Tuesday, June 23, 2015

Oak Tree Preserve Case: Commissioners Hear Appeal; Romero Recuses Herself


Above: The Thurston County Commissioners held a hearing today at 4:30 p.m. at the Courthouse about the proposed Oak Tree Preserve housing development. The case before the commissioners is an appeal of a decision by a hearing examiner who approved the development's preliminary plat.

By Janine Unsoeld

The Thurston County Commissioners heard brief oral arguments from both sides of the proposed Oak Tree Preserve land use case in a hearing this evening that lasted just slightly over an hour. A standing room crowd flowed out into the hallway.

The case before the commissioners is an appeal of the May 5 decision by Thurston County hearing examiner Sharon Rice, who approved the preliminary plat for a massive housing development in Lacey’s urban growth area.

The proposed development on Marvin Road is partially bordered by the Burlington Northern Railroad and would subdivide 258.5 acres into 1,037 single family homes and remove 36 out of 76 acres of Oregon white oak habitat. Oregon white oak is a state-protected priority habitat.

The appellants claim the project, as currently planned, is in violation of the county’s critical areas ordinance. They want the case sent back to the hearing examiner so that additional evidence may be added to evaluate the functions and value of white oak habitat and, if any of the acreage can be saved, what mitigations should be used.

In a land use case that is constantly charting new territory, Commissioner Sandra Romero recused herself from the case after the developer’s attorney took issue with her disclosures that she has had ex parte communications with citizens within her district. 

The Oak Tree Preserve property is located in Romero’s district. In her opening comments, Romero stated that she had met with citizens over five years ago, in February 2010, regarding traffic concerns and the development proposal for that location at that time. A second interaction was in October 2014, again, with citizens concerned about traffic issues, and the third was when a citizen recently emailed her wanting to discuss the current case. That individual was told she could not discuss the case.

Romero also said that she attends, almost every year, the Black Hills Audubon Society annual dinner, which is a fundraiser. She said she does not believe she’s been to a Blacks Hills Audubon Society meeting. The Black Hills Audubon Society is one of the appellants of the current case before the commissioners.

Romero said that she did not believe that any of these interactions would interfere with her ability to make an impartial decision in the case. 

Commissioners Bud Blake and Cathy Wolfe each stated that they have not had any ex parte communications, and each stated that they plan to make site visits to the Oak Tree Preserve property.

The applicant’s attorney asked Romero to recuse herself from the case.

Elizabeth Petrich, prosecuting attorney for the county, said that in her opinion, there was no technical violation of the appearance of fairness doctrine since all Romero’s communications with citizens occurred before the appeal was submitted. 

Petrich said that if Romero did choose to recuse herself, she should stay in the room and hear the case due to a rule called the “doctrine of necessity” - if in the case of a lack of a quorum on the commission or there’s a split vote in the decision, then Romero can cast a vote.

Romero said that she did not want to delay the hearing and recused herself from the case.

“I kind of anticipated that this might happen and even though I don’t like it, I’m going to recuse myself and I just think it’s a sad state of affairs when a commissioner can’t meet with constituency even though you don’t even have any inkling that there’s going to be an appeal, so, but…to move forward, it’s in the best interest to recuse myself,” said Romero.

Giving something to each side in quick form, Commissioner Blake made three motions on the procedural issues before the commissioners, all seconded by Wolfe, that:  1) denied the appellants request to add county planning manager Mike Kain’s August 26, 2013 email to the record; 2) denied the project applicant’s request to strike from the record the Washington State Department of Fish and Wildlife’s (WDFW) comment letter of June 2, 2015; and 3) allows both parties to submit new evidence establishing or disputing wildlife observation information submitted by Curtis Wambach, a biologist for the developer.

The commissioners gave the developer a deadline of June 24, 5:00 p.m. to submit a declaration by Wambach. The commissioners gave the appellants a deadline of June 25, 5:00 p.m. to respond to the developer’s information, if they file any.

County Email to Oak Tree Preserve Developers

The recently discovered August 23, 2013 email from Mike Kain, county planning manager, to Kevin O’Brien of Oak Tree Preserve, clearly informs O’Brien and others of Fish and Wildlife’s position, as well as the county’s, early on in the process:

“The preliminary recommendation of WDFW is that all oaks in all areas except in area 4 be saved….” The email describes exceptions and mitigation for the loss of oaks in that area and for roads.

