Land Use

New CAFO Draft Fails to Protect Water Quality

Although there are few if any CAFO’s (Concentrated Animal Feeding Operations) in the Spokane River Watershed, this is an extremely important issue when it comes to our statewide water quality!

Cow pic

The issue:

There are over 400 industrial dairy operations that run over 200,000 dairy cows throughout Washington state. These industrial dairy operations generate over 20 million pounds of untreated manure per day! This manure ends up in unlined lagoons, causing the groundwater in these areas to become seriously contaminated. When this contamination occurs it worsens our overall water quality resulting in unsafe drinking water and damage to nearby river ecosystems. Many farmers try to dispose of manure by over-applying manure onto their fields, however the excess then runs off into our rivers and creeks destroying aquatic life.

Unfortunately due to the strong influence big Agriculture seems to be having on the decision making of the Washington State Department of Ecology, the new draft permit is not sufficient in handling this issue.

The permit will inevitably fail to protect our waterways, this is why we need your help!

How you can help:

Help protect these fragile ecosystems by sending your comments to the Washington Department of Ecology.

In order to fully protect the public, and local wildlife from the dangerous pollutants currently in our waterways, Ecology must incorporate the following provisions in its final permit:

  • Mandatory groundwater monitoring
  • Science-based manure application requirements and restrictions
  • Science-based riparian (stream side vegetation) buffers for salmon-bearing stream
  • Implementation of best technology for CAFO operations such as synthetically-lined manure lagoons and other known and reasonably available technologies to eliminate discharges to surface and groundwater

For more information on the issue visit the Puget Soundkeeper Alliance.

Public hearings will be held on Tuesday July 26, 2016 at 6:00 pm at Whatcom Community College and Thursday July 28, 2016 at 6:00 pm at the Yakima Convention Center. Ecology will also be holding a webinar on the draft permit on Wednesday July 27 at 2:00 pm.

Please send your comments to Governor Inslee as well so he understands the publics’ concern in regards to this issue.

Chairs for Three

Spokane County Planning Commission needs new members.

The seven member Spokane County Planning Commission that advises the county’s commissioners on a variety of land use regulations, policies and plans has three vacancies to fill. According to the county, seats on the Planning Commission assigned to District 2 and District 3 will come open at the end of this year due to term expiration. A third seat, assigned on an at-large basis, will also come open in January. Members are appointed by the Board of County Commissioners.

The current makeup of the Planning Commission is:

District 1

Peter Ice
Joyce McNamee

District 2

Doug Kelley (chairman)
Mike Schmitz (vice chairman)

District 3

Randall Gillingham
Dave Jones

At-Large

Bill Moore

It is the seats currently occupied by Schmitz, Gillingham and Moore that expire at the end of this year and are open to interested applicants. Board members are volunteers and are limited to serving two four year terms.

“I think people who care about land use, traffic, habitat, water and environmental  protection should seriously consider applying for the planning commission,” says Kitty Klitzke, the Eastern Washington field organizer for Futurewise, the statewide land use organization that works to uphold and enforce the state’s Growth Management Act. “The Planning Commission looks at all the facts pertaining to land use decisions and hears from everyone concerned. They are the ones who put together the facts that the County Commissioners will see and they make the recommendations on which action to take. The Commissioners don’t always choose to take the course the planning commission recommends, but the planning commission is the most influential voice and also the most ‘in the know’ about how our built environment is taking shape. It is very important to have smart people who care about our environment, our quality of life, and our natural resources on the Planning Commission.”

Those interested in applying for one of the open seats should fill out an application and return it to Ginna Vasquez, the Assistant to the Clerk of the Board of County Commissioners at [email protected]. Ms. Vasquez can be reached by phone at (509) 477-2265. The County asks that specific questions about the roles and responsibilities of the board be addressed to planning director John Pederson at (509) 477-7212.

According to Ms. Vasquez, those applying for district designated seats must reside in the same district, but the at-large seat is open to any Spokane County resident.

Settlement at Southgate

Council votes 6-1 to accept negotiated agreements that will guide new retail developments at Spokane’s southern entrance.

