Members of the Board of Adjustment

City of Lake Forest Park

17711 Ballinger Way NE

Lake Forest Park, WA 98155

January 5, 2000

Re: Reasonable Use Exemption Application, RU99-01

Dear Members of the Board: 

The Board is being asked to consider this particular proposal, not all possible use of the land. There is no credible evidence that the current proposal is the least impactful possible.  The applicant has discussed no alternative plans during the hearing, even though, throughout the hearing, numerous possibilities have been mentioned that would lessen the impact on the environment, and the welfare of other citizens of the City.  Just to name a few that have been mentioned numerous times during the hearing; what about smaller houses, combined driveways, or more effective mitigation plans?  Denial of this particular application is only the beginning of a fact-finding process that, we trust, will ultimately lead to a proposal that minimizes the environmental impact while also preserving a reasonable use of the property.

Should the City grant this application, it would put the City in the untenable position of defending its decision that this is the only way to achieve reasonable use of this property. The City would also need to justify its claim that nothing else could be done with less impact of development on this property.

There is, simply, no credible evidence that denial of this particular proposal would amount to denial of all reasonable use of the property.

Mr. Stephens’ letter ignores the most directly relevant case law.

Based on Guimont v. Seattle, 1995, the December 8, 1999 letter of Claudia M. Newman clearly suggests one possibility that does not require any encroachment into the buffers, as delineated by B&A Inc.  As her December 21st letter states, this case was not overturned by the Supreme Court as suggested by Mr. Galvin and as affirmed so confidently by Mr. Stephens during the December 8th public hearing.  When an appeal was made the case was not heard by the Supreme Court.  Why does Mr. Stephens not even consider or acknowledge this, when Ms. Newman’s letter was presented during the December 8^th hearing, and was available in the public record for three weeks before his December 29th letter?  In the absence of credible reasons to dismiss Ms. Newman’s letters, her suggestion remains one, though certainly not the only, clear possibility of a reasonable use of the property with far less impact on the environment than the Hills’ current proposal.

Denial of this proposal does not amount to changing the subdivision.

Mr. Stephens made an allegation that the Board would be in effect “altering the subdivision or vacating this portion of the subdivision” were it to decide that “the use of one lot somehow created a reasonable use exemption for each of the other three lots.”  It does not.   As Ms. Newman’s letter states, Guimont v. Seattle, 1995, ruled that subdivision does not require consideration of each lot separately for the purpose of reasonable use exemption.  Thus, consideration of an entire property that combines separate subdivisions does not in any way nullify subdivision.

An abundance of evidence suggests that there is reasonable threat to the public health, safety, or welfare.

Mr. Stephens states "the evidence presented does not indicate any unreasonable threats to public health, safety, or welfare" that will be affected by this proposed development.   What is the basis of this statement?   We believe the numerous testimonies made during the hearing, by the experts, as well as the citizens, speak for themselves.  To summarize:

• Storm water discharge into the streams will increase their peak flow, subjecting downstream neighbors to increased risk of flooding.

• Obvious slope instability (i.e., the sand pit) immediately above the planned septic drain field risks contamination of the streams in the event of land movement; the existence of a clay layer below the septic drain field prevents deep absorption of septic effluent and risks stream contamination even without land movement.

• The natural enclosed basin of the planned development site with only one water discharge through the culvert under the dike south of the property increases the risk of flooding.
  
• Increased peak flow and possible septic or other contaminants will affect the fish habitat downstream.  The testimony of the citizens on this issue is direct evidence that their welfare would be affected.  This is not limited to those who were present at the hearing.   In the 1996 survey of Lake Forest Park residents available at the City Hall ^[1], preserving “’clean waters; green spaces’ were noted by a large majority of respondents, each time the questions were asked, whether in terms of goals for growth or services to be provided.” (p.1);  54% of the respondents indicated that they wanted the City “known for its commitment to the environment” (p.11), and an overwhelming 77% indicated “open space preservation” as the number one service they wanted the City to provide (p.21).  There is no question that the welfare of the Lake Forest Park citizens is at stake.  
  
  [1] Elizabeth J. Moore, Ph.D. (1996). Lake Forest Park, The future is in your hands. Results from a survey of residents. Prepared for the City of Lake Forest Park, David R. Hutchinson, Mayor, by Applied Inference, Shoreline WA.

• Expert testimony warns that the proposed development can degrade the Chinook salmon habitat in McAleer Creek, under the protection of the federal Endangered Species Act (ESA) as a threatened species.  If the City is required to do habitat restoration work under the Endangered Species Act because of its decision to grant exemption from its sensitive area regulations or, if it is found responsible for degrading the Chinook habitat^[2], the financial burden will be borne by all the citizens of the City.  
  
