And here are my notes of what actually happened at the final PAB hearing on the Roth application. If you are left a bit confused by the inconclusive ending, you’re not alone. No one is quite sure at this point. We’re all waiting for the PAB’s report.
Notes of PAB deliberations re Roth appeal, 8-4-10 by Marianne Edain
Jim Sundberg, chair, opens by saying that he dislikes the adversarial approach required by the appeal format, since it does not allow for compromise.
City Attorney Tom Graafstra outlines the procedure. First they must consider the SEPA appeal, as outlined in LMC 16.04.150.H. They have 4 options. They can affirm the application, they can remand the question back to the planning official, they can modify the proposal, or they can reverse the planning official’s decision. Whatever they do, they must give substantial weight to the opinion of the planning official. They must prepare a report which outlines their findings of fact, their conclusions of law, and their decision.
Then they must consider the underlying application, as outlined in LMC 18.36.040.C. They must make a recommendation. Again, they have 4 options. They can recommend approval of the application. They can recommend approval with conditions. They can recommend denial of the application. Or they can recommend denial without prejudice. They must write a report which contains a summary of the testimony, their findings of fact and conclusions of law, and their recommendation.
Larry Cort pointed out that they first needed to close the public input part of the hearing, allowing no more input from any party.
Jim Sundberg then officially closed the hearing to public input and declared the record closed. He then opened discussion with the statement that two issues require clarification. 1. surveying baseline conditions in the ditch and groundwater flow off-site. The measure needs to be extended to include periodic monitoring. Monitoring should begin immediately and be repeated at 50% and 75% completion.
2. preservation of vegetative cover, which will limit groundwater infiltration. No good data on evapo-transpiration is available. He wants to add this as a condition, subject to further input. The current requirement is that 3 trees be planted for every tree which is removed. A requirement needs to be added to plant 4 shrubs along with the 3 trees. Canopy cover needs to be increased by 5 - 10%, a model needs to be constructed to estimate the amount of vegetation needed to reduce evapo-transpiration to pre-development levels. He finds the project exemplary otherwise. He proposes to modify but not reverse the MDNS.
Roger Gage believes these matters should have been dealt with in the application, that they are irrelevant to the SEPA appeal. The question in his mind is: did the City and the planning official do wrong? Were there major errors? He doesn’t think so. There were just minor errors. He affirms the City and the SEPA MDNS.
Jim Sundberg agrees that the modifications he’s asking for could be done at the application phase.
Julie Buktenica disagrees, saying that the number of mitigations required to bring the project below the level of significance implies that there is a serious impact, and that they are trying to mitigate the cumulative impacts. She asks how you reduce the individual impacts so the project as a whole will not have an impact. But, she says, they are not being asked to determine the underlying issue, but whether there was error in the process.
Jim Sundberg addresses the issue of piecemealing and says that phasing is inevitable. They’re just considering the preliminary plat at this stage, so the ditch is outside the City’s jurisdiction. Other failures brought up by the appellants are either not convincing or are not significant enough to justify reversing the planning official’s decision.
Julie Buketenica asks if, in the event they vote to modify or remand, they need to make recommendations.
Attorney Tom Graafstra responded with a short tutorial. If they remand, they must identify the error which requires correction. If they modify, they need to identify the error and propose corrective modification. If they reverse, it indicates that they consider the MDNS fatally flawed and the planning official would have to write a new determination.
Jim Sundberg proposes to make recommendations today. He reiterates that he is comfortable supporting the City. He moves to support the City, with modification of two mitigation measures as mentioned above. He proposes to increase the vegetative cover requirement to 40%, but says there are no models to know if this is enough or too much. He does not believe the project should be held up for lack of models.
Roger Gage moves to affirm the MDNS and to deny the appeals.
Julie Buktenica says she ‘is kind of stuck on the difference between remand and modification.’ She doesn’t simply want to deny the appeal. The appellants raised good issues: alternate routes for the water line. She wants to look at modifying the SEPA MDNS to look at alternate water line routes. The evidence from the borings may seem speculative, but seemed professional, so she has no real questions there.
Jim Sundberg suggests that they recommend 3 modifications and otherwise affirm the City.
Roger Gage says they need to produce two reports, one on the SEPA determination and one on the application. He wants to bring up the water line in the second phase.
Julie Buktenica says they need to do it now.
Jim Sundberg says that the application will likely be modified, but they need to mention something in both reports. He says they’re zeroing in on modifying the MDNS in 3 specific areas: maintenance of vegetative cover, on-site monitoring of water flows, and alternative water line routes.
Julie Buktenica brings up the proposed findings of fact and conclusions of law prepared by Steve Erickson, and the list of reversible errors produced by Robin Adams.
Jim Sundberg says they can include those in their report and leave the matter to the City council. He gets confused and asks if there is a specific mitigation number for this.
Julie Buktenica finds the specific item.
Jim Sundberg asks yet again if Julie wants to include exploration of alternate water line routes, and if they can accept a recommendation for a modified MDNS with this included.
Julie Buktenica asks that the proposed monitoring be described more completely.
