1 BEFORE THE WESTERN WASHINGTON GROWTH
MANAGEMENT HEARINGS BOARD
2 STATE OF WASHINGTON
3
4
5 1000 FRIENDS OF WASHINGTON, )
EVERGREEN ISLANDS, and )
6 SKAGIT AUDUBON SOCIETY, )
Petitioners, )
7 )
VS. ) NO. 03-2-0017
8 )
CITY OF ANACORTES, )
9 Respondent. )
)
10
11
12
13
14
15
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17
18 DATE TAKEN: December 17, 2003
19 PLACE: Anacortes Municipal Court
1218 24th Street
20 Anacortes, WA
21 TIME: 10:00 a.m.
22 REPORTED BY: Jennifer L. Caldwell, CCR, RPR
CCR# 2940
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24
25
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1 A P P E A R A N C E S
2
FOR THE PETITIONERS:
3 CHUCK COTTRELL
GARVEY SCHURBERT BARER
4 1191 SECOND AVENUE
18TH FLOOR
5 SEATTLE, WASHINGTON 98101-2939
(206) 464-3939
6
JOHN ZILAVY
7 1000 FRIENDS OF WASHINGTON
1617 BOYLSTON AVENUE
8 SUITE 200
SEATTLE, WASHINGTON 98122
9 (206) 343-0681
10
FOR THE RESPONDENT:
11 IAN MUNCE
CITY OF ANACORTES
12 P.O. BOX 547
ANACORTES, WASHINGTON 98221
13 (360) 299-1942
14
FOR THE GMHB:
15 HOLLY GADBAW, PRESIDING OFFICER
905 24TH WAY SOUTHWEST
16 SUITE B-2
OLYMPIA, WASHINGTON 98504
17 (360) 664-8966
18 NAN HENRIKSEN
905 24TH WAY SOUTHWEST
19 SUITE B-2
OLYMPIA, WASHINGTON 98504
20 (360) 664-8966
21 MARGERY HITE
905 24TH WAY SOUTHWEST
22 SUITE B-2
OLYMPIA, WASHINGTON 98504
23 (360) 664-8966
24
25
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1 ALSO PRESENT:
STEVE ASLANIAN
2 ELLEN GRAY
BRENDA LAVENDER
3 TOM GLADE
MARGARET STUDER
4 TERRY CHRISTENSON
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1 P R O C E E D I N G S
2 PRESIDING OFFICER GADBAW: It's
3 10:00 o'clock, and so we will begin. This is Case
4 Number 03-2-0017, 1000 Friends of Washington, Evergreen
5 Islands, and Skagit Audubon Society versus the City of
6 Anacortes.
7 Let's introduce the parties. We have a court
8 reporter, Jennifer Caldwell. Representing the petitioners
9 are Charles Cottrell and John Zilavy. Representing the
10 City of Anacortes is Ian Munce, the City attorney. I am
11 Holly Gadbaw; I am the presiding officer. With me are Nan
12 Henriksen and Margery Hite, board members.
13 I appreciate the parties being willing to change
14 the time of the hearing -- it makes it more convenient for
15 the Board -- and being able to move the hearing here to
16 Anacortes. I appreciate the City of Anacortes helping us
17 find this facility.
18 I sent out an agenda. We'll have some preliminary
19 matters, hopefully that won't take very long; then
20 starting with the petitioners' opening arguments for
21 30 minutes; then we'll have the City's response for 40.
22 And then we'll take a break, ten minutes for the
23 petitioners' reply, and then we'll have board questions.
24 We received two motions from the City of Anacortes
25 to supplement the record. There were no objections from
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1 the petitioners on those motions. They're both the same
2 thing, Mr. Munce, so do you want to supplement the record
3 with both of them or just the final two?
4 MR. MUNCE: The first one has four
5 items, and the second one just updates two of those four,
6 so I think -- just for consistency, I'd like all of them
7 to be in the record so you have them and so opposing
8 counsel have them.
9 We have a preliminary draft and then we have a
10 Planning Commission recommendation. So we have -- Staff
11 recommendation are two of the earlier exhibits, and the
12 two later exhibits are formal Planning Commission
13 recommendation after public hearing. And opposing counsel
14 indicated that they were irrelevant, and so if they are
15 irrelevant, I'd just as soon have them in there the way
16 they are presented.
17 PRESIDING OFFICER GADBAW: Okay. So
18 that's actually six items.
19 MR. MUNCE: Correct.
20 PRESIDING OFFICER GADBAW: I think
21 the last item in the Index was 339 or --
22 MR. MUNCE: I submitted numbers with
23 them that I think are consistent with the City's numbering
24 system -- well, that I know are consistent with the City's
25 numbering system.
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1 There's two sheets, four and one and two on the
2 other.
3 PRESIDING OFFICER GADBAW: So
4 starting with 7109, so it would be through 7114.
5 MR. MUNCE: Correct.
6 PRESIDING OFFICER GADBAW: So the
7 Board will allow those exhibits to supplement the record.
8 Then we received a motion from the City of
9 Anacortes, a motion to strike portions of the petitioners'
10 brief. The Board has discussed this. We don't think
11 there's a need for argument, and we are going to deny the
12 motion to strike.
13 MR. MUNCE: Madam Chair, may I state
14 for the record the basis for my motion?
15 MS. HITE: We have it in writing.
16 PRESIDING OFFICER GADBAW: We have
17 it in writing, Mr. Munce.
18 So are there any other matters to come before the
19 Board before we start?
20 MR. COTTRELL: Not at this time.
21 PRESIDING OFFICER GADBAW: Then we
22 will begin with the petitioners' opening argument.
23 MR. COTTRELL: Yes. Thank you.
24 This is, for the record, Chuck Cottrell speaking for
25 petitioners, and as the Board is well aware, this petition
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1 arises out of the City's adoption of Ordinance 2623 in
2 June of this year.
3 Now, the context of the adoption of this ordinance
4 is something that should be made clear. There was a
5 previous petition before this Board on similar issues
6 wherein the petitioners alleged that the City had failed
7 to act to protect certain -- or to actually classify or
8 designate or protect certain critical areas under the
9 Growth Management Act.
10 At a certain point -- actually, just on June 16th,
11 I believe, of this year, the City went and adopted
12 Ordinance 2623, a critical areas ordinance that
13 incorporates different preexisting sections of the
14 municipal code and other plans that the City has relied
15 upon over time, over the last couple of decades, in
16 considering some of its resources and incorporating them
17 into a single document entitled A Critical Areas
18 Ordinance, setting out -- designating in certain cases
19 where certain critical areas, habitat areas, could be
20 found and where regulations governing the development of
21 those areas might be found within the City code.
22 On the very next day, the City had moved to
23 dismiss that previous action, claiming that, insofar as
24 the petitioners claim, we have not acted.
25 We have acted. We have adopted an ordinance
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1 specifically complying with the GMA. Now, as a result,
2 comes this petition before you.
3 What the City has done is basically tab certain
4 areas or adopted certain regulations that purport to give
5 protection to fish and wildlife habitat to comply with the
6 GMA, to comply with the holdings of this Board and other
7 Growth Management hearing boards regarding the application
8 of the Growth Management Act requirements and the
9 guidelines that were promulgated under the act, and,
10 frankly, the ordinance does not do that.
11 The ordinance does not specifically discuss
12 priority species for the state of Washington. Does not
13 reference them in any way. Does not, for example, adopt
14 any species or habitats of local importance. Does not
15 promulgate guidelines that, if it had adopted such species
16 or habitats of local importance or if it were referencing
17 priority species for the state or federally protected
18 species, it does not promulgate any regulations --
19 developer regulations protecting the areas that would have
20 been necessary for these species or habitats.
21 There are a number of different things along the
22 way that the City just fails to do in protecting critical
23 areas. And we've addressed that in our opening brief, and
24 I'll get to that a little bit more in just a moment.
25 One of the defenses raised, that I'd like to just
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1 talk about briefly at this moment, to our argument here is
2 that the petitioners have failed to address the forest
3 plan in their opening brief. I'd like to talk about that
4 and just get it out of the way immediately because,
5 really, I don't -- it's somewhat confusing to me why this
6 applies, why this argument should be relied upon.
7 Our opening brief alleged generally that there was
8 nothing within the ordinance or any of the documents that
9 it relies upon that specifically protects fish and
10 wildlife habitat, as I've discussed briefly here, that
11 talks about species' needs, that designates species in the
12 local ordinance, that creates a mechanism whereby new
13 species of local importance that have critical habitats
14 may be amended or added to that it may be evaluated by.
15 Nothing within the ordinance or the documents it relies
16 upon does this.
17 In their defense, in their response brief, the
18 City raises the forest plan as, really, its pillar of
19 defense, saying that the forest plan does all these
20 things; additionally, that it protects waters of the state
21 as required by the WAC.
22 And, basically, the City claims that the forest
23 plan, in its general regulations as it applies to the
24 acres that are subject to this plan, and this Conservation
25 Easement program that the City has developed grant all of
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1 the protections that are necessary to comply with the act.
2 Now, there's a couple of problems with this. One,
3 the City has chosen to comply with the act through
4 designating just a specific small area within its
5 jurisdiction as the area within which any protections may
6 apply.
7 Now, as you're aware and as we pointed out in our
8 brief, the preferred way of granting critical areas
9 habitat protection is through regulations that attempt to
10 define and describe critical areas as they may occur.
11 What this does is allow, then, the City
12 developers' permit applicants to be able to have a set of
13 criteria whereby they are able to identify critical areas
14 as they may arise on the property that is the subject of,
15 say, a petition or a permit application.
16 It also allows the City to be in compliance with
17 the Growth Management Act because it creates a general
18 standard under which critical areas that are worthy of
19 protection are protected, no matter where they might be.
20 One of the central goals of the Growth Management
21 Act, of course, is to preserve and enhance the physical
22 environment of the state for the benefit of the people.
23 Now, the definition of, sort of, generally
24 applicable regulations allows those particularly critical
25 areas, those areas that are of importance, no matter where
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1 they might be, that are scarce, to be protected in place.
2 The City has chosen, instead, to adopt an approach
3 that says, "Well, anything that we deem worth protecting
4 is within this area. No matter what science might say, no
5 matter what streams may lie outside of this forest area,
6 what lakes may be there, what other critical habitats
7 might be there" -- unique species that might be found to
8 be nesting elsewhere -- "they are not deserving of our
9 protection. We are going to take this, really, relatively
10 easy road and say, 'We will protect these acres, and we
11 will -- and that is all we will do. We will turn a blind
12 eye to anything else.'"
13 Well, that just doesn't comply with the goals of
14 the GMA because it basically ignores critical areas that
15 may be absolutely unique within the jurisdiction of the
16 City that may not be within these forestlands. The
17 forestlands may not encompass habitats of this unique
18 nature that are to be found elsewhere along the shorelines
19 or anywhere else in this jurisdiction.
20 Now, the other problem with that argument is, as
21 we discussed in our reply brief, the forest plan simply
22 isn't a fish and wildlife habitat/critical areas
23 regulation. It just doesn't do the job. It doesn't have,
24 really, almost any reference at all to species or habitats
25 that may or may not be important.
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1 Its reference to species is a two-page -- perhaps
2 a five-page list to include those species that are listed
3 within the forest plan that are actually found in Western
4 Oregon. But a two-page list of wildlife that may be found
5 somewhere within the City limits, not necessarily within
6 the forest areas, approximately two decades ago. There's
7 been no survey to actually verify that any of these
8 animals are there or that other priority species may be
9 present. It hasn't been updated in the last 20 years.
10 Who knows what sorts of species may have moved in?
11 The second part of that is that basically the
12 forest plan and the Conservation Easement program sort of
13 present a low-grade protection to the forestlands. They
14 are just sort of general protections. Certain activities
15 are limited within the forest area, but many activities
16 are allowed.
17 It is clear, if you review the forest plan, that
18 this is really a sort of management plan for recreation
19 areas. When it was drafted back in, I think, the early
20 '80s, it probably was very progressive for its time in
21 that it was attempting to set apart certain lands within
22 the City for the continued enjoyment of the citizens of
23 the City. But it is more setting up a sort of park-like
24 atmosphere rather than critical areas appurtenances.
25 Now, to that end, it would allow certain timber
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1 harvesting, although it probably would be limited. It's
2 not clear, but it probably would be limited to salvage
3 harvesting.
4 It could allow other commercial activities within
5 that are not specifically designated, such as maybe for
6 gravel mining or something like that.
7 It allows, obviously, recreational activities to
8 occur: camping, picnicking, hiking; perhaps some off-road
9 vehicle use, either motorized or nonmotorized; it's not
10 clear from the plan where it might be restricted from
11 nonmotorized vehicle use.
12 But it doesn't discuss particularly how habitats
13 that might be necessary or that might be critical to the
14 animals that may be present, that those needs are
15 specifically met and protected by the plan. Instead, it's
16 just sort of this general, thin blanket of protection, and
17 it may or may not be meeting the requirements of the
18 species that are present in that area. There is no
19 discussion of best available science. There's really no
20 survey there. It just doesn't comply.
21 But, primarily, the greatest problem there is that
22 it doesn't grant protection to critical areas that might
23 lie outside of the forest area, particularly Type I
24 through V waters that obviously do run their course out
25 and through forestlands into other areas in this
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1 jurisdiction.
2 Now, that, in a nutshell, really, is our argument
3 regarding the protection of fish and wildlife habitat.
4 There just isn't anything there. And, importantly, there
5 is no process for amending the code to add or subtract
6 from critical habitat, critical areas, ordinances, the
7 fish and wildlife habitats, to add or subtract priority
8 species as they may be nominated or designated or perhaps
9 disappear from the area.
10 There are no -- There's no procedure in place, and
11 there's no criteria to allow an orderly evaluation to
12 proceed whereby applicants or petitioners submitting these
13 names can present a case to the City in favor of
14 designating these species and know that they have met the
15 requirements of the City, that they know what the City
16 will be looking at in advance. Right now, it just doesn't
17 exist.
18 And this is required by the Growth Management Act,
19 that this mechanism of amending and supplementing critical
20 areas -- and, particularly, species and habitats of local
21 importance -- is required. It's specifically required by
22 the Growth Management Act.
