In Growth Management Hearings Board (GMHB) Case No. 0002c, Ian Munce and Evergreen Islands v. City of Anacortes, the Board addressed my issue as to ongoing, pre-existing critical area destruction in my immediate neighborhood by pointing out that AMC 19.70.040 as newly adopted simply prohibits such ongoing destruction. Pages 7 and 8 are attached for review and consideration. Yet, these activities continue not just in my neighborhood and across the City.
My next step was to seek a court order directing the City to enforce AMC 19.70.040. I failed to demonstrate the “exceptional circumstances” threshold to the Court’s satisfaction but, remarkably, the City argued that I had no right to bring this case at all and that the property owners involved were an indispensable party. The Court rejected these arguments along with the City argument that the City did not have a real duty to administer and enforce its development regulations but could use their judgement as to which regulations to apply to which properties and which applicants. A difficult argument to make given that AMC 19.10.030 says explicitly that the City has a duty to administer and enforce its development regulations. Yet, the City ignores the plain result and declares success because no Court Order was issued.
The duty has now been established to be a real duty but the City continues its practice of claiming that it has the discretion to pick and chose which regulations to which properties. Under this regime, conditional uses, with notice and opportunity to comment are an absolutely essential for transparency and accountability. Further, the City acknowledges that its critical area mapping is just an approximation and not to be relied upon without site specific research. But, again the City asserts the right not to require this of applicants and neighbors will often only know about a project after a building permit has been issued (when no remedy is readily available) and clearly that is the intention.
This is not theoretical. At 4217 H Avenue a wetland buffer that the applicant and City have delineated is being mowed on an ongoing basis when the AMC 19.70.040 explicitly prohibits this, and this is a provision that the GMHB based it’s Order upholding the new City Critical Area Ordinance on. The AMC prohibits a short plat being processed under this circumstance, yet the application proceeds to be processed. The application is also being processed without the mandatory SEPA Checklist. Again, the City is exercising a discretion that it is simply not entitled to. Going further, the City asserted in the Superior Court case cited above that it was my responsibility going forward to determine whether there was a wetland at 4417/4419 H Avenue or not. This despite the fact that AMC 19.70 states that the burden is on the property owner and the City.
CONDITIONAL USES ARE AN ESSENTIAL TOOL TO GUARD AGAINST STAFF OVERREACH AND ADVERSE ENVIRONMENTAL IMPACTS
My outreach efforts have led me to believe that there is close to consensus in town that not just in my neighborhood but across town your constituents want cottage housing, duplexes/triplexes/fourplexes, and cottage housing to be subject to a conditional use type process in low density neighborhoods, i.e. notice and an opportunity to comment. This may be ‘inefficient’ but there we are. We are entitled to know in advance which land use regulations are being applied by staff to which projects and which applicants, together with an opportunity to comment on whether or not proposed migrations are adequate or not. You are all aware that this is how you build community and not just housing units, e.g. “careful and thoughtful” should be your guiding principle.
Sincerely
Ian S. Munce
