Approved: Mistake on the Lake Redevelopment

Above: The 100 foot, nine-story Mistake on the Lake obscures the stunning Olympic Mountain range, as seen from the Washington State Capitol Campus in January. Adding two 35 foot buildings to the scene, a City of Olympia hearing examiner approved a redevelopment proposal for the building. A public hearing on the project was held January 9 and lasted nearly six hours.

By Janine Gates

Little Hollywood

https://janineslittlehollywood.blogspot.com

“The Capitol Center Building is unattractive and its location is truly unfortunate. In a perfect world it never would have been constructed, and it could not be constructed today....Although I share in the popular dislike for this building I am left with no alternative but to grant it the same protection given to every other nonconforming building,” wrote City of Olympia hearing examiner Mark Scheibmeir. 

Scheibmeir’s decision, dated February 2, approved a controversial, proposed mixed-use redevelopment for the building by developer Ken Brogan.

Although the application could have been handled by the city, the nine-story building on the isthmus in downtown Olympia is so controversial that the city deferred to a hearing examiner to determine whether the proposed project is a permitted use within the urban waterfront-housing zone and complies with all city codes. 

Approval for the proposed housing and commercial project, Views on Fifth, is subject to some routine conditions.

In a previous case upon which Scheibmeir based some of his decisions, another city hearing examiner, Tom Bjorgen, called the building an “errant thumb” on the landscape. 

A nearly six hour hearing about the proposed project was held January 9 at The Olympia Center with over 200 community members in attendance.

“Refusing to allow this project to go forward in the absence of any conflict with the Comprehensive Plan or noncompliance with development regulations, just to encourage the removal of the building, would constitute a taking. This would impose a significant, involuntary burden on the city – a burden it has declined to voluntarily take,” wrote Scheibmeir.

In June, 2017, representatives for Views on Fifth submitted an application to change the proposed use of the existing Capitol Center Building from an earlier proposed hotel to a multi-family residential development, and to develop the rest of the project site into a mixed use commercial residential project called “Views on Fifth.”

The city made a State Environmental Policy Act determination of non-significance for the project in early December, 2017, which was appealed by attorney Allen Miller, on behalf of several clients, that same month. That appeal was denied by the hearing examiner on January 25.

Above: David Nicandri signs in to testify at the proposed Views on Fifth land use public hearing held January 9 at The Olympia Center in downtown Olympia. Nicandri testified in favor of the redevelopment.

Numerous individuals and representatives of organizations testified against and in support of the redevelopment of the Capitol Center Building. 

Supporters said the project contributes to sustainability, economic revitalization in downtown, and long-term Growth Management Act goals.

Todd Cutts, executive director for the Olympia Downtown Association, said his board endorsed the project, saying more foot traffic is needed downtown. 

Joanna West, chair of the Thurston County Chamber of Commerce, which also endorsed the project, called it a “unique moment for Olympia.”

David Nicandri challenged testimony about the original Wilder and White and Olmsted concept plans and spoke to the environmental challenges of demolishing the building.

Nicandri spent 25 years leading the Washington State Historical Society, was the founding president of the Washington Trust for Historic Preservation, and currently sits on the City of Tumwater Historic Preservation Commission.

In the late 1970s, he incorporated Citizens to Save the Thurston County Courthouse, resulting in an effort that successfully sued the state of Washington to preserve the building on Capitol Way. 

“In that case, you had another building…so incongruous, so ugly, so poorly designed in comparison to the state capitol group that it did not deserve to remain on the landscape. It was intended to be demolished because it would obscure views of the capital from the east campus, what eventually became the state Department of Natural Resources building. Of course, in the greatest irony, at present the state office of archaeology and historic preservation is housed in that building.”

Scheibmeir stated that the proposed redevelopment meets all codes, even to scenic views.