23 We also turned our attention to the wetlands
24 ordinance. Now, the wetlands ordinance is a much more
25 complete and developed ordinance as it was readopted here
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1 by the City. It is a wetlands ordinance, but it is not a
2 wetlands ordinance as it is required to protect wetlands
3 as critical areas under the Growth Management Act.
4 Specifically, it allows a number of exceptions.
5 One failing of it is that it does not set out
6 definitions -- classifications and definitions of wetlands
7 by type. It doesn't really even define what a wetland is.
8 Now, as is typical of most wetlands ordinances,
9 the applicant, or development applicant who is coming to
10 get a permit, is in it to make the initial sort of
11 assessment of whether wetlands are here on the land.
12 But in a typical -- in an ordinance that would
13 meet the requirements of the Growth Management Act, there
14 would be specific hallmarks of wetlands, something whereby
15 the permit applicant would be able to say, "All right. On
16 first glance, this could be a wetland." They would bring
17 in an expert, and the expert would know what standards
18 apply; and they would then know exactly when the wetlands
19 ordinance governed any actions of that area, when they had
20 to get a permit.
21 Those standards are not present.
22 Now, and the wetlands generally are not
23 categorized or classified as is required by
24 Section 365.190.040 of the Administrative Code.
25 And perhaps more importantly, though, is that once
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1 a permit applicant has decided, "Oh, well, the wetlands
2 ordinance must apply," then there is no requirement of
3 in-kind mitigation.
4 Now, it's stated in the current wetlands ordinance
5 that this is the preferred alternative, that the goal is
6 to allow no net loss, and that is the required goal of the
7 GMA: no net loss of function of wetlands.
8 But, even though it has this goal, it does not
9 mandate that wetlands be replaced in kind. It sets out a
10 series of factors that the City may sort of consider along
11 the way. And it sets out a preference for in-kind
12 mitigation, but depending upon a number of factors,
13 including just the cost of replicating the lost wetlands
14 or the wetlands that might be being disturbed, the City
15 could step back and say, "No, you can just pay us some
16 money for that."
17 That is not in compliance with the GMA. The goal
18 of the GMA is to allow no net loss of the wetlands or
19 their functions, the significant biological functions that
20 they serve to this community and to, really, other
21 critical areas as defined by the Growth Management Act.
22 Then you can't allow wetlands to just sort of disappear
23 over time, as would be permissible under this particular
24 ordinance.
25 We also raised another issue under SEPA. The
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1 ordinance itself, one of the sections of Ordinance 2623,
2 states that critical areas are protected through SEPA.
3 Now, SEPA, as we are familiar with it, is largely
4 procedural ordinance. It's a procedural statute. It
5 forces the decision-maker, whether it's the State or
6 local City, to step back, to sort of round up its thoughts
7 regarding things to take the appropriate measures and do
8 the studies, and consider the action it is thinking of
9 permitting in light of other standards, other laws that
10 may be applicable. But it has no substantive component;
11 it's purely procedural. And so it does not really grant
12 any substantive protection to fish and wildlife habitat or
13 waters of the state.
14 To the extent that the City may be relying on SEPA
15 to provide substantive protection, we wanted to point out
16 that that is not proper or appropriate, and so the
17 reliance upon SEPA to protect critical areas is misguided
18 in this case.
19 We also raised an issue with the Aquifer
20 Protection program of recharge areas, and we've waived
21 that particular issue that we raised in our petition.
22 That has been addressed, the City has adopted a new
23 ordinance, and so we are no longer raising that particular
24 issue.
25 Now, briefly, in the time I have left, the City
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1 has raised a couple of other defenses to our discussion.
2 And primary among those is that what we're really doing
3 here is challenging previously adopted ordinances.
4 Now, the City's argument is that the wetlands
5 ordinance existed since, I believe, 1994, if I'm not
6 mistaken.
7 MR. MUNCE: You are mistaken.
8 MR. COTTRELL: I'm sorry. At least
9 it exists long -- The time for challenging it has long
10 since passed, and the forest plan as well.
11 And their readoption and designation of these
12 particular areas as satisfying critical areas ordinances
13 requirements of the Growth Management Act does not allow
14 us to revisit those issues.
15 They have cited one case in particular as part of
16 this argument. That's Montlake Community Club versus the
17 Central Puget Sound Growth Management Hearings Board. And
18 in that case, the City of Seattle was adopting a Sub-Area
19 plan, particularly managing traffic issues in the Montlake
20 area of Seattle.
21 In adopting the Sub-Area plan, they relied upon
22 methodology that had been adopted in a previously existing
23 ordinance, specifically in 1994.
24 Now the Sub-Area plan itself, though, did not
25 readopt anything from the 1994 ordinance. It merely
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1 utilized the methodology that they had set apart as part
2 of the analysis of any future reworkings of the plan.
3 Nothing there was readopted. The methodology was
4 merely applied, and they could not challenge the
5 methodology at that time. If they had an objection to the
6 methodology, they should have raised it the year before.
7 Our situation is much more like that found in the
8 recent decision of Whidbey Environmental Action Network
9 versus Island County. In that case, Island County
10 readopted previously existing wetlands ordinance for the
11 protection of wildlife through the GMA by way of a 1998
12 ordinance.
13 Now, the Board and the Court of Appeals held that
14 this readoption to bring the County into compliance under
15 the GMA allowed the Board to revisit these previously
16 existing ordinances for compliance with the GMA. And they
17 went even further to say that the 1994 ordinance that was
18 readopted in 1998 must also be evaluated for the standards
19 of best available science at the time of the review, even
20 though it was in existence in 1994.
21 And that is really the case here. The City of
22 Anacortes, in order to extricate itself from the previous
23 petition of the Court's Board, decided to designate an
24 ordinance that incorporates these various components of
25 preexisting plans or ordinances themselves and
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1 redesignates them as critical areas ordinances.
2 They have raised this issue, then, to the Board to
3 see whether they really are what they purport to be:
4 critical areas ordinances. And then that is exactly the
5 holding of WEAN versus Island County, that then these
6 issues may be revisited by the Board as they have been
7 readopted.
8 Now I'll wrap it up here briefly. The burden of
9 proof that we have here is that we needed to present
10 through our arguments, through our briefs, a case whereby
11 the Board feels convinced that the regulations of our
12 challenger are clearly erroneous in view of the entire
13 record before the Board and in light of the goals and the
14 requirements of the Growth Management Act; that is, that
15 you should be left with the convention a mistake has been
16 committed.
17 We have attempted to demonstrate that the City's
18 ordinances are completely lacking as regards to fish and
19 wildlife critical areas, to the protection of priority
20 species as they might be designated by the State or by
21 Federal agencies, to the designation of species and
22 habitats of local importance and fails because it does not
23 discuss at all the methods or the approach that's needed
24 -- it doesn't set out a procedure or amendment for any of
25 these critical areas or designation of new species.
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1 We've also tried to point out that the ordinance
2 and the documents relied upon do not protect waters of the
3 state as they are required to be protected. They are not
4 classified or designated as waters of the state, no matter
5 where they might exist. They are not granted buffers of
6 any sort outside of the forest area, and the buffers that
7 might be available through the protections of the forest
8 plan are not adequate to protect these areas.
9 And we further argued that the City has failed to
10 protect the wetlands by failing to require in-kind
11 mitigation of any disturbance of the wetlands or loss of
12 function.
13 The City itself is not in compliance with the GMA
14 because of these inadequacies, because of these failures
15 to adopt adequate ordinances to protect these critical
16 areas. It has been 13 years or more since they should
17 have had these provisions in place, since 1991.
18 The City is taking steps, it appears, to finally
19 address this. They have drafted new ordinances. They
20 have gone through a limited comment period, and I believe
21 they are now open for public comment later in January.
22 This does not mean that our petition now is moot
23 or not ready for review. We are reviewing existing
24 ordinances. There is no guarantee that anything will be
25 passed. If it is passed, it will then be subject to the
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1 same sort of citizen comment period and review that this
2 is, and then its compliance with the GMA will be tested
3 and approved. Right now we are just talking about what is
4 on the books, and what the City may or may not do in the
5 future is irrelevant to the consideration of the Board on
6 this particular petition.
7 The City is not in compliance, and not only is it
8 not in compliance, if it continues to act -- if these
9 critical areas ordinances are left in place, it basically
10 contradicts the mandates of the Growth Management Act. It
11 interferes with its mandate to protect and preserve, to
12 enhance the physical environment here in the city. For
13 that reason we think that the ordinance itself should be
14 declared invalid.
15 The City is well on its way towards drafting and
16 implementing new ordinances, and hopefully it will be able
17 to get those back on the books immediately, but as it
18 stands now, this ordinance should be declared invalid.
19 If permissible, I'd like to reserve the remainder
20 of my time for reply. Ten minutes. I probably will not
21 need to use it, but...
22 MS. HENRIKSEN: I was going to say
23 that the reason, historically, we haven't allowed that
24 extra time is that there's such a great temptation to
25 bring up new things in the reply period if you have more
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1 time, and we don't allow that. Sorry.
2 MR. COTTRELL: Okay. That's fine.
3 PRESIDING OFFICER GADBAW: I
4 appreciate it.
5 MR. MUNCE: Good morning, Board
6 members. Welcome to Anacortes.
7 Just to give you a flavor of where I'm going here:
8 To date, you've seen no citation to the local record of
9 any loss, net or otherwise, of habitat function and value.
10 Petitioners have simply ignored the whole
11 proceeding that led up to the adoption of the interim
12 ordinance. The Index is replete with exhibits that we
13 took the time and trouble to reference. Local testimony,
14 evidence, none of it relied on. Just a blanket statement
15 that could be made in any jurisdiction in Washington
16 state. You heard a great political speech, but you
17 haven't heard a Growth Management speech.
18 The first thing I'm totally confused about is that
19 I -- My first comment I was going to make to you in
20 housekeeping, I wanted to thank the petitioners for
21 dropping their ridiculous request for invalidity. The
22 Board couldn't understand how dropping existing
23 protections could actually move anything forward, and in
24 their reply brief, they asked for noncompliance. So I
25 just assumed that they waived their request for validity.
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1 In their reply brief, the last statement clearly
2 states that all they are asking for is noncompliance.
3 But, again, it's ridiculous to remove any of the existing
4 protections. It was ridiculous when they first asked for
5 it, and I thought they had seen some sense, but obviously
6 not.
7 The second thing is that we do note that critical
8 aquifer recharge areas is no longer an issue, and we --
9 and I'll come back to that because it's very important in
10 the context of this local Anacortes case.
11 Of the five critical area topics, three are no
12 longer at issue. And they've been talked about in 12-C.
13 I just want to make --
14 And they overlap. They are a set. They are not
15 just perfect, perfect, perfect, perfect, perfect. They
16 are a set of interlocking mechanisms. That's the way the
17 model rules are written.
18 What we did was, we -- as I picked up from the
19 questions that we should do, we integrated all of our
20 protections -- which we have and we're very proud of --
21 put them in one ordinance, and we held a hearing and
22 allowed people to come in and present real, live testimony
23 as to where we got things wrong. No citations from
24 petitioners on that.
25 You heard lots of ridiculous allegations about
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1 lack of mapping. All those allegations are gone. Our
2 mapping has not been challenged in this proceeding.
3 We didn't have to, but we updated, completely, our
4 geologically hazardous area issue. We adopted the
5 language that petitioners liked on aquifer recharge areas,
6 just to avoid an argument. We never conceded we didn't
7 have protections there.
8 So we're down to two issues today: fish and
9 wildlife habitat conservation areas and wetland areas.
10 The basic claim -- and I think, again, you'd hear
11 it in any -- the same arguments from the petitioners in
12 any state in the -- in any City or any County, this model
13 ordinance, which seems to be their entire case, is
14 actually dated, published, November 2003. We're just in
15 mid-December. So apparently every jurisdiction in the
16 state who isn't using the model ordinance is out of
17 compliance if you follow petitioners' logic, and that's
18 what we're up against.
19 We were given by the governor and the state
20 legislator until the end of 2005 to go through a rational
21 public process to come up with new critical area
22 regulations, and we're doing that. The exhibits I
23 submitted to you for -- everyone with local government
24 experience will know, getting something through the
25 Planning Commission is not a minor task. We started this
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1 in September. We are through the Planning Commission with
2 a recommendation. If that's irrelevant, I'm glad I don't
3 live in those jurisdictions.
4 Handing out the critical areas ordinance on a CD
5 makes it seem like it's the model ordinance. A pretty
6 simple little thing. It's 140 pages of typed material.
7 And the request we got at the hearing from the
8 petitioners was, "Just adopt this." Well, number one,
9 it's not supposed to be just adopted. It needs to be
10 tailored. So we are were trying to do exactly that, and
11 we are through the Planning Commission process.
12 All this work, as you all know, takes time,
13 effort, and money. We are going to receive a miserly
14 $30,000 from the State of Washington, which we can't spend
15 before July 1st next year because we're a 2005
16 jurisdiction. So the funding -- we have had some funding
17 but not until next year.
18 Elected officials, staff, and volunteers are used
19 to making time. But what about the public? What about
20 public awareness of the whole notion of best available
21 science, the Hearing Board decisions that everyone
22 apparently -- and, no disrespect to the Hearing Board, not
23 everyone in Anacortes understands your decisions and the
24 fact that they do have relevance to their lives. They're
25 starting to come to terms with that through our Planning
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1 Commission process.
2 Certainly the WEAN case of September 2004 hasn't
3 sunk in, but it's beginning to. The Montlake critical
4 area ordinance as of November really hasn't begun to sink
5 in. We've put it on our website, and we're basically
6 getting fairly discouraging responses to that. The fact
7 that we have to do best available science and do all this
8 work by the end of 2005, people haven't come to terms with
9 yet.
10 What Anacortes has been committed to, and is
11 continued to commit to, is active public participation.
12 Petitioners seems to think that their wish list becomes
13 what is going to happen. I don't know what exactly is
14 going to come out of this.
15 Still, we are making headway, and we're not asking
16 for 13 six-month extensions, as some jurisdictions are.
17 We will -- Now that we've started this, we plan to finish
18 it, if we can, sometime in 2004, a year ahead of schedule.