Thirteen months ago, city leaders delivered a major case of heartburn to residents of the city’s Southgate neighborhood by opening large tracts to “big box” retail development. Monday night, the Spokane City Council Monday approved a settlement that, while not ending the heartburn, at least gives the neighborhood new leverage in guiding the development of the large tracts that straddle South Regal Street and the Palouse Highway.

Monday night’s 6 to 1 vote formally ends the legal dispute between the Southgate Neighborhood (and other citizen groups), the city, and the developers of the properties, including KXLY and the Black Development Company. With help from the Center for Justice, Southgate resident Ginger Patano, the Southgate council, Neighborhood Alliance, and Futurewise, had appealed the city’s comprehensive plan amendments first to the Eastern Washington Growth Management Hearings Board, and then to Superior Court. Under terms of the settlement, the appeals will now be dropped.

Although she quickly complimented the Center’s Rick Eichstaedt for his work in Notice for last night's hearing on one of the controversial Southgate parcels.negotiating the agreement with the city and developers, Patano found herself struggling a bit for words to describe her feelings after the vote last night. The mixed feelings she said she and her neighbors had about the agreement comes from their strong opposition to having big box stores on the properties.

“I think no one in the neighborhood wanted this,” Patano said. “But this is better than just giving them carte blanche.”

Patano agreed that the turning point in the controversy was the Growth Management Hearings Board’s convoluted ruling last October that sided with the city and developers. Even though ruling against Patano and the Southgate Neighborhood Council, the hearings board also concluded, among other things, that the city had failed to engage in neighborhood planning as required by its own comprehensive plan. The board also found that the comp plan was in “conflict” with the city’s development rules on the depth of public involvement required.

The hearings board ruling, coupled with Washington state’s unusual law on “vesting”–that makes it all but impossible to stop a development once it gets a foothold in the application process–clearly put Patano and the other appellants in a difficult spot. The effect of the “vesting” rule is that even winning an appeal on the merits of the law is likely to be academic because of the strong protections developers have against being retroactively penalized for errors committed by permitting entities.

“This is just the beginning of an unknown phase. We have to make sure, as a neighborhood, that we’re in touch with all these processes and that we hold these officials and developers accountable.”–Southgate resident and urban design expert Kerry Brooks.

Given that reality, Eichstaedt said that he approached Spokane assistant city attorney James Richman while the hearings board decision was on appeal and asked if there was an opportunity for the parties to work together as the city crafted agreements with the Southgate developers. Richman agreed, Eichstaedt said, and as a result the development agreements were negotiated with a number of improvements that would address at least some of the neighbors’ concerns. Click here to read one of the representative settlement agreements.

Specifically, the development agreements approved Monday night include:

*An “integrated site plan” process that will give neighborhood council standing through the design review process to have input into final design decisions.

•Major concessions on the store footprints that would be placed on the parcels.

•Dedicated pedestrian and bicycle paths through the properties.

•An extensive stormwater treatment system that should, according to the developers, have the additional benefit of resolving existing drainage problems in the area that periodically flood residential basements.

•A provision for a community plaza paid for by the developers.

•various design amenities that will enhance the aesthetic and engineering qualities of the developments.

•”Viewscape” guarantees that allow people using the property to have unobstructed views of Mt. Spokane and Browne’s Mountain.

•Provisions for developers to pay transportation and environmental impact fees to help fund public infrastructure improvements in the vicinity of the developments.

“Part of our settlement agreement, and I think it’s an important one, says that if the city is thinking about changing the comp plan or development regulations with regard to neighborhood planning, they have to meet with the neighborhood to talk about what that looks like, to try to reach consensus,” Eichstaedt says. “There is some strong feeling that whatever direction this ends up going that Southgate in particular have an opportunity to be at that table for these discussions. If the neighborhood and the city can’t reach consensus on what this looks like, the agreement says the neighborhood gets the opportunity at both the plan commission and the city council to present their version. So, in essence, we get a little mini-amendment for Southgate to the public participation requirements of a comp plan change. So that’s an enhanced participation piece, as part of the settlement, that they’re (Southgate Neighborhood) getting.”

There were already signs, Monday night, that the neighborhood involvement via the integrated site plan would be crucial down the line. For example, Eichstaedt and developer attorneys Stan Schwartz and Stacy Bjordahl conceded that there remained a difference of views over the meaning of the word “dedicated” as it applied to the pedestrian and bicycle connections required by the settlement. But Eichstaedt said he was confident the issue would be sorted out through the site planning process laid out in the development agreements.

