Thurston County Fire Destroys Historic Home, Habitat

Above: Looking north over 183rd Street in Rochester, a DC-10 drops red colored flame retardant to help stop the Scatter Creek area fire in south Thurston County on August 22. The historic Miller-Brewer House and barn were destroyed in the fire. Photo courtesy George Ormrod.

By Janine Gates

Little Hollywood

https://www.janineslittlehollywood.blogspot.com

The Scatter Creek area fire near Rochester in south Thurston County burned 485 total acres on August 22, prompting the temporary evacuation of about 100 residents. It also destroyed several homes.

In the Scatter Creek Wildlife Area, the historic Miller-Brewer homestead, built in 1860, and a barn were also destroyed. The homesite was listed on the National Historic Register.

Fire crews from several neighboring counties helped to control the blaze, as did the Washington State Department of Natural Resources, which is leading an investigation of the fire.

Rochester resident George Ormrod became aware of the Rochester – Grand Mound area fire when he heard a DC-10 fly low over his home near 183rd Street. He went out and saw the plane dropping red colored flame retardant.

Hopping on a scooter, he weaved around back roads until stopped by a road block near the Grand Mound cemetery where he spoke with an emergency management official. She informed him that the fire was four miles from his home and he did not need to evacuate the area.

A press release issued on Friday by the Washington Department of Fish and Wildlife (WDFW) says state wildlife managers are assessing the damage caused by the fire. The south side of the Scatter Creek Wildlife Area in Thurston County is closed until further notice.

Owned and managed by WDFW, 345 acres of the Scatter Creek Wildlife Area was burned, and provides a sanctuary for several threatened and endangered wildlife species, including Taylor's checkerspot and mardon skipper butterflies and the Mazama pocket gopher.

The wildlife area is a popular destination for hiking, birdwatching, dog training and upland bird hunting in the south Puget Sound area, said Brian Calkins, regional WDFW wildlife manager.

“This fire is truly a tragedy,” Calkins said. “We put our heart and soul into restoring this remaining piece of rare native prairie, and we know a lot of people are going to feel this loss as much as we do.”

Calkins said fire damage will likely affect some activities scheduled in the burned, southern unit of the wildlife area, including upland bird hunting this fall. However, the 435 acre section of the wildlife area on the north side of Scatter Creek was largely unscathed by the wildfire and remains open to the public.

The WDFW will immediately begin work to restore the burnt landscape south of Scatter Creek. Based on a preliminary estimate, that work will cost more than $1 million.

“We're invested in the future of this area, and we're already starting to plan recovery efforts to protect the prairie for use by animals and people,” Calkins said. “We will be putting a lot of effort into weed control and replanting.”

Scatter Creek is one of 33 state wildlife areas managed by WDFW to provide habitat for fish and wildlife as well as land for outdoor recreation.

Above: The historic Miller-Brewer House and a nearby barn were destroyed in the fire on August 22. Photo Courtesy Hans Littooy.

Miller-Brewer House Historic Site

Hans Littooy, of Olympia, offered Little Hollywood pictures he took on August 16 of the Miller-Brewer House, the oldest home in Thurston County at the Scatter Creek Prairie. 

“I often go to the Scatter Creek southern unit with my dog to enjoy the prairie elements, be it flora or landscape. Prairies are a very special landscape in our area and unfortunately misused,” said Littooy, a retired landscape architect.

A Greek Revival style house, the Miller-Brewer home was historically significant for its box frame construction, a method only used during early pioneer settlement in Washington from 1855 through 1875, and was one of the few examples left in the Pacific Northwest.

Historically, George and Marita Miller traveled north by wagon from Oregon to take a donation land claim on the banks of Scatter Creek in the late 1850s. The house, built by Miller, is set on open prairie land adjacent to Scatter Creek, and shaded by a grove of native oak trees. Miller was a farmer as well as a territorial representative.

The property was sold to Reece Brewer, an old friend of Miller’s who had moved to Grand Mound from Oregon with his wife in 1858. Brewer was an accomplished stockman, sold cream to creameries, and was a member of the Territorial Legislature in 1871. He was also the local postmaster, fulfilling his out of the house, a justice of the peace at Grand Mound, and an elected a Thurston County commissioner in 1888 and 1890. He lost three wives to pneumonia.

