from streams and wetlands.

To avoid groundwater contamination, if any pole installation sites are determined to need dewatering, PSE shall prepare and submit a dewatering plan for City approval. The dewatering plan must include provisions for turbidity and pH monitoring of dewatering water. No refueling or staging shall be allowed within critical area or critical area buffers.

AUTHORITY: Part 20.25H LUC; Chapter 23.76 BCC REVIEWER: Heidi Bedwell, Land Use; Thomas McFarlane, P.E., Bellevue

Development Services, Clearing & Grading Section

10. TRAFFIC MANAGEMENT: As part of the right-of-way use permit, PSE shall ensure that access to residential and commercial properties is maintained at all times, except when restricted access is required for safety while work is occurring. At major driveways, flagger control may be needed to facilitate alternating enter and exit traffic. Special treatment will be needed for developments with split driveways (with one driveway serving entering traffic and one serving exiting traffic) if traffic cannot easily be shifted to the other driveway for two-way operation. The contractor will be required to coordinate with property owners when driveways or alleys are affected by construction.

AUTHORITY: BCC 14.30 REVIEWER: Tim Stever, Transportation/Right-of-Way

AR 000057



Page 17 of 20

11. PAVEMENT DEGRADATION: As part of the right-of-way permit inspection process, pavement degradation identified by the City that results from increased Project-related construction truck traffic or excavation shall be fully restored upon completion of construction activities. This includes restoration of streets, curbs, gutters, sidewalks, parking lots, driveways, and traffic signal induction loops where appropriate.

AUTHORITY: BCC 14.30 REVIEWER: Tim Stever, Transportation/Right-of-Way

12. COORDINATION WITH OTHER UTILITY PROVIDERS AFFECTED BY PROPOSAL: PSE will coordinate with any affected utility providers, as appropriate, to determine how best to avoid or minimize any impacts while Project construction is occurring. The City of Bellevue will review project designs prior to permit approval to ensure protection of other utilities. PSE and its contractors will be required to develop construction sequence plans and coordinate schedules for utility work to minimize service disruptions and provide ample advance notice when service disruptions are unavoidable, consistent with utility owner policies. Relocation plans and service disruptions shall be reviewed and approved by the affected utility providers before construction begins. PSE will coordinate with the other utility providers to assist in their planning efforts for public outreach to inform their customers of potential service outages and construction schedules.


13. FIELD VERIFICATION OF UTILITY LOCATIONS: PSE shall follow regulatory requirements to field-verify utility locations such as gas lines or the Olympic Pipeline system. Field verification of the Olympic Pipeline system may include methods as directed by Olympic, such as potholing using vacuum truck excavation to avoid damage to the pipelines.


14. PIPELINE MARKING PRIOR TO CONSTRUCTION: PSE shall coordinate with Olympic to ensure that line marking personnel mark the entire length of Olympic’s pipeline within 50 feet of any excavation or ground disturbance below original grade, and not only the location of angle points (points of intersection).


15. GROUNDING SYSTEM: Qualified licensed engineer shall verify separation distances between the transmission grounding system and the pipeline meets the recommendations in the Final Pipeline Interaction Assessment and Design Report after poles are installed. If grounding distances are not consistent with the recommendations, PSE shall reinstall grounding system to comply with the recommendations.


AR 000058



Page 18 of 20

16. OLYMPIC’S GENERAL CONSTRUCTION REQUIREMENTS: PSE shall comply with the approved Construction Management and Access Plan including the identified measures from Olympic’s General Construction and Right of Way Requirements for all work proposed near the pipelines.


17. MITIGATION AND MONITORING REPORT- CONSTRUCTION MANAGEMENT AND ACCESS PLAN (PIPELINE SAFETY): Consistent with the approved Construction Management and Access Plan, PSE shall document all mitigation measures implemented, monitored, and conducted.

PSE will file a mitigation and monitoring report with the City of Bellevue that documents consultations with Olympic and mitigation measures to address safety-related issues. PSE shall file the mitigation and monitoring reports with the City of Bellevue quarterly during construction. The reports shall identify any additional mitigation measures and monitoring that may be required as a result of PSE’s coordination with Olympic.

The mitigation and monitoring report shall demonstrate that sufficient pipeline safety measures have been implemented, and document all consultations with Olympic, including the sharing of modeling, engineering, and as-built information with Olympic to assist Olympic in its ongoing monitoring and mitigation responsibilities. The report shall identify any additional field surveys and data collection necessary for verifying mitigation measures following project start-up, and any proposed monitoring to ensure that mitigation measures related to operational issues are followed.


AR 000059



Page 19 of 20

D. Conditions that apply for the Life of the Project.

1. WATER QUALITY PROTECTION: During maintenance activities (for substation, poles, the transmission line corridor, and access roads) PSE shall prevent spills or leaks of hazardous materials, paving materials, or chemicals from contaminating surface or groundwater.

AUTHORITY: Part 20.25H LUC REVIEWER: Heidi Bedwell, Land Use

2. MAINTENANCE AND MONITORING PROGRAM-STRUCTURAL STABILITY: PSE shall develop a monitoring and maintenance program that includes inspection and reporting on the ability of the transmission line poles to resist seismic disturbances. As part of PSE’s regular inspection of the poles, it shall monitor all poles for changes in conditions that could reduce the ability of the structures to resist seismic disturbances. PSE shall submit reporting to the City of Bellevue. If changes are identified during inspection and monitoring of conditions, PSE shall implement additional measures to reduce or minimize those impacts.

AUTHORITY: Part 20.30P LUC, 20.20.255.G REVIEWER: Heidi Bedwell, Land Use

3. TELECOMMUNICATION FACILITIES: PSE shall limit the number of telecommunications facilities installed on the 230 kV poles to the seven locations currently installed in the corridor. Reinstalled facilities shall be in approximately the same locations as they were previously. Facilities shall be required to get City approval per current land use regulations before reinstalling telecommunication equipment.


4. ELECTROMAGNETIC FIELDS: In the event that radio frequency interference is found by a radio operator, PSE shall de-tune pole structures by installing hardware (such as arresters).


5. PIPELINE SAFETY DURING OPERATION: PSE shall work with Olympic to evaluate and implement appropriate mitigation measures to reduce electrical interference on the Olympic Pipeline system to safe levels.

PSE shall provide information to Olympic as appropriate or when requested by Olympic for Olympic to record AC pipe-to-soil potentials and DC pipe-to-soil potentials during its annual cathodic protection survey.

PSE shall provide Olympic with as much advance notice as practical of when outages are planned on the individual circuits (i.e., when only one circuit of the double circuit transmission lines is in operation) to allow monitoring of the AC induction effects on the pipelines.

