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Well folks. Lets have another round of “The Times, They Are A’Changin’.” Today, Steve Erickson, on behalf of WEAN, argued before the Island County Hearings Examiner in support of and in cooperation with the Island County Planning Director.
The underlying issue is long and complicated, and could even get boring, but the implications are, as usual, big. Here’s the story.
Back in the 1960s, someone started a gravel pit along Madrona Way north of Coupeville. Back then the process was simpler, and in 1969 they obtained a Conditional Use Permit to operate a 19 acre gravel mine. In 1984 the county finally adopted a permanent zoning ordinance. In 1986 the gravel pit owner bought a bunch of neighboring land, bringing their total ownership up to 53 acres in 8 parcels. They tried to do a residential development on part of the land but eventually gave that up (doesn’t everyone want to live next to a gravel pit?). As a part of that process they applied for something called a Certificate of Zoning Compliance (CZC). This is basically a document which says that under the new rules this activity might not be allowed, but it is being grandfathered under the old rules. It took from 1986 to 1992 for the CZ finally to be approved. About then the owners brought in a rock crushing operation and the neighbors objected, loudly and officially. They hired a lawyer and filed a formal complaint with the county. Larry Kwarsick was the planning director back then and he told the complaining neighbors that he was the final authority on their complaint, and that he would deny it if they went any further. They withdrew their complaint. Time went by and eventually the 19 acres were mined out. The owner/operator signed several documents which said there was no more gravel and they weren’t mining. In 1998 a whole new comprehensive plan and zoning ordinance were adopted, with detailed standards for gravel mines. Fast forward to 2008 when the mine operators, Krieg Construction, hired former planning director Larry Kwarsick to submit another CZC, this time to expand the mining operation onto the other 6 parcels, totaling 34 acres.
What has been puzzling us all this time is why Larry chose the vehicle of a CZC, which, as I mentioned, is a way of grandfathering existing operations. The usual and expected track for this sort of operation is the Site Plan Review process and a Conditional Use Permit. These provide for public notice, participation, and hearings. They also empower the planning director to require environmental review and the meeting of all those standards. The CZC process does not, since it is only intended to grandfather in already existing operations.
This morning’s event was a hearing before the Island County Hearing Examiner on the appeal by the gravel mine owners of the planning director’s denial of the CZC permit. The Hearing Examiner made it quite clear that previous perfidies, violations, and mishandlings were not at issue. The only issue he wanted to hear was why a CZC was or was not the appropriate avenue for review.
Larry Kwarsick, on behalf of the mine owners, spoke first. Larry is a slick character who is able to talk long and hard enough to confuse even himself, and he did so today. I have several pages of notes of what he said, and they amount to “we’re right; they’re wrong; rule in our favor.”
What was quite unusual was that the Hearing Examiner said at the outset that he would let people other than the applicant/appellant and planning staff speak. He was looking straight at Steve Erickson when he said this, and we conjecture that he wanted to hear more from Steve based on the long and detailed brief he had submitted. This is unusual enough that Steve had not prepared to speak, so when he did it was completely off the cuff. On the other hand, he (and I) had been taking notes while Larry K spoke, so he had plenty of claims to rebut. And rebut he did. Legal citations were flying in all directions.
In the middle of Steve’s presentation one of the planning staff handed me a note which I duly passed on to Steve and he incorporated into his discussion. The note was to the effect that Larry K had misinterpreted a particular piece of code, claiming that the clause after the comma referred to everything which had gone before and not just the immediately preceding clause. Stupid little stuff like that can make all the difference. Steve brought the matter up, and let it go.
Several other members of the public spoke, including Mark Preiss, the manager of Ebey’s Landing National Historical Reserve and Herb McDonald, one of the people who had filed the complaint back in 1992. He said some very uncomplimentary things about Larry Kwarsick.
Larry got his chance to rebut, but the Hearing Examiner was getting visibly tired and bored with the repetition and he said so. The planning director then got into the act with a few salient points. When Larry tried to get up to rebut those, the Hearing Examiner said no and closed the hearing.
Its always a gamble trying to predict how a judge will rule, but we think it very likely that he will support the planning dept and WEAN.
Of course these things are never final. Winning this round only means that the applicants will come back with a new application, this time hopefully the right one. And then we’ll be able to bring up all those previous violations which were never corrected, etc. Ultimately, they probably will get a permit to mine the gravel, but the community will be able to impose limits and conditions to reduce the impact. We all need to think about what would be appropriate limits and conditions.
November 12 - update. The Hearings Examiner has ruled in favor of the Planning Department and denied the CZC application. As mentioned above, that doesn’t mean its over. Now we all wait for the next move.
