Board rejects East Monroe rezone study

For the second time in less than two years, the Washington State Growth Management Hearings Board (GMHB) has remanded the east Monroe rezone ordinances back to the city with a determination of invalidity.-á

The GMHB's Order Finding Continuing Non-Compliance on the rezone proposal was received by the city just before 5 p.m. on Friday, April 1. It finds the city's Supplemental Environmental Impact Statement (SEIS) is inadequate and noncompliant with the requirements of the Washington State Environmental Policy Act (SEPA), for reasons including its failure to sufficiently address public safety concerns, lack of impartiality and introduction of information the board found to be contradictory to data included in previous environmental study.

A variety of other deficiencies were also identified.

The 42.8-acre property owned by Heritage Baptist Church is located east of Woods Creek on the north side of U.S. 2 and consists of five contiguous parcels near the city's eastern boundary. It was rezoned from Limited Open Space (LOS) to General Commercial (GC) last November, after a several-year process that ostensibly began in 2012 but has actually been ongoing for more than a decade.

The area is highly impacted by environmental constraints, including flood plain, wetlands, streams, critical habitat and shoreline. The north portion of the property is framed by steep slopes, while the south portion is bordered by U.S. 2, a notoriously dangerous highway.

According to the environmental study, only roughly 11 acres of the property is developable.

The city initially rezoned the property during a special session of the Monroe City Council on Dec. 26, 2013. Those ordinances were remanded back to the city with a determination of invalidity in August 2014, after a group of petitioners won an appeal to the GMHB. The board found deficiencies in the EIS, which was completed by Kirkland firm PACE Engineers.

The city council voted in December 2014 to seek compliance with the board's decision by addressing the deficiencies found in the EIS with remedial environmental analysis. The property owner agreed to foot the bill for additional study done by PACE, which took place during 2015. The draft SEIS (DSEIS) was completed last August.

The city presented the final SEIS to the Monroe City Council in November 2015, and despite a planning commission recommendation that the rezone be denied, council voted 4GÇô3 in its favor.-á

A compliance hearing was held in March before the GMHB, where both sides of the rezone proposal had the chance to defend their positions.

Monroe residents Misty Blair and Doug Hamar appeared on behalf of the petitioners, with support from opponents Lowell Anderson, Brandi Blair and Ashley Sellers. Monroe attorney Zachary Lell represented the city of Monroe, while Heritage was represented by its attorneys, Duana Kolouskova and Trisna Tanus. Officials from PACE Engineers and Pastor Thomas Minnick were also in attendance.-á

Lack of alternatives

State code requires that a reasonable range of development alternatives be considered in an EIS, which the initial EIS failed to provide and is one of the primary reasons for the board's 2013 decision.

PACE's remedy was to add a no-action alternative to the DSEIS and another supplemental alternative in the FSEIS that allowed for a five-home residential development. Alternatives 1, 2 and 3, which examined different levels of commercial development on the 11 acres, remained unchanged from the original EIS.

Blair stated several times that PACE's remedy did not cure the deficiencies.

She has refuted the idea that once a rezone occurred, development would be limited to 11 acres. As such, assuming an 11-acre development envelope on all three GC development alternatives defies the purpose of studying different alternatives. Both Blair and the Department of Ecology pointed out that while the SEIS presumes significant intrusions into critical areas would be disallowed, nothing in Monroe City Code outright prohibits them. This opens the door for further development under the city's provisions for reasonable use exemptions.

"That is precisely the type of speculative, hypothetical and conjectural proposition that falls well beyond the rule of reason,GÇ¥ Lell said.

But the board found Blair and the DOE compelling, agreeing that, "reasonable use exemption requests are foreseeable enough for the city to have an application process, standard and evaluation process defined in its code.GÇ¥

Environmental impact

-á -á The board found that the statements regarding environmental enhancement resulting from commercial development did not provide an impartial discussion of significant environmental impacts. It pointed out that all three GC development alternatives were described as "providing enhanced habitat, whereas leaving the entire area in an undeveloped state will "limit wildlife habitat functions of the wetlands and stream.'GÇ¥

As it did in 2013, the board disagreed with PACE's assertions that development would improve ecological function.

