Thursday, April 2, 2015

“Vested” Oak Tree Preserve Land Use Application Proves Thurston County Is For Sale

Above: An Oregon White Oak is strangled with surveyor’s tape, but continues to grow. The Thurston County oaks are on property owned by Bellevue developer Jeffrey Hamilton of Oak Tree Preserve LLC.

By Janine Unsoeld
On its cover, the March 2015 issue of Seattle magazine proclaims to have the scoop on the best, affordable neighborhoods in Seattle. To whet your appetite, they identify six areas, each with a mix of housing options starting in the $400,000s. Still a little too high?
Well, Thurston County is for sale and Bellevue developer, Jeffrey Hamilton, owner of Oak Tree Preserve LLC, knows it.
Since 2012, Hamilton has sought to subdivide 258.5 acres of wooded land in Lacey’s urban growth area of Thurston County into 1,037 small lot, single family residential units.
Hamilton's effort provides job security for not only the Thurston County planning department staff, but several others, including Hatton Godat Pantier, a local engineering, surveying and construction project management firm. Jeff Pantier testified at the county hearing on March 24 that he’s been involved with the project since 2003. Co-principal Steve Hatton said he has been involved for 10 years.
The firm’s website lists nine of their projects, some controversial, ranging from Olympia’s first “low impact” west side development, Cooper Crest, to environmental clean-up operations at the Port of Olympia.

Thurston County senior planner Robert Smith says that although the county does not keep a list ranking the sizes of subdivisions, the Oak Tree Preserve application features the largest that he’s aware of, “at least in modern times.”