Indicating that something went awry in the relationship between the county and WDFW between 2013 and the present, the email continues:

“…The WDFW recommendation will be the County’s recommendation to the Hearing Examiner. After review, WDFW could not recommend saving just the best 50% or 67% of the oaks. WDFW believes the entire linear oak grove formed by areas 1A, 1B, 2 and 3 is valuable habitat and should be preserved. The County Code also lists avoidance as the first priority in the protection of critical habitat. In this case, it is clear that avoidance of critical habitat is possible. This is a preliminary recommendation by WDFW, and therefore also of the County….”

Appellant Argument

Liz Lyman spoke for the appellants, who were not represented by an attorney.

“The appellants are not asking you to deny the project or to change the examiner's findings and conclusions. Why are we asking a remand? Because the record on which the hearing examiner based her decision is incomplete and inaccurate; your 2009 Critical Areas Ordinance on important habitats requires the developer to submit a wildlife study and to determine the impacts of the development on the wildlife habitat - the developer has not done this. It only looked at two species, the Western gray squirrel and Mazama pocket gopher….the developer submitted a habitat management plan that is incomplete and misuses science to evaluate its mitigation measures. The developer then concludes erroneously that there will be no net loss of the oak habitat's ecological function.”  

She detailed the appellants concerns for each of her points.

Regarding the methodology of how the oaks were graded based on their condition, Lyman said, “The developer claims that its habitat management plan preserves the best oak stands. This simply isn't true. Is cutting down the second best quality oak stand and leaving behind a two acre residential park that's fated to die - is this what you believe your critical areas ordinance means by protecting and preserving critical wildlife habitat,  or by avoiding and minimizing impacts?”

In conclusion, Lyman said, in part, “….Remanding gives the citizens of this county some assurance that the county's decision on what is preserved and what is removed of this largest remaining oak habitat in Thurston County will be based on fact, and not fiction….”

Applicant’s Argument

In his remarks, the developer’s attorney, Patrick Mullaney, discussed issues of balance, rationality, and fairness.  He said that this case has been unpredictable for his client and that the Washington State Department of Fish and Wildlife has “waffled all over the place as to what it wanted in oak habitat preservation.”

He said that by agreeing to a 55% set aside of oak habitat, which he said is far more than any other plat that has been approved under the 2009 version of the Critical Area Ordinance, the developer “foregoes the development of 131 lots with a cost of $3.2 million, so it has made a substantial commitment to environmental mitigation.”  He said 100% oak habitat preservation, at a loss of 323 lots, would cost the developer $8 million, rendering the project unfeasible.

He cited several federal land use court cases to support his arguments about the “rational relationship between mitigation and a specific impact to the proposed development.”

Lastly, he said, “If there’s any bad actor in this case, it’s the Washington State Department of Fish and Wildlife, because they had years to look at this habitat management plan....”

The Washington State Department of Fish and Wildlife is not an appellant in this case.

In her rebuttal, Lyman responded, in part, that Mr. Mullaney always conflates the appellant’s position with the WDFW’s position, and the appellants aren’t asking for 100% preservation of the oak habitat.

When Commissioner Blake asked a follow up question about the Washington State Department of Fish and Wildlife’s position, and whether they are using 100% as a part of the appellant’s position, she clarified WDFW’s position, saying they would like 100% preservation, except for unavoidable impacts.

“….Basically, the position in our critical areas ordinance is the same….Yes, there is mitigation sequencing…but avoidance has a special place in the ordinance ….so obviously when you’re building roads and houses, you’re going to have impacts.”

When Commissioner Blake again asked the same question, Lyman responded, “I’m not sure that’s really relevant to us. Basically, our position is that nobody has the answer because there’s no information about that (due to the lack of a wildlife habitat study) , so, quite frankly, WDFW doesn’t have that answer either….”

The commissioners said that they will issue a written decision on the case by July 8.

For several past articles about the Oak Tree Preserve land use case, go to Little Hollywood, www.janineslittlehollywood.blogspot.com and use the search button to type in key words.

Above: After today's hearing, interested folks crowd around a projected image of the proposed Oak Tree Preserve development in Lacey's urban growth area.