The Burlington Hill Truth 2013

                            THE CITY OF BURLINGTON PLANNING DIRECTOR  


In the late 1970’s Margaret Fleek’s title was Director of Land Use Division and Department of Construction for King County. During this time period, King County had a population of over 1,000,000 people. When Ms. Fleek left to become the City of Burlington’s Planning Director in 1991, she knew that the population was just under 5,000.

Ms. Fleek knew that her duties and responsibilities as a planner in governing a small city, was going to be limited in resources, and was going to be a greater challenge than the large county she just left, especially with regards to the man hours it takes in the planning process of a proposed development request.

Elected officials in small towns know nearly everyone in town. At city hall, staff and citizens don’t have to deal with a big bureaucracy – but they do have to get along with people with whom they may have longstanding, complex relationships that involve cousins, competitors, or friends. As time passes relationships are formed and favors are requested. Indeed, it’s the personal, close-knit nature of small communities that make them the historical and cultural bedrock of American life. These are the qualities that big city people often yearn for. But governing a small town isn’t easy. In fact, the challenges of self-government are sometimes greater in small communities because they must deal with the ever-more-complex laws and regulations of the 21st century without the specialized staff (such as Hearing Examiners) of larger cities. In small cities, the clerk might be part-time, the mayor could be the chief grant writer, and the public works director, a “one-man show” (if there even is a public works director). Citizens often expect services to be quick and tailored to their personal needs, and they may blame local officials when the complex requirements of state or federal law get in the way of their wishes.

Hazard all comes with what one does…


The Growth Management Act  

In 1990 the Washington State Legislature declared that “uncoordinated and unplanned growth, together with a lack of common goals…pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state” and that “it is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning.” This is the foundation for the Growth Management Act (GMA).

The GMA specifies that all cities (and counties) in Washington must, at a minimum:

                            1. Designate and protect five types of critical areas, such as wetlands and frequently flooded areas;
                            2. That counties must designate farm lands, forest lands, and other natural resource areas; and
                            3. That both cities and counties must ensure that new residential subdivisions have appropriate provisions for                                                              public services and facilities, and obtain proof of potable water prior to issuance of a building permit. 

The combination of comprehensive planning, growth management and environmental protection are areas that can require not just one expert, but many. The level of complexity – and continuing changes in the law – can be a leading cause of disconnect at city hall.

Nonetheless, the underlying ideas are simple: A city needs to plan for growth if they intend to protect the environment and leave healthy communities for their children, and grandchildren. And the planning process can be a powerful way to clarify community values, needs and goals. A comprehensive plan expresses a community’s vision, and is the blueprint for all subsequent 
land use activity.

Developing, implementing and updating a comprehensive plan are great opportunities to:

                                        • Create a vision – know what the community should look and be like in the future;
                                        • Have a roadmap – guide growth and development toward the vision; and
                                        • Achieve goals – attain the community’s vision and desired future.

The goals of a comprehensive plan are implemented through regulatory ordinances. These are collectively known as “official controls,” which include zoning codes, subdivision codes, building and health codes, environmental codes, and others that make up the planning and regulatory framework of the community.

Local codes can include incentives that stimulate the kind of growth desired, including such options as local property tax incentives or density bonuses for projects that carry out habitat restoration or provide affordable housing, such as the multi-family housing tax exemption, conservation district property tax exemptions, or density bonuses.

There is assistance from state agencies and other experts to help a city and its citizens understand what needs to be done. 

Comprehensive planning requirements

While Washington cities and counties have prepared comprehensive plans for many years, the GMA establishes the comprehensive plan as the starting point for any planning process, and the centerpiece of local planning.

Who must plan? In addition to the three minimum requirements twenty-nine counties and the cities therein, comprising about 95% of the state's population, are required (or have chosen to) create plans that conform to the GMA. The GMA specifies the elements and goals of a comprehensive plan and additional criteria for the jurisdictions covered by the law. This includes approximately 112 cities with 5,000 or fewer in population.

The remaining ten counties (and the cities within them) are required to plan only for critical areas and natural resource lands. This includes approximately 57 cities with 5,000 or fewer in population.