Neighbors Oppose Oak Tree Preserve Project
Plat hearing testimony was heard on March 24 regarding a wide range of environmental, transportation, and school capacity issues. A decision on the plat hearing is expected by Thurston County Hearing Examiner Sharon Rice on April 24.
According to the county application, the development is expected to generate nearly 10,000 vehicle trips per day. Approval of this subdivision is conditioned upon payment of City of Lacey traffic mitigation fees of $1,128.68 per lot, equaling about $1.2 million.
According to a North Thurston Public Schools in a letter to the county dated July 30, 2014, the proposed development will generate 790 new students. The cost of purchasing land and temporary classrooms and constructing new school facilities is estimated to be $3,728 per new single-family, equaling about $3.8 million.
There is no price tag that can be placed on the potential loss of a spectacular wooded space, Thurston County’s largest stand of Oregon White Oak, about 76 acres, and the habitat for a wide range of animals and plants.
Above: With the proposed Oak Tree Preserve LLC development, those “minutes,” to shopping and I-5 in commute time, now ranging from 10 to 40 minutes from nearby subdivisions depending on the day and time of day, are almost guaranteed to lengthen, despite the developer’s mitigation plans. This photo was taken on Saturday, March 28, about 2:00 p.m. approaching the Hawks Prairie area interchange of Martin Way and Marvin Road in Lacey.
After last week’s public preliminary plat hearing in front of Thurston County Hearing Examiner Sharon Rice, neighbors quickly mobilized to inform nearby neighbors just outside the 300 foot notification area about the proposed project, and learn about the land use process.
They’ve started an online petition at that will be submitted as public comment to the hearing examiner by the deadline of 4:00 p.m. on Friday, April 3.  
Due to the organizing efforts of those who live around the beloved wooded area, the petition has already gathered nearly 300 names and comments. While some just state their opposition to the project, others explain their reasons for wanting to preserve the natural habitat, with one person describing the beauty of its spring wildflowers of delphinium, shooting stars, prairie star and camas.
Others provide evidence that the project does not support the policies and goals of the Sustainable Thurston plan. The plan, adopted by the Thurston Regional Planning Council in December 2013, included the three year effort of 180 residents representing 104 jurisdictions, agencies, organizations, and community groups. It guides new housing development in urban areas among other topics that affect short- and long-term quality of life in the Thurston County region.
Neighbors are asking basic questions like:
“The Department of Fish and Wildlife considers White Oak as Priority Habitat. From their website it says, '24.25.005 C. Protect the functions and values of priority habitats such as, but not limited to, prairies, Oregon white oak, and riparian areas along streams and marine waters.' They could stop this on their own mandates. Why don't they?”  
There are two endangered species that live in those woods: Streaked Horned Larks and Taylor's Checkerspot butterfly. I have seen them over the 27 years I have wandered through there. I saw a pair of Checkerspots just the other day. Where do I go with that?”
About water quality, the entire area drains into the Nisqually watershed, down into McAllister Springs and then the Sound. Which agency is concerned with this?”
“Vesting” and the Proposed Oak Tree Preserve LLC Development
More than your run of the mill not-in-my-backyard (NIMBY) knee-jerk reaction to yet another development, this land use application begs questions and demands answers.
It appears to be a glaring example of two flaws in Thurston County growth management history that developers are taking full advantage of: first, the county’s lateness in developing and implementing impact fees that encouraged development in unincorporated county areas and second, the City of Lacey was allowed to define and adopt an overly expansive urban growth area.  
The project is considered “vested” by the county under previous owners in 2009, as Freestone Ridge, under the City of Lacey’s Comprehensive Plan and the Thurston County Land Use Plan for the Lacey Urban Growth Area, adopted in 1994 with a 2003 update.
Project developers claim to not have to conform to the latest version of the county’s critical area ordinance since it was not in effect when the original proposal was submitted. 
For example, the stormwater measures for the proposal are based on the 1994 Thurston County Drainage Design and Erosion Control Manual, although the science and knowledge of stormwater and stormwater control and management has since increased. 
The property changed hands in 2013 and in May 2014, Thurston County received a revised application listing the new owner and met with county staff. Staff provided comments and thus the application was considered to be a revision of the original application.
To be clear, the proposed Oak Tree Preserve LLC homes are not going to be the half-acre lot size homes featured in nearby McAllister Park, an upscale neighborhood with large custom homes featuring several bedrooms, bathrooms and multi-car garages, range in the mid-to-high $500,000 range. The Park touts its territorial views and location minutes from I-5, shopping, Pierce County, Joint Base Lewis McChord, and “miles of sidewalks, street lighting and adjacent city parks.”
Adams v. Thurston County: A Land Use History Lesson
For the Oak Tree Preserve application, the county is not asking for an EIS and the State Environmental Policy Act (SEPA) appeals brought by the McAllister Park Homeowners Association were settled with the developer.
So why is Thurston County not defending the environment? A little growth management history lesson may explain.
It’s relevant, because unlike the current situation, Thurston County was on the other side, and in court from 1987 to 1993 defending the geologic, environmental sensitivity of the area, including McAllister Springs, and argued strenuously that an Environmental Impact Statement (EIS) be prepared and that the developer, Virgil Adams, adhere to the State Environmental Policy Act laws.
In the 1980s, Virgil Adams owned property adjacent to the current Oak Tree Preserve property. He intended to develop it into two subdivisions in Thurston County: McAllister Park and Lacey Estates.
In June, 1987, Adams filed a preliminary plat application with the Thurston County Planning Department for a residential development of 600 lots called McAllister Park. In November, 1987, Adams's predecessors filed a preliminary plat application for Lacey Estates.
The planning department issued a determination of significance requiring preparation of an Environmental Impact Statement (EIS) for McAllister Park. Adams had not yet submitted the EIS. At the applicants' request, the county had not yet issued its threshold determination of environmental significance or nonsignificance for Lacey Estates. 
The county, relying on Thurston County Code (TCC) 18.12.030, contended that the date of vesting should be the date the final environmental impact statement is filed.
Adams and another developer, Lyle Anderson, sued, and won in May 1991 against the county in Superior Court under Judge Richard Strophy. Patrick D. Sutherland was the attorney for the developers, and Thomas R. Bjorgen, represented the county.
The county appealed, saying that the developers' development rights were vested upon the submission of the applications. They lost.
In September 1988, the Thurston County Board of Health, composed of the county commissioners, Les Eldridge, Karen Fraser, and George Barner, adopted a resolution creating a geologically sensitive area in the vicinity of the McAllister Springs aquifer and imposed a two year suspension (moratorium) of building site approvals within the area. Both of Adams's proposed plats were within the area. By August, 1990, the Board of Health had determined that Adams's property did not lie over the sensitive aquifer.
In July, 1990, the county commissioners rezoned the area in which the Adams property was situated, changing the density requirements from two to four dwelling units per acre to one dwelling unit per five acres. The rezone was pursuant to the Thurston County Comprehensive Plan and the Urban Growth Management Agreement.  Thurston County and the Cities of Olympia, Lacey, and Tumwater entered into the agreement in June, 1988.
Adams brought a “declaratory judgment action,” seeking a ruling that his development rights were vested in 1987 when he filed his preliminary plat application and that the zoning standards in effect on that date controlled the density of McAllister Park and Lacey Estates. The trial court granted summary judgment to Adams.
Then, in a related case, Adams filed an application for preliminary plat approval of a proposed subdivision to be known as Silver Hawk Country Club Estates (Silver Hawk) in April, 1990.
A rezone in July, 1990, limited development to one unit per five acres, and included the Silver Hawk property. Lyle Anderson also sought a declaratory judgment that his development rights vested on the date of his application.