AR 000060



Page 20 of 20

PSE shall provide Olympic with data on anticipated maximum loads under peak winter operating conditions on an annual basis, and provide copies to the City of Bellevue to verify that this data has been provided to Olympic.

After the transmission line is installed and energized, Olympic is expected (due to its federal requirements to protect the pipeline from damage) to measure the actual AC interference with the pipeline in order to ensure that all AC interference risks have been fully mitigated under steady-state operation of the transmission line. PSE shall cooperate with Olympic in completing a post- energization AC site survey to determine if any adjustments are needed to Olympic’s pipeline protection systems. This survey should cover the entire length of the new transmission line in the South Bellevue Segment. PSE shall provide load data for the survey, along with any design or as-built information requested by Olympic.

PSE shall monitor oil insulation for evidence of arcing and gassing, and monitor substations for evidence of overloading, overheating, or malfunctions. PSE shall submit to the City of Bellevue, upon request by the City, documentation sufficient to show compliance with the provisions imposed by this Condition of Approval.


AR 000061

ERRATA – CORRECTING CLERICAL ERRORS IN DECISION ISSUED FOR FILE NO. 17-120556-LB Page 1 of 2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26





Gary N. McLean



) ) ) ) ) ) ) ) ) )

DSD File No. 17-120556-LB ERRATA

Consistent with Hearing Examiner Rule No. 1.24, this Errata is issued for the sole purpose of ordering correction of two clerical mistakes included on pages 5 and 31 of the Decision issued for this matter on Tuesday, June 25, 2019. Specifically, the reference to PSE witness Ms. Koch, listed on page 5, should read, “Catherine Koch, PE,” instead of Elizabeth; and Finding No. 83(A) on page 31 ends with two extra words that should be deleted. Correcting Ms. Koch’s name, and deleting two extra words and correcting the format of the remaining language, has no substantive effect on the Decision as issued, and the corrections made herein do not alter the outcome. 1. Using the strikethrough and underline features, the Decision at page 5, between lines 1-3, which lists witnesses who testified on behalf of the applicant, PSE, on March 28th, is corrected by this Errata order to read as follows:

For the Applicant, PSE: Dan Koch, PE, Director of Electric Operations; Elizabeth Catherine Koch, PE, Director of Planning for PSE; and Jens Nedrud, PE, Manager of Electrical System Planning for PSE.

AR 000062

ERRATA – CORRECTING CLERICAL ERRORS IN DECISION ISSUED FOR FILE NO. 17-120556-LB Page 2 of 2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26




2. Using the strikethrough and underline features, the Decision at Page 31, Finding No. 83(A), at lines 19-20, is corrected by this Errata order to read as follows:

83. As noted above, the City’s decision criteria for the pending conditional use permit is found in LUC 20.30B.140. Unlike the decision criteria specifically applied to electrical facilities in LUC 20.20.255, the general conditional use permit requirements are the same as would be applied to any conditional use permit decision. Applying facts and evidence in the record to the decision criteria for a Conditional Use Permit (found in LUC 20.30B.140.A-E), the Examiner finds and concludes as follows: A. The conditional use is consistent with the Comprehensive Plan. Staff Report, Attachment G, detailed review of Comprehensive Plan – Policy Analysis, addressing more than 59 Comp. Plan Policies, at DSD 000892-000918; Staff Report, analysis provided on pages 113-119; Application materials at DSD 000600-617; and EIS at DSD 005495, 005502-3.; Testimony of

ISSUED this 3rd Day of July, 2019

_____________________________ Gary N. McLean Hearing Examiner

AR 000063

ERRATA – CORRECTING CLERICAL ERROR IN EXHIBIT LIST FOR FILE NO. 17-120556-LB Page 1 of 1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26





Gary N. McLean



) ) ) ) ) ) ) ) ) )

DSD File No. 17-120556-LB ERRATA CORRECTING EXHIBIT LIST

Consistent with Hearing Examiner Rule No. 1.24, this Errata is issued for the sole purpose of ordering correction of the list of exhibits included in the record, assigning numbers to four (4) pages of materials that were attached to an emailed public comment received during the public hearing process. This oversight and subsequent correction has no substantive effect on the Decision as issued, and the correction made herein does not alter the outcome. The 4-pages addressed in this Order are part of a 64-page collection of emailed materials that mostly expressed concerns and opinions regarding pipeline safety. The pipeline safety concerns expressed in this individual comment, and numerous other substantially similar comments on the subject, were fully considered in the FEIS, the Staff Report, and expert witness testimony that is included in the Record, as discussed in the Decision. Accordingly, the Exhibit List for the above-captioned matter is amended to assign page numbers Z-726 through Z-729 to four-pages that were transmitted as part of a larger emailed comment dated March 28, 2019, from Todd Anderson, but were mistakenly omitted from previously distributed copies of exhibits and not assigned page numbers on the original list. The materials are marked-up copies of congressional hearing testimony excerpts and news articles regarding a 2003 Kinder-Morgan pipeline incident in Tucson, Arizona. The four pages addressed in this order, and all materials included as part of the record, continue to be maintained by the Clerk for the Hearing Examiner’s Office. ISSUED this 13th Day of August, 2019

_____________________________ Gary N. McLean Hearing Examiner

AR 000064

ATTACHMENT B

i

INTRODUCTION

Purpose of Rules of Procedure – An independent Hearing Examiner conducts hearings to apply general policies and regulations adopted by the City Council to specific proposals or situations. These rules are established to make the hearings fair and efficient.

Type of Hearings – An examiner holds three basics types of hearings: (1) Pre-Decision hearings, (2) Appeal hearings, and (3) Code Enforcement hearings.

1) Pre-Decision Hearings – held before a decision has been made on a proposal in order to gather information and create a record upon which a decision can be based. In a pre-decision hearing, the City staff makes a presentation and the applicant and public are invited to testify. Depending on the type of proceeding, after the hearing the examiner will either make a decision or make a recommendation to the City Council.

2) Appeal Hearings – held after the City staff has made a decision on a request; designed to allow the applicant or others with an interest to challenge the decision. In an appeal hearing, the City, the appellant, and the applicant (if different from the appellant) are identified as parties. Such hearings are open to the public, but participation is generally limited to witnesses called by the parties. The examiner's decision on an appeal is the final City action.

3) Code Enforcement Hearings – held when the City has issued a notice alleging that a named party has violated a City regulation or the terms and conditions of a permit or approval issued by the City. Testimony is limited to witnesses called by the parties. The City has the burden of proof. The examiner's decision is the final City action.

Procedure – The intent is to ensure that every hearing provides participants a fair opportunity to be heard. In all hearings the oral testimony is taken under oath or affirmation. The proceedings are electronically recorded so that a written transcript can be prepared, if necessary.