19 We are making headway.
20 But what, you know, the petitioners don't seem to
21 acknowledge, is, once the City Council gives me some
22 direction, we still have to do more SEPA work; we still
23 have to give the State 60 days' notice; we'll have
24 comments from all the State agencies, who will probably
25 have some comments to suggest to us, and we'll have to
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1 deal with those. So, you know, wishing doesn't make it
2 happen. You know this process very well.
3 Candidly, petitioners are taking your time and
4 this whole process just to score some points. That's
5 their right, but I think it's our right to defend
6 ourselves and to make sure they follow the basic rules of
7 procedure that this Board has established and the basic
8 rules of fair play. That's why I filed our motion to
9 dismiss: fair play.
10 The petitioners have cited no evidence in the
11 record of any of their allegations. An extensive exhibit
12 list was there, no evidence of net loss of function and
13 value, and some absolutely outrageous statements that I
14 take great personal and professional exception to because
15 they seem to use those as a substitute for references to
16 the record.
17 I'll give you one example. "The City's flexible
18 approach" -- This is a quote from the petitioners' reply
19 brief, Page 11: "The City's flexible approach to
20 development of wetlands ensures further loss and
21 degradation of this important resource."
22 My fifth version of my response to that is, this
23 is an outrageous and blatant untruth. I can think of a
24 lot more colorful things to say, but in the interest of
25 this Board, I won't say them.
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1 The City adopted a wetland ordinance in 1990.
2 1990, before GMA, we protect function and value of
3 wetlands, plus a 25-foot buffer. That seemed progressive
4 at its time. We now need to update our ordinance. We
5 recognize that. But to state that we are with nothing in
6 the record, no citations in the record, that we are
7 allowing development of wetlands is just not true.
8 We integrated that ordinance into our ordinance,
9 in our -- got all of our comp plan stuff on time, on
10 schedule with petitioners' waiver of -- support in 1994.
11 It has prevented -- prevents and has prevented development
12 of wetlands. And I do have the scars to show for it.
13 We have not allowed development of wetlands. It's
14 just terribly difficult to sit here and listen to this
15 testimony that's not based on the record.
16 The record does show that the City has a
17 conditional use process. If you want to modify a wetland
18 or a buffer, you have to go through a four-month public
19 hearing process, Planning Commission and Council. I don't
20 know where they get the notion that -- once again, not
21 reading our ordinances -- that we don't know how to define
22 wetlands, we cite specifically in Section 17.65.040 that
23 we're using all the applicable manuals as updated. So we
24 clearly know how to delineate wetlands.
25 The next issue, apparently we don't know where to
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1 find our wetlands. The stormwater manual that I showed
2 you at the last hearing maps -- not on a designational
3 level but goes through and maps based on all the available
4 information as of October '94, and we have brought --
5 those maps are already in the record.
6 MS. HENRIKSEN: I'm glad you brought
7 them. I had trouble finding my maps.
8 MR. MUNCE: This just happens to
9 be the wetland map that we did. (Indicating.) It's
10 Appendix B of a comprehensive plan, and I showed it to you
11 last time.
12 So, you know, mapping is not argued. Apparently
13 we don't know how to read maps, but mapping's not argued.
14 The stormwater plan, which, again, is one of the
15 documents that was made available, has wetland maps in
16 there.
17 So I'm not here arguing today that we shouldn't
18 have a four-tiered classification system for wetlands and
19 that we shouldn't have bigger buffers. That
20 recommendation is all the way through the Planning
21 Commission. But to have petitioners tell you that "The
22 City's flexible approach to development of wetlands
23 ensures insurers," we're not developing wetlands. So
24 that's that's issue.
25 Again, I go through their materials. It's all a
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1 citation to the November 2003 model ordinance, which, as
2 you know, is not like the Shoreline Master Plan Guidelines
3 adopted into WAC. It didn't get documented into WAC. It
4 was put out there as an advisory document. The first half
5 of it is disclaimers from SEATD (phonetic) saying that is
6 not a mandatory document.
7 What I think this Board is being asked to do
8 today, as part of an organized statewide approach, is to
9 adopt a rule that if you don't use the model ordinance,
10 you're de facto out of compliance with the Growth
11 Management Act. And if that's where this Board wants to
12 go, that's obviously your prerogative.
13 But that's basically the petitioners' case. This
14 is not a shoreline master plan. We're not working with
15 guidelines adopted into WAC. We're supposed to be, I
16 thought, tailoring a model language to our local
17 situation.
18 But, you know, petitioners don't just butcher your
19 process; they also butcher the law. I don't know where
20 this notion can even be briefed stating that SEPA is a
21 procedural statute. I mean, Law 101, LEPA, is a
22 procedural statute.
23 SEPA is a substantive statute. And I don't know
24 how much time you want to spend on this, but I brought
25 Dick Setite's book on this, and it's really dated. But
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1 just to hand out a couple of examples where it clearly
2 states that --
3 MS. HENRIKSEN: Dick Setite's book?
4 MR. MUNCE: Yeah. I mean, that
5 SEPA is a substantive -- the courts have held that it's a
6 substantive document, so I don't know why petitioners
7 would -- well, I do know why, but it's not true. It's not
8 the law in the state.
9 SEPA is substantive. The case law says so. The
10 statute says so. And when we get to the City ordinance,
11 we adopted a very broad description of substantive --
12 (Discussion held off the record.)
13 What the City ordinance I just handed out states
14 is that we chose to adopt, to the fullest extent possible,
15 all of the SEPA goals as substantive authority, and, in
16 addition, you'll see we've adopted our -- it's in our
17 Ordinance 2623. We chose to adopt all of our zoning and
18 comprehensive plan goals.
19 So anyone who says that we don't have substantive
20 authority in Washington state is wrong. Anyone who says
21 the City doesn't have substantive authority is wrong.
22 Anyone who says we don't have the broadest substantive
23 authority is wrong. And anyone who cites to the record --
24 doesn't cite anything to the record to the contrary,
25 shouldn't be here today.
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1 MS. HENRIKSEN: Can I just ask if
2 the court reporter is able to keep with Ian's pace?
3 MR. MUNCE: Oh, I'm sorry.
4 MR. HENRIKSEN: Are you having
5 trouble keeping up with his excited pace?
6 THE REPORTER: You're very
7 challenging.
8 MR MUNCE: Well, I take this
9 personally because I take it as a personal challenge.
10 This is a political case. It's not about the local
11 record.
12 The City has used its substantive authority, and,
13 again, there's no citation in the record that we haven't.
14 There's no citation to the record where we haven't
15 maintained loss of function and value. The accusation is
16 because we haven't used the model ordinance provisions, we
17 haven't done this correctly, and I just take objection to
18 that.
19 So they misstate -- They don't have any facts.
20 They misstate the law.
21 And the reasons I filed the motion to dismiss --
22 and I'll slow down a little bit -- is that it's a
23 combination. Our argument is not that each of these
24 pieces of our code stand alone. It's the combination of
25 ordinances. It's the plans; it's the policies; it's the
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1 ordinances. And I can give you one very specific example
2 of how this has worked: its aquifer recharge areas.
3 I argued to you in Case 12(C) that we had this
4 covered. Petitioners made their case, and we went and
5 adopted, after public hearing, quite a few changes in our
6 ordinance, and they then dropped their objection.
7 But we didn't do it with a blanket adoption of the
8 model ordinance. We did it by saying, "We have mapped, we
9 have inventoried, and, most importantly, we're using our
10 stormwater ordinance."
11 Remember, they argued the stormwater ordinance was
12 merely advisory, and I was saying, "Well, why can't an
13 ordinance be merely advisory?"
14 Well, they now concede it's not merely advisory.
15 And the stormwater ordinance is the key piece in our
16 meeting our requirements for aquifer recharge areas. If
17 the water is clean, we're not going to have a problem.
18 So we used and demonstrated to everyone concerned
19 that we were using our stormwater ordinance as part of our
20 aquifer protection ordinance. We also adopted the County
21 standards just to make sure there was no misunderstanding.
22 We also have sewers in Anacortes, so we don't have some of
23 the pollution problems that parts of the rural areas do.
24 So we have all of this as an integrated package,
25 and it works. The petitioners acknowledge that it works.
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1 So as to wetlands, we protect the wetlands on a
2 25-foot buffer. But it's more than that. You can't
3 protect a wetland, as you all know, if the water doesn't
4 continue to go to a wetland. So, again, we come back to
5 our stormwater rules.
6 Our stormwater rules make sure that the water
7 continues to flow back to the wetland. And when we don't
8 get it right, the public is very quick to point that out
9 to us, and our files are replete with comments of, "You
10 got this wrong," "You need to fix this," "You can't starve
11 a wetland of water." And that's our policy. That's our
12 ordinance, and it's in place.
13 But it isn't just one thing or another. The
14 biggest protection we have for wetlands in Anacortes is
15 public ownership, and to have petitioners denigrate that
16 as an approach to public policy, I think, is -- I don't
17 know how a State group can take that sort of a position.
18 Public ownership is the best protection we can possibly
19 have. That would be my starting point if I was a member
20 of such a group. Public ownership is the key.
21 Petitioners want to make light of this, but --
22 Opposing counsel stated that we've designated a small area
23 in our jurisdiction. It's actually 40 percent, but if
24 40 percent is small, then I guess it's an accurate
25 statement. If it's not, then it's another statement that
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1 just isn't true.
2 The second part of this is their statement that
3 somehow we've chosen not to protect areas outside the
4 forestlands. Well, we have our wetland ordinance.
5 Admittedly, it needs to be updated. We have our aquifer
6 recharge area. We have our geologically hazardous areas.
7 That doesn't constitute no protections. We have our
8 stormwater ordinance.
9 So, again, I don't know why we get these
10 outrageous statements that we've chosen not to have
11 protections outside the forestland. That's not true.
12 And then the comment that we turn a blind eye to
13 everything else? I mean, I realize this is supposed to be
14 a civilized proceeding, but I don't have any polite
15 response to that.
16 We do not do that. We will not do that. This is
17 a political exercise we're engaged in today, and it's very
18 unfortunate.
19 On the one hand, we apparently don't have any
20 protections for the forestland. On the other, opposing
21 counsel states that we have a thin blanket of protection.
22 Well, which one is it? No protections or a thin blanket
23 of protections?
24 The way the City sees it, the forest plan starts
25 off -- and if I may show the exhibit, this is a small area
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1 in Anacortes. Let me start off by showing you on this
2 map, which is our critical areas map, here is the old city
3 limits. This area is community forestlands.
4 (Indicating.) This entire area down here is forestlands.
5 (Indicating.) It does not include Lake Erie. That's in
6 the county, like the heronry is in the county.
7 But this is our forestlands, almost 3,000 acres of
8 public ownership. (Indicating.)
9 PRESIDING OFFICER GADBAW: Ian,
10 could you show me the City limits again?
11 MR. MUNCE: Yes. The old city
12 limits in 1891 just came straight -- everything to the
13 north. We're downtown here, Washington Park over here,
14 Cap Sante Park here, Skyline area here, state ferry
15 terminal here. (Indicating.) And this is about -- We're
16 by 22nd, 23rd Street. This is about 41st Street.
17 (Indicating.)
18 So this area here, this was our old city
19 watershed. Unlike some jurisdictions, we didn't sell it
20 off. We adopted a conservation plan for it, the Anacortes
21 Community Forestland plan. We protected all the wetlands
22 inside that area with our 1990 ordinance that protects all
23 wetlands plus a 25-foot buffer.
24 So we have public ownership. We also have our
25 stormwater ordinance that protects improvements.
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1 Again, to be attacked for allowing public access
2 to these areas for recreation is a very strange concept to
3 me because the stewardship notion comes out of people's
4 access to these lands, not out of keeping them out of
5 these lands.
6 As I argued to you before -- and you really didn't
7 accept, but I still can't leave it alone -- we have our
8 annual review process. Every year, for ten years, our
9 local citizens are aware, all you have to do is write a
10 letter nominating something, proposing a change. We've
11 processed those religiously every year for ten years.
12 Now all of a sudden there's some new players.
13 They claim that process doesn't exist. They don't explain
14 why they don't use it. It just apparently isn't very
15 important. It's very important to us.
16 MS. HENRIKSEN: I'm still confused.
17 Where are the current city limits? I know where 1890 or
18 whatever, but --
19 MR. MUNCE: Oh, I'm sorry. What I
20 started to say was, this area here is the current city
21 limits. (Indicating.) This was our old city watershed,
22 because water was pumped from the Skagit over to here.
23 (Indicating.) So this was all in public ownership.
24 (Indicating.) And so we annexed this in 1985.
25 MS. HENRIKSEN: Okay. So the area
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1 all around that, then, is County.
2 MR. MUNCE: This is all County.
3 MS. HENRIKSEN: Okay. So you
4 incorporated your watershed, and then the rest is still in
5 the county?
6 MR. MUNCE: Exactly.
7 MS. HENRIKSEN: Okay. Thank you.
8 MR. COTTRELL: I couldn't see that.
9 Could I just --
10 MR. MUNCE: Of course.
11 MR. COTTRELL: So you're saying the
12 green line and --
13 MR. MUNCE: Yes.
14 MR. COTTRELL: Thank you.
15 MR. MUNCE: What we have done -- and
16 this is vitally important to us -- is, stewardship of
17 3,000 acres is a huge undertaking. And what we've done is
18 to sell conservation easements, and this is what this
19 display shows you.
20 It shows individuals who have contributed $600,000
21 to purchase conservation easements acre by acre on the
22 forestlands. Some of the original lands, as the record
23 shows, have parklands easements that the City -- can never
24 be developed.
25 So we add those thousand acres up with the 500
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1 acres that's added to that by people's purchases, it's
2 close to -- it's actually 620 acres as of the last time we
3 had the record open.
4 So we're doing this. It will actually take us, at
5 our current pace, to 2018 to have conservation easements
6 over the entire area. I would have expected petitioners
7 to say, you know, "This is one of the most dynamic,
8 exciting public stewardship programs in the state."
9 But what have they chosen to do? They have
10 chosen -- They're so keen to get a victory before this
11 Board, they chose to trash it and say that our
12 conservation easements aren't strong enough. I don't
13 know -- They passed muster with the Skagit Land Trust and
14 just about everyone else. But, apparently, this --
15 So what we're doing is, we're setting aside about
16 40 percent of the city as a fish and wildlife habitat
17 conservation area. Half of it's been done already. We're
18 working on the other half. We're not just relying on the
19 plan.
