Loading...
HomeMy WebLinkAboutMacLearnsberry Ltr 18066 to PC 10-11-19Jefferson County Planning Commission October 11, 2019 621 Sheridan Street Port Townsend, WA 98368 Michael Nilssen, Chair Kevin Coker Matt Sircely Cynthia Koan, Vice Chair Richard Hull Lorna Smith Arlene Alen Chris Llewellyn Re.: MLA19-00013 - Wilke Rezone Proposal Dear Planning Commission Members: Aside from a couple letters from Amy Hiatt, most of the last few months since our submittal of the Wilke site-specific Comprehensive Plan amendment application have been quiet. Then, six days before last Wednesday’s meeting, letters of opposition addressed to the Commission began arriving at a brisk pace, right up to the final hours before the meeting. It was a very well-calculated deluge. There simply was insufficient time to address the written concerns with advance correspondence, and at the meeting itself, Andy and I had but six minutes combined to respond. So I ask that you hear me out in this response to those concerns. Before you is a decision as to whether to affirm the Planning Department’s recommendation of approval of the Wilke rezone proposal or to advise its denial. On the one hand is a dispassionate, objective review of the applicable laws and standards by public and private sector professionals who work daily with such issues. Most of these are, themselves, residents of Jefferson County. On the other hand are citizens in opposition–mainly neighbors–all of whom oppose growth on their doorsteps, marshaling any reason they can, pertinent or not, that might lend itself to denial. Distinctions need be made between what is relevant and what is not and what arises from true concern for the community and the environment versus what is merely self- serving. First, as a general background to my values and professional practice, when I’m approached by a prospective client, two key questions I ask are as follows: Is this proposal viable? Does this project have real merit or is it going to involve harm? There are many consultants who are happy to take on assignments they know from inception are not viable, yet they’re willing to milk the client in ignorance until the reality is inescapably obvious. I refuse to operate that way. If I sense at the introduction that a proposal is not viable, I’ll advise the proponent immediately. If it looks possible, but with reservations, I’ll look for the Achilles heal as soon as possible to keep my client’s investment to a minimum. There are many developments that blight our landscape. I want no part in those. I want my reputation to remain associated with improvements that make our communities better places to live. One of the questions I considered at the outset was, would I consider the Wilke property, if divided in two, a pleasant place to live. For me, the answer was, in terms of the physical environment, a resounding “yes.” I’m hardly shy about sharing with you that my first reaction to Andy Wilke’s proposal was that its viability seemed doubtful–not with such a large pond bisecting the property. However, despite my doubts, I was hired, not to make a snap judgment, but to do an objective review–which also happens to be your responsibility. As I carefully reviewed the regulations and physical constraints, despite my initial expectations, I realized I could find nothing that would violate Jefferson County’s development standards, the provisions for amending the Comprehensive plan or the Growth Management Act. I then advised Andy to arrange a consultation with County staff to get their assessment. Perhaps they would see a fatal flaw I had overlooked and we would round-file the whole idea at the front end. We met with members of Jefferson County’s Planning and Public Works Departments as well as Health District personnel. No one was emotionally-charged or biased. It was simply a methodical, objective review by seasoned professionals. Recall the actual character of the neighborhood in terms of parcel sizes (as depicted on Exhibit G). This proposal is hardly so inconsistent with the surrounding area as to become an outlier if rezoned. I note that none of us missed the wetland or discounted its significance at any point in this process. The pond is obvious on the GIS, indicative of wetlands, and it demanded serious scrutiny from the very outset. There was no doubt, for example, that it would require a broad protective buffer, and it became apparent quite early that it would preclude any development of the western portion of the property. So a land use professional, public or private sector, could not help but have initial doubts about the viability of this proposal. Yet, with diligent, competent analysis, the common verdict was that the rezone proposal was viable and a subsequent subdivision would have realistic prospects for success. I need to emphasize I and Jefferson County staff are all working strictly within the parameters of the Growth Management Act. It is not the Stasis Act or the Growth Prevention or Extinguishment Act, nor the No New Homes On My Horizons Act. It presumes growth and mandates acceptance of it. What it does is set rigorous standards bridling that growth. As you know, the GMA also prescribes periodic adjustments to local comprehensive plans and, though it does channel most growth to existing municipalities and urban growth areas, it also directs modest growth in rural areas such as this. The following is my response to various statements made by those opposed to this proposal. Many of the statements are ill-informed, misrepresentative, skewed, exaggerated or irrelevant. In a number of instances, the opponents offer reasons in flat opposition to one another to promote their common goal. For example, Ms. Hiatt