In the 1960s, one of Brewer’s children, Fred, sold the property to the Washington Department of Fish and Wildlife (formerly the Department of Game) which used the Miller-Brewer House since the 1960s in a variety of capacities. 

It was nominated and placed on the National Historic Register in 1988.

Above: The historic Miller-Brewer barn was destroyed in the fire on August 22. Photo Courtesy Hans Littooy.

Littooy said he and his family came from the Netherlands to Iowa in 1968 and that the house and barn have always fascinated him.   

“I loved those buildings and at one time even dreamt of replicating the old home for myself. So much for the dream….It irritates me that we are so careless with the history of this country. This house could have been a museum about life in the 1870s. How much more of Thurston County history is in danger? How much is left?” Littooy said.

Above:  The barn on the property of the historic Miller-Brewer House was also destroyed in the fire. Photo Courtesy Hans Littooy.

Risky Business: Olympia Port Commission vs City of Olympia

Above: Part meeting, part trial, the Port of Olympia Commission met on Monday night with a capacity crowd present. The tenuous relationship between the City of Olympia and the Port of Olympia and county-wide community members involves risky business, and no dispute resolution seems to be in sight.

By Janine Gates

http://janineslittlehollywood.blogspot.com

- Port tables discussion of City of Olympia’s hydraulic fracking, Standing Rock resolutions, meeting discussions with City

- 2017 Budget Passes, Downing sought to censure Zita for her role, conduct in rail blockade citing Little Hollywood, The Olympian news sources; McGregor refuses to vote for censure

- McGregor gives statement about Port's Role in Rail Blockade Raid, City of Olympia’s Chief Roberts’ statement 

Like a Thanksgiving family gathering gone bad, it was a Port of Olympia meeting that finally ended, after four hours and fifteen minutes of contentious, downright cringe-worthy, bickering behavior.

Much like the City of Olympia's council meeting last Tuesday night, the meeting room was nearly filled to capacity, and many wanted to speak or at least hear more information about the rail blockade of a Union Pacific train that ended November 18. 

The train, filled with ceramic proppants, was set to leave the Port of Olympia under contract with Rainbow Ceramics on November 11, but was forced to return to the port when protesters blocked the tracks. 

It was the first Port of Olympia meeting held after the multi-jurisdictional law enforcement raid on the camp, and like the council meeting, specific details were absent.

The 48 page agenda dramatically shape-shifted at the outset, with Commissioner Joe Downing dispensing with a discussion of the City of Olympia’s 2014 resolution concerning the oil-by-rail industry, hydraulic fracturing, and oil exports, and its October 2016 resolution in support of the Standing Rock Sioux Tribe’s opposition to construction of the Dakota Access Pipeline. 

Commissioners were also scheduled to discuss the details of a possible meeting with the city.

“(We need) to determine, what the city does, if anything, about Chief Roberts' statement. We need to know where the city stands on protecting individual's private property rights and businesses that operate within the city's jurisdiction before we meet with them. It may also make sense that the city initiate a meeting with the port since they mentioned the port in their 2014 anti-fracking oil-by-rail resolution, and one of their employees spoke publicly and negatively about the Port,” said Downing. 

The motion to change the agenda was seconded by Commissioner Bill McGregor.

Downing said he was open to a meeting with the city through established channels, which would be between Olympia city manager Steve Hall and port executive director Ed Galligan.

“So far, we have not heard that from the city or conditions for that meeting,” said Downing. 

Commissioner E. J. Zita said that no decisions were to be made that evening about the cargo shipments, and discussion should proceed. 

McGregor suggested waiting until a work session in January to discuss it again. That suggestion was met with some snickers from the audience. 

Zita wanted to extend public comment to the amount of time it would have taken to have that discussion.

“The Washington Public Ports Association...encourages us to allow as much public comment as the people ask for....We clearly have some damage control to do…by taking the Washington Public Ports' advice, we would be taking a step in the right direction....I think they are giving good advice,” said Zita.

Downing responded that he took exception to the phrase “damage control,” saying, “The port is hurting as well...both sides have taken hits.”

Extending public comment to accommodate speakers was denied, but speakers were given more chances to speak that evening. 

Former Olympia city councilmember T.J. Johnson was one of the first to speak at public comment. Now a farmer, Johnson said that Downing's previous comments that protesters should 'move on to the next issue' was ridiculous. 