20 You see, if they had briefed this properly -- This
21 is -- They raised it in their opening comments, so I'd
22 like to touch on it briefly.
23 Last time we had this, I thought they'd abandoned
24 this issue. Because they didn't raise it in their opening
25 brief, I didn't respond to it. There was nothing to
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1 respond to. But I have been precluded from my opportunity
2 to do that.
3 If they had briefed it properly, we could have
4 responded properly. We might even have fixed some of the
5 things, had we had an opportunity to do it.
6 But if you allow people to raise things that
7 appear to be waived in their reply brief -- no disrespect
8 to the Board -- it just puts the City at an incredibly
9 unfair disadvantage. We have no opportunity to tell our
10 case except orally, and then I get too excited and things
11 get missed.
12 But if you put it in your opening brief, then the
13 City -- we would have had a chance to provide an organized
14 response to this. We just haven't had a chance to do
15 this.
16 What we're saying to you is, we've got a program:
17 20 percent protected now; 40 percent's going to be
18 protected. We're not abandoning protections outside this
19 area. Absolutely to the contrary. The protections for
20 wetlands/stormwater apply inside the forestlands, as well
21 as outside that. Our SEPA authority is substantive, and
22 we use it. And most importantly, nothing in the record's
23 been cited anything to the contrary. This is just an
24 academic exercise that if the model ordinance is State
25 WAC, we somehow don't meet it, and that's the sum and
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1 substance of their argument.
2 Talking in a little more general sense, GMA is a
3 local process. It's not a State process. Maybe it's
4 going to become a State process, but at the moment, it's a
5 local process. It has very broad definitions. The
6 legislature gave you very broad definitions.
7 Development regulations include official controls.
8 Now, I haven't found a definition from this Board. Maybe
9 I just -- I missed that. But "official controls" seems to
10 me to allow us to argue that public ownership, wetland
11 protection, a forest plan, a community forest board
12 managed by local citizens, recreational goals, SEPA, water
13 quality, if those don't amount to official controls, I'm
14 not sure that term has much meaning. But I think it does
15 have some meaning.
16 Second thing, petitioners, you know, cavalierly
17 state that just because I think there's some meaning to
18 the word "conservation" areas, that I'm saying that we
19 have unlimited discretion. I'm not.
20 All I'm saying is the statute says we are to
21 protect fish and wildlife habitat conservation areas. It
22 doesn't say "fish and wildlife habitat areas."
23 I believe -- and I guess you will tell me if I'm
24 wrong and we'll see where it goes, but I'm convinced from
25 what I've read that there's a decision to be made as to
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1 what to designate as a conservation area, and our
2 position -- and you may tell us we're wrong, obviously --
3 is that our forestlands are our conservation area piece of
4 our puzzle. The rest of the habitat will be protected
5 with our other ordinances.
6 We're not relying on the forest plan alone. We're
7 relying on multiple documents. But half the City is in
8 public ownership, so --
9 I'm starting to repeat myself because I got
10 excited earlier.
11 As to the waters of the state -- if we leave the
12 forest plan issue alone, I think -- I don't know what else
13 to say. It's protected. It's going to be more protected.
14 We've got standards. We've got quality.
15 As to the waters of the state, they didn't, again,
16 point to anything in their opening brief as any specifics.
17 "You missed this." They didn't identify -- In their
18 reply, in Footnote 28, they say, well, "These waters must
19 go from the lakes into the bay." Yes.
20 They didn't brief the issue of culverts, how much
21 of these streams are in culverts. I mean, I happen to
22 know, but -- and the Planning Commission has addressed
23 that in a proactive way, but there's no briefing as to
24 whether there's any streams to protect. There's no
25 evidence in their record. I'm not saying you can't find
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1 some later, but there isn't any at the moment in the brief
2 about damage to streams.
3 As I mentioned earlier, the heronry they refer to
4 is actually in the county, and we now know where it is.
5 The Planning Commission is recommending that we
6 have a program to actually get streams out of culverts,
7 and so that's in the record that you have before you as
8 one of the latest exhibits.
9 So I've addressed the issue that our ordinances do
10 define what wetlands are. We do have wetlands maps. We
11 don't allow any loss of function and value. Nothing in
12 the record to the contrary on that.
13 We have a public process to get a conditional use
14 to do adjustments. We have never taken money for wetland
15 loss. Nothing in the record to that extent. The
16 accusation is made, but we have the notion that somehow
17 SEPA is procedural, when it's not. We have the
18 accusations that we are -- we are completely lacking in
19 protections, which is not the case based on the record.
20 What we are doing is stepping up to the next level
21 of standards, and we're doing that in a very organized
22 way. Every year we do our annual amendments. We're
23 continuing to process those amendments for this year.
24 We will have an opportunity to -- in January, the
25 Council will be finishing up the 2003 conference of
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1 planning and development regulation amendments. The
2 record shows in 2004 we should readily be able to finish
3 our update to this.
4 So my basic objection to the whole petitioners'
5 case is that it is not based on the local record and the
6 local hearing we had. It's a theoretical case based on a
7 model ordinance that's not part of the WAC and that the
8 local governments should be allowed time to do the work.
9 The state legislature gave us the time to do that.
10 Essentially what's happening is a very direct
11 request that you shortcut the whole -- you direct us
12 somehow to shortcut the whole local planning process and
13 just skip all those pesky property owners who have
14 comments and suggestions, whose rights are being changed.
15 Just skip all that and adopt the model ordinance.
16 Well, you know, my clients aren't going to do
17 that. We don't think we should be asked to do that.
18 And, finally, I don't think that this Board should
19 support the petitioners' notion that all of a sudden we've
20 gone from a local process to a State program. Basically,
21 that's what they're asking you to -- It's on CD, so it
22 can't be too bad.
23 But "Just adopt this." That was their message at
24 the local hearing. "You're all done." No flexibility.
25 "It's over, done."
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1 That, I don't believe this -- I'm hoping that's
2 not where this Board's going to go or that the State won't
3 go. I'll hope you'll continue your commitment to public
4 participation at the local level. I hope you'll allow me
5 to get some more scars toward the middle ground on some of
6 these issues. And I hope that you'll insist that
7 petitioners play by your rules, that they don't ambush
8 people in their reply brief, and that they don't base
9 cases outside the local record.
10 Thank you.
11 PRESIDING OFFICER GADBAW: We're
12 going to take a little break, and we'll be back at about
13 ten after.
14 (Recess.)
15 PRESIDING OFFICER GADBAW: Thank
16 you, everyone, for getting back so quickly. We'll go to
17 the petitioners' reply.
18 MR. MUNCE: Ten minutes, right?
19 PRESIDING OFFICER GADBAW: Ten
20 minutes.
21 MR. COTTRELL: Well, I guess there's
22 a number of things I'd like to address that Mr. Munce
23 remarked about.
24 It's obvious that this has become a very emotional
25 issue, and I don't think it was the intent of the
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1 petitioners to create an emotional issue, to somehow say
2 that the City or Mr. Munce personally or anybody else is
3 intentionally doing something to harm the environment or
4 to contradict the intents or purposes of the Growth
5 Management Act. That is the farthest thing from our
6 minds.
7 What we're trying to do here -- and it's not part
8 of a larger conspiracy, that 1000 Friends of Washington or
9 any of the other petitioners or any other group is trying
10 to impress upon jurisdictions state wide.
11 This is really just about the City of Anacortes
12 and whether it is in compliance with the Growth Management
13 Act as it pertains to these specific areas of critical
14 areas and protection of fish and wildlife, wetlands,
15 waters of the state.
16 Now, this map is very good for an illustrative
17 point. (Indicating.) The City of Anacortes has sort of
18 taken a completely different approach to compliance with
19 critical areas ordinances. Instead of sort of taking a
20 look at their lands, at the animals, the wildlife, the
21 habitats within their land and saying, "These are
22 deserving of protection," "These generally are the
23 criteria for protection as a critical area," setting these
24 areas apart and then developing regulations to protect
25 them, the City has, and rightly so and in many ways, just
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1 taken big swaths of land -- it's not a minor bit of
2 property -- and said, "Okay, this is our critical areas,"
3 but without a discussion of why it should be a critical
4 area: "What particular component of these forestlands is
5 deserving of protection, other than the fact that they're
6 there? It's convenient. Let's do it."
7 This leaves out the rest of the area, the other
8 60 percent, from any sort of protection as it pertains to
9 fish and wildlife habitat, waters of the state, and
10 wetlands. Now, not any protection at all in terms of
11 wetlands, but important issues that the Growth Management
12 Act requires that the wetlands receive as protection is
13 just not there in the wetlands ordinance as it stands.
14 Now, the conservation easement program that they
15 are undertaking is -- it's not completely new, but it's
16 rare for a City -- really, any City, but certainly a city
17 the size of Anacortes to attempt to do such a thing.
18 And it's laudable. They're attempting to take
19 lands, gradually accumulate it, put it in sort of public
20 domain, and grant it some protections. But it isn't the
21 protection required by the Growth Management Act as it
22 pertains to fish and wildlife habitat and waters of the
23 state.
24 That is all we are saying. We're not denigrating
25 their program or even, necessarily, their approach. But
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1 we're merely trying to point out that the ordinance as it
2 is drafted, the forest plan as it is relied upon, does not
3 fulfill the obligations of the Growth Management Act as it
4 applies to these critical areas.
5 The City basically has argued that our approach
6 is, "Here is this draft plan, this model ordinance. Adopt
7 it. It is yours to rely upon. Give it no further
8 thought." It sounds strange. It sounds as though it's a
9 sort of conspiracy to impose our will upon all domains.
10 That's not the case. The model ordinance is, I
11 believe -- what I've viewed of it, is a very good
12 ordinance from which to start. Mr. Munce is right: There
13 is a local component to all of this planning. Each
14 jurisdiction is different.
15 But general rules still apply to each
16 jurisdiction. General rules of planning, of designation,
17 of classification of critical areas and general goals of
18 the Growth Management Act must be obtained through the
19 regulations that are documented.
20 The model ordinance, in which I don't believe I
21 relied upon in my briefing at all, is merely a starting
22 point for that, and I believe that's all it's been
23 suggested to be. And it's neither here nor there.
24 What is at issue is what is on the books today.
25 13 years after the date the City should have been in
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1 compliance, what is on the books today? And that is
2 surprisingly slim when it comes to protecting fish and
3 wildlife habitats.
4 There is no discussion anywhere in the ordinance
5 of priority species, priorities' habitats as they may be
6 designated by the State, of Federally protected species or
7 habitats. And there clearly is no adoption or even a
8 discussion, a rationalization of why no local species were
9 adopted in the ordinance or in any of the materials.
10 The City also contends that it is our duty to
11 point to harms, this inadequacy being uncaused, to point
12 to specific habitat laws. I don't think that that is our
13 duty.
14 Our duty is to discuss what is possible, what is
15 actually in the books, what these ordinances are, what
16 they allow to happen or what they don't protect at all,
17 and not to come in and say, "Well, we've lost this
18 particular bird species" or "This stream has suffered
19 these consequences." That's not necessary.
20 It is necessary that the ordinance meet the
21 requirements of the Growth Management Act, not that we
22 demonstrate that the ordinance, as adopted, has resulted
23 in harm. It's just that the ordinance meets the Growth
24 Management Act. That is the duty here, and that's why
25 nothing further was discussed.
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1 We are not attacking the City's goal of providing
2 public access to these forestlands. We are not attacking
3 the City's laudable goals of protecting this through an
4 easement program.
5 What we are trying to explain to both the City and
6 the Board is that the approach taken by the City does not
7 comply with the Growth Management Act as it pertains to
8 these critical areas and that the City should re-evaluate
9 its approach and adopt regulations and classifications
10 that do comply with the Growth Management Act, not as it
11 may appear in any model ordinance but as it may have been
12 defined in the act itself, in the supporting regulations
13 or in the decisions of this Board as we've cited in our
14 opening brief.
15 The Board is well-versed in this and more than
16 capable of reviewing our briefing and deciding whether we
17 have actually cited any cases that support our case. I
18 believe that we have.
19 Finally, in its response brief and again here, the
20 City has stated that we have ample opportunity to
21 participate in any sort of amendment in the process, that
22 there is an annual amendment process that the City
23 undertakes, and that the City has known -- the citizens of
24 this area know and -- know generally how they just merely
25 need to write a letter and it will be taken into
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1 consideration.
2 His next words were to describe that these new
3 players have entered the game and think that something new
4 is needed. Well, obviously, the new players feel that
5 they don't know what the amendment process is or what the
6 City does or what process they undertake on an annual
7 basis. It wasn't clear to me in reviewing the ordinance,
8 and the City hasn't cited to any sort of procedural -- an
9 ordinance setting out procedures for this in their
10 briefing.
11 But more importantly, the City hasn't specifically
12 adopted a procedure and plan as required by the Growth
13 Management Act for the amendment, for the addition or even
14 the withdrawal and consideration of nomination of
15 additional habitat areas that should be protected as fish
16 and wildlife habitat of additional species of local
17 importance, etcetera.
18 This is a specific process that should be pointed
19 to as part of the critical areas ordinance, and it should
20 contain criteria that allows the petitioner to know
21 exactly what will be -- what would be considered by the
22 City and what criteria it should meet to nominate these
23 new species or habitats. It's just not there.
24 This is not an attack on the City, on its good
25 efforts. It's just merely trying to point out what is on
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1 the record today and that what will be there in the
2 foreseeable future is inadequate.
3 Thank you for your time.
4 MR. ZILAVY: Is there any time left?
5 Is there any of our ten minutes left?
6 PRESIDING OFFICER GADBAW: No.
7 Well, maybe one or two. I think we started slightly after
8 ten after, so I'll give you another minute.
9 MR. ZILAVY: Okay. I would just
10 like to make a couple of points and just very quickly.
11 I thought it was interesting that in all the
12 self-righteous indignation that we heard from the City,
13 that there really was no discussion about how their
14 ordinances, or whatever they are, actually do comply with
15 the GMA. Now, certainly the burden is on the petitioners
16 to show that they don't comply, but there was just a lot
17 of, kind of, ranting about public process and about "We
18 know best" and "Trust us."