GMA goals

The GMA requires that growth plans and regulations in the 29 counties and the cities within them be guided by the following 14 goals (summarized):

                                                      • Sprawl reduction                                   • Concentrated urban growth
                                                      • Affordable housing                               • Economic development
                                                      • Open space and recreation                    • Regional transportation
                                                      • Environmental protection                     • Property rights
                                                      • Natural resource industries                   • Historic lands and buildings
                                                      • Permit processing                                 • Public facilities and services
                                                      • Shoreline management                         • Early and continuous public participation

Comprehensive plan elements

The GMA provides a framework for regional coordination. Counties that plan in conformance with the GMA are required to adopt county-wide planning policies to coordinate with their cities as they create and adopt their comprehensive plans. Counties are also required to establish urban growth areas (UGAs), which delineate those areas which will eventually be annexed into cities.

Local – both city and county – comprehensive plans must include the following elements: land use, housing, capital facilities, utilities, and transportation. Counties must also include a plan to protect rural areas. Shoreline protection policies are also an element of local comprehensive plans. Although parks and recreation and economic development elements are not required until adequate state funding is provided, some jurisdictions have chosen to include them in their comprehensive plans.

Key requirements of comprehensive planning

While there are many requirements for cities in developing their comprehensive plans, cities should always keep in mind the following priorities:

                            • Comprehensive plans will be measured against the goals and requirements of the GMA.
                            • Comprehensive plans must comply with county-wide planning policies.
                            • Development regulations must be consistent with comprehensive plans.
                            • Individual elements of comprehensive plans need to be consistent with each other.
                            • Comprehensive plans must be consistent with the comprehensive plans of adjacent jurisdictions.
                            • Developments (both private and public) must be measured for consistency with the comprehensive plan.

Comprehensive plan updates

The GMA requires that each fully planning city and county in Washington periodically review and, if necessary, revise its comprehensive plan and development regulations to ensure that they comply with the GMA. In addition to comprehensive plan amendments that are adopted annually by many jurisdictions, communities must conduct a review of the comprehensive plan and development regulations every seven years. All counties and cities, including those not fully planning under the GMA, are required to review and, if necessary, amend their policies and development regulations regarding critical areas and natural resource lands.

Under the GMA, a schedule is set for updates to comprehensive plans and development regulations.

Critical areas

In 1995 the GMA was amended to require counties and cities to include the “best available science” in developing policies and development regulations to protect critical areas. All counties and cities in the state are required to review, evaluate, and, if necessary, revise their critical areas ordinances according to a schedule established by the Legislature and approved by the Governor. The update timelines for critical areas are tied to Comprehensive Plan update schedules and can be found in the Comprehensive Plan.

Department of Commerce developed a technical assistance tool to help small communities implement their Critical Areas Ordinances (CAO), called the Small Communities Critical Areas Ordinance Implementation Guidebook. This document recommends simple procedures and includes references to sources of information, descriptions of permitting processes, examples of common permitting scenarios, and some useful checklists and public information brochures that can be customized for use in small communities.

Development regulations and regulatory reform

Local plans and development regulations must also conform to such environmental laws as the State Environmental Policy Act (SEPA) and the Shoreline Management Act (SMA). 

The Regulatory Reform Act was passed in 1995 to improve how project permits are processed and issued in Washington. This law is an attempt to simplify and integrate various state land use and environmental regulations. All of the legislation’s requirements apply to cities and counties planning fully under the GMA, while only some apply to non-fully planning cities and counties. The most important provisions require coordination and consolidation of the local permit process with SEPA, and streamlining the local permit process. Cities and counties fully planning under the GMA must have an integrated and consolidated project permit process that includes certain time limits for permit processing. 

State Environmental Policy Act (SEPA)

The State Environmental Policy Act (SEPA), enacted in 1971 requires that a city identify possible environmental impacts that may result from governmental decisions such as issuing permits for private projects, constructing public facilities, or adopting regulations, policies or plans.
Information provided during the SEPA review process helps agency decision makers, applicants, and the public understand how a proposal will affect the environment. This information can be used to change a proposal to reduce likely impacts, or to condition or deny a proposal when adverse environmental impacts are identified.