Eichstaedt had two main messages to deliver to the council Monday night. The first was to not tinker with the agreements because the Southgate Neighborhood Council’s backing was predicated on the agreements as presented to the council. Secondly, Eichstaedt said, “for this to work, all of us need to be diligent–the neighbors, the city council, the city staff and the developers–that the promises and commitments that are made in these development agreements are actually followed through on.”

Notwithstanding the neighborhood’s support for the agreements, Council member Richard Rush objected to it, largely because of how the council had handled the issue leading up to the decisions it made last year to approve the comprehensive plan changes (including the necessary re-zoning of the properties) to allow the “big box” developments to proceed. In doing so, Rush noted that, according to developer representatives on hand Monday night, there were, as yet, no tenant commitments on any of the properties.

Rush seemed especially concerned that the accommodating the development in the area would require additional public investment, particularly in transportation infrastructure.

“It’s giving me pause,’ Rush said, “that we are making this change now, when we don’t really see any immediate benefit coming now from that change. The city is essentially committing an embedded infrastructure liability with regard to circulation. One of the things that the property owners were asked for, as part of these negotiations, was contributions to a street grid in the neighborhood, and that was summarily dismissed. So we’re going to create even more traffic problems in that area than we have now.”

Rush also complained about a ten year “sunset” clause in the agreement that, he said, raises the question of whether the development agreements will be enforceable in the future, especially if the properties change hands. He also complained that the city had rejected the neighbors’ preference for a pedestrian oriented center, for one that was automobile oriented.

“We really don’t know what kind of development is going to be best for this area,” he concluded. “We don’t know what the future holds for development. We’re sort of writing a blank check here that has liability for the neighborhood and liability for the city. And because there is no pay off to the neighborhood or the city because there are infrastructure challenges, I’m going to oppose the agreements.”

Rush’s criticism clearly caught council member Al French by surprise and he jabbed back to underscore the concessions that the property developers had made through the agreements.

“I didn’t realize we’d be re-debating the whole issue of why we approved this project in the first place but since we seem to have gone down that path I just want to point out that there are those in the community that say the cc has violated the comp plan and that we haven’t adhered to the principles of the comp plan and, from my standpoint, this is one of the areas where I think it’s a legitimate complaint because what we’ve done is we’ve said between the developer and the neighborhood, strike the compromise that works for both.”

French also emphasized that studies have shown there is an unmet demand for retail services in this section of the city that is not only putting stress on other neighborhoods, but also sending sales tax receipts to other jurisdictions.

“We are currently losing revenue to the City of the Spokane Valley because folks on the South Hill are traveling to the valley to get their goods and services, as opposed to trying to travel to the north,” French said. “The amount of traffic that goes through the East Central neighborhood as a result of folks going up and down Thor-Freya is such that we’ve heard from the East Central neighborhood complaining about the amount of through traffic through their neighborhood.”

A goal of the comprehensive plan, French said, was not to shift burdens from one neighborhood to another.

After the meeting, Kerry Brooks, said that while he supported the agreement, the burden of whether it will work or not falls on him and others in the Southgate neighborhood. Brooks is an associate professor at Washington State University’s Interdisciplinary Design Institute and an urban design expert who’s worked on the Southgate Neighborhoods land use committee and helped organize its stakeholder planning group.

“This is just the beginning of an unknown phase,” Brooks said. “We have to make sure, as a neighborhood, that we’re in touch with all these processes and that we hold these officials and developers accountable.”

–Tim Connor

Mistakes in Land Use Case will cost Taxpayers $700,000

County Commissioners settle lawsuit brought by McGlades restaurant’s former owners.

Spokane County’s decisions to run roughshod over the state’s Growth Management Act (GMA) and its own comprehensive will now cost county taxpayers $700,000. That’s the amount the county, in a December 15th settlement agreement, has agreed to pay Shawn and Theresa Gabel, the former owners of McGlades restaurant on Highway 2. The Center recently obtained the agreement via a public records request.

According to the Spokesman-Review, the couple alleged they were forced out of business after county officials reversed themselves after first granting the Gabel’s a construction permit to expand a former produce stand into a full-service restaurant. The business, according to the newspaper, was sold sometime after the Gabel’s filed their lawsuit against the county last year.

