November 5, 2015 by islandersvoice1
Portland Fair Lesson: Administer Land Use Codes Fairly by Shireene Hale, San Juan Island
A public records lawsuit is the latest fallout resulting from County Manager Mike Thomas directing staff to issue a building permit without a required wetland report.
To recap, rather than supporting staff in doing the job they were hired and trained to do, Mike instructed them to issue a building permit for a project near a wetland without the wetland report required by the County Code. This report is necessary when building projects are within 300 feet of a wetland to ensure that construction will occur outside the wetland and its protective buffer. The report must be prepared by a qualified wetlands professional, and in this instance an abbreviated reconnaissance report would have been adequate.
After a neighbor filed a complaint with the Department of Ecology, and a staff member filed a complaint alleging improper government action, Prosecuting Attorney Randall Gaylord conducted an investigation. In his March 11, 2015 memo he stated, “The instruction to issue the permit without a wetland reconnaissance report is contrary to county ordinance and policy.”
Even after the Prosecuting Attorney’s report was released, the County Council and County Manager did not accept responsibility for the problems caused by not following the required process. Instead of mending relationships with their staff and citizens, and moving on to more important business, the Council wrote their own report, riddled with errors, omissions, and misleading statements, exonerating County management from wrong doing and blaming the staff for the time wasted on this issue.
Problems with the County Council’s report include:
• The statement that five professionals reviewed the site is irrelevant because the five professionals listed were not the right kind of professional – they did not meet the requirements of County Code Section 18.20.170. The definition of a qualified wetlands professional includes requirements for: specific wetlands training; at least 5 years related work experience; delineation of at least one wetland; the ability to conduct wetland studies; and the individual must either have obtained wetland permits or worked for a professional who obtained permits from the Washington Department of Ecology or the Corps of Engineers within the last seven years.
• The statement that the County did its reconnaissance properly is not true because Mike Thomas is not qualified to do a wetland reconnaissance – that requires a qualified wetlands professional meeting the above definition (this is explained in the first few paragraphs of Section 18.35.105).
• The statement that the County Code does not specify what kind of written record of a site reconnaissance is required is not true. A wetland reconnaissance report is a type of wetland report. Section 18.35.105.H. provides the minimum requirements for wetland reports including wetland reconnaissance reports. The e-mail from Community Development Department Director Sam Gibboney did not meet these requirements.
• In quoting Section 18.10.030.A.1. (giving the Director/ Administrator of the Community Development Department the authority to resolve interpretations of the code), the Council report fails to include the second part of that paragraph which states “The administrator’s decision shall conform to the letter of this code and with the spirit and intent of the Comprehensive Plan.” Section 18.35.105.E.5. clearly states “A wetland report and boundary delineation, with an appropriate scope and scale to determine compliance with the County Code, must be provided with applications for project and development permits located within 300 feet of wetlands.” Since the proposed project was within 300 feet of a wetland, management staff did not have the authority or latitude to waive the requirement for a wetland reconnaissance report from a qualified wetlands professional.
This whole situation could have been avoided. At the time the permit was reviewed, a discussion with either the planning staff or the County land use attorney would have made it clear that the wetland report was required. Had the staff been allowed to follow the requirements of the County Code, neighbors and employees would have been treated fairly, and minimal time and money would have been spent reviewing/ approving the building permit. Instead everyone involved is unhappy; significant time and money has been wasted (including that of staff, concerned neighbors and citizens); and this incident diminished the trust citizens and employees have in their county government.
It is important that government officials follow adopted laws, regulations and policies so people are treated fairly and outcomes are predictable. If they don’t like the regulations, they can go through the public process and change them. It is also important that government officials act within the limitations of their authority and expertise, seek and respect the knowledge of their colleagues, foster good communication, work constructively as part of a team, and take responsibility for mistakes. In the future I hope to see better performance from our County Council and County Manager.