  [2] Endangered Species Act, section 1540, Penalties and Enforcement, states a civil penalty of up to $25,000 may be assessed for each violation, or a criminal penalty up to $50,000 or imprisonment of up to a year for each violation.

Other erroneous and distorted statements made by the Hills' attorney include, but are not limited to, the following:

·        Mr. Stephens writes, ”Even those who oppose the Hills’ application agree that the creek is ‘impassable’ to anadromous salmonids, citing Mr. Steward’s letter (Exhibit #53).  This is not only an erroneous quotation, as Mr. Steward’s only use of the word “impassable” was in reference to “two impassible man-made barriers located at the lower end of the surveyed reach”, but also a blatant distortion of Mr. Steward’s intent.  Mr. Stephens continues ignoring Steward's statement, just a few lines below, when he states, in full, “if existing barriers were removed, adult and juvenile salmon and trout would be able to ascend Brookside Creek up to and including the pond on the Hill property.”  In addition, Mr. Steward did not testify to oppose the Hills’ application, and in fact, referring to the statements he made in his letter, he wrote “I offer them freely, without compensation or undue pressure from any of the individuals or organizations cited in this letter.”   Finally, as the photos of these barriers (Exhibits # 62 and # 63) show, they are extremely accessible, and easily removed.  As mentioned below, the Northshore Chapter of Trout Unlimited has already commenced the process of removing these barriers.

·        Mr. Stephens claims that “sliding can be prevented by planting appropriate vegetation.”   Not only is this utterly unsubstantiated by expert opinion or common sense (it is a sand cliff), but planting vegetation in this area is not a part of the proposed mitigation plan.

• In claiming that no evidence was suggested that some other use would be reasonable with less impact on the sensitive areas, Mr. Stephens writes, on page 2 of his December 29^th letter, "the property is zoned residential and no other uses are allowed under the zoning regulations.”  In stating this, he is equating “other use” with other zoning types, and ignoring the possibilities of less impactful residential plans, as mentioned repeatedly in testimony, as well as in many of our written materials.  We urge the Board not to be influenced by this equation of other uses with other zoning types.  Mr. Stephens’ argument would apply only if the Board denies all residential use of the land whatsoever, rather than this particular proposed development under consideration.
  
• Regarding the risk of septic system failure and septic pollution, Mr. Stephens writes “Those issues are completely within the purview of the King County Health Department and it would be inappropriate for the Board to find unreasonable threats to public health when the King County Health Department found there would be no such threats.”  This is clearly untrue.  The King County Health Department evaluates only the soundness of the septic system (e.g., the septic tank, pump, pipes) and the soil condition of the drainage field to the depth required to accomplish the necessary percolation into the soil.  The Health Department did not conduct a slope profile to determine the existence of an underlying clay layer.  Their preliminary approval (note it is only preliminary) does not indicate that it has determined that the septic system does not pose threat to public health and safety (See Exhibit #57).
  
• Regarding Brookside Creek’s potential as fish habitat, Mr. Stephens writes: “Salmon may be able to jump much higher out in the rural areas on the Olympic Peninsula or other areas, but not in the urban environment of Brookside Creek.”  We simply wonder on what basis he presumes that salmon can distinguish an urban creek from rural ones.
  
• He also states “Opponents of the Hills’ proposal have gone to great lengths to show that salmon can jump more than 8% grades.”  We wonder if he understands what “8% grades” means.  It refers to the overall steepness of the stream, meaning that over 100 feet of horizontal distance, the slope goes up 8 feet.  No jumping is necessary.
  
• Mr. Stephens writes “RCW 75.20.060 authorizes Fish and Wildlife to order removal of barriers to fish on 30 days notice.  The Hills’ application has been pending for many months. That the Department has not ordered anyone on Brookside Creek to remove a culvert strongly suggests the Department does not believe it has the authority to order removal.”  We are enclosing a copy of a letter from Washington State Department of Fish and Wildlife fisheries biologist Doug Hennick, addressed to Sgt. Michael Peck, dated March 24, 1999, urging the removal of just such a culvert.  It should be pointed out that the Department of Fish and Wildlife indeed has the authority to order removal of fish barriers, although has chosen to exercise their authority judiciously. 
• Mr. Stephens claimed in his letter of December 8^th that he did not receive a timely reply from Mr. Hennick in regard to his (Stephens') request for the documentation supporting Mr. Hennick's letter of September 15, 1999.   Mr. Stephens neglected to mention that Mr. Hennick had responded to his inquiry within two days specifying where the requested documentation could be obtained.