“It might be argued that the two additional buildings, the Southwest Building and the Northwest Building, impair existing scenic views, but the view analysis provided by the applicant…adequately demonstrates that the views toward Capitol Lake and the Capitol from 4th Avenue are not worsened by these additional buildings,” wrote Scheibmeir in his decision.

Above: A screenshot of the proposed Views on Fifth and two additional 35 foot buildings as seen from the northwest corner of Fourth Avenue and Simmons Street. 

For more photos and information about Views on Fifth, or the Views on 5^th, Mistake on the Lake, Capitol Center Building, owner Ken Brogan, downtown Olympia, sea level rise, flood events, King Tides, the proposed hotel, or the isthmus, go to Little Hollywood, www.janineslittlehollywood.blogspot.com, and type key words into the search button.

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.

Approved and Appealed: Thurston County’s Oak Tree Land Use Case

 

Above: Liz Lyman, center, looks at the maps of the proposed Oak Tree Preserve development before the hearing held at the Thurston County fairgrounds on March 23, 2015.

By Janine Unsoeld

www.janineslittlehollywood.blogspot.com

The proposed development called the Oak Tree Preserve was approved on April 24 by Thurston County Hearing Examiner Sharon Rice, and that decision was appealed by concerned citizens by the deadline, May 8.

Several citizens living near the property stepped up to appeal the decision, including Liz Lyman, who is now acting as the official spokesperson for the appeal.

Contacted this weekend by Little Hollywood, Lyman says she appreciates all the efforts of concerned neighbors and community members to save a 258.5 acre wooded area in Lacey’s urban growth area of Thurston County.

Other appellants are Liz Kohlenberg, Robert Self, Bonnie Self, the Black Hills Audubon Society, William Koopman and Felicia “Lisa” Carroll.

Oak Tree Preserve, LLC is seeking to develop the property into 1,037 small, single family residential units. The project is proposed to be developed in Thurston County’s largest stand of Oregon White Oaks - just over 79 acres. It is also home to a wide range of birds, animals and plants.

The Washington State Department of Fish and Wildlife designates the Oregon White Oak as priority habitat. If this development is ultimately approved as it is currently proposed, 36 acres of that priority habitat  - 45 percent - will be destroyed to build houses and infrastructure.

The remaining oak stand will be fragmented. The developer proposes to build one of the two main connector roads through the remaining oak stand. That road will be the only road from the site to Marvin Road for the first two phases of the development, significantly impacting the habitat.

The area in the unincorporated area of Lacey on Marvin Road is bordered by the Burlington Northern Railroad and the McAllister Park and Evergreen Estates subdivisions.

Few neighbors were notified of the proposed development. Those who were took to the streets, informed others, and created an online petition against the development that garnered nearly 300 supporters in about four days.

Carroll and Koopman have also created a Facebook page, Facebook.com/pages/Save The Thurston Oaks. Both are fresh Thurston County environmental activist voices, and learning the process as they go along.

After the hearing examiner’s decision but before she decided to become an appellant, Carroll said she and the neighbors of her Evergreen Estates subdivision were saddened, but then felt empowered to do more.

“The fact is, Evergreen Estates will bear the brunt of it - we only have 27th Avenue as our main road and there are going to be 300 homes added at the end of 27th....The size of this project makes it all that more unfortunate that 20th century standards were applied to a 21st century world.  We must do better.  And it looks like it’s up to us citizens of Thurston County to make that change.”

Koopman agreed, lamenting a wide range of environmental concerns:

 “…The effects of the new development on the communities and homes bordering Marvin…cannot be underestimated….The entire area drains into the Nisqually Watershed, by way of McAllister Springs, McAllister Creek and thus the Puget Sound. The additional pollutants - herbicides, pesticides, plastics, storm water runoffs - will undoubtedly further impact the health of the watershed, Puget Sound, the shellfish, and of course, the salmon.

“There is also the issue of oil train-traffic, which is growing exponentially in this area. This new development is bordered by the railroad. All of the homes located therein are in an area considered by the U.S. Department of Transportation as a potential evacuation or impact zone in case of an oil train derailment and/or explosion. If coal trains start their travels through the county as well, what of our air-quality, especially of those developments bordering the tracks?

