Mr. Fred S. Chapman Jr.
Public Works Director, Shoreline Administrator
Planning Commission
City of Westport
P. O. Box 505
506 N. Montesano
Westport, WA 98595
Via Telefax (360) 268-0921
Re:Comments of South Beach Citizens for Responsible Development
on SEPA DNS, Shoreline Substantial Development and Preliminary Plat for Cohasset Park.
Dear Mr. Chapman and Planning Commission:
This letter constitutes the official comments of South Beach Citizens for Responsible Development ("South Beach Citizens") on the above referenced decisions on the preliminary plat for the Cohasset Park subdivision. As you may be aware, South Beach Citizens for Responsible Development is an organization of residents of Westport and Grays Harbor County who have come together to ensure that the future of this important environmental area is not compromised by ill considered development proposals such as the Cohasset Park subdivision.
These comments contain legal arguments of South Beach Citizens, but generally do not contain the factual information upon which these legal arguments are based. That factual information is already contained in the record or will be presented by members of South Beach Citizens and others in writing today or through testimony and exhibits submitted at the hearing on Tuesday, August 18th. Such factual information and comments are hereby incorporated by reference.
As a preliminary matter, in these comments we raise questions about the legality of the public notice given by the City on this application. The inadequate notice has negatively impacted my client's ability to review all of the information and submit full comments. In light of the potential notice failures, we request that notice be reissued and that the public comment period be restarted. At the very least, we would request that the public comment period be extended at the close of the hearing for 10 days to allow submission of additional evidence. This action is in the best interest of the City and the Developer, who presumably would like to avoid a potentially fatal notice problem. It would also benefit the public, including my client, who have not had a sufficient opportunity to prepare their comments due to the notice problems.
I would also note that my clients went in to the City's office today to review the file and were told that the file was not available. Preventing access to the file during the last days of the comment period is a significant barrier to public participation and is another reason why we would ask you to extend the comment period.
I.INADEQUATE PUBLIC NOTICE
It has been impossible for the public to understand the project and to comment upon the current application because the public notice issued on the project are illegal and inadequate. For example, the notice omitted critical information or contained inaccurate information, including but not limited to the following: The public notice contained a map which incorrectly showed the scope and location of the project as ending one and a half blocks south of Newell St., the actual boundary of the project. Members of South Beach Citizens and others were mislead by the incorrect notice. As a result, such persons never had the opportunity to submit comments, while others learned of the correct location of the project so late that they were unable to complete full comments. The incorrect information understated the impact of the project thereby misleading the public.
In addition, the notice was confusing and misleading as to what approvals were being considered by the City and when. A citizen reading the notice would have had little guidance for the preparation of comments, and would likely be unable to even identify when comments were required or what decisions were to be made at the hearing. For example, the notice showed the project as occurring in both County and City jurisdiction, but nowhere did the notice state that the Grays Harbor County codes would apply to this project. Also, the notice does not specify that this is an appeal hearing on the DNS while an original hearing on the other two decisions, if this is the case.
Additionally, the public notice states that the DNS cannot be appealed until after the Planning Commission has taken final action on the project, presumably through approving the preliminary plat and issuing the shorelines permit. In referring to such a SEPA appeal, the notice states specifically that "You should be prepared to make specific factual objections." Public Notice, South Beach Bulletin, July 10, 1998. South Beach Citizens assumes, based upon this notice, that it will have the opportunity to make such "specific factual objections" in conjunction with its SEPA appeal, and any lack of such an opportunity would make this notice fatally misleading.
There were also several different public notices which were distributed, creating additional confusion. Some citizens received one or the other notice, and others received both.
II.SEPA.
Based upon our analysis of the proposal, it is clear that the Cohasset Park subdivision, if built, would have a significant environmental impact on the environment, as that term is defined under the State Environmental Policies Act, RCW Chapter 43.21C ("SEPA").
The information contained in the environmental checklist was inadequate as a basis for the Determination of Non Significance ("DNS") issued on the subdivision. This inadequacy includes the lack of sufficient information and the inclusion of false or misleading information, including on the following elements of the environment:
The lack of a surface water study as part of the environmental checklist ignores a fundamental environmental impact of the project. Without such a study, adequate analysis was impossible.
Construction erosion is incorrectly denied. Of course there will be erosion caused by construction. The difficulties of moving fill, in terms of erosion and environmental impact, are not discussed. Insufficient information on methods to prevent these problems is provided. Generally, construction impacts were not adequately addressed, including noise, construction traffic, etc.
