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Restore This Wetland – My Comments at City Council

by on 02/23/2010

My comments are made in reference to the presentations by Eric Thuesen and Ken Reidy scheduled for later in this meeting.

On October 25, 2005, almost four and a half years ago, I presented comments to City Council titled “Make developers ask permission, not forgiveness.” At that time I stated:

My neighbors and I are asking the Planning Department to require Thuesen Homes, Inc, which intends to develop on property which includes an isolated wetlands, to contact the Army Corps of Engineers, and then the State Department of Ecology, and obtain approval for the project before the Planning Department gives their approval. We wish to avoid an appeal — a lengthy, adversarial process involving the time and energy of private citizens, city government and, ultimately, of the City Council. If the Planning Department chooses to approve the project without the required Federal and State assessments, they will be forcing private citizens to do the Planning Department’s job.

My comments were printed in the Beacon, with response from Rob Chave, and are still posted on edmondsforum.com. At that time, Thuesen had not yet submitted his short-plat application.

After Thuesen submitted his application, John Pell of the Corps, assessed the property and determined it to be an isolated wetland and therefore not subject to Federal regulations. However, to this day, the DOE has never been allowed on the Thuesen property to complete an assessment. What followed was exactly what I predicted, a lengthy, adversarial, four and a half-year process, involving time from energy from both City staff and private citizens, money from private citizens, and an enormous amount of taxpayers’ dollars.

The city attorney, Scott Snyder, has been involved in this lengthy, adversarial process from the very beginning. The issue remains unresolved and approval for the short-plat application remains “preliminary” only. I, and others, have lost confidence in the city attorney’s representation of Edmonds throughout this process. We request that City Council immediately remove Scott Snyder from any further involvement in the Thuesen-Reidy case, AND open a full and complete investigation into his role in this short-plat application process.

In completing this investigation, you should pay particular attention to the Framework for Resolution, and all other issues that Ken Reidy discusses this evening. You should also note the settlement agreement, negotiated by Scott Snyder, under substantive terms 1 H. which states:

The City shall not take any independent, affirmative action that would be adverse to any permit or approval that Petitioners may apply for from any state or federal agency, provided that this term shall not operate to restrict the City from responding to any request for information from any state or federal agency or otherwise complying with any state law.

I admit to a limited understanding of legal jargon, but this seems to tie the City’s hands in enforcing its own Critical Areas ordinance regarding the wetland on Thuesen’s property. The question I would ask is, “is it legal to restrict the City from enforcing its’ own code?”

You should also pay close attention to the over 500 emails between Scott Snyder and Duanna Kolowskoski, Thuesen’s attorney, that are being provided to Ken Reidy following his public records request, and waiting for his review.

My second request should by now by obvious. I request that City Council contact the State Department of Ecology and request a complete and full investigation of the issuance of a Nationwide permit (NWP) allowing Thuesen to “fill” the wetland. John Pell reversed his earlier determination that the wetland was isolated and issued the NWP based upon verbal report from the property owner that a storm grate existed in the wetland connecting it to Federal waterways. There is no storm grate, nor any pipes, nor any documentation of such on City maps, nor any documentation of permits to install such on the Thuesen property.

In this investigation, particular attention should be paid to a timeline presented on June 1, 2006 by Richard Gifford, Thuesen’s attorney at that time:

12. Early January 2005. Numerous conversations between Mr. Thuesen and Planning staff verifying items”….etc, etc and “mutual recognition of Applicant’s desire and right to vest application and development proposal under old CA ordinance.

The old CA regulated wetlands 2500 feet and over. The new CA regulates wetlands 500 feet and over. The key point here is that Thuesen had numerous conversations with city staff regarding his “right to vest application under old CA.” Thuesen was allowed by city staff to vest under the old CA, but this was not because of his “right” to do so. In fact, this was a special privelege granted to a private citizen, which is not allowed by city code.

Further, I suggest that particular attention be paid to the delay in publishing the new Critical Areas ordinance. In my submission, dated March 15, 2006, to the hearing examiner, I reference inconsistencies in Thuesen’s application, one of which is the submission of letters dated November 20, 2004, by Thuesen, but dated received on January 18, 2005, the date of Thuesen’s application. In my submission, I state:

The November 20, 2004 date is interesting because it was before the City Council voted on November 23, 2004 to adopt the new Critical Areas Ordinance. The ordinance was passed by City Council on November 23, 2004, but for some reason did not go into effect until February 15, 2005. The new Critical Areas ordinance describes anything over 500 square feet as a wetland. The previous ordinance described anything over 2,500 square feet as a wetland.

And finally, I am requesting that City Council instruct city staff to immediately deem Thuesen’s short-plat application incomplete. This action should have been taken the moment that the City learned that the Reidy encroachment had not been identified in any of the LSA surveys presented to the City in the Thuesen application.

In submitting his short-plat application, Thuesen signed as follows:

The undersigned applicant, and his/her assigns, in consideration on the processing of the application agrees to release, indemnify, defend and hold the COE harmless from any and all damages, including reasonable attorney’s fees, arising from any action or infraction based in whole or part upon false, misleading, inaccurate or incomplete information furnished by the applicant, his/her/its agents or employees.

This action would (1)immediately stop the bleeding of taxpayer dollars that have gone towards this short-plat application and (2) require Thuesen to resubmit his application, this time under the new Critical areas ordinance.

Thank you for your time and attention to this matter.

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