19 The fact is that this is not a case of the Board
20 being able to trust the City. The GMA imposes
21 requirements on that.
22 Quickly, with respect to the fish and wildlife
23 habitat conservation areas, the City has done it
24 backwards. The City has found some land that they're able
25 to protect. Great. I wish I lived in a city that did
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1 that.
2 However, the GMA requires them to cast city-wide,
3 throughout the entire jurisdiction, to determine which
4 species of local importance, which state-threatened
5 endangered species, which Federal threatened endangered
6 species are in the jurisdiction, and what type of habitats
7 they are primarily associated with.
8 Those are the ones that they are required to
9 protect, not just what they are able to get from
10 landowners by way of easements. They have done it
11 backwards. It's a good thing, but it does not comply with
12 the GMA. That is the point.
13 Number two, this Board has held and the Court of
14 Appeals has now affirmed that local jurisdictions are
15 required to protect Type I through V streams with a
16 minimum of 50-foot buffers. There's nothing in there at
17 all on that, and so they are, per se, out of compliance
18 with the GMA on that.
19 As far as wetlands go, a stormwater manual does
20 not a wetlands protection ordinance make. There is
21 serious lacking in the ordinance in mitigation to protect
22 loss of basic function and values. There is an outright
23 exemption of nontitled wetlands under 10,000 square feet,
24 which is just a little bit less than a quarter acre.
25 Exemptions are okay under Board case law and the
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1 GMA, but they need to explain why this exemption also
2 protects the functions and values. What they have opened
3 these type of wetlands to is death by a thousand cuts by
4 not explaining how it is that exempting these wetlands --
5 which they're allowed to do if they explain it -- protects
6 the critical areas itself.
7 I think I'm probably starting to go over, but I
8 just wanted to make clear that the point is not public
9 process, the model ordinance, the City's future intentions
10 of what they may adopt, or about the 2005 updates. It is
11 about their compliance with these ordinances with the GMA.
12 PRESIDING OFFICER GADBAW: Thank
13 you. That concludes the time we have allowed for the
14 petitioners and for the City. Now it's time for the Board
15 to ask some questions. We'll start with Ms. Henriksen.
16 MS. HENRIKSEN: I wanted to ask
17 petitioners first about the invalidity request. It's been
18 at least this Board's feeling that we only use invalidity
19 in the most grievous of situations where petitioners have
20 shown that there's, on the ground, bad things being
21 allowed to happen, that if there's more time involved for
22 the City bringing itself into compliance, that these
23 grievous things would be happening and would actually
24 impair the City's ability to later comply with the act
25 when they do take the proper action.
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1 I found nothing in petitioners' briefing at all
2 that would substantiate that these grievous things were
3 happening and that would warrant a finding of invalidity,
4 and I wondered if I've missed something that you did show
5 that I did not catch.
6 MR. COTTRELL: You did not. I think
7 that your reading of our brief was accurate. We didn't,
8 frankly, point out where grievous harm was being done as
9 we speak.
10 MS. HENRIKSEN: So what was the
11 reason for the invalidity request, then?
12 MR. COTTRELL: Well, the invalidity
13 request was based on the, sort of -- The court decision
14 cited in our opening argument, that basically sets out the
15 guidelines for what the Board should or needs to find if
16 they are going to declare invalidity, and that is one that
17 the regulation that's challenged is clearly erroneous in
18 light of the GMA and then that the erroneous portion of
19 that regulation, if allowed to exist, would actually allow
20 harms.
21 It could. It doesn't say in the Appellate Court's
22 case that it must, in fact, result in harm or must be
23 demonstrated that harm is resulting, but merely that they
24 could allow for loss of critical areas -- loss or
25 degradation of critical areas and that this would harm or
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1 substantially contradict the goals of the GMA.
2 MS. HENRIKSEN: Well, then, I guess
3 going to Step 2, if we put aside that the Board usually
4 has required some kind of showing that these harms are
5 probable in that period of time, what would be gained,
6 what would the impact be, what potential development would
7 be impacted -- what would be the effect, in your mind, of
8 a finding of invalidity?
9 MR. COTTRELL: Well, the effect
10 would be it would essentially have a dampening effect on
11 any sort of regulations that are currently being
12 considered.
13 MS. HENRIKSEN: You mean the new
14 things they're working on?
15 MR. COTTRELL: Well, anything that's
16 being considered here in the City jurisdiction. If I'm a
17 developer and I'm coming to the city and I'm applying to
18 do something near a hazard, something I know, though
19 there's no guidance here, but I know that typically -- you
20 know, there's a nesting site there or some presence of
21 some habitat that I'm familiar with as a developer from
22 other jurisdictions in the area that it could perhaps be a
23 critical area, I might be very leery of going forward with
24 my development when the City's critical areas ordinance is
25 no longer existing and I'm not sure what exactly they
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1 could come back with later on and there's nothing to vest
2 under. My rights -- My crewmen will not vest under
3 currently existing ordinances.
4 Now, that is the reason we're requesting validity.
5 It's been, really, 13 years since they should have had
6 this taken care of.
7 MS. HENRIKSEN: Oh, I realize that,
8 but I have not seen any showing that anything terrible has
9 happened in that time, and I kept looking for that maybe
10 there's a big project coming up that you're afraid is
11 going to happen if you don't have invalidity. But I found
12 nothing of that that would substantiate --
13 MR. COTTRELL: Right. And, frankly,
14 I wasn't entirely familiar with that particular
15 requirement of the Western Washington Growth Management
16 Board. Perhaps that is my fault for not reading more of
17 your decisions.
18 MR. ZILAVY: Actually, if I may add
19 on that. Invalidity, requesting it, granting it, it's in
20 some sense problematic because the standards that are
21 actually in the GMA are so broad.
22 MS. HENRIKSEN: Right.
23 MR. ZILAVY: And that substantially
24 interferes with the goals of the GMA. I understand the
25 standards that the Western Board tries to determine are
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1 there, and I think the Central Board kind of tries to do
2 the same thing too.
3 MS. HENRIKSEN: Right.
4 MR. ZILAVY: But that requirement of
5 some kind of impending damaging development is not in the
6 GMA, so it's not actually a statutory requirement. It's a
7 good place to start, I think, but I don't think the Board
8 should necessarily be limited by that.
9 For example, there is a proposal of a development
10 that will negatively impact some beaver habitat here in
11 Anacortes. This is something that is since this record
12 has been closed, so it's not something that's going to be
13 in the record and, therefore, not something that is always
14 easy to get before the Board for consideration.
15 The point that we make here is that the
16 designation "protection of critical areas" is, clearly, a
17 very key component of the GMA, a core component to the
18 GMA, and failure to do that for the length of time that
19 the City has and also the way that they have approached it
20 by picking first what they would like to protect and
21 excluding everything else with malregard to the science
22 that might be there is doing it backwards and is something
23 that does substantially interfere with the goals of the
24 GMA.
25 So we would -- Since we don't have any specific
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1 impending development, we would certainly argue that
2 invalidity would still apply in this case and for the
3 reasons that I stated.
4 MS. HENRIKSEN: So what you're
5 basically telling me is that you would like us to do that
6 so that, in effect, there would be a --
7 MR. ZILAVY: Moratorium.
8 MS. HENRIKSEN: -- moratorium in the
9 city in all areas that may have critical areas in them
10 until their new legislation has passed, and that's what
11 you're trying to achieve.
12 MR. ZILAVY: And it provides some
13 very strong incentive for the City to do that post haste
14 and get these areas protected. And it appears that the
15 City is already down the line, doing --
16 MS. HENRIKSEN: Yeah. If they
17 hadn't taken any action, I could see why you would be
18 hounding and saying, "We demand invalidity, whether we can
19 show any actual harm or not." But I see good faith going
20 on over here, and so I was just curious why there was such
21 a --
22 MR. ZILAVY: And I agree. As the
23 Board knows, we attempted to work out some agreement where
24 we set these issues aside while the City continued to work
25 on what's upcoming, but they wouldn't agree to that, so we
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1 had no choice but to --
2 MR. COTTRELL: And part of that was
3 the invalidity of Mr. Munce. They're claiming they don't
4 have sufficient funding to do the job right, that they're
5 waiting for a $30,000 grant that won't come in for another
6 year.
7 MR. MUNCE: I didn't say we were
8 waiting.
9 MR. COTTRELL: I'm sorry. Then I
10 must have misunderstood that, but --
11 I guess the fear is -- the fear is -- I think
12 their position is that there's a process ongoing, but no
13 one knows what that result is; no one knows about the
14 timing.
15 MS. HENRIKSEN: Okay. Well, I think
16 that covers what I've asked about invalidity.
17 MS. HITE: I'd like to ask both
18 sides a question. I think it's kind of a burdens question
19 that I'd like to hear from both sides on.
20 The way I understand the City's argument, they
21 argue, in part, that the petitioners have the burden of
22 showing that there are unprotected habitat conservation
23 areas, that there is nothing in the record that's been
24 cited by the petitioners to show where there's a problem
25 here.
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1 The petitioners alternatively argue that the
2 burden is on the City to show that they considered the
3 guidelines, and it seems to me that that, in effect, from
4 what Mr. Munce's argument is, is, in fact, my question,
5 which is: You've made a somewhat abstract case. You've
6 said, "Here's your ordinance. Here's the law. You
7 haven't done the things that we argued the law requires
8 you to do."
9 Mr. Munce is saying, as I understand the City's
10 argument, "We're showing you our habitat conservation
11 areas. You haven't shown in this record what's wrong with
12 those."
13 Now, would you -- I would like to invite each side
14 to talk a little about who has the burden to show what in
15 light of those two sets of arguments. And I'll start with
16 Mr. Munce.
17 MR. MUNCE: My basic -- and there's
18 two points I make.
19 My first point is, the offense I've taken is to
20 the broad language in the briefs. If the petitioners
21 simply said, "You could do better in these areas," I
22 wouldn't have gotten excited. But they made allegations
23 on the record, in their briefs that I think are
24 unsubstantiated by anything they have put in the record.
25 I think that's -- that is just totally inappropriate.
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1 Mr. Cottrell stated that he's not relying on the
2 model ordinance, but I would cite you to Page 10 of the
3 petitioners' reply, and it states, "This model ordinance
4 provides everything that the present ordinance lacks."
5 And the footnote is to the model ordinance.
6 So my basic objection is to the format of how
7 they've couched this all before the Board. We're doing
8 really, really bad things; the world is going to come to
9 an end if something isn't done about it. There's nothing
10 in the record to support that broad, insulting range of
11 accusations.
12 The second answer to the question of Board Member
13 Hite: What about the burden? I think the burden should
14 be to show at least something that we've missed; you know,
15 that there are streams that aren't in culverts that
16 deserve protection. They didn't even bother to point out
17 those. I can do it, but they didn't bother.
18 Yes, there are probably streams that aren't in
19 culverts. But truly they -- Our position is that they
20 should have some burden to show that we are doing
21 something in our official controls for the ACFL that
22 doesn't lead to no net loss of function and value. They
23 have come forward with a theoretical argument and said,
24 "There's a problem." Our response -- We haven't developed
25 the right development regulations. The right development
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1 regulations are in the model code.
2 The City response, which they haven't rebutted at
3 all, is that the official development regulations is a
4 broad definition. It includes official controls. We have
5 answered how that network of controls applies. We have
6 also shown how that works for them with aquifer recharge
7 areas, but, mysteriously, it doesn't work for anything
8 else.
9 So we have made our case that our network of --
10 They raised the initial challenge theoretical. We have
11 come back and said, "We've got specifics," and they cite
12 to nothing in the record to show that our way of mixing
13 public ownership, official controls, regulation,
14 management plans, they have done nothing, nothing, to show
15 that isn't working in Anacortes.
16 MS. HITE: Maybe I need to hone my
17 question a little bit better. My question relates to the
18 argument about fish and wildlife habitat, and I think that
19 there's sort of a twofold argument, that one is the
20 designations argument and one is the protections argument.
21 And so looking to the designations argument and
22 the burden, I'd like you to speak to where the burden lies
23 to attack the County, the City's designation.
24 MR. MUNCE: I don't think I can give
25 you a better answer than just that, and I won't do it all
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1 over again, other than to say what has happened.
2 They would say, "What you've done isn't good
3 enough." We say we're protecting 40 percent of our city
4 as habitat conservation areas. Outside of those areas,
5 their statements isn't true. We are protecting habitat
6 areas through SEPA, the stormwater ordinance, wetlands
7 ordinance. I'd cite those areas, and they've got no
8 comeback. I mean, all they've got is a conclusionary
9 statement that "That's not good enough." Well -- I don't
10 know -- I think they have to have something. I'm not
11 arguing for -- it's the whole burden of proof shifts over
12 to them, but something.
13 MS. HITE: Let me push you just a
14 little bit on this, Mr. Munce.
15 If in fact the City is protecting all of these
16 things, but in law, they need not, is there an appropriate
17 challenge to the law?
18 MR. MUNCE: I guess I don't
19 understand the question.
20 MS. HITE: All right. If you have
21 regulations that do not require protection but, in fact,
22 in practice, you actually do protect things, is there an
23 appropriate challenge to the law for not having mandatory
24 protection?
25 MR. MUNCE: Well, you see, I can't
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1 accept your premise that we have regulations --
2 MS. HITE: I'm not talking about
3 you. I'm talking theoretically.
4 MR. MUNCE: Oh. Okay.
5 I don't know the answer. I mean, I -- the --
6 because our ordinances do state that we -- Our stormwater
7 goal is to ensure no net loss of function or value, so --
8 We have those statements in our planning documents, so
9 that's not our case. I don't know the answer. Do you
10 have a bigger question?
11 MS. HITE: And I guess it's going to
12 my question about where the burdens are and exactly what
13 the challenge is here.
14 Do you understand my question?
15 MR. COTTRELL: I'll try to answer.
16 You can tell me if I don't, which may be the case.
17 The City has acted. It has adopted something that
18 it calls -- Let's take this out of the context of the City
19 of Anacortes for a moment and remove whatever emotional
20 connotation might be involved here.