In response to McGregor's desire to wait until January to speak with the city about future shipments of ceramic proppants, Johnson said, “...Climate change is the issue. Fossil fuel extraction is the issue. The Arctic is 30 degrees warmer than has ever been recorded in history...scientists this week talk about 19 critical tipping points that were just exceeded in terms of climate change. The idea that people are protesting because they just need an issue to protest, no, this is the issue today, tomorrow, and in January, when you get around to your tabled resolutions, and for the next 100 years....” 

Susan McRae also spoke passionately about the shipments.

“The Nuremberg Trials were clear: when facing a great wrong, each individual is responsible for doing the right thing and working to prevent the injustice.  This is why I am here this evening. I consider the Port’s complicity with the fossil fuel industry a form of genocide. Our earth as we know it is being destroyed by global climate disruption....

“The available evidence overwhelmingly indicates that fracking is incredibly harmful. The citizens of Olympia know this.  The citizens of Olympia do not want the Port to be facilitating fracking in any form.”

Several longshoremen spoke: Dwayne Napolean commented that everything on the docks is controversial by somebody's standards, Michael Blocker said that his wages come from the cargo, not the taxpayers, and Richard Korn said he moved here in the late 80s as a young Evergreen State College student against logging. 

“The Port has given me a great standard of living, benefits, my children are happy and healthy and have healthcare...I owe that to the port....The port makes it a much nicer place to live in Thurston County....” said Korn.

Above:  Protesters who participated in the blockade, and bystanders who came downtown to help, assist with cleaning up the aftermath of the blockade, while law enforcement continued to guard the tracks on Friday afternoon, November 18.

Downing Seeks To Censure Zita

Yes, the port passed their 2017 budget and capital investment plan with substantial public comment, with the marine terminal revenue and operations still being the most unstable. 

The port continues to operate at a loss in the millions while taxing homeowners nearly $40 on a $230,000 home. Commissioner McGregor said that while he too hopes the port would be off the tax rolls, that it won't happen in his lifetime. 

Then, accusations of misconduct were leveled by Port Commissioner Joe Downing against Port Commissioner E.J. Zita in what amounted to a spontaneous trial.

Downing sought to formally censure Zita on three alleged infractions: talking to the press or public about information learned in executive session, speaking poorly of port staff, and misrepresenting herself as a port liaison in the rail blockade situation without authority.

Downing said Zita violated the port’s 2008 resolution regarding ethical standards, and two articles of its 2015 code of conduct, on integrity and respect. He also added an alleged violation to RCW 42.23.070 under Prohibited Acts, which states that no municipal officer may disclose confidential information gained by reason of the officer’s position.

To support the merits of his case, Downing used excerpts of stories from Little Hollywood and The Olympian, dated November 15, 16 and 17, which were placed on the viewing screen for the public. He proceeded to pummel her for well over an hour.

Zita capably defended herself, pro se, on each point, saying that the information she learned about a possible raid on the camp was not learned in executive session, that port executive director Ed Galligan had, in fact, called her and told her that the camp may be broken up on Thursday. She said she did not know that this was confidential information.

“We should all share concern for public peace and safety. Your way is to keep secrets. My way is to…not keep secrets,” Zita responded to Downing.

Downing continued with his charges, citing a paragraph in a story posted by Little Hollywood on November 15, “Olympia Rail Protesters Given Notice to Vacate, Port Commissioners Respond,” to accuse Zita of speaking poorly of Galligan.

The paragraph he cited, quoting Zita, states, “Port commissioners are responsible for setting port policy, and the executive director is responsible for carrying out the policy. While the executive director may have played a key role in securing the Rainbow Ceramics contract to move fracking proppants through the Port, future decisions on this matter rest with commissioners.”

Zita responded that the statement was neither accusatory nor inflammatory toward Galligan.

“What are our policies on accepting cargo? We haven’t finished that conversation…This is part of a conversation that we have yet to finish…and it’s our job to do that….” she said.

Downing said he sees it as a pattern of belittling the executive director. Zita denied the charge.

Finally, Downing accused Zita of misrepresenting her authority as a liaison of the port in speaking with the protesters. In response, she presented a string of emails dated November 16 – 23 between her and Galligan.