• Note also, that Trout Unlimited is committed to removing these fish barriers (see letter from Dee Norton, Exhibit #58), and has begun the process of removing them (see enclosed copy of email from Dee Norton, a member of the Board of the Northshore Chapter of Trout Unlimited).
  
• Mr. Stephens also writes “As to the second part of this [3^rd] criterion for reasonable use exemption, the proposed development is also consistent with the comprehensive plan and the general purposes of this chapter.”  The very first finding upon which the City’s Comprehensive Plan is built states “Lake Forest Park residents want the City to retain its forest-like character.  New development needs to be sensitive to … Lake Forest Park’s sensitive areas such as wetlands, shorelines, aquifer recharge areas, and Lyon and McAleer Creeks.” (p. II-5, Lake Forest Park Comprehensive Plan, April 19, 1995).  Note also specific goals Pol ES 1.1 through Pol ES 3.3, as well as goals Pol SW 1.1 through Pol SW 1.10 (Comprehensive Plan, pages II-20 through 22, see copy attached).
  
  The purpose of Lake Forest Park Municipal Code, Chapter 16.18, in its entirety, is quoted below.  We do not understand how Mr. Stephens believes that a development plan that significantly encroaches wetlands and stream buffers is consistent with the purpose of the chapter.

Lake Forest Park Municipal Code 16.18.020 Purpose.

The standard development practices of this chapter are intended to implement the goals and policies of the Lake Forest Park Municipal Code, the Washington State Environmental Policy Act and the Comprehensive Plan for the City of Lake Forest Park which call for the protection of the natural environment and the public health and safety by:

A. Providing adequate information and development controls regarding environmental concerns and impacts to supplement controls addressed in other ordinances;

B. Identification of measures important for the protection and preservation of sensitive areas;

C. Mitigating to the greatest extent possible impacts to environmentally sensitive areas by regulating development in and adjacent to sensitive areas;

D. Preventing or mitigating to the greatest extent possible cumulative adverse environmental impacts to wetlands and streams; and

E. Alerting members of the public to the development limitations of sensitive areas.

(Ord. 500 § 2, 1992)

·        Note also that the above ordinance, which includes Lake Forest Park Municipal Code 16.18.220 that establishes wetlands buffer widths, and 16.18.250 that establishes stream buffer widths, was adopted in Lake Forest Park in 1992; King County Ordinance 10870 governing buffers became effective June 28, 1993.  Mr. Stephens asserts “there is no evidence that the buffers existed at the time they purchased their property” (letter of December 29, page 5).  According to the King County Auditor's file # 930910-0032, the Hills purchased their property on September 10, 1993.

·        Mr. Stephens writes “no one has provided evidence that the alternation to the buffer is extensive or more than necessary to allow the Hills to use their lots” (page 4).  According to the B&A Inc. Buffer Mitigation Plan (page 4), the total area of  "buffer encroachment is 24,726 sq ft."   The total area of the remaining buffer around the houses (shaded area in figure 5) is 34,350 sq ft (also page 4 of B&A Inc. report).  That is, the ratio of encroachment to remaining buffer is less than 2:3.  Put another way, 42% of the total buffer area around the houses will be encroached.  We do not understand on what basis Mr. Stephens claims this is not extensive.  Moreover, we do not comprehend why the applicant does not see that smaller house footprints would reduce buffer encroachment.

·         Mr. Stephens also writes, “Rather, the opponents have argued that the Hills should not be allowed to build on 3 of their lots, period.”   Can the Board find any evidence to support this statement, anywhere?  We cannot, and we are the ones presumed to have made such an argument.

·        Regarding mitigation, Mr. Stephens writes, “Some at the hearing argued that mitigation is often unsuccessful.  That says nothing about the success of the mitigation on the Hills’ property.”   We refer you to the expert analysis of the proposed mitigation plan provided by Elizabeth MacWhinney (Exhibit #33), as well as by Dr. Sarah Cooke (Exhibit #35), concluding that “the mitigation proposal is severely inadequate” (p.3).

In closing, the Lake Forest Stewardship Foundation believes it would be a travesty for the Board of Adjustment to grant this Reasonable Use Exemption Application to one family at the expense of so many other residents of the City of Lake Forest Park.

Respectfully 

Doug Mitchell, President

Lake Forest Park Stewardship Foundation