Basis for Decisions – The examiner is concerned not with the popularity of a matter presented but whether it meets the requirements of the applicable ordinance. The examiner's decision or recommendation must be based on the record of the proceedings before the examiner.

ii

Jurisdiction and Authority – The Hearing Examiner’s authority is set forth in Chapter 3.68 of the Bellevue City Code. Most matters before the examiner are described in Bellevue City Code Chapter 20.35 (Land Use Decisions), Chapter 1.18 (Civil Violations), or Chapter 22.02 (Environmental Procedure). Other City Codes or ordinances may provide for hearings to be conducted by the examiner. These Code chapters and ordinances also set out procedures for appeals from determinations of the examiner. An outline of these appeal procedures appears as the final section of these rules.

iii

Table of Contents

PAGE

Section 1 RULES THAT APPLY TO ALL HEARINGS .................................................................................1

1.1 EXPEDITIOUS PROCEEDINGS ......................................................................................................... 1

1.2 COMPUTATION OF TIME ............................................................................................................... 1

1.3 DEFINITIONS .................................................................................................................................. 1

1.4 POWERS AND DUTIES OF THE HEARING EXAMINER ..................................................................... 2

1.5 EXPECTED CONDUCT ..................................................................................................................... 3

1.6 EX PARTE COMMUNICATION ........................................................................................................ 4

1.7 RIGHTS OF A PARTY ..................................................................................................................... 5

1.8 NOTICES OF AND TIME AND PLACE OF HEARINGS ................................................................... 5

1.9 PREHEARING AND OTHER CONFERENCES ................................................................................. 6

1.10 FILING AND SERVICE OF DOCUMENTS ....................................................................................... 7

1.11 EVIDENCE ...................................................................................................................................... 7

1.12 RECORDING ................................................................................................................................... 8

1.13 OATH OR AFFIRMATION ............................................................................................................... 9

1.14 CROSS-EXAMINATION ................................................................................................................... 9

1.15 LIMIT ON TESTIMONY ................................................................................................................... 9

1.16 MOTIONS ...................................................................................................................................... 9

1.17 CONSOLIDATION OF HEARINGS .................................................................................................... 9

1.18 SITE INSPECTION ......................................................................................................................... 10

1.19 CONTINUATION OF HEARING ..................................................................................................... 10

1.20 LEAVING THE RECORD OPEN ...................................................................................................... 10

1.21 REOPENING OF HEARING ............................................................................................................ 10

1.22 RECOMMENDATION OR DECISION ............................................................................................. 10

1.23 CONTENT OF RECOMMENDATION OR DECISION ....................................................................... 10

1.24 CLERICAL ERRORS ........................................................................................................................ 11

1.25 CLARIFICATION OF A DECISION OR RECOMMENDATION OF THE EXAMINER ............................ 11

1.26 RECONSIDERATION OF A DECISION OR RECOMMENDATION OF THE EXAMINER ..................... 11

1.27 TERMINATION OF JURISDICTION ................................................................................................ 12

1.28 DISPOSITION OF CASE RECORD ................................................................................................... 12

Section 2 PRE-DECISION HEARINGS ................................................................................................... 13

2.1 HEARING EXAMINER JURISDICTION ............................................................................................ 13

iv

2.2 NOTICE OF HEARINGS ................................................................................................................. 13

2.3 PARTIES OF RECORD ................................................................................................................... 13

2.4 DEPARTMENTAL STAFF REPORT ON APPLICATION ..................................................................... 13

2.5 FORMAT OF HEARING ................................................................................................................. 13

2.6 BURDEN OF PROOF ..................................................................................................................... 14

2.7 HEARING EXAMINER RECOMMENDATION OR DECISION ........................................................... 14

2.8 CONTENT OF THE RECORD .......................................................................................................... 14

Section 3 APPEALS TO THE HEARING EXAMINER ............................................................................... 16


3.2 NOTICE OF HEARING ................................................................................................................... 16

3.3 FEE FOR FILING OF THE APPEAL .................................................................................................. 16

3.4 CONTENT OF THE APPEAL ........................................................................................................... 16

3.5 CLARIFICATION OF THE APPEAL STATEMENT ............................................................................. 17

3.6 DISMISSAL OF APPEALS ............................................................................................................... 17

3.7 PARTIES TO THE APPEAL ............................................................................................................. 17

3.8 NOTICE OF APPEARANCE ............................................................................................................ 17

3.9 INTERVENTION ............................................................................................................................ 17

3.10 WITHDRAWAL OF THE APPEAL/DEFAULT ................................................................................... 18

3.11 RECEIPT OF CITY FILE AND CITY RESPONSE TO THE APPEAL ....................................................... 18

3.12 FORMAT OF APPEAL HEARING .................................................................................................... 18

3.13 BURDEN OF PROOF ..................................................................................................................... 19

3.14 HEARING EXAMINER DECISION ................................................................................................... 19

3.15 HEARING ON WRITTEN SUBMISSION .......................................................................................... 19

3.16 PARTICIPATION BY NON-PARTY .................................................................................................. 19


Section 4 ENFORCEMENT HEARINGS ................................................................................................. 21


4.2 NOTICE OF HEARINGS ................................................................................................................. 21

4.3 CIVIL VIOLATIONS ........................................................................................................................ 21

4.4 PARTIES ....................................................................................................................................... 21

4.5 STAFF REPORT ............................................................................................................................. 21

4.6 FORMAT OF HEARINGS ............................................................................................................... 21

4.7 BURDEN OF PROOF ..................................................................................................................... 22

v

4.8 HEARING EXAMINER DECISION ................................................................................................... 22


Section 5 APPEALS FROM THE HEARING EXAMINER DECISIONS OR RECOMMENDATIONS .................. 23

5.1 FINALITY OF EXAMINER'S ACTION .............................................................................................. 23

5.2 APPEALS TO THE CITY COUNCIL .................................................................................................. 23

5.3 APPEALS OF FINAL DECISIONS .................................................................................................... 24

5.4 EXHAUSTION OF REMEDIES ........................................................................................................ 25

1

Section 1

RULES THAT APPLY TO ALL HEARINGS

1.1 EXPEDITIOUS PROCEEDINGS

The examiner and all parties shall make every reasonable effort to avoid delay at each stage of every proceeding consistent with fairness to all parties.

1.2 COMPUTATION OF TIME

A. In computing any period of time prescribed or allowed by these Rules, the day of the act, event, or default from which the designated period of time begins to run shall not be included.

B. The last day of the period so computed shall be included, terminating at

5:00 p.m., unless the last day of the period is a Saturday, Sunday or legal holiday as defined in RCW 1.16.050, in which event the period shall run until 5:00 p.m. of the next day which is not a Saturday, Sunday or legal holiday.