wrote, “Most of the wetlands in our part of the valley are in shallow, clay-lined basins so they don't drain into the aquifer.” Meanwhile, Owen Fairbank, stated the property “lies within a critical susceptible aquifer Recharge Area. It is apparent from the conditions on this and surrounding land that these open areas contribute to water storage, and thus flood control . . .” So which is true–that it does or does not drain into the aquifer? One party says it does not, therefore the Wilke rezone should be denied. The other party is equally emphatic that does and, therefore, the Wilke rezone should be denied. Moreover, does it truly make sense that an area subject to flooding is also controlling flooding? No. One party stated at the last Planning Commission meeting that Sand Road is overburdened and potholed. In contrast, Ms. Hiatt wrote, “For decades, the narrow gravel driving surface has been successfully maintained by the neighborhood residents through volunta1y contributions of money and labor.” Having driven the portion of the road between Loftus and the Wilke property, I found it in good condition, pothole-free. Public Works inspection and assessment of it concurred. Writing from Marrowstone Island, Janet Welch wrote, “Sometime later, it appears that the applicants were led to believe that a favorable outcome was likely. It was unkind, to say the very least, to lead the applicants on a wild goose chase . . .” In contrast was the following particularly vicious paragraph from Ms. Hiatt: “In his letter, the project consultant has made a statement which is either an extremely careless misreading of background materials provided by DCD or a conscious attempt to mislead reviewers of the application. Despite the possibility that, during preliminary meetings, DCD staff may have encouraged completion of the application, there is no way a recommendation for approval of the proposal would have been issued solely in response to information provided at a Customer Assistance Meeting. Such an egregious claim should cast doubt on the reliability of any other statements made in the application.” So I ask you, were we led on by the County as Ms. Welch suggests, or did I carelessly or deceitfully misrepresent the County’s preliminary stance? Some of the above statements in opposition may appear convincing in isolation or buried in the mounds of comment, but I think it’s really important to juxtapose them to better measure their true consistency and objectivity or lack thereof. Among the incorrect assertions made, Carol Cahill wrote, “Sand Road is a single-lane gravel road that cannot accommodate new access to the property without significant alterations to the current easements.” The Public Works Department has advised us that Sand Road is sufficient to serve the Wilke parcel in a divided state. Mr. Fairbank wrote, “This proposed up-zoning conflicts with, and is inconsistent with, both the State Growth Management Act and with the stated goals and vision of Jefferson County's 2018 Comprehensive Plan.” He cites provisions in RCW 36.70A that state that comprehensive plans must “reduce the inappropriate conversion of undeveloped land into sprawling, low-density development” and be “consistent with the protection of natural surface water flows and groundwater and surface water recharge and discharge areas.” I respond first that the Wilke property is hardly undeveloped. The proposed rezone and subsequent subdivision are actually conceived to be configured around existing development. If one desires to characterize the neighborhood as sprawling, it is what it is. The existing environmental constraints would necessitate the compactness of any additional development on the Wilke property, whether it remain a ten acre parcel or be divided. I also note that the allegation of that surface and groundwater degradation is a necessary outcome of this proposal, if approved–a common thread in the opposition comments–is completely false. Subdivided or not, the existing regulatory constraints on land development near environmentally sensitive areas are considerable. Whether they seek to construct a non-residential accessory building on the property as is or expand the present ADU once subdivided, they will face in either case the imposition of a particular wetland buffer and be compelled to take at least as rigorous measures with storm water quantity and quality management as Ms. Hiatt and David Pratt or anyone else. Ironically, absent this process, the wetland on the Wilke property remains uncategorized and without a particular buffer. In the event of a subdivision, the wetland will be categorized, a specific buffer applied, and a long list of restrictions placed on the face of the plat and set to title as a covenant far beyond what restrictions any neighbor has. Megan Foley and Jascha Gulden wrote, “Quimper Valley is the watershed for Discovery Bay, and it would struggle to support the additional wells and septics (systems) . . .” It is so easy to make such a false claim simply to see how much mileage it might get. The Quimper Valley can support many, many more septic systems and more wells. We were advised by the Health District that the Quimper Peninsula aquifer is being carefully monitored for saltwater intrusion. The performance of existing septic systems on the Peninsula leaves little doubt that, outside wetlands, draws, especially steep slopes and their buffers, the locale could easily support one on-site septic system and reserve area per acre without harm to the environment–and that is being very conservative. Future zoning changes are hardly likely to remotely approach the actual capacity of the land in this regard. Some of the statements made by our opponents