The Center for Justice represents north Spokane citizens and the Neighborhood Alliance in land use challenges opposing the expanded restaurant at the site. In early September, the Eastern Washington Growth Management Hearings Board handed down a blistering decision criticizing the county’s actions to allow the expanded use of the site. Because the Hearings Board found the county’s decisions “would substantially interfere” with goals set forth in state law, it issued a formal ruling of “invalidity,” along with a detailed order and timeline for the county to comply with the GMA.

Hammered Again

Spokane County gets yet another pen-lashing for multiple violations of the state’s Growth Management Act

With unusually blunt language, the Eastern Washington Growth Management Hearings Board has once again treated Spokane County harshly on a land use appeal to the three member panel.

McGlades restaurant on Highway 2

In a decision announced last week involving a citizen and Neighborhood Alliance challenge to the county and the proprietors of McGlades restaurant on Highway 2 north of Spokane, the Hearings Board found the county in error in all six issues raised in the appeal.

As the Hearings Board noted in its ruling, the McGlades property was permitted for use as a rural produce stand in 1984, but has since morphed into a full-service restaurant, complete with alcohol service and a drive up espresso stand. The 4.2 acres on which the restaurant now sits is referred to in the record as a “bunny tooth” of commercial property intruding into a rural residential area.

The Center for Justice represented the petitioners and argued on their behalf before the Hearings Board.

It wasn’t just the number of errors that drew the Hearings Board’s wrath. It was the county’s apparently willful decisions to try to bypass state environmental assessment procedures and its own comprehensive plan that elicited the harshest rebukes.

“The County deferred environmental review to the project stage, which essentially makes the SEPA (State Environmental Policy Act) process moot,” the Hearings Board ruled. “SEPA is to provide agencies environmental information prior to making decisions, not after they were made.”

Significantly, neither the County nor the restaurant owners contested two of the six issues that the Center argued on behalf of the petitioners.

Because the Hearings Board also found that the County’s decisions in the case “would substantially interfere” with three provisions of the state’s Growth Management Act, it capped its ruling with a formal finding of “invalidity.” This last ruling was accompanied with a detailed order and timeline for the County to come into compliance.

“It is significant that the Board ruled in our favor on all six legal issues,” said Rick Eichstaedt, the CFJ attorney representing the neighbors and the Neighborhood Alliance. “This decision makes it clear that the County must analyze the environmental impacts of its actions when it amends its comprehensive plan and zoning ordinance, and that it can’t defer until a development proposal is submitted. It also affirms that urban development, such as commercial business, are supposed to be the exception and not the rule in rural areas outside the Urban Growth Boundary. By using the finding of invalidity, the Board sent a clear message that the County’s actions violated the fundamental goals of the state’s Growth Management Act.”

The tone and sweep of the Hearings Board’s ruling is strikingly similar to its rulings in 2005 and 2006 when it found that the County had unlawfully allowed expansions of its urban growth areas to accommodate developers on the Five Mile Prairie and in the Palisades area west of Spokane. Our story about those decisions can be found here. The Center represented petitioners in Five Mile and Palisades cases as well.

Another key factor in the Hearings Board’s decision in the McGlades case is the fact that the restaurant is located in a critical aquifer recharge area (CARA) “with a rating of high susceptibility. What that meant, the Hearings Board ruled, is that the County needed to exercise special care in evaluating how allowing commercial development in the area could ultimately affect groundwater. And it hadn’t done so.

Given the inadequacy of the environmental review, the Hearings Board found, “the County failed to (sic) its duty to protect a designated critical area or, at the very minimum, use best available science to determine future impacts to the CARA from the increased septic effluent and stormwater runoff from an expansion of the business.”

“It is unfortunate that citizens must take legal action against the County to ensure that it follows the law and its own comprehensive plan,” said Eichstaedt. “The good news is that the Board’s decision will make sure that proper SEPA analysis is considered prior to making significant comprehensive plan and rezone decisions. This is a problem not only with Spokane County, but we have seen it in the City of Spokane’s decision to approve the Southgate big box stores. This decision certainly will be helpful in the Center’s appeal of that decision.”