C. When the period of time prescribed or allowed is less than seven (7) days,

intermediate Saturdays, Sundays or legal holidays shall be excluded from the computation.

D. "Working" days as referenced in these Rules exclude weekends and legal

holidays.

1.3 DEFINITIONS

A. “Affidavit” means a written or printed statement of facts confirmed by oath or affirmation of the person making it, before one having authority to administer oaths.

B. “Appeal Hearing” means a hearing held by the Hearing Examiner to

consider an appeal of a decision by City staff or other action within the Hearing Examiner’s jurisdiction.

C. "Council" means the Bellevue City Council.

D. "Examiner" means the Bellevue Hearing Examiner.

2

E. “Ex parte communication” means a communication between one party and the examiner in the absence of the other party(ies).

F. "Interested Person" means any individual, partnership, corporation,

association, or public or private organization of any character significantly affected by or interested in proceedings before the examiner or identified by the ordinance or Code under which the proceeding is brought as having a right to participate.

G. “Motion” means a request made to the hearing examiner for an order or

other ruling.

H. “Party” means: 1. Pre-decision hearing – any interested person who has participated in the proceeding, either orally or in writing. 2. Appeal hearing – the appellant(s), the applicant(s) (if different from the appellant(s)), the applicable City department, and any intervenors allowed to join as parties.

I. “Pre-decision Hearing” or “Public Hearing” means a hearing held by the Hearing Examiner before a decision has been made on a proposal in order to gather information and create a record upon which a final decision or a recommendation to the City Council can be made.

1.4 POWERS AND DUTIES OF THE HEARING EXAMINER

A. Hearing Examiner Qualifications

Hearings shall be presided over by a duly qualified Hearing Examiner or Hearing Examiner Pro Tempore appointed by the City Manager. B. Hearing Examiner Duties

The examiner shall have the duty to conduct fair and impartial hearings, to take all necessary action to avoid delay in the disposition of proceedings, and to maintain order. The examiner shall have all powers necessary to that end, including the following:

1. To administer oaths and affirmations. 2. To issue subpoenas to compel witnesses to appear at the

hearing and/or the production of documents or materials.

3

3. To rule upon offers of proof and to admit evidence. 4. To regulate the course of the hearings and the conduct of the

participants. 5. To hold prehearing or other conferences. 6. To consider and rule upon procedural and other motions

appropriate to the proceedings. 7. To make and file orders, recommendations and decisions.

C. Hearing Examiner Independence

In the performance of these duties, the examiner shall not be responsible to, or subject to the supervision or direction of, any elected official or any officer, employee or agent of any municipal department.

D. Disqualification

1. The examiner on his or her own initiative may enter an order of disqualification in the event of personal bias or prejudice, or to preserve the appearance of fairness.

2. A party may file an affidavit (a statement in writing and under oath) stating facts supporting the belief that such party cannot have a fair and impartial hearing by reason of the personal bias, prejudice, or appearance of unfairness of the examiner.

The affidavit shall be filed not less than ten (10) days before the hearing unless good cause is shown, and in any case before the examiner makes any discretionary ruling; provided an affidavit seeking disqualification on appearance of fairness grounds may be filed at any time, but must be filed promptly after the basis for disqualification is known or should have been known to the party seeking such disqualification.

The examiner shall rule on the affidavit prior to making any other ruling and prior to proceeding with the hearing.

3. In case of disqualification or recusal, the matter shall be assigned to a different examiner.

1.5 EXPECTED CONDUCT

All persons appearing at a hearing, including members of the public shall conduct themselves with civility and courtesy and shall abide by all rules and orders of the examiner.

4

No profanity, combative, rude, degrading questions or testimony will be allowed. Any person(s) engaging in any form of disruptive behavior shall be deemed to have forfeited his/her/their right to participate in the hearing process and may be removed.

The examiner may limit or prohibit the use of picket signs, posters, flags or other visible or audible demonstrations as necessary to maintain order and the appearance of fairness in any hearing.

1.6 EX PARTE COMMUNICATION

A. For purposes of this rule, "ex parte communication" means a written or oral communication with the examiner outside of a public hearing, in the absence of the other participants and not included in the public record.

B. Pursuant to RCW 42.36, no interested person (nor his/her agent, employee or representative) shall communicate ex parte directly or indirectly with the examiner concerning the merits or facts of any matter being heard before the examiner, or any factually related matter. This rule shall not prohibit ex parte communications about schedules and other procedural topics.

C. The examiner shall not communicate ex parte directly or indirectly with any interested person (nor his/her agent, employee or representative) in such matters except about procedural topics as identified above.

D. From time to time examiners may need to seek legal advice regarding the scope of their authority. For that purpose, the city attorney or an attorney designated by the city attorney shall provide that legal advice. The attorney designated as legal counsel to the Office of the Hearing Examiner shall have no communication with the parties to any matter or their representatives regarding the substantive issues to come before an Examiner and shall maintain an ethical screen to prevent inadvertent disclosure of communications between counsel to the Examiner and counsel to the parties within the City Attorney’s Office. Communication between examiners and their assigned legal counsel shall not constitute as ex parte communication.

E. If a substantial, prohibited ex parte communication is made to or by the examiner, such communication shall be publicly disclosed at the next following and each succeeding public hearing regarding the subject petition or application or, if there is no further such

5

hearing, disclosure shall be made in writing to all parties of record within ten (10) days of the date of the improper communication.

1.7 RIGHTS OF A PARTY

Every party in any proceeding before the examiner shall have a right to the following:

A. Due notice.

B. Representation by an attorney, although it is not required.

C. Presentation of evidence.

D. Objection.

E. Motion.

F. Argument.

G. Rebuttal.

H. Cross-examination, except as provided herein.

I. Any other rights essential to a fair hearing.

1.8 NOTICES OF AND TIME AND PLACE OF HEARINGS

A. Time Requirement

Notice of any hearing before the examiner shall be given not less than fourteen (14) days before the date of the hearing, unless a different notice period is mandated by law or ordinance or by these Rules.

B. Method of Notice

Notice shall be given to each party in person, by electronic mail or U.S. mail.

C. Time and Place of Hearing Unless notice is given to the contrary, pre-decision hearings before the examiner shall be conducted beginning at 6:00 p.m. in the Bellevue City Hall at 450 110th Avenue Northeast, Bellevue, Washington. Appeal hearings and Code Enforcement hearings are generally scheduled during regular working hours in the Bellevue City Hall.

6

D. Affidavit or Certificate of Notice

An affidavit or certificate of written notice of a given public hearing shall be made a part of the official case record.