"Taken as written, the 2015 Supplemental thus "discloses' that construction of five homes within the "developable area' will displace habitat, whereas commercial development alternatives that cover virtually the entire 11-plus "developable area' with paved parking and/or commercial structures improve habitat,GÇ¥ they wrote. "The board is convinced that a mistake has been made.GÇ¥

The SEIS demonstrated a lack of impartiality in relation to commercial development, said the board.

Landslide hazard

During every opportunity for public comment, Sellers voiced concerns over what she felt were inadequacies in the study related to landslides. A geotechnical study completed by GeoEngineers focused on hazard assessment at the toe of the slope, but not the upper area. At no point did anyone ever approach homeowners at the top of the slope for the opportunity to perform studies, Sellers said.

She also pointed out more than once, that a recent landslide was misrepresented in maps of the area included in the study.

The board agreed with Sellers, concluding the SEIS analysis of landslide risks was inadequate because it failed to provide a "reasonably thorough discussion of the significant aspects of the probable environmental consequences.GÇ¥

"The Monroe Planning Commission found that the 2015 DSEIS did not provide full disclosure of landslide hazards,GÇ¥ wrote the board. "The board agrees.GÇ¥

No east end river connection

The east Monroe property features a U-shaped slough that snakes through the landscape, which stakeholders believe is fed by the Skykomish River through culverts that travel under the highway at the east and west ends.

A controversial new finding in the SEIS was PACE's determination there was no connection to the Skykomish River at the eastern edge of the property. PACE Engineers vice president Susan Boyd presented the finding during hearings last year, alleging that according to experts at Watershed Science and Engineering, the only water entering into the slough from the east is runoff from a drainage ditch that parallels U.S. 2.

The GMHB felt this was contradictory to what was presented in 2013.

"The new information, which posits that the slough is a backwater, without through-flow from the Skykomish River, substantially contradicts, rather than supplements, much of the science in the underlying 2013 FEIS,GÇ¥ wrote the board.

According to the decision, the DOE expressed significant concerns with this finding.

"If there was no water flowing from the Skykomish River under the railway berm to the slough, one wonders why a culvert under S.R. 2 was deemed necessary at the time the highway was built over the slough,GÇ¥ wrote the board.

Conclusions and next steps

GMHB member Cheryl Pflug said she questioned whether feedback from the public during the SEPA process was taken seriously. Important feedback was dismissed as inferior to the opinions of the city's hired experts, she wrote, and during the March compliance hearing, she found Monroe's legal counsel "dismissiveGÇ¥ of information presented by the petitioners.

While the board does not recognize the petitioners as experts, she wrote, its findings and conclusions confirm the validity of many of their concerns.

"This is likely one reason lawmakers have inserted requirements for public involvement in the SEPA process. Given the significant agency effort to facilitate public involvement, failure to respectfully consider the information and perspectives so gained is puzzling,GÇ¥ wrote Pflug.

The city held several public hearings last year after the draft SEIS was completed in August. Community Development Director David Osaki held a non-mandatory public hearing on Sept. 23, the Monroe Planning Commission held a multi-week hearing in October and the Monroe City Council held its hearing in November.

Hamar is hopeful the city will move forward with more productive business.

"I hope Monroe can now focus its energies on development strategies more in sync with the times,GÇ¥ Hamar said. "Strategies that better appreciate the natural surroundings that draw people to the area in the first place.GÇ¥

The board has established a new timeline for the city to come into compliance. It will be up to the Monroe City Council to determine what happens next.

Read the full GMHB response:-á0405 GMHB Order Finding Continuing Non-Compliance.