1                 BEFORE THE WESTERN WASHINGTON GROWTH
                                   MANAGEMENT HEARINGS BOARD
           2                          STATE OF WASHINGTON
                                               
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           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.                   )
                                                        )
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          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
          23      
                  
          24      
                  
          25      





                      LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO
                          2722 COLBY AVENUE, SUITE 706, EVERETT, WA
                                        (425) 259-3330


2 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
3 1 ALSO PRESENT: STEVE ASLANIAN 2 ELLEN GRAY BRENDA LAVENDER 3 TOM GLADE MARGARET STUDER 4 TERRY CHRISTENSON 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
4 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
5 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
6 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
7 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
8 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
9 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
10 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
11 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
12 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
13 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
14 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
15 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
16 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
17 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
18 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
19 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
20 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
21 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
22 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
23 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
24 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
25 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
26 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
27 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
28 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
29 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
30 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
31 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
32 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
33 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
34 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
35 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
36 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
37 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
38 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
39 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
40 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
41 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
42 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
43 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
44 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
45 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." LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
46 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
47 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
48 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
49 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
50 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
51 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
52 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
53 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
54 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
55 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
56 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
57 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
58 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
59 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
60 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 LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
61 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. LIKKEL & ASSOCIATES, COURT REPORTERS & LEGAL VIDEO 2722 COLBY AVENUE, SUITE 706, EVERETT, WA (425) 259-3330
62 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,