1.9 PREHEARING AND OTHER CONFERENCES

The examiner may, on his or her own motion, or at the request of a party, hold a conference prior to the hearing to consider:

A. The issues to be addressed and the procedures to be followed. B. Establish a schedule for filing of pleadings, briefs and witness and exhibit

lists. C. Undisputed facts to which the parties present will agree. D. Documents or other evidence that parties present agree may be

admitted. E. Witnesses to be called and evidence to be presented at the

hearing. F. Limitations on the number of persons testifying and on the nature and

length of testimony. G. Such other matters as may aid the efficient disposition of the

action. Based upon such a conference, the examiner may enter a prehearing order specifying all items agreed to or decided upon at the conference.

Should an opportunity for settlement arise out of a prehearing conference, the examiner will not participate in the substantive settlement discussions. The examiner may, when appropriate, review and approve, modify or deny a proposed settlement agreement.

Prehearing conferences shall be electronically recorded and the recordings shall be a part of the official case record. At the examiner's discretion, conferences may be held after the hearing commences.

7

1.10 FILING AND SERVICE OF DOCUMENTS

A. Filing

Documents may be filed with the Office of the Hearing Examiner in hard copy or electronic format via email to [email protected]. Documents are deemed filed upon receipt at the Office of the Hearing Examiner during regular business hours, unless the examiner has specified otherwise.

B. Service

Unless otherwise provided by the Hearing Examiner or by agreement of the parties, service is complete at the time documents are personally delivered or confirmed as having been successfully transmitted via electronic mail. Unless earlier receipt is shown, service by mail is deemed complete on the third day after deposit in the regular facilities of the U.S. mail.

1.11 EVIDENCE

A. Burden of Proof

The City shall have the burden of proof in a Code enforcement hearing. The applicant shall have the burden of proof in a pre-decision hearing. The appellant shall have the burden of proof in an appeal hearing.

B. Admissibility

The hearing generally will not be conducted according to technical rules relating to evidence and procedure. Any evidence that is relevant, material, and reliable, including hearsay may be admitted if in the examiner's judgment it possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs.

C. Copies

Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. Upon request, parties shall be given an opportunity to compare the copy with the original.

D. Submittal of Evidence

Except where mandatory pre-filing requirements were imposed or where objections to the admissibility of certain evidence have been granted, any party may seek to admit relevant evidence into the record during their direct, cross-examination and/or rebuttal portions of the hearing, provided

8

appropriate foundation for such evidence has been presented by the offering party.

E. Official Notice

The examiner may take official notice of generally accepted and recognized facts and law, including but not limited to City ordinances, resolutions, court decisions, and prior Hearing Examiner decisions. The examiner may also take notice of technical or scientific facts generally accepted as such within the relevant scientific or technical community.

F. Evidence Submitted Subsequent to the Close of the Record

1. If additional evidence is submitted after the record has closed, it will be considered only upon a showing of significant relevance, materiality, reliability and good cause for the delay in its submission.

2. A party submitting additional evidence after close of the record shall send copies to all other parties, who shall have five (5) working days to file any written objection to the admission of the evidence. The examiner, in his or her discretion, shall decide within three (3) working days after the close of the period for filing objections whether the evidence shall be admitted.

3. If the offered evidence is not admitted, it shall be clearly so marked and placed in the case file, and the parties shall be informed in writing. If the evidence is admitted, the examiner shall so notify all parties of record and set the time for filing written replies to the evidence.

4. The examiner shall decide within three (3) working days after the date set for receipt of replies whether the new evidence warrants reopening the hearing, in which case a further public hearing shall be set to consider the matter in the light of the new evidence.

5. The examiner’s final decision in the matter will be due ten (10) working days after the close of the period set for replies to the new evidence or, if a further public hearing is set, ten (10) working days after the further hearing.

1.12 RECORDING

All proceedings before the examiner shall be electronically recorded and such recordings shall be a part of the official case record. Copies of the electronic recordings and of any written materials in the record shall be made available to

9

the public on request, and upon payment of costs as established by City ordinance.

1.13 OATH OR AFFIRMATION

All testimony shall be taken under oath or affirmation.

1.14 CROSS-EXAMINATION

Cross-examination shall be permitted as necessary for full disclosure of the facts and as required by law.

1.15 LIMIT ON TESTIMONY

The examiner may impose reasonable limitations on the number of witnesses heard, and on the nature and length of their testimony, in order to expedite the proceeding and avoid continuation of the hearing. Notice shall be given as early as practical when time limitations are to be imposed. If a party is unable to present his or her arguments and testimony within the allotted time, the record may be kept open and an opportunity may be granted to submit written materials after the close of the hearing.

1.16 MOTIONS

Any application to the examiner for an order shall be by motion which, unless made during a public hearing, shall be in writing. The motion shall state explicitly the reasons for the request, and shall state the specific relief or order sought. Motions in advance of the hearing shall be filed with the Hearing Examiner’s Office and served on all parties of record at least five (5) working days before the date of the hearing. Written replies to such a motion shall be filed with the Examiner’s Office and served on all parties of record two (2) working days before the date of the hearing. The examiner may issue an order based on the written motion and any replies, without oral arguments, or may call for oral arguments before ruling on the motion.

1.17 CONSOLIDATION OF HEARINGS

When practical and consistent with ordinance requirements, the examiner will consolidate land use matters for hearing. Any party may bring to the attention of the examiner the need for consolidation.

10

1.18 SITE INSPECTION

The examiner may inspect a site before or after a hearing but prior to the close of the record. Failure to view a site will not invalidate the examiner's decision.

1.19 CONTINUATION OF HEARING

The examiner may continue proceedings for good cause on his or her own motion, or the motion of a party, announcing the continuance at a public hearing and specifying the date, time and place. No further notice is required.

1.20 LEAVING THE RECORD OPEN

A. At the conclusion of the hearing, the Examiner may leave the record open to receive argument or for other specified purposes. If such purposes include the submission of further evidence, the evidence shall be provided to all other parties and such parties shall be given an opportunity to present responsive evidence. After the post-hearing submissions have been received, the record shall close.

B. Except as provided in Rule 1.21 (reopening) or 1.26 (reconsideration), no

information received after the close of the record shall be included in the hearing record or considered by the examiner.

1.21 REOPENING OF HEARING

If the examiner determines after the hearing record has closed and prior to issuing a decision or recommendation, that there is good cause to reopen a hearing, notice in writing of the further hearing shall be given to all parties who were present at the hearing, and shall specify the date, time and place.

1.22 RECOMMENDATION OR DECISION

Except as provided in 1.21 above, the examiner shall issue a recommendation or decision within ten (10) working days of the closure of the record. Copies of the recommendation or decision shall be mailed to all parties of record, and to any person who is not a party of record but who signs the sign-up sheet and provides his or her address at the hearing requesting a copy of the recommendation or decision. A copy of the list of parties of record may be obtained from the Hearing Examiner's Office upon request.

