And then the other shoe dropped

We have reported on the successful end of two major matters. The one had to do with the City of Oak Harbor wanting to expand its Urban Growth Area (UGA) all the way out to Swantown Lake. The other was a proposal to build 20 houses in a location nearly guaranteed to increase bluff instability in Langley.

In the Oak Harbor case, both the County Commissioners and the Planning Commission have now recommended reducing the expansion to include only 18 acres in the industrial zone right outside the Navy base. We all thought we’d won. Well - not exactly. The City of Oak Harbor has filed a “failure to act” petition with the Growth Management Hearings Board, alleging that Island County has been dragging its heels on UGA planning. The irony here is that the schedule the City proposes gives the county until the end of April to finish this process - but the county’s own schedule has them finishing in March. If you find this confusing, you are not alone. At this stage we’re all trying to figure out what the City is after with what sure looks like a pointless case.

And then there’s the Langley mess. We were so pleased on November 1 when the city council voted down the development proposal. On the day when we all came back, theoretically to review the Findings of Fact and Conclusions of Law prepared by the city’s attorney, we found instead that neither the city’s attorney nor the findings and conclusions were anywhere in evidence. Instead what we found was a letter from the developer’s attorney demanding that the council reconsider its opinion and offering to negotiate modifications of the project. All parties were very clearly warned at the November 1 hearing that they were not to discuss substantive matters. There is also the basic rule in law cases that if one party sends out a communication, it has to go to all parties, not just some of them. The developer’s attorney certainly knows those rules and chose to ignore them. We are very much not amused. The developer has also chosen to bring in a high-powered Seattle attorney with whom we’ve had the misfortune to have to deal in county matters some years ago. We suspect this blowing-off of rules was her idea.

It is hard to know how to respond when some people just will not play by the rules. We have until Monday morning to submit our objections to the city. As I said before about this case, it ain’t over ‘til its over.

Langley Council Does The Right Thing

November 1, 2010

After 5 years of reviews, comments, studies, more reviews, protests, official approvals, withdrawals of official approvals, new official approvals, and appeals, the process has worn itself to a tired but successful end. On November 1 the Langley City Council voted unanimously to deny the application of Langley Neighborhood Partners for a 20 house development along Edgecliff Road. WEAN and Langley Critical Areas Alliance (LCAA) submitted appeals, first to the Planning Advisory Board (PAB) and then to the City Council.

The PAB voted to deny our appeal of the environmental determination, a Mitigated Determination of Non-Significance (MDNS) but then voted to deny the underlying application, without prejudice, which means the applicant can come back with exactly the same proposal and expect it to be reviewed all over again.

Both WEAN and LCAA on our side and the applicants on the other appealed that decision. Appeals of PAB decisions are heard by the City Council, but these are “closed record” hearings. All parties had a bit of trouble with this, as we were told that we could make no opening statements, could not present evidence, in fact, could do nothing but respond to questions from council members. The questions had to be framed as “where in the record can we find . . . ?” It became obvious very quickly that, given the enormous size of the record, all parties were having trouble finding specific references. So the format was changed to having council members pose questions and having all parties post responses within 1 week. This went on for 3 rounds.

On November 1, with all council questions asked and answered, that portion of the hearing was closed and the council members deliberated.

Councilmember Rene Neff started by reading an eloquent statement which demonstrated that she had in fact read the piles of documents and come to understand the complex issues. Her issues boiled down to public safety and bluff stability. She asked for more testing, and for preparation of a worst case scenario.

Councilmember Fran Abel was unhappy with the notion that mitigation would happen after development instead of before. She also pointed to the lack of baseline data, without which it is impossible to know what change is happening. She cited the city’s code which prefers infiltration of stormwater into the ground - except near bluffs.

Councilmember Waterman said he agreed with Rene Neff, but also wanted to know how much the increase in water would be, and where it would go. He found no answer to that fundamental question. He asked, if the bluff is already dangerously unstable, how much more water is too much? Good question. WEAN asserted that any more water would be too much.

Councilmember Robert Gilman pointed out that the core documents on which the Planner relied disagree. Robert is a physicist and is used to reading abstruse technical documents. He caught a discrepancy which we had not seen, having to do with hydraulic conductivity (I said this was getting abstruse). He also found that seasonal variations in water coming off the site had not been considered, let alone studied. All the reports were based on models and/or assumptions. They had also failed to consider the cumulative impact of their various actions. He concluded that Council was being asked to allow a bad situation to be made worse, and he wanted some serious study before he could do that.

The city’s attorney then put the question to the council: Was the planning official’s decision to issue an MDNS clearly erroneous? Council voted unanimously that it was.

Then they went on to the underlying application. There was a good deal of discussion about how the city had been less than helpful to the applicant, with seeming changes at every turn. It was brought out that 4 different planning officials had worked on this proposal, and that they had 4 different opinions. Council members expressed sympathy with the applicant, but when the attorney asked the question of whether this application met the minimum requirements of Langley Municipal Code, council voted unanimously that it did not.

We are now waiting for the city’s attorney to write up the Findings of Fact and Conclusions of Law which the council must then officially adopt. All parties have 21 days from that adoption to appeal to Superior Court. The applicant and his attorney were overheard after the hearing saying “in 21 days” so we will not be surprised if they appeal.

WEAN has been clear from the very start that if the development can protect the wetland and the bluff then we have no objection. Thus far we have not seen any such protection, and given the fragility of the bluff, we’re going to need some pretty solid evidence.

As ever, a big win, but it ain’t over ‘til its over, so stay tuned.