The City and checklist do not acknowledge the long-term erosion problem facing the coast at this time. The approval of new homes on or near the primary dune ignores the erosion hazard for these properties and invites further destruction of private property in the future. The protection of property in the future through hard erosion control measures is contrary to the Shorelines Management Act, the applicable master programs, and GHEMP. South Beach Citizens hereby incorporates into these comments the information submitted by Surfrider Foundation on the Corps of Engineers Half Moon Bay project. This and other information on the erosion hazard is in the possession of the City and is hereby incorporated into the record. In particular, the following documents should be reviewed: Oregon Coastal Natural Hazards Policy Working Group, Improving Natural Hazards Management on the Oregon Coast; Department of Ecology, Shoreline Armoring Effects on Coastal Ecology and Biological Resources in Puget Sound, Coastal Erosion Management Studies Volume 7; Department of Ecology, Shoreline Armoring Effects on Physical Coastal Processes in Puget Sound, Washington, Coastal Erosion Management Studies, Volume 5; Department of Ecology, Annotated Bibliographies on Shoreline Hardening Effects, Vegetative Erosion Control, and Beach Nourishment, Coastal Erosion Management Studies, Volume 2 ("Annotated Bibliographies").
The proponents propose to mitigate for loss of wetland through wetland enhancement. This does not constitute wetland mitigation, and is legally insufficient under federal, state and local law. The proponents do not disclose whether a Section 404 permit will be required, although it appears that such a permit should be required on this project. If a 404 permit is required, consistency under the Coastal Zone Management Act must also be certified. The checklist does not discuss whether a flood control permit will be obtained or what measures are being taken to protect the proposed properties from flood damage, especially given the erosion problem facing this coastline and the increasingly severe storms experienced by the region in the past years.
The checklist does not adequately consider the impact of the water pollutants, although it acknowledges that these impacts will occur. The project also may have detrimental effect on water quality in the estuary. Already, Grays Harbor is an impaired water body with significant water quality problems, which has lead to its 303(d) classification. The current impairment already has a significant negative impact on the shellfish and marine fisheries industries, and any additional impairment further threatens these industries.1 Loss of flood capacity through this project will likely increase the water which must be placed in the Elk River Estuary, which has significant environmental harm which has not been considered.
The checklist does not explore the significance in the likely drop in the aquifer caused by the multiple developments proposed for this area, and in fact it underestimates the potential impact.
The project denies any impact to septic tanks, but in fact the increased flooding caused by this project will negatively impact septic tanks outside of the city limits that are already prone to flooding. This impact constitutes a public health and safety issue which much be addressed and mitigated, and which constitutes a significant environmental impact.
No statements are made regarding the tsunami risk or the risk of soil erosion. Given the erosion problems on this coastline, the checklist is fatal in not identifying the rate of accretion and erosion in this area. For example, when did this area of land accrete? What does the Southwest Washington Coastal Erosion Study suggest regarding the erosion hazard in this area?
Thus, the City has failed to sufficiently consider the above mentioned elements of the environment to comply with its obligations under SEPA. In addition, the City has failed to consider alternatives to the proposal, as required at the threshold determination level pursuant to SEPA. In total, the impacts to the environment are significant and require denial of the project or completion of an Environmental Impact Statement.
III.INADEQUATE APPLICATION.
The defects in the application are, to a large extent, already stated above as they are also defects in the SEPA process. For example, the application did not contain an adequate study of alternatives. The application failed to adequately consider the project's potentially significant harm to fish and water quality, drainage, public utilities, septic systems, aquifer recharge, and wildlife habitat. The application failed to sufficiently identify the construction impacts and source and quality of fill. The application failed to discuss or consider indirect and cumulative impacts of the proposal, including but not limited to the impact of utility services to areas where utilities are currently unavailable, and the cumulative impacts caused by the numerous platted but as yet unbuilt subdivisions on issues such as drainage. Thus, the application lacks sufficient specificity.
The inadequacy of the application also makes public comment impossible and makes it impossible to thoroughly analyze the proposal under the guidelines of the SMA, applicable master programs, GHEMP, SEPA and the subdivision ordinances.
