BEFORE THE WESTERN WASHINGTON GROWTH MANAGEMENT HEARINGS BOARD
STATE OF WASHINGTON
City of Oak Harbor, petitioner)
)Case No. 11-2-0005
v.)
)WHIDBEY ENVIRONMENTAL
Island County, Respondent)ACTION NETWORK’SWEAN’S Dispositive Motion
______)MOTION TO INTERVENE
of 4/23/03;
Memorandum in Support of Whidbey Environmental Whidbey Environmental Action Network
Dispositive Motion of 4/23/03;Action Network’s Restoration Education Preservationre: Issues 1 & 2Motion to Intervene Box 53, Langley, WA. 98260
- 1 (360) 579-4202 wean@whidbey,net
Dispositive Motion of 4/23/03;Restoration Education Preservation
re: Issues 1 & 2Box 53, Langley, WA. 98260
- 2 (579) 360-4080 wean@whidbey,net
I. IDENTITY
1.This pleading is brought by Whidbey Environmental Action Network (WEAN), Box 53, Langley, WA 98260, (360) 579-᱔0-4202 (phone), (email). WEAN is represented in this matter by Steve Erickson, who may be reached at the above address and phone number.
II. MOTION
1.Pursuant to WAC 242-02-270 Whidbey Environmental Action Network (“WEAN”) moves the Western Washington Growth Management Hearings Board (WWGMHB) to intervene in Case No. 11-2-0005, City of Oak Harbor v. Island County. WEAN seeks to fully intervene in all issues presented for resolution. WEAN’s intervention is generally in support of Island County.
III. INTRODUCTION
1.On June 10, 2011 the City of Oak Harbor (“City”) filed a petition for review challenging Island County’s compliance action in WWGMHB Case No. 10-2-0017. This appeal has been assigned Case No. 11-2-0005 and is the case in which WEAN seeks intervention. The City has also filed another petition, WWGMHB Case No. 11-2-0004. That appeal challenges the County’s planning actions involving Freeland, an unincorporated area for which the County was required to conduct planning as an Urban Growth Area as a result of previous appeals.[1]
2.The City is engaged in strategic litigation for the ultimate purpose of forcing Island County to greatly expand the Oak Harbor UGA. The expansion sought by the City includes the headwaters of a coastal marsh in Joseph Whidbey State Park and a 377 acre farm variously zoned Rural, Rural Agriculture, and Commercial Agriculture.[2], [3] This farmland is immediately adjacent to Swan Lake, a coastal lagoon in mixed public and private ownership at which about 1/6 of all bird species known to be present in North America have been seen. While the purported rationale for expansion of the UGA onto this farm was that additional land for residential development is needed, the City is now actively considering it as a possible site for a new sewage treatment plant.
3.The City’s justification for the UGA expansion hinges on a land capacity analysis that can only be characterized as slipshod and inaccurate. While the City has criticized the County’s consideration of an analysis demonstrating this, at no time has the City ever presented a substantive response to that critique, despite being given ample opportunity to do so.[4]
4.The environmental documents relied on by the City in its environmental review gave no specific consideration to the lands the City sought to include within the UGA expansion area. Island County issued a Mitigated Determination of Non-Significance (MDNS). Pursuant to Island County regulations this was appealed to the Island County Hearing Examiner by three environmental plaintiffs (WEAN, Swan Lake Preservation Group, and GayLynn Beighton), as well as the City. The City complained that the mitigations improperly required the City to follow certain conditions after the land became part of the City.[5] Following extensive negotiations between the County and City, the County accepted the City’s view and withdrew the MDNS.[6] Since it could not impose the mitigating conditions required to prevent significant adverse environmental impacts, the County stated its intention to issue a Determination of Significance requiring preparation of an Environmental Impact Statement. Instead, in a process begun last year and concluded this spring, the County reduced the size of the proposed UGA expansion and adopted ordinances C-46-11 and C-38-11. Those ordinances are the subject of the City’s petition in this case.
IV. WEAN’S INTERESTS
1.WEAN is a nonprofit organization of approximately 400 member households. Most of WEAN’s members live, work, and recreate throughout Island County. WEAN’s mission is to preserve native biodiversity. In support of this mission, WEAN’s activities include assuring that planned use of land is appropriate in both kind, scale, and location. Consequently, WEAN is greatly concerned about the direct and indirect impacts of urbanizing rural, agricultural, and forest land. This concern is greatly heightened in this matter because of the threat the urbanization sought by the City would pose to the rural character and ecological function of the environmentally high quality areas adjacent to the proposed expansion. These interests will be irreparably harmed if the City is victorious, since that will compel the County to expand the Oak Harbor UGA.