21 If the City adopts an ordinance that it designates
22 as a critical areas ordinance and specifically it directs
23 it through redress whose subareas of critical areas -- the
24 fish and wildlife habitat or the waters in the state and
25 so forth -- and they have adopted an ordinance that
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1 purports to meet GMA requirements on it, but on the face
2 of the ordinance it does not, either because it is clear
3 that you can trace from the ordinance to a very clearly
4 stated rule in the RCW or the WAC or because you can trace
5 from the ordinance to a clearly stated rule of judicial
6 law, so to speak, that the Board has promulgated in
7 various decisions, then I believe the burden is met by the
8 petitioner.
9 For instance, in the specific case here: The GMA
10 requires that species of local importance are designated
11 but further requires that there is a process, if they
12 haven't designated them, if they haven't set up a process
13 for designation, then that is facially invalid, and the
14 burden is met by pointing that out.
15 MS. HITE: Now, let me stop you just
16 there, though, and this goes on to a related question that
17 I have about the effect of the guidelines. Now, you've
18 said several times that the GMA requires things, and I
19 think you're referring to the WACs.
20 MR. COTTRELL: And I may be. And
21 that is a delicate -- I, personally -- and perhaps
22 co-counsel can weigh in on this --
23 MS. HITE: And I think that the
24 language will -- we're interested in this, that the
25 requirement that the local jurisdiction consider those
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1 guidelines but need not adopt them.
2 So when you say they must, on their face, do these
3 things which the guidelines recommend, they are not
4 actually in the statute; would you agree with me on that?
5 MR. COTTRELL: They are not in the
6 RCW itself. Many of these things say they must comply
7 with the WAC.
8 MS. HITE: All right. So, then,
9 getting back to my question about what you have to show
10 and what the City may have to show in its burden, what do
11 the WACs require, and what does it mean to say that they
12 shall consider them?
13 MR. COTTRELL: You know, I did come
14 across a Board decision that discusses what that means,
15 what sort of requirements this "shall consider" language
16 imposes on any jurisdiction, and I think I had to look at
17 basic goals of the GMA and look at some of the decisions
18 that have been published by the various boards.
19 And, basically, I've arrived at a conclusion that
20 the boards generally make a determination as to whether
21 the ordinance, as adopted, the challenge regulation, in
22 fact, meets the spirit of these WAC guidelines or meets
23 the requirements as they are specifically detailed in the
24 RCW, in the pact itself.
25 And I feel that we, in our opening brief,
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1 sufficiently pointed out where this Board particularly has
2 made determinations that specific actions, specific
3 protections, specific designations or regulations must be
4 adopted to evidence that the City is in compliance, or
5 that a general jurisdiction is in compliance.
6 MS. HITE: Do petitioners argue that
7 the requirement that the jurisdiction consider these
8 guidelines require some kind of "show your work" or some
9 kind of explanation of whether those were considered in
10 the record on the part of the City?
11 MR. COTTRELL: At a minimum, that's
12 required.
13 That is a sort of problem there. It says, "They
14 shall consider," and this Board, I think, generally in the
15 past has said, "If you are going to deviate from -- and
16 you may deviate from, the regulations that have been
17 promulgated under the RCW, but if you are going to deviate
18 from them, you need to show why or -- and particularly in
19 the case where it seems that you have ignored them, you
20 need to show why this is better, how this particularly
21 meets the rules.
22 "If you want to be a safe City, if you want to
23 have a safe fly-through review period, do things like the
24 WAC says and we'll consider you to be in compliance. But
25 if you're going to change the way you approach things and
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1 you're going to attempt some of these new and innovative
2 techniques, please do so, but you need to show somewhere
3 in your work that you are meeting the goals, that you're
4 granting the substantive protections."
5 MS. HITE: And, Mr. Munce, then,
6 your answer to that on: Did the City need to show that it
7 had considered the guidelines?
8 MR. MUNCE: We're happy to do that.
9 Petitioners didn't in their briefing cite to
10 anywhere in the record that I thought there was anything
11 to respond to, so --
12 But as a theoretical issue, my answer is: Next
13 time you see this, if you see it again, all of those
14 findings will be there.
15 We were in an awkward situation, as this Board
16 knows, where there was a questionable theory that we
17 hadn't acted, and we made a judgment call to act.
18 So if we are in compliance -- I mean, we're
19 prepared to deal with it, but we're not expecting to be
20 found out of compliance because we have not been impacting
21 ecological function and value.
22 MS. HITE: But my question
23 specifically is: Do you agree that there is a requirement
24 in the Growth Management Act for the jurisdiction to show
25 that it has considered the minimum guidelines with respect
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1 to fish and wildlife habitat?
2 MR. MUNCE: Yes. All of our
3 recitals in the record reflect --
4 MS. HITE: You believe you've done
5 that, but --
6 MR MUNCE: We believe we've done
7 that.
8 MS. HITE: But as a predicate
9 matter, you believe that is required?
10 MR. MUNCE: It's required that you
11 should address the -- In what detailed a manner you
12 address it, those are the blanks the Board gets to fill
13 in.
14 MS. HITE: Thank you.
15 MS. HENRIKSEN: Could I just ask a
16 more specific question, I think, that that led to.
17 In many of our previous decisions, this Board has
18 said, "Local government, you have to designate all
19 critical areas, and you -- by the way, you don't have to
20 protect every inch of all those critical areas, but if
21 you're not going to do that, you need to show how,
22 overall, you're protecting the functions of critical
23 areas." Okay?
24 Except for the forestlands, I couldn't see
25 anything in the record that you had designated critical
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1 areas that had to do with fish and wildlife habitat
2 outside of the forest area.
3 Did I miss something that you did designate
4 critical areas?
5 MR. MUNCE: I guess what I'm having
6 difficulty with is that obviously we have our whole
7 shoreline areas -- we've got our shoreline designations.
8 We don't have to have, sort of, a current isolation, so in
9 our review, I designated wetlands and protected wetlands
10 outside the forestlands. We have protected the habitat
11 for most of the significant species in Anacortes.
12 And that's our record, and those are our findings
13 in our wetlands ordinance, that we're moving forward to
14 protect habitat outside the forestlands through our
15 wetlands ordinance and through our stormwater ordinance.
16 MS. HENRIKSEN: And did those -- the
17 actual -- I'm still trying to figure out the actual
18 designation of Streams I through V.
19 MR. MUNCE: We have not designated
20 Streams I through V. It's in the current draft before the
21 council.
22 MS. HENRIKSEN: Okay. Fish and
23 wildlife habitat areas outside, if they fell under the
24 stormwater or the wetlands ordinance, they were actually
25 designated in those documents?
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1 MR. MUNCE: No.
2 PRESIDING OFFICER GADBAW: Can I
3 follow-up on that.
4 You've talked about the forestlands, the fish and
5 wildlife habitat areas, and you've talked about this
6 comprehensive approach to protecting critical areas.
7 Is there anyplace in the record that shows what
8 species in particular this comprehensive plan and these
9 forestlands protect or the earway of protecting fish and
10 wildlife habitat areas and your way in this comprehensive
11 approach, the stormwater, wetlands regulation, all that,
12 is there any link between that protection and a particular
13 local species or a particular statewide significant
14 species?
15 MR. MUNCE: Now that we better
16 understand the Board decisions and the September WEAN case
17 and this discussion, you'll have that next year in detail.
18 The other part of the answer is, we thought we had
19 it covered with our basic approach, but -- I'm not going
20 to argue that meets November 2003 standards, but I believe
21 when we did the work, we had sufficient conclusions at the
22 time to justify our rationale.
23 We thought intuitively, you know, that 40 percent
24 of the City being in public ownership is a pretty good
25 start and then designated all the wetlands off that and
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1 refusing to put any more streams and culverts, which has
2 been our policy since 1994, that, yeah, we were making
3 some progress.
4 But I'm not sitting here just to tell you that's
5 enough. I'm not going to argue that case. I'm arguing to
6 the Planning Commission that we need to do more, and
7 that's why I submitted those two recent --
8 We do need to do more. My argument to this Board
9 is that you should not go along with the political
10 challenge but allow us to do our work and require them to
11 actually have done something in the local record to throw
12 us off course.
13 MS. HENRIKSEN: Speaking of bringing
14 that specific thing up, we've been really pondering why
15 you folks, since you are working hard at this point, would
16 not have stipulated to an extension of this process. Why
17 are we going through this and why are we going to be
18 spending time writing a decision when it looks like, the
19 end of January or sometime in February, this will all be
20 mooted too and we'll be looking at yet a new one. We
21 can't understand why we haven't gotten a stipulation.
22 MR. MUNCE: The petitioners put this
23 matter into public record, because they copied you in
24 their proposal to us and we copied your reply. So it's a
25 matter of record. It's not a settlement discussion. It's
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1 a matter of record before this Board.
2 Their proposal was a moratorium on development in
3 Anacortes, and that was unacceptable to my clients.
4 MS. HENRIKSEN: Okay. So you are
5 not amenable, you see some advantage to us going through
6 this, then, even if it's only a matter of three more
7 months and all this becomes moot again? That's worth
8 something important to you?
9 MR. COTTRELL: Well, I suppose the
10 issue is and a good example is this development that's
11 recently come before the City that threatens beaver
12 habitat.
13 MS. HENRIKSEN: But our decision,
14 the middle of February, is not going to help that beaver.
15 MR. COTTRELL: I know, but the
16 example would be that there would be other applications in
17 the meantime. That was the basis for our offer, was to
18 say, "Look, you're fine. We'll step back and we'll take
19 your good faith promise that you're going to make efforts
20 to address certain issues. Not that that's an admission
21 of noncompliance or anything, but we'll take your good
22 faith offer and we'll step back as long as we see
23 moratorium for this brief period. We don't want to see
24 further harm" --
25 MS. HENRIKSEN: But we can't do
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1 anything for you unless we find invalidity.
2 MS. HITE: Can I ask what you think
3 an invalidity finding would do in this case as a legal
4 matter?
5 MR. COTTRELL: Well, it won't
6 necessarily mandate the moratorium. It won't mandate that
7 the City --
8 MS. HITE: But as a legal matter,
9 what happens were we to find invalidity, which is a
10 serious finding, on this ordinance?
11 MR. ZILAVY: Maybe it will put
12 pressure on the City to come up with --
13 MS. HITE: But as a legal matter,
14 what happens? What's the legal effect of that in terms of
15 what is now the law.
16 MR. ZILAVY: What's now the law is
17 no longer the law.
18 MS. HITE: And what becomes the law?
19 MR. ZILAVY: I'm not sure. There's
20 a Savings clause in what's there now.
21 MS. HITE: Or whatever was
22 pre-existing goes out in the lawsuit --
23 MR. ZILAVY: No.
24 MS. HITE: -- do you get your
25 moratorium, even of the invalidity finding?
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1 MR. ZILAVY: What we get, I think,
2 is an atmosphere of uncertainty where lending institutions
3 might be reluctant to fund developments.
4 It's -- Given the scheme that the City brings to
5 us, it's less than clear than in other cases where we've
6 asked for invalidity.
7 But it's not a scheme of our making when the
8 violations are serious enough. We don't ask for
9 invalidity in every single case, by any means. But when
10 the violations are serious enough, as they are with
11 leaving critical areas unprotected, or, I should more
12 appropriately say, by adopting a critical areas ordinance
13 that does not meet the GMA and doing it 12, 13 years too
14 late, we think that is something that warrants invalidity.
15 Now, as to the legal effect of it, I don't know
16 that the state of the law is even settled on that.
17 MS. HENRIKSEN: Well, this Board has
18 certainly made clear and Mr. Cottrell gave to me that
19 exact thing that this Board has said it met, and that is
20 that it puts it totally up in the air because that private
21 citizen has to be made aware of the fact that he or she is
22 taking a real risk if they want to develop there because
23 they're going to have to comply with the ordinance that
24 these people develop that we say complies with the act.
25 MR. ZILAVY: Which is probably a
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1 de facto moratorium.
2 MS. HENRIKSEN: Exactly, anywhere
3 near a critical area.
4 MR. ZILAVY: Right.
5 MS. HENRIKSEN: Because you're not
6 going to be able to get funding, even if you, as a
7 citizen, wanted to take a risk.
8 MR. ZILAVY: Right. And I hope
9 that -- You know, as to why we're all here, I hope the
10 Board realizes that we have 60 days to challenge an
11 ordinance once it's adopted, and things were much less
12 clear four and five months ago when we challenged this as
13 to what the City's process --
14 MS. HENRIKSEN: Oh, I understand
15 that, but I'm looking at you today and I'm saying,
16 considering what we've heard today, why aren't you folks
17 just stipulating to an extension, even without a
18 moratorium, for 90 days?
19 MR. COTTRELL: I suppose that the
20 first word we had the draft ordinances were being
21 considered was less than two weeks ago.
22 MR. MUNCE: No. No, that's not
23 right.
24 MS. HENRIKSEN: Okay. This is all
25 water under the bridge. I'm talking today, present tense,
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1 looking at you today, why are we not having you out in the
2 hallway agreeing to stipulating to an extension so
3 Ms. Gadbaw doesn't have to start writing an order that
4 will probably be mooted by the time we get it out?
5 MR. ZILAVY: Well, an extension
6 doesn't bring with it that de facto moratorium.
7 MS. HENRIKSEN: No, it doesn't. But
8 you're --
9 MR. ZILAVY: And the City, up to
10 now -- and I don't know if they would be willing now, but
11 it's been unwilling to commit to any kind of definite
12 timeline. And I don't know if 60 days, 90 days, 120 days,
13 I'm not exactly sure, sitting here, without talking to the
14 rest of the petitioners and other people what would
15 absolutely be acceptable, but one of the things the City
16 has balked at time and time again is the time line aspect
17 of this. "We will do this when we do it, but we will do
18 it" is what we get, and that just hasn't been acceptable.
19 MS. HENRIKSEN: Okay. Well, I will
20 just ask the parties that after you leave here today,
21 immediately think about what you're actually going to gain
22 in the next 60 days. This decision is due out about the
23 middle of February --
24 PRESIDING OFFICER GADBAW:
25 February 11th.
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1 MS. HENRIKSEN: -- but what you're
2 going to gain if this decision comes out February 11th,
3 you know, from this whole thing and if you see fit to
4 stipulate to an extension. It can be no more than 90 days
5 at a time previous to a decision.