IV.THE SHORELINE PERMIT SHOULD BE DENIED
South Beach Citizens requests that the instant application be denied also because it is inconsistent with the State Shorelines Management Act ("SMA"), the Grays Harbor Shorelines Management Master Plan, and the Westport Master Program. The comments and concerns South Beach Citizens have relating to this proposal's compliance with the SMA and Master Plans primarily relate to issues addressed above, and upon which factual testimony and exhibits will be placed in the record. They include but are not limited to the inappropriateness of this non-water dependent use in the shorelines, the failure to properly study or mitigate environmental impacts, the cumulative and indirect effects of the proposal in stimulating development, the incompatibility of this project with the goals, guidelines, and regulations of the SMA and Master Plans.
The project area has been designated as a Shoreline of Statewide Significance under the SMA. See City of Westport Shorelines Master Program, at 27 (1983). As such, the following policies apply:
RCW 90.58.030(2)(d); Westport's 1983 SMP, at 26-27.
The proposed project is clearly inconsistent with these policies. For example, but not by way of limitation, impacts to the shoreline are for private property interests whereas the entire state has an interest in the public shoreline. To the extent that future erosion will create the demand for hard erosion control structures, which threaten to destroy the public portion of the beach, the project is further contrary to the SMA and master programs.
The proposal is also inconsistent with the City of Westport Shoreline Master Program ("SMP"). The SMP as amended (although as of the date of this writing not yet accepted by Ecology) contained the following provisions which are inconsistent with the project:
The project is also inconsistent with the previous 1983 SMP, hereby incorporated by reference, including but not limited to the previous codification of the type of regulations discussed above, and the following:
Westport Municipal Code 17.32.060(5) incorporates into the SMP the provisions of the Ocean Resources Management Act ("ORMA"). ORMA is also directly applicable per RCW chapter 43.143 to the permits for the project. The project is incompatible with the requirements of ORMA and the local regulations under ORMA. For example, but not by way of limitation, the project is inconsistent with the requirement that the project cause no "likely long-term significant adverse impacts to coastal or marine resources or uses." The impacts to the dune structure alone constitutes such a loss. Moreover, the mitigation and sequencing requirements of ORMA are not satisfied. Similarly, the project does not comply with the critical areas regulations adopted by the City of Westport as part of the SMP. See WMC 17.32.065.
In addition, the project is inconsistent with the Grays Harbor Estuary Management Plan ("GHEMP"), which has been adopted by the City as part of its SMP. GHEMP is hereby incorporated by reference. For example, GHEMP's mitigation sequencing requirements have not been complied with. See GHEMP, at 27. There has been no attempt to avoid or minimize the impacts of this project as required.
In summary, it is our belief that this project is clearly inconsistent with the SMA the applicable master programs, and GHEMP.
V.PRELIMINARY PLAT INADEQUATE
For many of the reasons stated above, this preliminary plat for this subdivision cannot be approved because the project does not comply with RCW 58.17.110. In particular, but not by way of limitation, inadequate provisions have been made in the following areas:
The plat is therefore also inconsistent with the local subdivision ordinance, WMC 14.06.120, which contains similar review criteria.
In addition, the plat does not comply with other applicable zoning ordinances or other land use controls which may exist. RCW 58.17.195. These include the City's comprehensive plan, the GHEMP, the critical areas ordinance, and other applicable regulations. The City cannot certify consistency with development regulations pursuant to state law.
With reference to the Comprehensive Plan, the proposal is inconsistent with the goals, objective and policies for the following:
In addition, the plat does not comply with the Ocean Beach Residential district regulations in the Westport Municipal Code. See WMC Chapter 17.18. It is also inconsistent with WMC 17.32, containing the new shoreline overlay. The wetlands aspects of the project are also inconsistent with WMC 17.32.065, relating to wetland buffers, wetland protection and mitigation. In particular, wetlands are not allowed to be filled in this instance pursuant to that provision.
South Beach Citizens requests that the instant DNS be withdrawn and that an EIS be required. Alternatively, this project should be denied pursuant to the City's substantive authority under SEPA because the substantial environmental impacts of the proposal cannot be adequately mitigated. In any event, the City should not issue the shorelines permit or approve the preliminary plat.
If you have any questions about this letter, please contact me. Please inform me when a decision is made on the preliminary plat and shoreline permit application. Again, please keep the record open for at least 10 days after the close of the hearing so that we can submit additional information that will be helpful to the City in making its decisions.
Very truly yours,
Smith & Lowney, p.l.l.c.
By: __________________________
Knoll D. Lowney
Attorneys for South Beach Citizens for Responsible Development
cc:Clients
Surfrider Foundation
FOGH
Chehalis River Council
South Beach Bulletin
Aberdeen Daily World