are true, but irrelevant. For example, Mr. Fairbank cited Goals 2 (Maintain a rural landscape by smartly growing in urban areas) and 5 (To be consistent with urban growth and rural character goals, focus higher densities in urban growth areas). Ms. Hiatt wrote, “Re-zoning and sub-division of the Wilke property will have no effect on the supply of developable land in the UGAs.” The problem with these statements and others like them is that this case has nothing to do with what goes on in UGAs. Mr. Fairbank, in his position at the Jefferson County Land Trust, and Ms. Hiatt, as an architect, likely well know what I observed earlier: that the GMA mandates that a certain amount of growth must be absorbed by rural areas. Such comments about UGAs are simply disingenuous distractions. Next we have exaggerations. Ms. Foley and Mr. Gulden wrote, “If approved, the rezone would be a gross deviation from the Comprehensive Plan which in place to stop exactly this type of subdivision.” Similarly, Ms. Welch wrote of “preserving the integrity of our zoning map.” Some of our opponents decry that there should even be such a thing as a site-specific amendment. The alternative to a site-specific amendment, favored by the State, is the broader amendment that involves up-zoning much larger areas into much denser zones within and adjacent to Urban Growth Areas (UGAs). This, by contrast, is a very modest proposal. The reality is, amendments are an intrinsic part of the GMA, and a small-scale one that calves off a five acre, single-family, rural parcel is hardly a “gross deviation.” As I think Exhibit G well demonstrates, this proposal comports with the combination of local zoning and actual parcel sizes in the immediate vicinity. Time does not permit me to address every statement of the opposition, but I would like to draw special attention to Ms. Hiatt’s hypocritical, ambush tactics as largely the orchestrator of this opposition. At the September 4 Commission meeting, Ms. Hiatt submitted one of my stamped and signed maps (Exhibit E) to which she had added various features without consulting me and without applying her own name to the map. (Her name was subsequently written on the map by DCD staff.) She drew a 150 foot buffer around a wetland that had not been categorized or delineated, drew in the location of a manmade trench what she labeled as a “Type Ns Stream,” and shaded what she identified as the extent of episodic flooding. In her opposition to the Wilke proposal, Ms. Hiatt has not ceased to call attention to the periodic flooding in the valley. She has noted the 1995 inundation, one in 2010 and a couple since, each of which left lingering waters for several months and more. These are hardly events to be trifled with. She and Mr. Pratt took me on a tour of the southern portion of their property and pointed out what he had marked on a utility pole as the highest level of the flood waters. [I subsequently measured its elevation, which, in combination with Puget Sound LiDAR Consortium data, are the sources underlying the flood zone exhibit map I submitted to the Commission (18066 max flood zone.pdf)]. I now call your attention to a 2014 wetland study Ms. Hiatt and Mr. Pratt had for their property in preparation permitting and construction of a new home and septic system on the very narrow and low esker between two wetlands. The planning department has posted it on line (http://test.co.jefferson.wa.us/WebLinkExternal/0/edoc/2170586/Wetland%20Deline ation%20Report%20001184006.pdf). I recommend you read it from cover to cover. You will find no mention of these floods to which Ms. Hiatt now so eagerly calls attention. The only mention of flooding in this report is generic as it can apply to wetlands and soils in general. There is nothing about the actual episodes that have frequented the Hiatt/Pratt site. Why was this flooding withheld from the wetland report and from all of Hiatt’s development plan submittal documents, yet so front and central with the Wilke proposal? The primary reason is that it facilitated the assignment of an exceptionally narrow and favorable 40 foot wide buffer. Even as Ms. Hiatt depicted no wetland buffer on her site plan, she is quite enthusiastic about what she calls “the 140-foot assumed buffer” for the (Wilke’s) wetland. Part of the irony in this is that, having walked both the Hiatt and Wilke sites, it is readily apparent that the western wetland on the Hiatt property is connected to the one on the Wilke property. This fact is obvious from the topography, the soils and the vegetation. Only by skirting this and the context of the larger wetland mosaic of the immediate vicinity could the Hiatt/Pratt wetland receive the exceptionally low rating it did. I can understand buffer averaging and shoe horning a new residence and septic system on a narrow strip between two wetlands as a necessity, but, unless something else is also off the radar, Hiatt and Pratt have about two acres of unencumbered land on which these site improvements could occur well further from the wetland and flood zone–though, granted, not likely without raising their shop driveway as they did their primary access. As I noted at the last Commission meeting, Google imagery shows that, at least four years after the 2014 wetland report, Hiatt and Pratt were continuing to mow hay in their western wetland–the one connected to the Wilke’s. In Section 18.22.310(7) under “Regulated Activities,” the Jefferson County Critical Areas Ordinance prohibits harvesting within a wetland. In her September 18 letter to the Commission, Ms. Hiatt wrote, “The truth is that current development regulations, critical area designations, and storm water management standards can't even begin to deal with the problem because the causes are cumulative. Most of the actions contributing to it are, at best, small, gradual, incremental, and unregulated or, at worst, illegal and unenforced. But they all add up.” Indeed–and who better to inform us than Ms. Hiatt. In her May 25 letter, Ms. Hiatt wrote, “The most recent flood event happened in the winter of 2017-2018, at which time the property owners dug a deep trench through the swale in an attempt to lower the pond level. After protests from the downstream neighbors, the trench was partially refilled. All of this work was done without any kind of permit.)” That made for a convenient accusation. What she didn’t disclose was that, on May 24, 2018, at 9:40am, Mr. Pratt emailed the Wilkes, “Amy and I would like to contribute to your expenses for the trenching that was done as it was a benefit to us. I will drop a check off today. If you are not at home I’ll leave it in an envelope at the front door. Yours, David.” Finally, I wish to note something about the portion of the Wilke’s land west of the wetland. In the earliest stages of my review, it was unclear to me whether the Wilke’s had the vehicular access to that portion that would be necessary for its development potential. No access, no development. Upon further review, it quickly became apparent that there was no such access–not without securing an easement from a neighbor, which has a snowball’s chance in the Sahara. Thus, any development potential was off the table in consideration of a rezone and subsequent short plat of the Wilke property. I have, therefore, taken the tack that, should the rezone and short plat proceed, we should assume that area will become a defacto nature reserve. As it turns out, that is not at all how Ms. Hiatt, quite the opportunist, sees it. When I toured her property, she mentioned interest in purchasing that portion of the Wilke property, should the rezone be approved. That comment might be dismissed as hearsay were it not for CAM 19-00148, which she arranged last March. CAM 19-00148 is a boundary line adjustment proposal depicting the Hiatt/Pratt acquisition of the Wilke’s land west of the wetland–and by which their other neighbors, the Jannsens, would acquire the wetland itself. This proposal is readily available for your review via the Permit Porthole. When we consider their mowing their own wetland, their efforts to drain it, their withholding information about the periodic flooding with regard to their own development plans and Ms. Hiatt’s maneuvering to acquire land of the Wilke’s that the Wilkes themselves cannot develop, a single word would come to mind: “exploitation”–except that this not mere exploitation; it is shameless exploitation at the expense of others. When we broaden our consideration to the contrasting constraints Ms. Hiatt would have laden on the Wilke property, another word comes to the fore: “hypocrisy.” While I disagree with the stance of the other opponents, I don’t attribute the malice and opportunism of Ms. Hiatt to them. They simply have leapt upon her bandwagon, as I think the timing of their correspondence indicates. Of course, the application before you is not about Hiatt and Pratt per se. It’s about the merits of the Wilke rezone proposal within the provisions of the Growth Management Act. Yet we must consider the opposition, their perspectives and the merits of their points. Is the opposition forthright and sincere, abiding by the values and standards it allegedly espouses, or is it simply dredging up any handy reasons, mixing fact and fiction, relevance and irrelevance, into one indiscriminate load to tip the scale of influence in their self-interest? The concerns about protection of the wetland and the periodic flooding are certainly valid and central to this case. Any accusations that these are not being given serious, technically-sound consideration and scrutiny or assertions that a rezone or subdivision would necessarily impair or ignore those considerations are completely baseless. Likewise, we are accused of violating the provisions of the Growth Management Act and the Comprehensive Plan. That is flagrantly untrue. As noted previously, while it is certainly true that the GMA places very firm bridles on growth, it accepts growth as an inevitable phenomenon. This includes mandating acceptance of a comparatively lower, but still significant percentage of growth in rural areas. It does not provide for the cessation of growth that some would like to see, but manages that growth, including the imposition of environmental stewardship–stewardship greater than what is observable on the Hiatt/Pratt property for sure. Were the Wilke property subdivided, I can assure you that a robust buffer and thorough list of protective measures would be imposed by covenant on the plat beyond any protections in place at present–on the Wilke property or any of those neighboring. I next address some issues of concern raised by individual Commissioners at the last meeting. First, I believe it was Commissioner Alen who expressed wariness of site-specific amendments and their alleged susceptibility to abuse. My response is that it is a valid mechanism provided for in Jefferson County’s Code and accommodated by the GMA. The alternative to a site-specific amendment is a regional amendment. The regional amendment certainly has its necessary and appropriate function, particularly for the expansion of Urban Growth Areas. However, I ask you, which has more impact on the surrounding community, whether the immediate vicinity or beyond? Obviously the site- specific amendment, where the potential is but one additional parcel, will be of lower impact. A site-specific amendment involving a very