Jim Sundberg says it would begin immediately, and be repeated at 50% buildout and 75% buildout. He finds such monitoring is not excessive, just 4 times/year. He realizes that there are implications for what might have to be done as a result of such monitoring, but at least there would be a baseline.
Julie Buktenica wants this to include the ditch all the way to the outfall to the beach, and asks that there also be a visual survey of the bluff to monitor for new seeps. That issue needs to be addressed in the proposed modifications.
Jim Sundberg says that’s possible, although it is kind of qualitative. He suggests that Public Works could come up with some quantitative measures.
Julie Buktenica suggests they could work on this with the appellants.
Jim Sundberg asks if the same periods would apply to bluff monitoring and suggests there would need to be written reports on flows at the bluff.
Julie Buktenica asks how long monitoring would last.
Jim Sundberg suggests that it last until 100% buildout of the development.
Julie Buktenica asks if monitoring simply stops at that point.
Roger Gage opines that they should know about any changes happening by then.
Jim Sundberg says that if a serious problem is discovered, then it is time for Langley to build a sewer line on Edgecliff. That is the unspoken need of further development. He thinks they have a report to support the MDNS with 3 extensions to the mitigating measures. He reiterates those 3 points.
Roger Gage tries to put off monitoring until construction begins.
general objections are heard from PAB members and the public.
Jim Sundberg tries to explain the concept of baseline data.
Roger Gage then proposes to limit the increase in vegetative cover to 35%.
Jim Sundberg disagrees, wanting to keep the figure at his proposed 40% but buckles under to 35%. He then argues that if you include the wetland buffer the figure rises to 40% anyway. He then concludes that even exotic landscape plants will contribute to evapo-transpiration, so dedicating 35% should be sufficient. He then declares that they have reached consensus on the SEPA appeal and he will write and circulate the required report.
Jim Sundberg then goes on to the actual development proposal and repeats the options: approve, condition, deny, or deny without prejudice.
Roger Gage says he is still of two minds on this, he has flipped time and again, and recognizes that they can’t please everyone.
Julie Buktenica asks if this is really in the public interest, and whether it is within their purview to decide that question. She asks whether Langley really needs another 17 houses when so many are vacant.
Jim Sundberg claims that if this application is denied, further subdivision will still be possible, and it could be worse. He says this benefits the neighbors because the developer is on the alert about the groundwater problems. He has done a lot of homework. Staff has done a lot of homework on the mitigations. He prefers approval with conditions.
Julie Buktenica points out that this is, after all, just a preliminary plat.
City Attorney Graafstra intervenes to remind the PAB that they merely recommend, and that even assuming the City council approves the application, there will be no construction until final plat approval.
Jim Sundberg asks if denial without prejudice allows the applicant to come back with a modified proposal.
Roger Gage says he is still having a water problem. He says its not predictable, and that they can’t keep running water off the bluffs. There’s a problem with the ditch. If anything, he says the water should be piped to the outfall, which would avoid the need for periodic cleaning of the ditch. He says that would work. So many people are against this. They should consider the public and what they want. He thinks this could be workable with modifications.
Jim Sundberg states a preference for the 4th option, denial without prejudice, and asks Attorney Graafstra to expand on the ramifications.
City Attorney Graafstra says that ‘without prejudice’ means the applicant can come back and try the same proposal again, while outright denial means the application is dead. Without prejudice means they can continue, based on the nature of the modification.
Steve Erickson asks who changes the proposal. Without prejudice implies that parts of the proposal are acceptable, but that changes need to be made. We need to know what those proposed changes are.
Robin Adams asks if denial without prejudice affects vesting of the proposal.
City Attorney Graafstra says that outright denial would cancel vesting, and any new proposal would be vested under the rules then in place. Denial without prejudice would result in a gray area. If the modifications were ‘non-material’ the earlier vesting date would remain. If there were major modifications, the new vesting date might be used.
Attorney Doug Kelly argues vehemently against a denial without prejudice, inserting a note of threat.
Jim Sundberg brings the meeting back to order and suggests that they make a split decision recommendation.
Jim Sundberg recommends approval with conditions
Roger Gage recommends denial without prejudice
Julie Buktenica recommends leaving the matter to the City council.
Julie Buktenica then went on to say that the extensive public input, the water issues, the traffic issues, which had not even been addressed, were all so great that they could continue to condition until the proposal was sufficiently constrained. She thinks a straight approval or denial would be cleaner, and she prefers denial.
Jim Sundberg repeats that they can report to the City council that the PAB has 3 separate opinions.
Roger Gage agrees, saying he is not changing his.
Jim Sundberg then proposes to send the City council a report which says that:
One member recommends approval with 3 conditions.
One member recommends denial without prejudice, and specifying concerns, including limiting the scale of the proposal.
One member recommends outright denial.
He says the City council can read the minutes and the testimony and draw their own conclusions. He closes the case and repeats his preference for compromise.
Larry Cort says the PAB’s next meeting is next Wednesday and asks if the reports will be available then.
Jim Sundberg says they will, but they’ll be short.
Julie Buktenica asks when the next City council meeting is.
Larry Cort says that there is an appeal period following adoption of the reports, so they cannot be forwarded to the City council until after that appeal period.
and thus the hearing adjourned.
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