1.23 CONTENT OF RECOMMENDATION OR DECISION

The examiner's recommendation or decision shall contain findings of fact, conclusions based thereon, and a recommendation or decision consistent with

11

those conclusions. In addition, the examiner's recommendation or decision may include conditions necessary to mitigate any impacts of the proposal and a brief statement of appeal rights of the parties.

1.24 CLERICAL ERRORS

Clerical mistakes in decisions, recommendations, orders or other parts of the record, and errors arising from oversight or omission, may be corrected by order on the examiner’s initiative or in response to the motion of a party.

1.25 CLARIFICATION OF A DECISION OR RECOMMENDATION OF THE EXAMINER

A party may file a written request for clarification of the decision or recommendation. Alternatively, the examiner may issue a clarification upon his or her own motion. A clarification may not materially alter the outcome of the decision or recommendation.

The written request for clarification must be received in the Office of the Hearing Examiner and by all parties within five (5) working days after the date of issuance of the examiner's decision or recommendation. The examiner, in his or her discretion, shall determine what further action is proper, and within five (5) working days after filing of the request shall issue that determination in writing to all parties of record. A new appeal period shall run from the date of the Hearing Examiner’s issuance of a clarification.

1.26 RECONSIDERATION OF A DECISION OR RECOMMENDATION OF THE EXAMINER

A. A party who believes an examiner's decision or recommendation is in error because of (1) the existence of new evidence not available at the time of the hearing, (2) a procedural error, (3) a factual error which is material to the decision, or (4) an error in a legal ruling, may file a written request for reconsideration of the decision or recommendation.

The written request for reconsideration must be received in the Office of the Hearing Examiner and by all parties within five (5) working days after the date of issuance of the examiner's decision or recommendation.

The examiner, in his or her discretion, shall determine what further action is proper, and within five (5) working days after filing of the request shall issue that determination in writing to all parties of record.

B. The examiner may either: (1) deny the request, (2) issue a revised decision or recommendation, (3) issue an order giving all parties an

12

opportunity to submit written comments responding to the request for reconsideration, or (4) schedule an additional public hearing. The examiner shall summarily dismiss a request for reconsideration that is without merit on its face, or brought merely to secure a delay.

C. A new appeal period shall run from the date of the Hearing Examiner’s

Order on Reconsideration.

1.27 TERMINATION OF JURISDICTION

The jurisdiction of the examiner in a matter shall terminate upon the issuance of his or her final action in that matter. The examiner's final action is the issuance of a recommendation or decision unless a request for reconsideration or clarification is timely filed. If a request for reconsideration or clarification is timely filed, the final action of the examiner is his or her determination on the reconsideration or clarification request.

Upon termination of the Hearing Examiner's jurisdiction, matters which require City Council action are under the jurisdiction of the City Council. The City Council may, however, revive the jurisdiction of the examiner and remand a matter for clarification of specific issues, or to consider facts not available at the time of the original hearing. Remand hearings shall be processed in the same manner as the original proceeding before the examiner, using the same procedures for posting, public notice and the forwarding of the examiner's recommendation to the City Council.

1.28 DISPOSITION OF CASE RECORD

The official case record and other related materials shall be forwarded to the City Clerk for storage after a matter has been finally acted upon by the City Council or by the examiner. Electronic recordings of all proceedings before the examiner shall be maintained in the Office of the Hearing Examiner for the period required by law.

Case records of the examiner are public records and available for review during normal business hours.

13

Section 2

PRE-DECISION HEARINGS

The rules of this section apply to land use proceedings before the Hearing Examiner in which a decision by the City on an application has not yet been made.

2.1 HEARING EXAMINER JURISDICTION

The examiner shall have the authority to conduct hearings, prepare a record, enter written findings and conclusions, and issue recommendations or decisions for any matter so designated by the City Code, other City ordinance, or by the City Council.

2.2 NOTICE OF HEARINGS

Rules governing notice of hearings before the examiner are provided in the Bellevue Land Use Code and Bellevue City Code.

2.3 PARTIES OF RECORD

The initial parties of record are the applicant(s) and the City, any person or public agency who individually submitted written comments to the City prior to the closing of the comment period provided in a legal notice, and any person or public agency who specifically requested to be a party of record. Anyone who participates in the hearing by oral testimony or written submission shall by such action become a party of record.

2.4 DEPARTMENTAL STAFF REPORT ON APPLICATION

A written report by the involved City department(s) shall be either delivered to or placed in the mail to the examiner and the applicant at least five (5) working days prior to the date of the public hearing and, at the same time, copies shall be made available to the public at the respective departments.

In the examiner's discretion, failure to timely provide the report may constitute grounds for continuing the scheduled public hearing. In so determining, the examiner shall consider the particular circumstances of the case, the possible prejudice to the persons failing to receive a copy of the report, and the justification, if any, for the failure to comply.

2.5 FORMAT OF HEARING

The format for a public hearing will be informal, but organized so that the testimony and evidence can be presented quickly and efficiently.

14

A public hearing shall include, but need not be limited to, the following elements:

A. A brief introductory statement by the examiner. B. A brief report by departmental staff which shall include introduction of the

official City file, reference to visual aids such as maps, and a summary of the recommendation of the lead department.

C. Testimony by the applicant. D. Testimony from interested persons. E. Rebuttal testimony (if any) by the City or the applicant(s). F. Questions by the examiner of any party, witness or interested person. G. Closing arguments.

2.6 BURDEN OF PROOF

The applicant shall have the burden of proof and must demonstrate by a preponderance of the evidence, that the application merits approval or approval with modifications.

2.7 HEARING EXAMINER RECOMMENDATION OR DECISION

Within ten (10) working days of the date the record closes, the examiner shall issue a written recommendation or decision. The recommendation or decision shall contain findings of fact and conclusions based thereon. The recommendation shall recommend approval with or without conditions or modifications, or denial of the proposal. The decision may approve the application with or without conditions, remand the matter to the City for further investigation, or deny the proposal.

2.8 CONTENT OF THE RECORD

The record of a hearing conducted by the examiner shall include, but need not be limited to, the following:

A. The application.

B. The departmental staff reports.

15

C. All other evidence received or considered, which shall include all admitted exhibits and other materials filed.

D. A recommendation or decision containing findings and conclusions including a statement of matters officially noticed by the examiner.

E. Electronic recordings of the proceedings.

F. An affidavit or certificate of written notice given of the hearing. The Hearing Examiner’s administrative file on a pre-decision hearing may include other information or materials that are not part of the record.

16

Section 3

APPEALS TO THE HEARING EXAMINER


The examiner shall have the authority to conduct hearings, prepare a record, enter written findings and conclusions, and issue decisions or recommendations for any appeal for which the Bellevue City Code or other ordinance designates the examiner to be the Hearing Body. The examiner's decision is the final decision of the City. Appeals are to the Superior Court.