The emails explain the roles she and City of Olympia Mayor Pro Tem Nathaniel Jones played as liaisons in order to seek a peaceful resolution to the situation.

Her email to Galligan dated November 17 clearly states, “All involved understand that none of the participants are authorized to make decisions on behalf of their groups – Olympia Stand, the City, or the Port.” (Bolded and underlines are in the original email.)

Commissioner McGregor seconded the motion, “so we can get to public comment.” His second required the public comment, as the censure would be an action item. Weigh in they did - nearly 20 speakers. More than one said that Downing’s accusations were a “witch hunt,” and “embarrassing,” and demonstrated a lack of civility.

Many longshoremen spoke in support of Downing and congratulated him for protecting the marine terminal interests and their jobs.

Kelly Atkinson, senior vice president of Talon Marine Services of Seattle, said he represents the ships and vessels and in all his 20 years of coming to Olympia for business, has never seen a meeting like this. He questioned Commissioner Zita and whether she supported the marina division of the Port, saying she spoke in “political doublespeak.”

Earlier in the evening, Atkinson complimented the port, saying that crews felt safe and welcome in Olympia. He said that 25 vessels came to port, and crew members spent between $10,000 - $12,000 per port of call, dispersed through various channels, including food provisions and Capital Mall, generating about $300,000 a year into the community.

In Zita's defense, Franz Kilmer-Shoultz said that he was one of the protesters at the camp for nine hours a day, and said it was not Commissioner Zita who alerted protesters that a raid was imminent, but that it was, in fact, a city councilmember who told him.

The evening was so dramatic that Downing’s wife, Myra, felt compelled to step up to defend her husband.

Finally, McGregor said that while this has been a difficult discussion, he commended Downing for bringing up his frustration that the port has not been operating as a body of unity.

Instead of voting to censure Zita, McGregor recused himself, and suggested that all three of them be given a verbal warning.

“Let the healing begin,” he said, in part.

Downing said he felt he got his message across, and that the port needs to run more smoothly.

More public comment by a healthy mix of witnesses to the rail blockade raid, community members, longshoremen, and local economic development representatives ensued. For some, it was their first time at a port meeting, and they used a wide range of adjectives to describe the evening.

McGregor Clarifies Port Role in Rail Blockade

Capping off the evening, McGregor had a few words of his own about City of Olympia Police Chief Ronnie Roberts' comments to city council last Tuesday, and clarified the Port's role in the raid on the blockade.

Roberts’ statement was transcribed by Little Hollywood and published in a November 23 article here: http://janineslittlehollywood.blogspot.com/2016/11/olympia-police-chief-denounces-port-of.html

McGregor said that Roberts took an oath of office on the responsibility of police chief and has a legal obligation to respond to those who violate the law. He said he was not going to second guess the appropriateness of the response, and commended officers for enduring taunts and intimidation tactics used by the protesters.

“...While we were involved early on in the planning of the removal (of the protesters), the planning changed dramatically due to sensitive information being disclosed to the newspaper earlier in that week by Commissioner Zita. In a follow up meeting, Port staff and/or commissioners were then excluded and were not part of nor privy to the planned action, date, time, etc. of law enforcement plans that were put into motion....”

An email from Commissioner Zita to Galligan on November 23 and copied to City of Olympia Mayor Cheryl Selby and city manager Steve Hall indicates that when Zita walked in on the multi-jurisdictional law enforcement meeting held at port offices on Thursday, November 17, the port's security lead was at the center of the head table. 

Zita says that after she noted the presence of the port security lead, he was then also escorted out.

For more photos and information about the Port of Olympia, the rail blockade of a Union Pacific train, the City of Olympia, Police Chief Ronnie Roberts' statement about the Port of Olympia and ceramic proppants, go to Little Hollywood, https://janineslittlehollywood.blogspot.com, and use the search button to type in key words.

Above: There are more ceramic proppants at the Port of Olympia. Photo taken of the Port of Olympia on November 22, 2016.

Local Land Use Updates: Oak Tree Preserve and Grande Terrace

By Janine Unsoeld

www.janineslittlehollywood.blogspot.com

Two unrelated local land use cases recently covered by Little Hollywood have seen schedule changes.