SEPA applies to decisions by every state and local government agency within Washington. One agency is usually identified as the "lead agency" for a specific proposal. The lead agency for most private projects will be the city or county where the project is located. For public projects, the lead agency will be the agency proposing the project.

A SEPA environmental review is usually initiated when:

                            • An application is submitted to an agency for a license to construct a private project, such as an office building, a                                                     grocery store, or an apartment building;
                            • An agency is considering construction of a public project, such as a new school, a highway, or a water pipeline; or
                            • An agency is developing a regulation, policy, or plan, such as a county or city comprehensive plan, a critical area                                                  ordinance, or a state water quality regulation.

When Ms. Fleek was employed with King County during the 1970’s, she had the opportunity many times throughout her to career to apply the WAC and RCW Rules and Regulations when being presented with an annexation or a preliminary plat application request. 

In 1990, Ms. Fleek learned about The Growth Management Act that Washington State Legislature declared that “uncoordinated and unplanned growth, together with a lack of common goals…pose a threat to the environment, sustainable economic development, and the health, safety, and high quality of life enjoyed by residents of this state” and that “it is in the public interest that citizens, communities, local governments, and the private sector cooperate and coordinate with one another in comprehensive land use planning.” 

The legislative intent of the GMA policies were mandated laws under the WAC and RCW rules requiring counties and cities to adopt protection policies for the people in their communities. In 1995, the GMA went even step further and amended this requirement to mandate that counties and cities include the “best available science” in developing policies and development regulations when it came to “Critical Areas,” “Hazardous Site Locations.” Planning directors throughout the state were required to investigate and identify all critical and hazardous sites within their communities prior to any annexation or a preliminary plat application request. 

These Legislative statutes required that counties and cities thoroughly investigate and then designate these site locations before all annexation and preliminary plat application are approved. This process has always been a mandatory EIS or SEPA review. And after the review has been completed, and it has been determined that the application request cannot provide a level of protection to people who would be living in the subdivision later, well after the approval and improvements might occur, then the legislative intent expressly restricts a subdivision from coming to fruition. In other word, if the health, safety or general welfare of persons or property in or near a proposed subdivision, that cannot provide a level of protection to people, shall be restricted from being subdivided.

Subsurface Mining Hazards involving a 1999 Residential Development Request  

The risks associated with subsurface mining operations are often not obvious. Without knowledge of the subsurface mining materials being disturb, property owners may never realize that the mining activity disturbance associated with mining activities can result in conditions that present a risk to the health of the people associated with the proposed development.

After spending over 6 years starting in the early 1990's, Ms. Fleek had worked with a land developer on various locations throughout the 192 acre Burlington Hill site, starting with the Burlington Hill Industrial Park phase’s #1 and #2. Ms. Fleek knew that the blasting of the subsurface rock was a conditional prerequisite in order to accomplish the goals set out by the city’s own approval process. This activity throughout the development was a form of subsurface mining which involved the removal of thousands or even millions of tons of rock. The process of removal included surface excavation and/or subsurface excavation. Years later this activity would prove to be vexatious, resulting in areas adjacent to the subsurface activities erosion problems, landsliding, and mass wasting resulting from this subsurface mining activity, which eventually became the cause of the catastrophic road failures of the (2) main entrances leading into the development. 

Geologic Earth Resource Maps that were created over the last 80 years, were available at all times during Ms. Fleek tenure as the director of planning for the City of Burlington; locations as follows:  

                                                                            1) Washington Department of Natural Resources, 
                                                                            2) Washington Division of Geology and Earth Resources,
                                                                            3) U.S. Department of Interior, U.S.G.S., 
                                                                            4) U.S. Bureau of Mines

Regardless of these facts as stated above, personal relationships and favors, that don’t comply with the Growth Management Act, and with state and federal regulations and legislative statutes, is in complete violation of the law, and in violation of the duty and responsibility of an acting director of planning. 

Therefore, if Ms. Fleek simply applied the basic, relatively simple procedures, in approving or passing on a proposed application request, called out in the information below, it would have clearly prevented the Burlington Hill development from ever coming to fruition.

The following information simple explains the basic fundamental procedures to approving or passing on a proposed application request, as follows: