Tuesday, August 28, 2007

The Mayor Takes the Wheel

Who has the final say in land use decisions? Can the Mayor or Council intercede to bypass our state and city land use laws and procedures? That’s what appears to have happened with a proposed 11-unit development in the Wing Point neighborhood when the Mayor, without any apparent authority, essentially gave a developer a second chance to try the same case.


The Rules of the Road

Island land use decisions are initially made by the City Planning Department. When a conditional use permit is involved, the City Planning Director presents the report at a public hearing before the Hearing Examiner. During this process, representatives of the Wing Point Way Neighborhood presented their concerns about Capstone Partners’ plans to develop a thin strip of land along a ravine on Wing Point Country Club property. Following the hearing, the Hearing Examiner (HEX) issued her decision on July 21, 2006, reversing the City Planning Director’s decision and denying Capstone’s Conditional Use Permit (CUP) to build 11 “patio” homes on the 3.9 acre parcel. At that point, either party could appeal the HEX’s decision to Superior Court. Alternatively, either party could ask the Hearing Examiner to “reconsider” her decision if they could demonstrate that a clear mistake had been made or that new evidence had been discovered that could not have been produced at the hearing. Capstone timely filed their appeal in Superior Court on August 8, 2006.


A U-Turn at Superior Court

Something unusual then happened with Capstone. On July 13, 2007, after almost a year of delays, counsel for the City was asked, apparently by Mayor Kordonowy, to join the developer’s attorney in signing a stipulation to grant Capstone a second bite at the apple. The case was remanded, removing it from Superior Court and sending it back to the HEX. There is no record of City Council having agreed to this action. Nor does there appear to be any authority for the mayor to have negotiated the agreement.

What’s extraordinary is that this stipulation was signed by the two parties who lost before the HEX in 2006—Capstone and the City, which had given the development a thumbs up. It was after hearing the comments of the community that the HEX ruled that the City’s approval of the CUP should not be upheld, and denied Capstone’s application for a CUP, in one of just two HEX decisions out of eleven that found for the community and against the City in 2006. Capstone lost not only because the law was against it, but because the community was both angry and alert.


Time to cry “foul”

We all expect our state and municipal laws to apply to all of us, including elected officials – including our Mayor. What happened here? The Hearing Examiner will rehear this matter based, not on “newly discovered evidence,” but rather based on evidence that the developer is now willing to develop (including Revised Site Plans) in order to convince the Hearing Examiner on a second go-around.

It’s time for the community to cry “foul”. There is no notation in the City Council minutes that justifies City intervention in this action by Council or the Mayor. And the recent Council authorization for the Mayor to settle litigation that does not exceed $50,000 was never intended to circumvent state and city land use laws that meticulously set forth rules and procedures for decision making. In addition, an exhaustive search has turned up no mayoral authority under state law to intercede in or settle land use matters.


The Ride’s Not Over Yet

Obviously the Mayor’s intervention in this matter creates quite a coup for Capstone. Not only will this remand allow Capstone to re-argue its case, but it will also allow Capstone to avoid having to file a new Conditional Use Permit. Why is that important? If Capstone applied for a new CUP, it would have to comply with the new and stricter Critical Areas Ordinance, which provides greater protection for our most vulnerable critical land areas, including the steep slope and creek on the property in question. And this intervention is not the only special treatment Capstone has enjoyed in recent months. Amazingly, on June 24, 2007, the Mayor granted a $25,000 no-bid contract to Capstone, a litigant against the City, for a downtown parking garage study.

The Wing Point neighbors, who successfully spoke out against the Capstone development at the 2006 hearing, have remained organized and are speaking out now about these latest developments. They have published a blog to keep the community informed and have asked members of the community to question the mayor regarding her involvement in the case. Go here for more information and updates.

Saturday, August 25, 2007

The Mudflats aren’t the Only Thing that Stinks Here

Let’s face it, Island residents are gaga for open space. The City could probably tack the words “open space” onto just about any proposal and most of us would swoon into submission. And therein lies the danger. In our eagerness to preserve open space, we risk making deals that are not in the City’s best interest, fiscally or otherwise. At worst, we risk outright exploitation.

This past week the Open Space Commission voted to ask Council to support an open space purchase that just might represent one of those “sucker deals”. The land in question is a 1.8-acre area of mostly lawn at Manzanita Bay, currently occupied by a 1970’s rambler, known as the “Williams” property. It is part of a larger parcel being sold by the Williams family. As part of the deal, developer Kelly Samson would purchase the 10.8 acres, with 9 proposed building sites, which surround the waterfront lot. The City would also acquire rights to an adjacent 5.2 acres of tidelands. The cost to the City – $1.7 million for the land, including $300,000 to Samson for an easement on an unbuildable adjacent parcel. Samson will pay $3.3 million for his purchase.

A Truly Exclusive Beach

What advocates for the purchase have failed to make note of is that the tidelands are accessible only at very low tide, at which time the area, rather than being a sandy beach like Faye Bainbridge State Park, is a mudflat. While there are surely some Island residents who enjoy mucking about, how many of them will be inclined to do so in the shadow of Samson’s proposed development?

The purchase has been described as an “opportunity to protect (an) unspoiled marine habitat”, but the tidelands do not need to be purchased by the City to be preserved – they are already protected.


A Lot of Fine Print

So you love mudflats and you are ready to sign on the dotted line. You might want to first take a closer look at the terms of the sale and then ask yourself who exactly is benefiting here?

The City will be restricted as to what it can do on property it owns. For example, in order to preserve views, not only will property owners in the Samson development be able to prune and limb trees on City property, but the City will be prohibited from planting trees with mature height exceeding 12 feet. The City must grant Samson a utility easement for any utility purposes that Samson “deems necessary”- including water, waste water and drainage. The City will also grant Samson an easement through the property to access the boathouse and to allow for the possibility of a private dock. At least one acre of the property must be subject to restrictive covenants dedicating it to public use and recreational activity in perpetuity, which effectively leaves the entire City property forever unmarketable.

Two’s a Crowd

Another potential burden on the city’s use of the property, depending on your point of view, is the vintage house on Samson’s portion of the acreage that will be donated to the City. This removal will cost the City an estimated $50,000 up front, at which time the City will begin to incur significant maintenance costs to restore and maintain this old building along with the existing rambler.

The city will then have two single-family homes on the 1.8-acre park. Will the lot retain its “park-like atmosphere” and spaces for “picnicking, hiking and large group gatherings” once it contains two houses and a carport and is surrounded by luxury homes?

Will that be Cash or Credit?

You might be surprised to hear that the City doesn’t have $1.7 million dollars sitting in a bank vault looking for a purpose. The funding method proposed for this purchase is Councilmanic Bonds (think municipal credit card). The City doesn’t have to ask the voters to approve the spending, but at the end of the day it’s the taxpayers that are ultimately liable for the debt. The debt service on just this open space purchase would be $136,000 per year.

Who Exactly is in Charge Here?

So how did this purchase go from the Williams family offering to sell the 14 acre parcel to the City, to the City agreeing to buy the 1.8 acre piece under Kelly Samson’s terms?

We know that the Open Space Commission determined early on that there was no way that the City could afford the whole property, but what happened next? It does not appear that the property was ever put on the market, nor does it appear there was an open call to potential developers, investors or benefactors in the community to partner with the City in the purchase. But somehow, behind closed doors, the deal evolved into what is now before the City Council.

The Council will decide whether or not to fund this purchase at its next meeting on August 29th.