3.2 NOTICE OF HEARING

Notice of the time and place and nature of an appeal hearing as required by the applicable ordinance or Code shall be provided directly to the parties.

3.3 FEE FOR FILING OF THE APPEAL

The appellant shall pay any filing fee that may be required by ordinance or resolution of the City. Filing of the appeal shall not be deemed complete until both the written appeal and any required filing fee have been received.

3.4 CONTENT OF THE APPEAL

An appeal must be in writing and shall contain the following:

A. Identification of the matter being appealed, including the number of the application or department action or the property address, where applicable.

B. A brief statement as to how the appellant is significantly affected by or interested in the appeal.

C. A brief statement containing explicit exceptions and objections with regard to the appealed matter.

D. The requested relief such as reversal or modification.

E. The signature, mailing address, telephone number of the appellant. Where the appellant is other than an individual, a specific agent shall be designated.

F. Any other information required by the Bellevue City Code.

17

3.5 CLARIFICATION OF THE APPEAL STATEMENT

If, within five (5) working days of the receipt of an appeal, the examiner determines that the appeal is vague or ambiguous or does not sufficiently set forth the exceptions and objections with regard to the appealed matter, the examiner may require that the appellant amend the appeal.

Within ten (10) days of notice to amend, the appellant shall file a written clarification of the appeal as required by the examiner. If the appeal is not amended by 5:00 p.m. of the last day of that time period, it shall be dismissed by the examiner.

3.6 DISMISSAL OF APPEALS

The examiner shall dismiss an appeal without hearing when it is determined by the examiner that:

A. The appellant lacks standing;

B. The appeal was not timely filed; or

C. The appeal is without merit on its face, frivolous or is brought merely to secure a delay.

3.7 PARTIES TO THE APPEAL

The parties to the appeal are the applicable department director(s), the appellant(s), the proponent of the action (if different from the appellant), and any intervenors allowed to join as parties. If multiple appellants or a group of appellants file an identical appeal, the examiner may request that a representative be appointed to receive notices and copies of documents. The appointed representative will receive copies of documents and notices for the group.

3.8 NOTICE OF APPEARANCE

When represented by an attorney, the attorney shall file their Notice of Appearance with the Hearing Examiner’s office and serve a copy of the notice on all other parties.

3.9 INTERVENTION

An interested person may petition the examiner to intervene as a party. The petition shall be filed at least five (5) working days prior to the appeal hearing and shall set forth reasons why the petitioner should be allowed to participate. The examiner may provide opportunity for reply. The petition shall be considered

18

at or before the beginning of the hearing and intervention shall be allowed only if the examiner so orders, and upon such terms and conditions as the examiner determines to be appropriate.

3.10 WITHDRAWAL OF THE APPEAL/DEFAULT A. The appellant may withdraw an appeal at any time prior to the close of

the record or expiration of the time for submittal of any post-hearing briefs, whichever is later. When the decision or action being appealed is withdrawn by the City, the appeal shall be dismissed as moot and the appellant(s) shall be entitled to the return of any filing fee paid.

B. If appellant fails to appear at a regularly scheduled pre-hearing conference or hearing, an order shall be entered dismissing the appeal for default. A default order shall be final unless, within seven (7) days of service, good cause to vacate the order is shown by the party against whom it was entered.

3.11 RECEIPT OF CITY FILE AND CITY RESPONSE TO THE APPEAL

The official City file concerning the action which is the subject of the appeal shall be sent to the examiner at least fourteen (14) days before the date of the appeal hearing. The official City file shall contain all documents used to reach the determination which is the subject of the appeal.

Copies of any written response to the appellant's objections and exceptions shall be sent to the examiner and all parties to the appeal by the responding department at least fourteen (14) days prior to the appeal hearing.

3.12 FORMAT OF APPEAL HEARING

The format for an appeal hearing will be informal, yet designed in such a way that the evidence and facts relevant to the proceeding will become readily and efficiently available to the examiner. Any appeal hearing shall include, but need not be limited to, the following elements:

A. A brief introductory statement by the examiner.

B. Any preliminary matters.

C. Opening Statement.

19

D. Testimony by the appellant.

E. Testimony by the City official whose action is appealed.

F. Testimony by the proponent of the proposal (if different from the appellant).

G. Testimony by any witnesses called by such parties.

H. Cross-examination and rebuttal witnesses.

I. Questions by the examiner.

J. Concluding remarks or summations and rebuttal thereto as necessary.

3.13 BURDEN OF PROOF

The appellant shall have the burden of proving, by a preponderance of the evidence, that the matter fails to conform with applicable legal standards and the administrative decision should be reversed.

3.14 HEARING EXAMINER DECISION

Within ten (10) working days of the date the record closes, the examiner shall issue a written decision. The decision shall contain findings of fact and conclusions of law supporting the result reached.

3.15 HEARING ON WRITTEN SUBMISSION

When the parties so agree, an appeal may be submitted entirely on written submissions. If this option is selected, the examiner shall establish a schedule for initial and responsive submissions. The record shall close when this schedule is completed.

3.16 PARTICIPATION BY NON-PARTY

Hearings are open to the public, however testimony or other evidence is generally not allowed from a person who is not a party unless called as a witness by a party. The examiner at his or her discretion may call or allow a non-party witness to testify upon a determination that such testimony will be relevant and not repetitive.


The record of an appeal hearing conducted by the examiner shall include, but need not be limited to, the following:

A. The written appeal.

20

B. The official City file concerning the action and any written response that is prepared by the City official whose action is appealed.

C. All evidence received or considered, which shall include all admitted exhibits and other materials filed.

D. A decision containing findings and conclusions and a statement of matters officially noticed by the examiner.


F. An affidavit or certificate of the written notice given of the appeal hearing.

The Hearing Examiner’s administrative file on an appeal may include other information or materials that are not part of the record.

21

Section 4

ENFORCEMENT HEARINGS


The Hearing Examiner has the authority to conduct hearings which determine whether a Civil Violation has occurred, what corrective action is reasonable, and whether a monetary penalty or other sanction is imposed. The examiner's authority includes determining the amount of penalty, within limits set by the City Code. The examiner's decision is the final decision of the City. Appeals are to the Superior Court.

4.2 NOTICE OF HEARINGS

Rules governing notice of hearings before the examiner are provided in Chapter 1.18 of the Bellevue City Code.

4.3 CIVIL VIOLATIONS

Chapter 1.18 of the Bellevue City Code governs enforcement procedures for Civil Violations. A Civil Violation is any act or omission contrary to the regulations of the City, as defined in BCC 1.18.020M.