Oak Tree Preserve

A decision by Thurston County Commissioners about the proposed Oak Tree Preserve housing development in unincorporated Thurston County was expected July 8, but that date was changed to July 31, with the permission of both parties. 

The Thurston County Commissioners held a hearing about the case on June 23. The case before the commissioners is an appeal of a decision by a hearing examiner who approved the developer’s preliminary plat.

The developer, Oak Tree Preserve, LLC, proposes to subdivide 258.5 acres into 1,037 single family homes in Lacey’s urban growth area. The property contains Thurston County’s largest intact stand of Oregon white oak, a state-protected priority habitat.

The county commissioners asked the parties in early July for an extension until July 31 to issue their written decision on the appeal. In their request, they cited reasons due to the numerous motions that have been filed by the parties, the complexity of the issues, and the individual and collective schedules of the commissioners.

The parties will be notified and the decision will be posted on the county website as soon as it is received, at www.co.thurston.wa.us/permitting/hearing/hearings/oak-tree-preserve/otp.htm, said county land use clerk Cami Peterson in a voice mail to Little Hollywood this morning.

Grande Terrace Wedding and Event Venue

In the Olympia case involving a downtown Olympia wedding and event venue, a hearing scheduled for July 30 has been cancelled.

The Grande Terrace on Capitol Lake venue operator, Bart Zier, had been operating his business at 915 Deschutes Parkway in an area zoned residential without a permit. Even when issued temporary use permits, Zier had violated the terms of the permits and multiple city codes on several occasions. 

Zier withdrew his request to the city for a conditional use permit on July 8 and instead requested a temporary use permit to conduct six events in August and September. He is also requesting a grading permit to retroactively approve construction work previously done on the property, such as the pad on which a large tent structure had been erected.

Concerned community members and neighbors have written city staff, asking the city deny Zier’s new request, citing numerous city, state, and federal codes and regulations.

In a telephone interview this morning, senior City of Olympia planner Cari Hornbein said she expects to issue a decision on the permit by the end of this week. City staff conducted a site visit of the property last week, said Hornbein.

In May, Little Hollywood contacted several brides-to-be whose summer weddings were known to be scheduled at that location, and informed them of recent developments regarding the venue.

For more information about these two cases, go to Little Hollywood, www.janineslittlehollywood.blogspot.com and type key words into the search engine.

  

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

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

By Janine Unsoeld

www.janineslittlehollywood.blogspot.com

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

County Email to Oak Tree Preserve Developers

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

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

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

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

Appellant Argument

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

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

She detailed the appellants concerns for each of her points.

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

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

Applicant’s Argument

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

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

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

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

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

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

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

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

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

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

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

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

County Commissioners to Hear Proposed Oak Tree Preserve Development Case

By Janine Unsoeld

www.janineslittlehollywood.blogspot.com

The Thurston County Commissioners will discuss the merits of a citizen appeal of the proposed Oak Tree Preserve development at a hearing open to the public on Tuesday, June 23, 4:30 p.m., Building 1, Room 280, at the Thurston County Courthouse, 2000 Lakeridge Drive SW, Olympia. 

The Oak Tree Preserve plat appeal hearing follows the commissioner’s regularly scheduled commissioner’s meeting. Only those who are party to the case - the developer and those who appealed the hearing examiner’s approval of the project – may speak at the hearing.  Each party’s argument will be limited to 15 minutes.

Although the county is a party of record, it is unclear to Little Hollywood if the county is considered to be a party to the appeal. A joint motion issued by the county and the developer in early June seems to further blur the line between the county’s role and the developer’s goals and objectives.

A group of Thurston County citizens and the Black Hills Audubon Society are challenging Thurston County Hearing Examiner Sharon Rice’s approval in April of the proposed Oak Tree development in the City of Lacey’s urban growth area of Thurston County. The group says that the subdivision plan would destroy a vital wildlife habitat and is in violation of the county’s critical area ordinance.

The proposed development on Marvin Road is bordered by the Burlington Northern Railroad and the McAllister Park and Evergreen Estates subdivisions in unincorporated Lacey, and would subdivide 258.5 acres into 1,037 single family homes, said to be the largest in the county’s history. 

The development site is home to the largest remaining Oregon white oak habitat in Thurston County.  Oregon white oak is a state-protected priority habitat.  The proposed development would destroy almost half of the 79 acres of Oregon white oak woodlands on the site.