“There are indeed a host of further items of interest….Amazingly, all of this has been approved without an Environmental Impact Statement (EIS) having been performed. Through a series of Mitigated Determination of Non-Significance (MDNS) the EIS has been out-maneuvered and rendered mute. The EIS is the people’s voice of safe, responsible and sustainable environmental practices that assure all Thurston County residents of an accountable, transparent mode of responsible stewardship of our County’s land use and the safety of our population through enforcements concerning proposed land use developments, clean water and clean air. I believe our county residents require more from the Thurston County Resource Stewardship Department than a rubberstamp of approval on such a highly contentious development project,” said Koopman.

Liz Lyman, who lives in The Seasons subdivision, served on the Thurston County Planning Commission from 1999 to 2007, including two years as chair and two years as vice chair. She also has experience with land use planning for protecting wildlife habitats and nearshore water quality in Puget Sound's urbanized areas.

“I've only met Lisa and Bill once, but they seem deeply and genuinely committed to protecting habitat for wildlife -- birds in particular. I applaud them for all of their efforts. It's truly heartening to meet people like them,” said Lyman.

Appeal Claims

The funds contributed for the appeal filing were from homeowners in Evergreen Estates, The Seasons, and the Black Hills Audubon Society.

In the appeal, appellant’s claim that the hearing examiner’s decision erred by not requiring avoidance of removing oak trees as the primary method of protecting the oak woodlands as required by Thurston County regulations.

They also say she erred by not using “best available science” to evaluate the Oregon White Oak woodland, determine if any of the acreage can be removed without causing irreparable harm to the habitat, and determine the mitigation strategy for the oak that must be removed.

Petitioners are requesting the collection of a more robust record on avoidance and best available science, and a new hearing examiner review after that record is created.   

They also request that the new record include testimony from the Washington Department of Fish and Wildlife, the state agency charged with protecting priority habitat including oak woodlands, and several other topics.

Next Steps

Lyman says she continues to turn away people who want to contribute to the nearly $900 it took to appeal the land use decision in Thurston County.

“I have spoken with homeowners in The Seasons and Eagle Crest, which is a neighboring subdivision….Many homeowners are simply incredulous about the hearing examiner's decision on the Oak Tree Preserve preliminary plat. The issues they're concerned about may vary, but the common thread is that they're very unhappy….and are feeling let down by the county. The board of The Seasons considered appealing, but decided against it because the odds of prevailing are not in its favor and it's entrusted with the homeowners' funds. The Seasons' board was wonderful, though, in getting the word out to our homeowners through the association's own website,” she said. There are 215 homes in The Seasons.

“We have many avid birders who are keenly interested in the outcome of this appeal. Many of us have worked hard to create a bird-friendly environment, something that will be impacted rather dramatically and negatively if the Oak Tree Preserve development proceeds….The destruction of the Oregon White Oak habitat will be devastating to the bird population,” said Lyman.

As for the appeal, the next step is to wait for the county to post the documents filed on May 8 on its website, which should occur early next week. Then, the developer has 14 days to file their response to the appeal as well as to others that may have been filed. Then, the appellants have seven days to file their responses or rebuttals.

The County Commissioners have 60 days to make their decision from the date an appeal is posted. A decision on the case could be made before mid-July.

For three previous articles on the Oak Tree Preserve case, go to Little Hollywood, www.janineslittlehollywood.blogspot.com and use the search button using key words.

Thurston County’s Hearing Examiner Decision: http://www.co.thurston.wa.us/permitting/hearing/hearings/oak-tree-preserve/otp.html

Washington Department of Fish and Wildlife Comments: http://www.co.thurston.wa.us/permitting/hearing/hearings/oak-tree-preserve/C26-WDFW-OTP-Plat-Hearing-comments-3_21_15.pdf