2.Attached are affidavits from a member and two Board Members of WEAN. Scott Ashworth and his family own and live on a farm immediately adjacent to the farm onto which the City seeks to expand. Ashworth and his family live there for
the clean air, beautiful scenery, the open views and wildlife. We enjoy the peaceful environment we live in and do not want to live in a city or large town. The proposed expansion of Oak Harbor is a direct threat to the rural quality of life we enjoy. Further expansion will encroach upon wildlife habitat and threaten the water quality of Swan Lake and the creatures that live in and around it. We are committed to keeping our property rural and preserving it for our family and generations to come.[7]
GayLynn Beighton, a Board Member of WEAN, owns a home between the coastal lagoon threatened by the City’s proposed UGA expansion and Puget Sound. Urbanization of the area will not only degrade the rural character of her home, but also potentially cause flooding of her property from the increased urban stormwater runoff:
My home is located on the coastal spit between Swan Lake and the Strait of Juan de Fuca. It is currently a peaceful, rural beachfront location that is rich with wildlife. I own this home because of its beautiful, rural location. If the proposed Oak Harbor UGA expansion occurs I will suffer a high probability of flooding from rising Swan lake levels due to increased storm water run-off from newly added impervious surfaces in the ensuing urban development. I will suffer from diminished peace and privacy due to increased high-speed traffic on West Beach Road. I will suffer from an increased probability of an automobile accident due to high-speed traffic combined with inadequate ingress and egress to/from my property on West Beach Road. There will be less wildlife to watch due to contamination of the lake by non-point pollution. My enjoyment of the location will be diminished and harmed.[8]
WEAN Board member Steve Erickson works as a restoration ecologist and has been studying the vegetation in Joseph Whidbey State Park for several decades.
The proposed expansion of the Oak Harbor Urban Growth Area would add a considerable area of impervious surface to the upper portion of the watershed above the State Park. This will alter the hydrologic regime in the park. The quantity of water and the duration of peak flows will be increased. This will particularly alter the vegetation in the large marsh present in the park, favoring more common species adapted to those conditions and adversely affecting less common species. In other words, the marsh’s vegetation communities will be less unique and more common. This degradation will harm my enjoyment of this area. An additional effect of the increased volume and duration of water will be to potentially expand the marsh at the expense of the adjacent narrow foredune littoral (beach) vegetation. This vegetation includes a relatively narrow band of Carex pansa, a small sedge that is uncommon in Puget Sound and near the northern limit of its range. This is the only location I am aware of for this species on Whidbey Island. Expansion of the marsh would decrease or potentially eliminate this species from Joseph Whidbey State Park and Whidbey Island, greatly decreasing my enjoyment of this park.
Erickson also collects seed for use in restoration within the State Park and states he will be harmed by the degradation that will occur as a result of the proposed UGA expansion.
Part of my work involves supplying native plant seed for use in restoration. Pursuant to a permit from Washington State Parks and Recreation Commission I collect seed in Joseph Whidbey State Park for this purpose. The degradation of Joseph Whidbey State Park that would likely occur from proposed expansion of the Oak Harbor UGA would negatively impact this portion of my business.
3.As demonstrated above, WEAN’s members clearly have interests related to the matter of possible expansion of Oak Harbor’s UGA as proposed by the City. An organization represents its members.[9] Therefore, WEAN properly represents its members’ interests in this matter.
4.If the City were to achieve its ultimate goal of forcing the County to approve its proposed UGA expansion, WEAN’s members’ interests will be impaired. As articulated by Scott Ashworth, “The proposed expansion of Oak Harbor is a direct threat to the rural quality of life we enjoy.” Not only will GayLynn Beighton’s enjoyment of the high quality natural environment surrounding her property be impaired, but her property may be flooded due to increased runoff and access to her home may become less safe due to increased road traffic. Steve Erickson’s enjoyment of the ecology of Joseph Whidbey State Park will be lessened by the ecological degradation caused by the increased runoff generated by urbanization. Additionally, his ability to collect plant seeds for his business to use in restoration will be degraded.
5.The interests of these WEAN members are not adequately represented by the other parties to the case. The City is patently opposed to those interests. The County does not represent their particular interests, but only the general interest of the public. WEAN’s interest in this matter is specific, particular, and not adequately represented by any other party.
V. RELIEF
1.Based on the above, Whidbey Environmental Action Network requests the Western Washington Growth Management Hearings Board to grant its motion allowing full intervention on all issues presented in this case.