large tract with the subdivision potential of multiple parcels will generally have a more significant impact on the vicinity than one such as the Wilkes are proposing, yet still be less than one adjoining a UGA. That is why the merits have to be weighed on a case-by-case basis. This also relates to concerns about a domino effect. I can understand these concerns, but, for those of us actually experiencing this process, it should be obvious it is no cakewalk. Can such a case establish precedents? Yes, but, because each site is truly unique, especially in rural and semi-rural locales, precedents transfer far less readily than the casual observer might expect. Topography, environmentally sensitive areas, access and adjacent zoning configurations do not all replicate themselves from one site to another–so the decision criteria will necessarily vary, significantly blunting the application of precedents. In reality, the number of rezones is a trickle, the Wilke proposal being the sole candidate on this year’s docket. If approved, it will merely accommodate the possible creation of a single, additional parcel–hardly the trip-lever of a floodgate. Commissioner Sircely asked (and I paraphrase), “How will this proposal foster actual value and improvement to the community?” Let me put it this way: If you were raising a family, would you and your family prefer to live in multi-family or high-density housing or on five acres in the Quimper Valley? Where would your children thrive more? Who would be more connected to the environment? Who will learn the value of the outdoors and regular, hard, physical work? Who in the upcoming generation is learning gardening and animal husbandry? Would you be more likely to afford a home on five acres or a home on ten, twenty or forty acres? What kind of households contribute positively to the local social fabric? What would be the contribution to the local tax base? The creation of new five acre parcels where such a lifestyle is accessible has been cut to nearly nothing. Is that truly healthy? It certainly does not make rural and semi-rural property more affordable. One of the questions I asked when I took on this assignment was, if it is successful, will it provide a pleasant place for one more family to live and grow? Part of the answer to that question is, will it still retain its present, rural character? To me, the answer was and remains unquestionably, yes! I will close this tome with some observations about the further development potential of the Wilke property, should it be subdivided. Obviously we would not be pursuing the rezone were it not to subsequently, if successful, apply for a subdivision of the property into two, five-acre parcels. Further, both I and County staff would view the rezone exercise as utterly pointless if we did not consider this parcel had reasonable viability as a subdivision candidate. That said, we should not overestimate the development potential of this site. For example, it has been observed that five acre parcels are entitled to having a primary residence and an accessory dwelling unit (ADU). Thus, the possibility of the Wilke site totaling two primary residences and two ADUs is a consideration for both proponents and opposition. However, neither should this development potential be overstated. First, the imposition of a significant wetland buffer will clearly render portions of the site undevelopable. Beyond that are primary and reserve septic system areas–both the two existing systems for the two existing residences and any additional ones for any ADUs. We then have setbacks from the roads. What if the property was subdivided and the northern parcel owner wanted to consider expansion of the present ADU into a primary residence and the construction of a new ADU? What constraints would they face in fact? First, they would have to expand the existing septic system and reserve area, which would diminish the area remaining for an expanded building footprint. The new residence would need its own primary and reserve septic system areas. If those were to go on the northerly parcel, that would further diminish building footprint potential, as well as parking and access. Given the existing constraints, it would not surprise me if an additional residence would prove unfeasible in this scenario. What if a septic system easement were placed on the southerly lot to make more room for development on the northern parcel? That might be a possibility, but, if the present well becomes a two-party well, it will require a 100 foot radius protective area–within which a septic system cannot be placed. Further to the south would likely be a buffer from the wetland on the adjoining Cahill property. So how realistic and well-thought-out are the opposition concerns about the theoretically densest site development? Not very. Exaggeration of that potential is nothing more than a scare tactic. The constraints I’ve enumerated are real, they are particular, and they will definitely impose themselves on any subdivision and development considerations and applications. So, as to the valid concerns of our opposition, be assured that those all have been and remain under serious consideration of County staff, the property owner and myself. As to the exaggerations and falsehoods, we must trust that you will identify those for what they are and focus on the real issues, and that you will set aside passions, personal pressures and intimidation and complete your review and render your decision with steady objectivity, well-informed of the applicable regulations and characteristics of the site as is befitting a planning commissioner. Thank you for your consideration. Sincerely, Bruce MacLearnsberry, PLS, CFS encl.