Anderson and Thurston County agreed that, pending appeal, the Adams decision governed Anderson's action. The parties entered into a stipulated summary judgment, ordering that Anderson's development rights vested in April, 1990.
In the end, in June 1993, the state Supreme Court ruled against the Thurston County saying:
“The only real purpose served by the County's interpretation of the ordinance is to allow it to change its zoning laws to defeat or modify a particular subdivision by delaying vesting until after environmental review. The County argues that later vesting is a preferable policy. The Washington Legislature and Supreme Court disagree.”
In fact, the Court said, “Thurston County argues extensively in its brief…contending that ‘substantial and permanent injury may be done to the public interest by those racing to apply for a permit to avoid a pending zoning change….’ This argument is more appropriately addressed to the Legislature. We must decide this matter based on state law and its interpretation by the court and not on our personal notions of wise land use policy.”
Fast Forward to 2015
Fast forward to 2015 and these cases may explain Thurston County’s reticence to demand an environmental impact statement and the sudden settlement of the SEPA appeals by the McAllister Park Homeowners Association.
Upon request by Little Hollywood, Robert Smith, Senior Planner, Thurston County Resource Stewardship Department, clarified the current land use application process and its relevance to the proposed Oak Tree Preserve development.
“Once a land use application is granted preliminary approval, there is a timeframe within which the applicant must meet all conditions or the approval /application will expire. 
“For subdivisions, that approval period is five years, with the possibility of time extensions.  The State legislature granted a temporary allowance for a seven year preliminary approval period for subdivisions and a 10 year period for older subdivision applications.  However, those provisions for seven and 10 year approval periods have lapsed.  
“So, for this project, if it is granted preliminary approval, the initial approval period will be for five years.  And, based on county code, the applicant can request up to five, one-year time extensions, for a total approval period of 10 years.
“There is no set timeframe that the initial application must be reviewed, as long as the applicant keeps the review active and responds to any requests for additional information within a set timeframe.  This application remained active from the application date in 2009,” Smith wrote in an email on Monday.
Smith said that while most application reviews do not take this long, it is not unusual for some to do so. 
“For this application there was never a point where the county required information that was not submitted in a timely manner.  The application was submitted in 2009 and there was ongoing review with the original applicant through 2011.  The project was sold to the current applicant in 2012.  The new applicant was in contact with the county and Fish and Wildlife during 2012 and 2013, responding to concerns about oak preservation, preparing a habitat plan, and meeting with staff to discuss proposals.  Based on the work from 2012 and 2013 the applicant submitted a revised application package in May 2014.”
State law RCW 58.17.033 requires vesting in all cases when the application is filed. As our understanding of the importance of restricting human impacts on natural resources and the environment grow, then the new laws that are adopted should set the stage for all future land use projects.
But as pointed out in Adams v. Thurston County, and the proposed Oak Tree Preserve project indicates, the entire SEPA process between the filing of a land use application and vesting will not change until state law is changed.
For two previous articles about the proposed Oak Tree Preserve development, go to Little Hollywood,
For more information on the status of Thurston County permit applications, go to: The link also provides access to other pages that list new applications submitted for review.
For more information about Sustainable Thurston, go to the Thurston Regional Planning Council website at

Witness to Stormy Weather:
Thurston County's largest intact stand of Oregon White Oaks