Thurston County Hearing Examiner Sharon Rice decided in favor of the preliminary plat and the Thurston County Resource Stewardship Department staff supports the hearing examiner's decision. The decision was appealed in May by citizens Bonnie and Bob Self, Donald and Liz Lyman, Lisa Carroll, Bill Koopman, Liz Kohlenberg and the Black Hills Audubon Society.

The appeal contends that the subdivision plan violates Thurston County’s critical areas ordinance and that it should be remanded to the hearing examiner. The group argues that the subdivision’s preliminary plat:

1)      Does not include the required study of wildlife that is associated with oak woodlands, even though the county ordinance says protection of wildlife is the most important function of the priority habitat.  The developer’s expert admitted in her testimony that a wildlife study was not done, and said: “It was my understanding that a wildlife study was not required at that time.”

2)      Misuses science to conclude that the habitat function of the woodlands will be the same after development as before – even when the development destroys almost half the woodlands, bisects what remains with a road, and surrounds it with a dense housing development. State law requires the use of best available science in development regulations – and this was not best available science.

Late Breaking News

The appellants, who include two former county planning commissioners and several retired scientists, have asked that the project be remanded back to the hearing examiner.

Today, the appellants filed a document in support of its earlier motion that asks the county commissioners to allow new evidence that the appellants discovered after the hearing examiner closed the record. That motion is being opposed by both the developer's attorney and the Thurston County Resource Stewardship Department’s counsel, Rick Peters.

In a June 3 response to the appeal, Peters claimed that Thurston County code does not allow the record to be supplemented, that the appellants do not have standing to challenge the hearing examiner's decision, and that part of the appeal should be denied and/or dismissed on procedural or substantive grounds.

“No argument provided by appellants should invalidate the findings and conclusions of the hearing examiner,” says the letter by Peters.

The Washington State Department of Fish and Wildlife (WDFW) is not a party to the Lyman appeal, but in a June 2 letter to the commissioners, habitat biologist and environmental planner Theresa Nation said the department concurs with the appellant’s analysis of the errors in the evaluation of impacts to oak woodlands.

“We agree that the assessment of the impacts to oak woodlands was flawed and inconsistent with best available science. We agree that an accurate assessment of the impacts and adequate mitigation measures are necessary….” wrote Nation.

“….In support of Governor Inslee’s Results Washington initiative, WDFW tracks and reports the status of oak woodlands statewide. The Results Washington goal is to lose no more than 31 acres of oak woodlands annually throughout all of Puget Sound. This one proposal would cause losses well beyond the annual sound-wide goal,” wrote Nation. She went on to say that the appellants in this case have requested a reasonable solution to the serious issues brought forth in their case.

County-Developer File Joint Motion

A joint motion filed on June 8 by the county Resource Stewardship Department and the development applicant, Oak Tree Preserve, LLC, asks the commissioners to strike from the record the June 2 letter from Nation, which is posted on the county’s website. The motion says that the Washington State Department of Fish and Wildlife is not a party to the appeal, and should be considered as new evidence.

However, the county's appeal process, outlined in a notice dated May 20, specifically allows all parties of record, not just the parties to the appeal, to respond to the appeal by the deadline of June 3.

Theresa Nation, representing the Washington State Department of Fish and Wildlife, is among those listed on the county's master list of parties of record.

The joint motion by the county and Oak Tree Preserve to strike WSDFW’s response to the appeal raises questions and it could be considered odd that the county and the developer would issue the joint motion.

Although the public cannot speak at Tuesday’s hearing, witnesses to the hearing can learn about the land-use case first-hand by observing the local process.

“The fate of these oak woodlands, the wildlife and the quality of life in Thurston County hangs in the balance,” said Liz Lyman in an interview today.

Full Disclosure: Janine Unsoeld is listed as a party of record for providing testimony at the March hearing on behalf of the board of the South Puget Environmental Education Clearinghouse (SPEECH). She nor SPEECH is a party to the appeal.

For more information about the proposed Oak Tree Preserve development, including pictures of the site, see several stories at Little Hollywood, www.janineslittlehollywood.blogspot.com and type key words into the search button.

For Thurston County’s information about the case, go to http://www.co.thurston.wa.us/permitting/hearing/hearings/oak-tree-preserve/otp.htm