Petitioner has read this petition for review and believes the contents to be true.
Memorandum in Support of Whidbey Environmental Whidbey Environmental Action Network
Dispositive Motion of 4/23/03;Action Network’s Restoration Education Preservationre: Issues 1 & 2Motion to Intervene Box 53, Langley, WA. 98260
- 1 (360) 579-4202 wean@whidbey,net
Dispositive Motion of 4/23/03;Restoration Education Preservation
re: Issues 1 & 2Box 53, Langley, WA. 98260
- 2 (579) 360-4080 wean@whidbey,net
ISSUE 1: Do Island County’s comprehensive plan and implementing regulations which relate to critical areas fail to comply with the GMA’s goals and requirements for regulatory certainty, protection of the environment, and public notice and participation [RCW 36.70A.020(7)(10)(11); 36.70A.035; 36.70A.065; 36.70A.140]?
A. Violation of GMA’s Goal’s and Requirements for Regulatory Certainty
2.The “permitted uses” in the CAO are explicitly subject to Chapter 16.19 and 16.14C ICC.
3.“Functionally
June 22?/?/, 201103
Steve Erickson
Appearing pro se for Whidbey Environmental Action Network
Box 53, Langley, WA 98260
(360) 579-4202
Memorandum in Support of Whidbey Environmental Whidbey Environmental Action Network
Dispositive Motion of 4/23/03;Action Network’s Restoration Education Preservationre: Issues 1 & 2Motion to Intervene Box 53, Langley, WA. 98260
- 1 (360) 579-4202 wean@whidbey,net
Dispositive Motion of 4/23/03;Restoration Education Preservation
re: Issues 1 & 2Box 53, Langley, WA. 98260
- 2 (579) 360-4080 wean@whidbey,net
[1] The County originally designated Freeland as a LAMIRD. In 1999, the County was ordered to conduct planning and take action for Freeland to be designated as an Urban Growth Area (UGA) or to restrict the allowed development to that acceptable in a LAMIRD. See WWGMHB Case No. 98-2-0023c:
Final Decision and Order. June 2, 1999.
Island County Citizens' Growth Management Coalition, et al v. Island County, et al, Compliance Order re: Clinton and Freeland. March 22, 2000.
The County did eventually designate Freeland as an UGA and was challenged on various aspects of its action, which was upheld by the WWGMHB. WWGMHB Case No. 08-2-0015. Streicher v. Island County, et al. Final Decision and Order. Sept. 29, 2008.
The City did not participate in any way and was not a party to either of these cases.
[2] The landowner proposed up to 1050 houses on this farmland.
[3] Commercial Agriculture zoned lands comprise Island County’s agricultural resource land. The County has also previously argued that agriculture in all zones is important to maintaining the county’s rural character and should be protected for that reason:
“In Ordinance C-150-05, the County Commissioners found that both commercial and noncommercial farming are important to the rural character of Island County.Rural character, they found, is part of the economy and culture of the County.They determined that noncommercial farming activities in rural designations contribute to the rural character of Island County and preserve the County’s agricultural heritage.
Therefore, the Commissioners found that the contributions of both noncommercial farming and commercial farming should be recognized and protected.” [Footnotes omitted.]
p. 9-10 in WWGMHB Case No. 98-2-0023c. WEAN v. Island County, 2006 Order Finding Compliance on Critical Area Protections. August 30, 2006.
[4] The City’s response to this critique appears in two of the letters cited by the City to establish standing in its petition for review. See PFR at p. 6, VI. STANDING. The relevant pages from those letters are attached to this motion. In a letter dated Oct. 10. 2010 the City goes on at some length criticizing the County’s presumed reliance on this analysis. Oak Harbor letter of Oct. 10, 2010 at p. 4-5: Alleged inaccuracies of City's work as a reason to reject proposal. But the letter fails to address the substance of the critique. In its Nov. 9, 2010 letter the City states “The materials provided to the Board question the assumptions and validity of the City's analysis (even going so far as to rely on a citizen critique of the City's work).” Oak Harbor letter of Nov. 9, 2010 at 2: Analysis lacking. Here, the City attacks the critique on the basis that it was performed by a mere “citizen,” but again makes no substantive response.
[5] WEAN agreed with the City that the County could not impose such conditions.
[6] Since the threshold determination was withdrawn, there was no longer a cause of action and the Hearing Examiner dismissed all of the SEPA appeals, including the City’s.
[7] See attached Declaration of Scott Ashworth.
[8] Declaration of GayLynn Beighton.
[9] SAVE v. Bothell. 89 Wn.2d 862, 576 P.2d 40.