4.4 PARTIES

The parties in a Civil Violation proceeding are the City and the person to whom the Notice of Civil Violation was directed (respondent). The participation of other persons in the hearing is normally as witnesses called by a party.

4.5 STAFF REPORT

At least five (5) working days before the hearing, the City shall file a written report with the examiner summarizing its case and making a recommendation for a monetary penalty. A copy of this report shall be mailed simultaneously to the respondent.

4.6 FORMAT OF HEARINGS

The hearing shall include, but need not be limited to, the following elements:

A. The examiner's introductory statement explaining procedures.

B. The City's presentation of its case.

C. The respondent's presentation of his or her case.

22

D. Closing arguments.

4.7 BURDEN OF PROOF

The City shall have the burden of proving, by a preponderance of the evidence, that a violation has occurred and that the proposed corrective action is reasonable. The examiner shall make findings and reach a conclusion as to whether a violation has occurred and what, if any, monetary penalty is appropriate.

4.8 HEARING EXAMINER DECISION

Within ten (10) working days of the date the record closes, the examiner shall issue a written decision. The decision shall assess any monetary penalty the examiner determines to be appropriate pursuant to Chapter 1.18 of the Bellevue City Code and may modify the corrective action or the correction date where permitted by the Bellevue City Code.


The record of a hearing conducted by the examiner shall include, but need not be limited to, the following:

A. The Notice of Civil Violation and attachments.

B. The departmental staff reports.

C. All other evidence received or considered, which shall include all admitted exhibits and other materials filed.

D. A decision containing findings and conclusions including a statement of matters officially noticed by the examiner.


F. An affidavit or certificate of written notice given of the hearing.

The Hearing Examiner’s administrative file on an enforcement action may include other information or materials that are not part of the record.

23

Section 5

APPEALS FROM THE HEARING EXAMINER DECISIONS OR RECOMMENDATIONS

5.1 FINALITY OF EXAMINER'S ACTION

A. Rezones and Applications Within Community Council Boundaries

The examiner's action on a site-specific or project specific rezone, and certain applications within the boundaries of a Community Council as provided by the Land Use Code, are recommendations to the City Council.

B. All Other Matters On all other matters heard, the examiner's action is the City's final decision, except where an allowed appeal to the City Council is taken. 1. Appeals to the City Council are allowed as provided in the

applicable ordinance or Code. 2. When an appeal to the City Council is taken, the City Council's

action is the City's final decision.

5.2 APPEALS TO THE CITY COUNCIL

A. Who May Appeal

Subject to the provisions of any applicable ordinance or Code, appeals to the City Council, where allowed, may be made by any person who participated in the public hearing (orally or in writing) and by the applicant and the City.

B. Form

Appeals consist of a written statement identifying those findings or conclusions being appealed, accompanied by any fee required by ordinance or resolution.

C. Timing

Appeal statements and fees must be received by the City Clerk no later than 5:00 p.m. on the fourteenth (14) day following the date the decision or recommendation of the examiner was mailed.

24

D. Procedure

The City Council will hold a closed record appeal hearing in which the appellant, the applicant, and the applicable department director (or representatives of these parties) may participate. A closed record hearing is strictly limited to argument on information contained in the record developed before the examiner. Argument may be made in writing, or orally, or both.

5.3 APPEALS OF FINAL DECISIONS

Hearing Examiner decisions may be appealed as provided by law.

A. Land Use Applications

The City's final decision may be appealed to Superior Court by filing a Land Use Petition, and serving the same on all necessary parties within twenty-one (21) days of the calendar date the final decision was issued. The governing statute is RCW Chapter 36.70C.

B. Enforcement Decisions

The City’s final decision on civil violations may be appealed to Superior Court within twenty (20) days of the calendar date the final decision was issued, pursuant to BCC 1.18.050F.

C. Shoreline Permits Appeals of City decisions on Shoreline Permits must be made to the State Shoreline Hearings Board within twenty-one (21) days of the date of the filing of the final decision with the Department of Ecology. The governing statute is RCW Chapter 90.58.

D. Tax Decisions

The City’s final tax decision may be appealed to Superior Court within thirty (30) calendar days following the date that the decision of the hearing examiner was mailed to the parties, pursuant to BCC 4.03.150.

E. Non-land Use Decisions

Appeals of certain non-land use decisions are identified in Bellevue Land Use Code 20.35.085. Other appeal procedures are provided from the department administering the applicable code.

25

5.4 EXHAUSTION OF REMEDIES

A. General Rule

Except as set forth in Subparagraph B below, appeals to Superior Court are not allowed unless the appellant has exhausted available appeal remedies within the City's process. This means the City's decision on the merits of any application must become final before an appeal may be made to the Court.

B. Exception for Consolidated Hearings

Where a pre-decision hearing and an appeal hearing are combined, some matters heard by the examiner will be appealable to the City Council and others will not. (For example, decisions on appeal of Determinations of Nonsignificance on environmental issues are not appealable to the Council, but decisions on Conditional Use Permits are.) Where this is the case, the City's decision becomes final when any appeal to the Council is decided. If no appeal to the City Council is timely filed, the City's decision becomes final fourteen (14) days following the date the examiner's decision was mailed.

105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

CERTIFICATE OF SERVICE - 1


CERTIFICATE OF SERVICE

I, I’sha Willis, declare as follows:

That I am over the age of 18 years, not a party to this action, and competent to be a

witness herein:

That I, as a Legal Assistant in the office of Van Ness Feldman LLP, caused true

and correct copies of the following documents to be delivered as set forth:

1. Puget Sound Energy, Inc. Response to CENSE Opening Brief; 2. Certificate of Service

and that on May 12, 2020, I addressed said documents and deposited them for delivery as

follows:

CENSE J. Richard Aramburu Law Offices of J. Richard Aramburu 720 3rd Avenue, Suite 2080 Seattle, WA 98104

By First Class Mail By Legal Messenger By E-mail:

[email protected] [email protected]

CITY OF BELLEVUE Matthew B. McFarland Kathryn L. Gerla Cheryl A. Zakrzewski Office of the City Attorney City of Bellevue 450 110th Avenue N.E. Bellevue, WA 98009

By First Class Mail By Legal Messenger By E-mail:

[email protected] [email protected] [email protected]

I hereby certify that I have this day served the foregoing document upon all parties

of record in this proceeding, by authorized method of service pursuant to WAC 463-30-

120(3) and (4).






105605

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

CERTIFICATE OF SERVICE - 2


EXECUTED at Seattle, Washington on this 12th day of May, 2020.

s/ I’sha Willis I’sha Willis, Declarant

TABLE OF CONTENTS 1 - CENSE

Documents

Transcript of TABLE OF CONTENTS 1 - CENSE