6 Yes. Mr. Munce:
7 MR. MUNCE: Could I just make one
8 point?
9 MS. HENRIKSEN: Yes.
10 MR. MUNCE: Up until now, this has
11 been a local process. Not a state-driven process but a
12 local process. The Planning Commission put their proposal
13 out on the street, and the only two areas that we haven't
14 finished that are uncontested, fish and wildlife and
15 wetlands, we put them on the street December 13. The
16 hearing is scheduled before the City Council on July 26th.
17 I don't know that --
18 MS. HENRIKSEN: Excuse me. I think
19 you're going a little too fast for the court reporter.
20 I'm sorry.
21 MR. MUNCE: I'm sorry. That will
22 give me a chance to correct it. The hearing before the
23 council is January 26th. I don't know what's going to
24 happen January 26th. I just do not know whether we're
25 going to have three people show up, we're going to have
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1 300 people show up, or 3000 people show up.
2 And so I can answer that question after the
3 hearing and after -- I mean, we have one council member
4 present today, here -- after the council has a chance to
5 give me some direction. But we can't agree on any
6 extension until we know what the issues are.
7 MS. HENRIKSEN: Well, if you had a
8 90-day extension, and then if nothing happened at the end
9 of 90 days, then we'd be back here.
10 MR. MUNCE: We've always been open
11 to a simple 90-day extension with no conditions, but you
12 saw in their September 18th letter to you that the
13 stipulation is conditioned upon the City putting a hold on
14 any development -- any development applications, any, for
15 projects within 300 feet of any critical area.
16 Well, I challenge anyone to find something in
17 accordance that isn't within 300 feet of some potential
18 critical area. I mean, this is -- So this is a moratorium
19 request, and it just doesn't work for us.
20 MR. COTTRELL: We'll take that under
21 consideration, given how perhaps circumstances have
22 changed in the last 60 days or so since this process
23 started. Perhaps there will be a different decision.
24 We'll certainly think about it and let you know as soon as
25 possible so you can avoid thinking about this over the
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1 holidays.
2 MR. ZILAVY: Although, I'm not
3 confident about -- I mean, as an organization, first of
4 all, our headquarters are not in Anacortes, but we have
5 membership here in Anacortes. We have membership
6 statewide. We work with local governments all over the
7 place whose resources are limited, whose expertise is
8 limited.
9 We have a reservoir of expertise. We consult with
10 them about developing critical areas, developing urban
11 areas. Whatever. We've been around for ten years. This
12 is why we were formed as an organization.
13 And we've put in public comments. We have -- The
14 CD has been waved about a bit today. We have provided it
15 to the City of Anacortes. Anacortes has taken a very --
16 they don't want to listen to us, for whatever reason. And
17 that's fine. That's their prerogative, I suppose, as a
18 City, and this is the consequence of that.
19 We have -- The potential and possibility to
20 consult with us on compliant CAOs has always been there
21 and continues to be there. I think at this point, given
22 the discussions that have happened so far, the ball is in
23 the City's court. If they would like to work something
24 out with an extension on this, we will listen, but we have
25 put our proposal out there. We haven't heard any kind of
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1 counterproposal whatsoever.
2 I would suggest that we leave with that in mind,
3 that if Mr. Munce wants to consult with his clients and
4 get back to us, we'll talk, but I don't think that the
5 Board should delay at all a decision unless they hear from
6 us.
7 MS. HENRIKSEN: Well, we have others
8 we have to work on before that one, so --
9 MR. ZILAVY: I understand that.
10 MS. HENRIKSEN: So that's why it
11 just seems to -- And I felt coming in that there's a lot
12 of bad background personally, but I was just hoping that
13 the parties might be able to back off the personal stuff
14 and just say, "What are we going to gain for a decision on
15 the 11th of February as opposed to focusing just on
16 working on this new one?"
17 And if it isn't going to happen, it isn't going to
18 happen. It was just a curiosity on my part, so...
19 Well, we've beat that horse to death, so...
20 PRESIDING OFFICER GADBAW: I have
21 two questions, and one refers to the model ordinance. I
22 guess I haven't been away from SEATD that long that it
23 bothers me that people call this a model ordinance because
24 SEATD took great pains to say that this is not a model
25 ordinance; these recommendations that are to be considered
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1 by local governments, but they certainly don't have the
2 same kind of status that maybe the WAC does.
3 So I want to be clear about what the petitioners
4 are asking the City to do and what -- Are they basing -- I
5 thought I heard you say this, but I want to make sure,
6 that what you're relying on as far as what the guidelines
7 are that the City should be following are the RCW. That
8 really doesn't define fish and wildlife areas. The WAC
9 that asks Anacortes to consider the guidelines, that's
10 what you're relying on to make your argument that
11 things --
12 MR. COTTRELL: As well as any clause
13 offered by --
14 PRESIDING OFFICER GADBAW: Or any
15 cases that have been decided by the Western Board --
16 MR. COTTRELL: Right.
17 PRESIDING OFFICER GADBAW: -- you're
18 not relying on the model ordinance as --
19 MR. COTTRELL: In fact, Mr. Munce is
20 right. I do cite to the model ordinance. It is submitted
21 as a draft ordinance that they are considering.
22 PRESIDING OFFICER GADBAW: Let's not
23 call it the model ordinance. Just -- Is that what they
24 call it?
25 MR. MUNCE: Yes.
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1 PRESIDING OFFICER GADBAW: Is that
2 what it says?
3 MR. COTTRELL: I don't think I'd put
4 it in capitalizations. I think --
5 MR. MUNCE: You'd put it in quotes.
6 MR. COTTRELL: I believe that the
7 document still being submitted said "model ordinance" on
8 it. I --
9 MS. HENRIKSEN: Did it really?
10 Because I thought that the Board said that it knew that.
11 MR. COTTRELL: I think it reads to
12 say that "You need to follow the model ordinance. It is
13 governing material."
14 MR. MUNCE: The heading is -- This
15 is the model ordinance. (Indicating.) It calls it
16 Example Code Provisions. Example Code Provisions is how
17 it ended up coming out.
18 The record below at the City Council interim
19 hearing that we're here on today, the petitioners, time
20 after time after time, cite -- say "Just adopt this."
21 Thirty citizens got up and said, "Just adopt this."
22 PRESIDING OFFICER GADBAW: Well,
23 that means they can ask you to do that, but --
24 MR. MUNCE: Well, as I say, the only
25 request from petitioners has been to adopt the model
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1 provisions. That's been the record in the case.
2 MR. ZILAVY: Well, the correct
3 characterization is that the example ordinance certainly
4 complies with the GMA, so it is true if Anacortes would
5 adopt that, in our view, they would be in compliance with
6 the GMA.
7 The implication that it was an all-or-nothing
8 offer, "Adopt this or else," is a complete
9 mischaracterization.
10 PRESIDING OFFICER GADBAW: That may
11 have different meaning for you than it would for the
12 Board.
13 My other question is about that the City needs to
14 have a process, and it doesn't have a process for amending
15 the designation criteria for the -- or the protection
16 regulations. The guidelines came into being about 1990, I
17 think, is when the minimum guidelines were adopted; then
18 in the mid-1990s, the GMA was amended, 3670(B), to require
19 the cities and counties to have an annual amendment
20 process where people needed -- should be given an
21 opportunity to amend their plans, or to suggest amendments
22 to cities and counties on how to amend their plans.
23 Why is that process not good enough for the
24 amendment of critical areas ordinances?
25 MR. COTTRELL: Well, I suppose that
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1 what we're working from is the WAC regulations as they
2 relate to this. And I believe I cited my brief, and
3 perhaps I could find the regulation itself that
4 specifically talks about having a plan in place, a
5 procedure in place for amending critical areas
6 designations, supplementing or adding to --
7 PRESIDING OFFICER GADBAW: Right.
8 Right. I looked at the WAC, too. That's part of the
9 minimum document.
10 MS. HENRIKSEN: Are you calling that
11 a regulation?
12 PRESIDING OFFICER GADBAW: I'm
13 saying that there is --
14 MR. COTTRELL: You're saying that in
15 70(B) there is a procedure that could just as well serve
16 this purpose.
17 PRESIDING OFFICER GADBAW: Right.
18 MR. COTTRELL: I suppose, then,
19 that's up to the Board to decide whether that, in fact,
20 complies, and I suppose, then, what the City would
21 require -- or that the petitioners would ask in its
22 critical areas ordinance that individuals would direct it
23 to that process as the -- you know, in seeking to amend or
24 supplement the critical areas ordinance as designated.
25 Petitions will be accepted under this particular process.
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1 Maybe the solution is that simple.
2 PRESIDING OFFICER GADBAW: Yeah.
3 And, in fact, did not your clients use that process to
4 suggest that the City amend its ordinance. There was a
5 letter submitted last time that --
6 MR. COTTRELL: I believe they
7 submitted comments in the general public comment period
8 for this ordinance, perhaps in other comment periods, but
9 I believe they were explicitly relying upon any process as
10 such to amend the critical areas. I think they were just
11 taking advantage of the comment period that was offered.
12 MS. HENRIKSEN: Previous to this --
13 PRESIDING OFFICER GADBAW: Just
14 general public comment.
15 MS. HENRIKSEN: Previous to this, I
16 remember in the previous case that there was a letter
17 sent. And -- I don't know -- could you ask your client
18 what that was part of?
19 MR. ZILAVY: Why don't you just go
20 ahead and address the Board?
21 MS. GRAY: That was in response to
22 our issues about the Marsh Point heronry and the concern
23 that was raised. And then we said we wanted to work with
24 them on adopting a critical areas ordinance, and the
25 letter said, "Come back in 2005 because that's when we're
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1 going to do it."
2 MS. HENRIKSEN: So that was just a
3 general request.
4 MS. GRAY: Right.
5 MS. HENRIKSEN: It was not part of
6 the update process?
7 MS. GRAY: No.
8 MS. HENRIKSEN: Okay.
9 PRESIDING OFFICER GADBAW: Or the
10 annual amendment process.
11 MS. GRAY: Right. Correct.
12 MS. GRAY: And, for the court
13 reporter, that was Ellen Gray.
14 MS. HITE: I have a question, and
15 maybe we're getting there. This is more theory again.
16 But I was interested by Mr. Munce's argument that when
17 they say in the statute, "fish and wildlife habitat
18 conservation areas," they don't say "fish and wildlife
19 habitat areas."
20 So what is the significance of the use of the word
21 "conservation"? Mr. Munce, I think, argues that means you
22 get to pick some, and I'm asking the petitioners: What do
23 you think it means?
24 MR. ZILAVY: Well, I think that it
25 means that there is an obligation to adopt regulations to
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1 conserve this area.
2 MS. HITE: So you would argue that
3 that's what you do with it, as opposed to how you define
4 it?
5 MR. ZILAVY: Correct. I mean,
6 there's still an obligation to go jurisdiction-wide and
7 designate the habitats of primary association of these
8 species that we've been talking about, and that's what the
9 City didn't do in this particular case.
10 The conservation, in this particular case, is a
11 descriptive word, I would say, because that's what you're
12 supposed to do with them; you're supposed to conserve
13 them, by adopting and developing regulations.
14 MS. HITE: I puzzled over this
15 myself, and that's why I was interested in Mr. Munce's
16 argument.
17 And this is in the statute itself. It says that
18 "critical areas include fish and wildlife habitat
19 conservation areas." It doesn't say "fish and wildlife
20 habitat areas."
21 So you ask yourself: What's the effect of the
22 term "conservation" in there? And so your argument is
23 that that's the area you're going to conserve. Would your
24 argument also be that all fish and wildlife habitat areas
25 are critical areas?
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1 MR. ZILAVY: Well, all habitats that
2 are associated with the types of species we've been
3 talking about, yes.
4 MS. HITE: Priority --
5 MR. ZILAVY: Yes, priority species
6 of local importance and all that.
7 MS. HITE: So the "conservation"
8 term would apply perhaps, then, to the designation of what
9 species are important to be conserved?
10 MR. ZILAVY: Sure. And if there is
11 some of that that jurisdictions are going to leave out,
12 exempt, then again it comes back to "Do we ignore the WACs
13 altogether?" It comes back to the -- the local government
14 would need to explain what they are doing to fulfill the
15 goals of the GMA and the protection of particular habitat
16 associated with a particular species.
17 MS. HITE: And, Mr. Munce, did you
18 have anything more to offer? You've already made your
19 argument, I think, on --
20 MR. MUNCE: I cited my brief. The
21 Central Board addressed this question. I know it's
22 not -- It's just a suggestion for this Board. But I think
23 it was that they looked at exactly that and said, "There's
24 something going on here when you say 'conservation
25 areas.'"
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1 And we place great reliance on that term as far as
2 supporting our position. I mean, We think there needs to
3 be some local discretion because it's still a local
4 program and not a state takeover program.
5 PRESIDING OFFICER GADBAW: All
6 right. For the petitioners, I wanted to understand your
7 argument on wetland mitigation.
8 My understanding of the law is that the functions
9 and values of a critical area need to be protected, so was
10 it your argument that if ever a wetland or part of a fish
11 and wildlife habitat area is removed or destroyed, that it
12 has to be replaced in kind to protect the function and
13 value of the area?
14 MR. COTTRELL: Has to be? Probably
15 not; don't have to. I think generally it's probably the
16 easiest solution to preserve function, is to preserve
17 size. That would be my best estimate of how to preserve
18 function.
19 But I think that what we see in this ordinance is
20 that it addresses no net loss of wetlands, and the -- but,
21 yet -- that's its goal, and it doesn't necessarily attain
22 that because replacement or replication is not necessary.
23 PRESIDING OFFICER GADBAW: Not
24 required?
25 MR. COTTRELL: Not required. It is
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1 discretionary under a number of factors. They are all
2 factors that should be considered, but there is nothing in
3 the ordinance itself that says a net loss of function is
4 not allowed.
5 Function in a wetland habitat is impaired if it is
6 trod upon. It's developed in a certain way that destroys
7 the functions of that habitat or even some certain net
8 loss is incurred, then function must be replaced
9 elsewhere. That's just not required in the current
10 wetlands ordinances.
11 And you're right. It wouldn't necessarily -- To
12 preserve function, it wouldn't necessarily mean that you
13 have to preserve acre-for-acre, foot-for-foot of wetland.
14 There may be wetlands elsewhere that a study could show
15 that if they were enhanced, some net function would be
16 enhanced as well.
17 There are perhaps other ways to solve this
18 problem, but the wetland ordinance itself does not
19 guarantee the net loss of function would not occur.
20 MS. HENRIKSEN: Wouldn't a critical
21 areas ordinance itself have to make provisions for a
22 broader approach if you weren't going to have to do it
23 right near site? Wouldn't there have to be some kind of a
24 bank system or something set up in the ordinance itself?
25 MR. COTTRELL: I know that this
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1 Board has addressed that case before. If it is going to
2 be used, it has to meet certain standards and be
3 intelligible and result in knowing what the net loss of
4 function is.
5 If a wetlands ordinance wants to -- Obviously, the
6 easiest way perhaps for the City and any permit applicant
7 to know what their responsibilities would be would be to
8 say, "We're going to have a square-foot-per-square-foot
9 replacement of wetlands."
10 But as you've pointed out by your question, that's
11 not necessarily the only solution to the Growth Management
12 Act goal, which is to avoid net loss of function. Perhaps
13 that wetland is impaired in some way. It could be
14 improved. You know, these sort of criteria, though, are
15 not addressed.
16 PRESIDING OFFICER GADBAW: So
17 there's no all-over scheme in the ordinance, in your
18 opinion?
19 MR. COTTRELL: In our opinion,
20 there's no all-over scheme that would necessarily
21 preserve -- would prevent a net loss of function.
22 MS. HENRIKSEN: Even though the
23 headline of their ordinance -- at the top, it says "There
24 will be no net loss"?
25 MR. COTTRELL: Right.
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1 MR. MUNCE: It's my ordinance. I
2 use it. I've been using it for 13 years, and there's
3 nothing in the record to show that we've done anything
4 that hasn't followed the Intents section of the language
5 and the Purpose section, and that we haven't applied it.
6 And so to -- And the other thing -- I interrupted.
7 I'm very sorry.
8 But the other thing that we have is, as you will
9 see if you do look at one of the relevant exhibits that we
10 submitted, our new draft model ordinance. The SEATD
11 examples are very helpful, and the Planning Commission is
12 pretty much using that approach in their recommendation to
13 council, because in 1990 what was the model ordinance is
14 no longer the model ordinance. And we need to step up to
15 that.
16 All these questions have come up, and we're not
17 shying away from them. We're comfortable with them. We
18 do need clarification. I don't think you need to write
19 this model for every jurisdiction, at least not for
20 Anacortes. I think we know what how to make clearer what
21 we need to make clearer.
22 MS. HITE: But, Mr. Munce, can I ask
23 a question of you, then. We've been talking about the
24 invalidity findings of the petitioners, but were the Board
25 to find the City in compliance, would the City have any
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1 reason to go forward with the improvements to the
2 ordinance that they are now considering as part of your
3 recommendation?
4 MR. MUNCE: Well, we have the
5 legislative mandate to finish our entire update by the end
6 of 2005. That is an absolute legal mandate, and we're
7 subject to sanctions if we don't meet that.
8 On the other extreme, we've committed three months
9 of everyone's evenings and weekends to get through the
10 Planning Commission by the end of the year. I want to get
11 this finished, but I can't do any more than sit here and
12 tell you I'd like to get it finished. But I suspect, once
13 the state agencies weigh in, because they've already
14 warned me that some of the State folks think that this is
15 a model ordinance and --
16 MS. HENRIKSEN: Oh really?
17 MR. MUNCE: -- any deviation has to
18 be justified to them.
19 I'm getting calls. This is a big deal. It's not
20 a minor issue. You just happened to hear it first in this
21 case.
22 MS. HENRIKSEN: I'm sad to hear that
23 because there was so much fear and trepidation of even
24 putting it out for fear local governments would believe
25 that it had to be followed, that it's not just guidelines.
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1 MR. MUNCE: The recommendations of
2 petitioners in the record below are all that "This is
3 a model. Any deviation is your responsibility to
4 prove" --
5 MS. HENRIKSEN: Really? Just like
6 it were part of the act?
7 MR. MUNCE: Exactly.
8 MS. HENRIKSEN: Well, that was
9 exactly what we were hoping would not be perceived.
10 MR. MUNCE: Exactly. And that's why
11 I'm telling you --
12 MS. HENRIKSEN: Is that what you
13 said? I didn't read that in --
14 MR. COTTRELL: I can't speak for
15 comments that may have been offered by individuals at
16 public hearings in the past. Our position is: If you
17 want to get us off your backs, adopt this ordinance. We
18 feel like it really meets our -- what we feel is
19 important, we feel meets the act. If you adopt it, we
20 won't object.
21 Now --
22 MS. HENRIKSEN: But you didn't think
23 that this Board would require that you justify it?
24 MR. COTTRELL: No. I don't think we
25 could say that. It certainly wasn't implied in anything
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1 of our -- in any of our briefing. It was just merely
2 pointing out: Here are our problems we've identified; we
3 looked at the draft ordinances that are being considered
4 to see how they've addressed them.
5 It was merely an aside. It certainly isn't saying
6 that the model ordinance, as we're calling it now for
7 purposes of this hearing, is state law.
8 MR. ZILAVY: Here's our
9 December 17th letter on this, and this is a quote, "We
10 encourage the City to use the ordinance." And,
11 regrettably, I suppose it does refer to it as a model
12 ordinance, but we used a small M, not a big one.
13 But I think that's just a matter of semantics. It
14 has never been our position that -- "adopt this or else."
15 I don't believe that was the position with SEATD either.
16 MR. MUNCE: We do have multiple
17 petitioners in this case. Just to point out: 1000
18 Friends, Evergreen Islands, and the Skagit Audubon
19 Society. All their comments are in the record below
20 and --
21 MS. HITE: Do we have those
22 comments? Are they part of the Index?
23 MR. MUNCE: They're part of the
24 Index.
25 PRESIDING OFFICER GADBAW: But not
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1 part of the --
2 MS. HENRIKSEN: Not of this record.
3 They'll be in the new record.
4 MR. COTTRELL: I don't think this is
5 particularly relevant.
6 PRESIDING OFFICER GADBAW: I don't
7 think it's -- I just wanted to be clear.
8 MR. MUNCE: I think you need to know
9 what's happening here, and I think this has been,
10 hopefully, illuminating to you as to what's actually out
11 there. There's a program going on to bring this issue to
12 you all across the state. I've seen the materials. This
13 is what you're going to be faced with. And the question
14 is: Is there any local discretion left? That's the
15 question I have for you.
16 MS. HITE: Mr. Munce, can I ask
17 another question, and it's maybe just a clarification, but
18 did the City incorporate best available science in
19 developing what you argue are the protections for the
20 critical areas, the conservation easements, those sorts of
21 things? Is there a best available science, or was that
22 done before the requirement came into effect and the City
23 didn't process the --
24 MR. MUNCE: We thought we were doing
25 really well. We adopted our comp plan in '93, our
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1 development regulations in '94. Our critical areas rules
2 were integrated into our --
3 THE REPORTER: Would you slow down
4 for me, sir?
5 MR. MUNCE: Oh. Sorry.
6 Our comprehensive plan was adopted in '93; not
7 challenged. Our development regulations were adopted in
8 '94; not challenged. We integrated our critical area
9 ordinances into the '94 provisions.
10 We did not, as our briefing points out, use the
11 time between '95 and 2000 to update our upland areas. We,
12 as we testified -- or we didn't testify -- we provided
13 this Board before, spent five years updating our shoreline
14 master plan.
15 So we used best available science to develop the
16 Fidalgo Bay plan. We've worked with the Federal and State
17 resource agencies. We've worked with some of the
18 petitioners here today, adopting our shoreline master
19 plan. Adopted a new, unchallenged shoreline master plan
20 in the year 2000.
21 Now we're shifting over. We thought we had two
22 years to do it, to update the rest of our standards for
23 the nontitle areas by 2005, and at petitioners' request,
24 we will hopefully get done in 2004.
25 But that's why I'm energized about this. We
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1 haven't been sitting around as the insults have been
2 thrown around saying -- you know, not doing anything. We
3 just have happened to focus on best available science for
4 shoreline critical areas, because we're a town of 15,000
5 people, and we do what we can.
6 And we're going to have a good compliant critical
7 area ordinance that fills in the blanks in the two areas
8 that there are concerns about. And all I get are insults
9 and comments that we're destroying the environment and
10 we're noncompliant with GMA and all the rest of it. It's
11 just -- It's energizing.
12 MS. HITE: I understand, and I
13 understand that you have done, personally and
14 professionally, a lot of work on this and it, therefore,
15 carries a lot of that weight with you, but we're not here
16 to consider personal insults and --
17 MR. MUNCE: No. And --
18 MS. HITE: -- and we don't look at
19 it this way. We just look at whether we're looking at a
20 compliant or noncompliant.
21 MR. MUNCE: I understand.
22 MS. HITE: And I'm just trying to
23 clarify where the City is with this, and I think I
24 understand your answer.
25 MR. MUNCE: We're going to get
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1 there. We've spent our resources on a little different
2 area, but we did use best available science. We do know
3 what's there, and we're going to --
4 We figured, with this much protection
5 (indicating), we had a little bit of leeway to figure out
6 the new standards. And the WEAN case was an eye-opener
7 for us as far as the -- I mean, you know, you reached that
8 decision, the Superior Court overturned you, and the
9 Appeals Court came right back in and -- And that's an
10 eye-opener for a lot of people as far as where we're
11 going, and we recognize that.
12 MS. HITE: Thank you.
13 MR. MUNCE: Not that we shouldn't
14 immediately have followed exactly what the Board said.
15 PRESIDING OFFICER GADBAW: Do you
16 have any more questions?
17 MS. HENRIKSEN: I have one, just a
18 little technical question.
19 What does the dark green -- It says "acres
20 preserved by other means." What does that mean?
21 MR. MUNCE: When the City secured
22 the property, there was a deed restriction that would have
23 said something like "for park purposes only," so we
24 haven't taken the liberty of trying to sell conservation
25 easements on those properties.
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1 MS. HENRIKSEN: Is that property
2 owned by the City, the dark green?
3 MR. MUNCE: All of the dark and
4 light green property is owned -- The dark and light green
5 property is all owned by the City.
6 And so what we've been doing is selling
7 conservation easements on the property that doesn't have
8 some deed restrictions on it. The dark green areas
9 have -- Someone deeded the property for park purposes, and
10 so we figure that's good enough.
11 MS. HENRIKSEN: Okay. Thank you.
12 MR. MUNCE: Thank you. And I
13 appreciate the Board tolerating my excitedness.
14 PRESIDING OFFICER GADBAW: Ms. Hite,
15 anything else?
16 MS. HITE: I did not hear from
17 petitioners specifically, but -- and although you said in
18 your argument that it's obvious that the waters of the
19 streams don't begin and end in the conservation areas,
20 would you show me where they are?
21 MR. COTTRELL: I'm not sure that
22 this map actually shows any water areas outside of the
23 forested areas. This one's certainly not, and this
24 neither. (Indicating.) And I am not sure that I can
25 personally point to that.
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1 MS. HITE: Is that in the comp plan,
2 which would be something we do have in our --
3 MR. COTTRELL: That's showing where
4 waters might lie outside of the forestland areas but
5 within the City's jurisdictions.
6 MR. MUNCE: We have it in the record
7 for the new case, because we mapped our streams and
8 culverts, and that's a critical piece of information
9 and it's referred to in our Planning Commission
10 recommendation. We've got one approach for streams that
11 are currently in culverts and one approach for streams
12 that are not in culverts.
13 MS. HENRIKSEN: I thought you said
14 there were maps attached to your stormwater plans that
15 showed those.
16 MR. MUNCE: There are. They show
17 all of our critical areas, yes.
18 MS. HENRIKSEN: That's what I
19 thought.
20 MR. COTTRELL: They show your
21 critical areas, but do they show waters of the state that
22 might be in the City's jurisdiction but outside the
23 forestlands?
24 MR. MUNCE: They talk about streams
25 in general terms. They don't map -- What we've not
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1 mapped -- and we've got good color maps that show which
2 sections, by -- you know, in a very small, very precise
3 way where they're in culverts and where they're not. And
4 I would say about half of them are in culverts, and, you
5 know, we're trying to address that.
6 MS. HITE: Thank you.
7 PRESIDING OFFICER GADBAW: Are you
8 done?
9 MS. HITE: I have nothing further.
10 PRESIDING OFFICER GADBAW: I have no
11 more questions.
12 So we appreciate the participation of both
13 parties. Although it got a bit heated at times, I think
14 everybody comported themselves well. So we'll adjourn
15 this hearing.
16 (Proceedings ended at 12:27 p.m.)
17
18
19
20
21
22
23
24
25
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1 CERTIFICATE
2
3 STATE OF WASHINGTON ) I, JENNIFER L. CALDWELL,
) ss CCR #2940, a duly
4 County of Island ) authorized Notary
Public in and for the
5 State of Washington
residing at Coupeville,
6 do hereby certify:
7 That the foregoing hearing was heard in front
of the Western Washington Growth Management Hearings Board
8 and was taken before me and completed on December 17,
2003, and thereafter transcribed under my direction; that
9 the hearing is a full, true, and accurate transcript of
the testimony of said people;
10
That I am not a relative, employee, attorney
11 or counsel of any party to this action or relative or
employee of any such attorney or counsel and that I am not
12 financially interested in the said action or the outcome
thereof;
13
That I am herewith securely sealing the said
14 deposition and promptly delivering the same to Attorney
Ian Munce, City Attorney, P.O. Box 547, Anacortes,
15 Washington 98221-0547..
16 IN WITNESS WHEREOF, I have hereunto set my
hand and affixed my official seal this day of
17 , 2004.
18
19
20 Jennifer L. Caldwell, CCR, RPR
Notary Public in and for the State
21 of Washington, residing at Coupeville.
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LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO
2722 COLBY AVENUE, SUITE 706, EVERETT, WA
(425) 259-3330