Thursday, August 16, 2007

John Waldo’s Trojan Horse

It was sad enough to see to see John Waldo’s temper tantrum over the 23rd legislative district’s endorsement in a letter to the Islander, but it was truly ridiculous to see it promoted to front-page news in Wednesday’s Review. Of course, editor Doug Crist is a big time Waldo fan, and we know from experience that when determining the prominence of a story for the Review, friend-of-the-editor is sure to trump newsworthiness

So aside from an endorsement, and access to Page One, is Waldo getting any other special treatment from The Review? That depends on whether or not you believe it's our local paper’s responsibility to investigate and report on a candidate’s potential conflicts of interest, or to at least scratch the paint on a candidate’s shiny new campaign platform.

John Waldo takes on the Comp Plan

In 2005, John Waldo wrote a legal analysis of the implications of the Growth Management Act (GMA) for our Comprehensive Plan (Comp Plan) and its goal of preserving our rural density outside of Winslow. Waldo’s position was that, while admitting our population allocation is not a “quota”, nonetheless “Bainbridge will need to engage in substantial upzoning sooner or later”. Why is upzoning inevitable? That Waldo does not explain.

Waldo admits, the law is in flux. Thus, he could have stated that the City should stand firmly by our Comp Plan mandates. But like many others at the helm of our city today, and those acting behind the scenes, Waldo chooses not to advocate for our unique circumstances as an Island and a rural city. Is this because he feels strongly that it is the correct and unavoidable interpretation of the GMA that we eventually upzone the entire Island to accommodate an endless stream of population growth? Or is it, perhaps, that Waldo has no interest in upholding the goals and intentions of our Comp Plan?

Consider Waldo’s recommendation in that 2005 memo:

Any way we look at it, then, we will have to upzone portions of the Island sooner or later. To me it makes sense to begin that process now. We could turn the process into a real positive by linking at least some of the upzoning to affordable housing.”

The Wind Beneath his Wings

Now, why would Mr. Waldo advocate for preemptive upzoning? Especially when he acknowledges that development today at one housing unit per 1 –2.5 acre lot would “effectively thwart future development at urban densities.” (Isn’t that what a majority of Islanders have asked for?)

Perhaps the explanation lies in who John Waldo is and what interests he serves. Check out his profile on Lawyers.com which lists as his “representative clients”, Samson Family Land Co, Madison Avenue Development and Hillandale Homes, and his areas of practice as Zoning, Planning and Land Use, Real Estate and Environmental Law, in that order. Any guesses as to which side he represents when the issue is the environment?

Who Needs Zoning Laws Anyway?

It so happens that Waldo currently has before the Planning Commission a proposed amendment to the Comp Plan that may shed some light on what he means by turning upzoning into “a real positive”. With the stated goal of creating a new affordable housing program, it sounds downright altruistic at first blush. That is until you take a closer look at what is being proposed.

It turns out that the plan is to:

provide an incentive to build affordable housing on Bainbridge Island by allowing such projects to be exempt from the development standards applied to the underlying zone in which the project is sited”.

Just in case you are thinking that that couldn’t mean what it sounds like (a complete gutting of our zoning laws), take a look at this section of the proposed amendment:

Qualified Affordable Housing Projects may be exempt from the development standards of the BIMC Title 17 Subdivision and Title 18 Zoning, including density, lot coverage, permitting requirements for a specific type of housing ... building-to-building setbacks, building height, on-site parking requirements, tree clearing requirements and required open space.” (emphasis added)

In other words, today you may reside next to a vacant five-acre parcel, zoned one single family home per 2.5 acres, with mandatory setbacks, limited building heights and limits on tree clearing, but under Waldo’s proposal, you could wake up to a three-story, multifamily complex on a clear-cut lot.

And who will benefit from this affordable housing development (besides the developer)? We don’t know. As City staff points out in its analysis of the amendment:

Typically affordable housing programs specify which household income groups are targeted to benefit from the program...The proposed (amendment) does not indicate what level of affordability would be required for a Qualified Affordable Housing Project.”

Nor does the proposal “identify how the relevant properties would remain affordable over time.” Apparently Waldo saw no need to work out those minor details before submitting the amendment to the City.

So what’s the moral of the story? If it walks and talks like a representative of the development community, it probably is one.