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

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